<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 15, 1998
REGISTRATION NO. 333-50729
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_____________________
HOST MARRIOTT CORPORATION
(Exact name of registrant as specified in its charter)
_____________________
<TABLE>
<S> <C> <C>
DELAWARE 7011 53-00895950
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
-----------------------------
</TABLE>
For Co-Registrants, please see "Table of Co-Registrants" on the following page)
<TABLE>
<S> <C>
Christopher G. Townsend, Esq.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
10400 FERNWOOD ROAD 10400 FERNWOOD ROAD
BETHESDA, MARYLAND 20817-1109 BETHESDA, MARYLAND 20817-1109
301-380-9000 301-380-9000
(Address, including zip code, and telephone number, (Name, address, including zip code, and telephone number,
including area code, of registrant's principal executive offices) including area code, of agent for service)
</TABLE>
_____________________
Copies to:
J. WARREN GORRELL, JR., ESQ. BRUCE E. ROSENBLUM, ESQ.
BRUCE W. GILCHRIST, ESQ. LATHAM & WATKINS
HOGAN & HARTSON L.L.P. 1001 PENNSYLVANIA AVENUE, N.W., SUITE 1300
555 THIRTEENTH STREET, N.W. WASHINGTON, D.C. 20004
WASHINGTON, D.C. 20004-1109 (202) 637-2200
(202) 637-5600
--------------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement; as determined by
the Registrant.
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]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING
SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE(1)(2)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock of Host Marriott Corporation (the
"Company")..
- -----------------------------------------------------------------------------------------------------------------------------
Debt Securities of the Company
or a Co-Registrant (3)(4)..........................
- -----------------------------------------------------------------------------------------------------------------------------
Guarantees of the Company or Co-Registrants of Debt
Securities (5).....................................
- -----------------------------------------------------------------------------------------------------------------------------
Preferred Stock of the Company........................
- -----------------------------------------------------------------------------------------------------------------------------
Warrants of the Company...............................
- -----------------------------------------------------------------------------------------------------------------------------
Subscription Rights (6)...............................
- -----------------------------------------------------------------------------------------------------------------------------
Depositary Shares.....................................
- -----------------------------------------------------------------------------------------------------------------------------
Preferred Stock Purchase Rights(7)....................
=============================================================================================================================
Total............................................... $2,500,000,000.00 (7) 100% $2,500,000,000.
==============================================================================================================================
<CAPTION>
====================================================================================
TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED REGISTRATION FEE
- ------------------------------------------------------------------------------------
<S> <C>
Common Stock of Host Marriott Corporation (the
"Company").........................................
- ------------------------------------------------------------------------------------
Debt Securities of the Company or a Co-Registrant
(3)(4).............................................
- ------------------------------------------------------------------------------------
Guarantees of the Company or Co-Registrants of Debt
Securities (5).....................................
- ------------------------------------------------------------------------------------
Preferred Stock of the Company........................
- ------------------------------------------------------------------------------------
Warrants of the Company...............................
- ------------------------------------------------------------------------------------
Subscription Rights (6)...............................
- ------------------------------------------------------------------------------------
Depositary Shares.....................................
- ------------------------------------------------------------------------------------
Preferred Stock Purchase Rights(7)....................
====================================================================================
Total............................................... $737,500 (8)(9)
====================================================================================
</TABLE>
(1) The proposed maximum offering price per unit will be determined from time
to time by the Registrants in connection with the issuance by the
Registrants of the securities registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee, which
is calculated in accordance with Rule 457(o) under the Securities Act.
(3) Debt Securities may be issued by the Company or by any Co-Registrant. The
Company's payment obligations under any series of Debt Securities may be
guaranteed by certain of the Co-Registrants and the payment obligations of
any Co-Registrant issuing any series of Debt Securities will be guaranteed
by the Company and may be guaranteed by one or more of the Co-Registrants.
(4) If any Debt Securities are issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall result in
an aggregate initial offering price not to exceed $2,500,000,000.00.
(5) No separate consideration will be received from purchasers of Debt
Securities with respect to these guarantees and, therefore, no registration
fee is attributable to the guarantees of the Debt Securities.
(6) Rights evidencing the right to purchase Debt Securities, Common Stock,
Preferred Stock, Depositary Shares or Warrants.
(7) The Preferred Stock Purchase Rights are initially carried and traded with
the Common Stock. The value of the Preferred Stock Purchase Rights, if
any, is reflected in the value of the Common Stock.
(8) In no event will the aggregate offering price of all securities issued from
time to time pursuant to this Registration Statement exceed
$2,500,000,000.00 or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies. The aggregate
amount of Common Stock registered hereunder is further limited to that
which is permissible under Rule 415(a)(4) under the Securities Act. The
securities registered hereunder may be sold separately or as units with
other securities registered hereby.
(9) The filing fee was paid on April 22, 1998.
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
TABLE OF CO-REGISTRANTS
<TABLE>
<CAPTION>
PRIMARY STANDARD
STATE OR OTHER INDUSTRIAL IRS EMPLOYER
JURISDICTION CLASSIFICATION IDENTIFICATION
NAME OF FORMATION CODE NUMBER NUMBER
---- ---------------- ----------- ------
<S> <C> <C> <C>
Farrell's Ice Cream Parlour Restaurants, Inc. California 7011 94-2773466
HMC AP Canada, Inc. Province of Ontario 7011 N/A
HMC Airport, Inc. Delaware 7011 52-1946920
HMC BN Corporation Delaware 7011 52-1982075
HMC Boyton Beach, Inc Delaware 7011 52-1925004
HMC Capital Resources Corporation Delaware 7011 52-2007462
HMC Capital Resources Holdings Corporation Delaware 7011 52-2042926
HMC Charlotte (Calgary), Inc. Province of Alberta 7011 N/A
HMC East Side Financial Corporation Delaware 7011 52-1899299
HMC East Side, Inc. Delaware 7011 52-1891584
HMC Gateway, Inc. Delaware 7011 52-1951837
HMC Hartford, Inc. Delaware 7011 52-2023802
HMC Hotel Development Corporation Delaware 7011 52-2062680
HMC Manhattan Beach, Inc. Delaware 7011 52-2033801
HMC Mexpark, Inc. Delaware 7011 52-1946918
HMC Partnership Holdings, Inc. Delaware 7011 52-2055796
HMC Polanco, Inc. Delaware 7011 52-1946921
HMC Retirement Properties, Inc. Delaware 7011 52-1536288
HMC SFO, Inc. Delaware 7011 52-1888778
HMC Toronto Air, Inc. Province of Ontario 7011 N/A
HMC Ventures, Inc. Delaware 7011 52-1846642
HMC Waterford, Inc. Delaware 7011 52-2007398
HMH General Partner Holdings, Inc. Delaware 7011 52-2050852
HMH HPT Courtyard, Inc. Delaware 7011 52-1915184
HMH HPT Residence Inn, Inc. Delaware 7011 52-1962668
HMH Marina, Inc. Delaware 7011 52-1943709
HMH Norfolk, Inc. Delaware 7011 52-2039043
HMH Pentagon Corporation Delaware 7011 52-1859615
HMH Properties, Inc. Delaware 7011 52-1822042
HMH Realty Company, Inc. Delaware 7011 52-1928293
HMH Restaurants, Inc. Delaware 7011 52-1930119
HMH Rivers, Inc. Delaware 7011 52-1928290
Host Airport Hotels, Inc. Delaware 7011 95-2744596
Host LaJolla, Inc. Delaware 7011 52-1518562
Host Marriott Hospitality, Inc. Delaware 7011 52-1822038
Host Marriott, L.P. Delaware 7011 52-2095412
Host of Boston, Ltd. Mass 7011 59-0164700
Host of Houston, Ltd. Texas 7011 52-1874034
Host of Houston 1979 Delaware 7011 95-3552476
Hot Shoppes, Inc. Delaware 7011 52-0811874
MHP Acquisition Corporation Delaware 7011 52-2002854
MHP II Acquisition Corporation Delaware 7011 52-1971552
Marriott Family Restaurants, Inc. of Illinois Illinois 7011 04-2539796
Marriott Family Restaurants, Inc. of Vermont Vermont 7011 04-2377578
Marriott Family Restaurants, Inc. of Wisconsin Wisconson 7011 04-2324735
Marriott Financial Services, Inc. Delaware 7011 52-1320896
Marriott MDAH One Corporation Delaware 7011 52-1647378
Marriott Marquis Corporation Delaware 7011 52-1445309
Marriott PLP Corporation Delaware 7011 52-1320898
Marriott Park Ridge Corporation Delaware 7011 52-1507987
Marriott Properties, Inc. Delaware 7011 52-0903698
Marriott SBM One Corporation Delaware 7011 52-1694383
Marriott SBM Two Corporation Delaware 7011 52-1694383
Marriott's Bickford Family Fare, Inc. Delaware 7011 52-2277061
PM Financial Corporation Delaware 7011 52-2007399
Philadelphia Airport Hotel Corporation Pennsylvania 7011 52-1619138
PRM Corporation Delaware 7011 52-2087492
Saga Property Leasing Corporation California 7011 94-2940820
Saga Restaurants, Inc. Delaware 7011 52-1498549
Sparky's Virgin Island, Inc. Delaware 7011 95-6399178
Tecon Hotel Corporation Nevada 7011 75-1621907
Willmar Distributors, Inc. Delaware 7011 52-0892531
YBG Associates LLC Delaware 7011 52-2059377
</TABLE>
2
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 15, 1998
PROSPECTUS
$2,500,000,000
HOST MARRIOTT CORPORATION
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES,
COMMON STOCK, WARRANTS AND SUBSCRIPTION RIGHTS
_____________________
Host Marriott Corporation, a Delaware corporation (the "Company" or
"Host Marriott"), directly or through agents, dealers, or underwriters
designated from time to time, may offer, issue and sell: (i) debt securities
consisting of debentures, notes or other evidences of indebtedness (the "Debt
Securities"); (ii) shares of common stock of the Company, par value $1.00 per
share (the "Common Stock"); (iii) shares of preferred stock of the Company,
without par value (the "Preferred Stock"); (iv) shares of its Preferred Stock
represented by depositary shares (the "Depositary Shares"); (v) warrants to
purchase Debt Securities, Common Stock, Preferred Stock or Depositary Shares
(the "Warrants"); and (vi) subscription rights evidencing the right to purchase
Debt Securities, Common Stock, Preferred Stock, Depositary Shares or Warrants
(the "Subscription Rights"), with an aggregate public offering price of up to
$2,500,000,000 (or the equivalent if the securities are denominated in foreign
currency or foreign currency units). In addition, Debt Securities may be issued,
directly or through agents, dealers or underwriters designated from time to
time, by one or more of the Company's direct or indirect wholly owned
subsidiaries which are co-registrants on the Registration Statement under the
Securities Act of 1933, as amended (the "Act") of which this Prospectus is a
part (each such subsidiary a "Co-Registrant", and together, the "Co-
Registrants"). The Debt Securities may be issued as exchangeable and/or
convertible Debt Securities, exchangeable for or convertible into shares of
Common Stock, Preferred Stock or Depositary Shares. The Preferred Stock may be
issued as exchangeable and/or convertible Preferred Stock, exchangeable for or
convertible into Debt Securities or shares of Common Stock. The Company's
payment obligations under any series of Debt Securities may be guaranteed by
certain of the Co-Registrants and the payment obligation of any Co-Registrant
issuing any series of Debt Securities will be guaranteed by the Company and may
be guaranteed by one or more of the Co-Registrants (each entity providing such a
guarantee, a "Guarantor" and collectively, the "Guarantors"). The Debt
Securities, the Common Stock, the Preferred Stock, the Depositary Shares, the
Warrants and the Subscription Rights (collectively, the "Offered Securities")
may be offered, separately or together, in one or more separate classes or
series and in amounts, at prices and on terms to be determined at the time of
offering and to be set forth in one or more supplements to this Prospectus
(each, a "Prospectus Supplement"). Additionally, the Company may issue
Subscription Rights to its stockholders.
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Debt
Securities, and any guarantees thereof, the specific designation, aggregate
principal amount, designated currency (or currency unit), purchase price,
maturity, interest rate (or manner of calculation thereof), time of payment of
interest (if any), terms of the subordination (if any), redemption or conversion
thereof, and any other specific terms of the Debt Securities; (ii) in the case
of Common Stock, the number of shares, purchase price and terms of the offering
and sale thereof; (iii) in the case of Preferred Stock, the specific
designation, number of shares, liquidation preference, purchase price, dividend,
voting, redemption, exchange and conversion provisions and any other specific
terms of the Preferred Stock; (iv) in the case of Depositary Shares, the
aggregate number of shares offered, the fractional share of Preferred Stock
represented by each such Depositary Shares and the purchase price; (v) in the
case of Warrants, the specific designations, number, duration, purchase price,
exercise price, detachability and any other terms in connection with the
offering, sale and exercise of the Warrants, as well as the terms on which, and
the securities for which, such Warrants may be exercised; and (vi) in the case
of Subscription Rights, the designations, number, exercise price and duration,
transferability, any oversubscription privilege and any other terms in
connection with the distribution of such Subscription Rights, as well as the
terms on which and the securities for which such Subscription Rights may be
exercised.
The Common Stock is traded on the New York Stock Exchange (the "NYSE")
under the symbol "HMT." Any Common Stock sold pursuant to a Prospectus
Supplement may be listed on the NYSE. On June 12, 1998, the last reported sales
price of the Common Stock on the NYSE was $17 3/8 per share. Neither the
Company nor any Co-Registrant has determined whether any of the other Offered
Securities will be listed on the NYSE. If the Company or any Co-Registrant
decides to seek listing of any such Offered Securities, the Prospectus
Supplement relating thereto will disclose such exchange or market. The
applicable Prospectus Supplement will also contain information, where
applicable, about certain material United States federal income tax
considerations relating to the Offered Securities covered by such Prospectus
Supplement.
_____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_____________________
The Offered Securities may be offered directly to the Company's
stockholders (in the case of Subscription Rights) or to purchasers, directly or
through agents, underwriters or dealers, as designated from time to time, or
through a combination of such methods, each as set forth in the applicable
Prospectus Supplement. The Company and the Co-Registrants reserve the sole right
to accept, and together with their agents, from time to time, to reject in whole
or in part any proposed purchase of Offered Securities to be made directly or
through agents. Certain terms of the offering and sale of the Offered
Securities, including, where applicable, the names of any underwriters, dealers,
or agents, any applicable commission, discounts and other items constituting
compensation of such underwriters, dealers or agents, and the proceeds to the
Company or to any Co-Registrant from such sale will be set forth in the
accompanying Prospectus Supplement. See "Plan of Distribution" for possible
indemnification arrangements for underwriters, dealers and agents.
No Offered Securities may be sold without delivery of the applicable
Prospectus Supplement describing the method and terms of the offering of the
Offered Securities.
THE DATE OF THIS PROSPECTUS IS JUNE , 1998.
3
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN AND THEREIN, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY OFFERED SECURITIES IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR
SUCH PERSON TO MAKE SUCH AN OFFERING OR SOLICITATION. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL
UNDER ANY CIRCUMSTANCES IMPLY THAT THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE HEREIN OR IN ANY PROSPECTUS SUPPLEMENT IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF OR OF SUCH PROSPECTUS SUPPLEMENT.
IN CONNECTION WITH THE OFFERING OF CERTAIN OFFERED SECURITIES, CERTAIN
PERSONS PARTICIPATING IN SUCH OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE MARKET PRICES OF SUCH OFFERED
SECURITIES OR OTHER SECURITIES OF THE COMPANY INCLUDING STABILIZING
TRANSACTIONS, SYNDICATE COVERING TRANSACTIONS AND THE IMPOSITION OF PENALTY
BIDS. SPECIFICALLY, SUCH PERSONS MAY OVERALLOT IN CONNECTION WITH THE OFFERING
AND MAY BID FOR AND PURCHASE THE OFFERED SECURITIES IN THE OPEN MARKET.
AVAILABLE INFORMATION
The Company and the Co-Registrants have filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Offered Securities. This Prospectus and any Prospectus
Supplement do not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information about the Company and the
Offered Securities, reference is hereby made to the Registration Statement,
including the exhibits and schedules filed as a part thereof and otherwise
incorporated therein. Statements made in this Prospectus as to the contents of
any agreement or other document referred to herein are not necessarily complete,
and in each instance, reference is made to the copy of such document so filed,
each such statement being qualified in its entirety by such reference.
The Company and certain of the Co-Registrants are subject to the
informational reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and, in accordance therewith, the Company and Host
Properties, Inc. ("Properties"), a Co-Registrant, each file periodic reports,
proxy statements and other information with the Commission. The Registration
Statement, including the exhibits thereto, as well as such reports and other
information filed by the Company or Properties with the Commission, can be
inspected, without charge, and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington
D.C., 20549 and at the Commission's regional offices located at Seven World
Trade Center, Suite 1300, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. The Commission also maintains a site on the
World Wide Web at http://www.sec.gov., which contains reports, proxy statements
and other information regarding registrants that file electronically with the
Commission and certain of the Company's filings are available at such web site.
Copies of such materials can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Reports and other information concerning the Company can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
4
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the Commission pursuant to the Exchange
Act are hereby incorporated by reference in, and shall be deemed to be a part
of, this Prospectus:
1. Host Marriott Corporation's Annual Report on Form 10-K for the
fiscal year ended January 2, 1998, filed with the Commission on March 27,
1998.
2. Host Marriott Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 27, 1998, filed with the Commission on May 11, 1998, as
amended.
3. Current Report on Form 8-K filed by Host Marriott Corporation
dated April 17, 1998, filed on April 17, 1998.
4. Description of the Company's Common Stock included in a
Registration Statement on Form 10 filed with the Commission.
5. Description of the Company's Common Stock included in a
Registration Statement on Form 8-A filed with the Commission on February
10, 1989.
6. HMH Properties, Inc.'s Annual Report on Form 10-K for the fiscal
year ended January 2, 1998, filed with the Commission on March 27, 1998.
7. HMH Properties, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended March 27, 1998, filed with the Commission on May 11, 1998, as
amended.
All documents filed by the Company or the Co-Registrants pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of all Offered
Securities to which this Prospectus relates shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the respective
dates of filing of such documents. Any statement contained in this Prospectus or
in any Prospectus Supplement or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus and any Prospectus Supplement to the extent that
a statement contained herein or in any Prospectus Supplement or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus or any Prospectus
Supplement.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon request, a copy of
any of the foregoing documents (other than exhibits incorporated by reference
into such document). Requests for documents should be submitted to the Corporate
Secretary, Host Marriott Corporation, 10400 Fernwood Road, Bethesda, Maryland,
20817-1109. The information relating to the Company or the Co-Registrants
contained in this Prospectus does not purport to be comprehensive and should be
read together with the information contained in the documents incorporated or
deemed to be incorporated by reference herein.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus, including the documents that are incorporated herein by
reference, contains "forward-looking statements" within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act and include
statements regarding the intent, belief or current expectations of the Company
or a Co-Registrant, primarily with respect to capital expenditures, cost
reduction, cash flow, operating performance and improvements and related
industry developments. When used in this Prospectus, words such as "anticipate,"
"estimate," "plan," "project," "expect," "intend," "may be," "objective,"
"predict," "will be," "believes," and similar words or phrases are intended to
identify such statements. Such statements are subject to inherent uncertainties
and risks that could cause the actual results, performance or achievements of
the Company or any Co-Registrant to differ materially from any future results,
performance or achievements expressed or implied by such forward-looking
statements. Such risks, uncertainties and other important factors include, among
other things: substantial leverage; the Company's or a Co-Registrant's success
in implementing its business strategies; the terms of the Company's or a Co-
Registrant's indebtedness; competition in, and risks of, the lodging industry;
general economic and business conditions; and other factors referenced in this
Prospectus. The Company and each Co-Registrant disclaims any obligation or
undertaking to disseminate any updates or revisions to any forward-looking
statement contained herein to reflect any change in the Company's or a Co-
Registrant's expectations with regard thereto or any change in events,
conditions or circumstances on which any such statement is based.
5
<PAGE>
THE COMPANY
The Company is one of the largest owners of hotels in the world, with 100
upscale and luxury full-service hotel lodging properties in its portfolio as of
June 5, 1998, primarily located in the United States. These properties are
generally operated under the Marriott and Ritz-Carlton brand names and managed
by Marriott International, Inc. ("Marriott International"), formerly a wholly-
owned subsidiary of the Company. The Marriott and Ritz-Carlton brand names are
among the most respected and widely recognized brand names in the lodging
industry. The Company also owns 31 senior living communities, all of which are
managed by Marriott International. The Company's primary focus is on the
acquisition of full-service hotel lodging properties. Since the beginning of
1994 through June 5, 1998, the Company has added 75 full-service hotels
representing more than 34,000 rooms for an aggregate purchase price of
approximately $3.5 billion.
On April 17, 1998, the Company announced that it had reached a definitive
agreement with various affiliates of The Blackstone Group and Blackstone Real
Estate Partners (collectively, "Blackstone") to acquire interests in 12 world-
class luxury hotels and a mortgage loan secured by a thirteenth hotel and
certain other assets in a transaction valued at approximately $1.735 billion,
including the assumption of debt. Following the transaction, Blackstone will
have the largest ownership interest in Host Marriott on a fully diluted basis.
Host Marriott expects to pay approximately $862 million in cash and assumed debt
and to issue approximately 43.7 million operating partnership units of Host
Marriott, L.P., a Delaware limited partnership, which is the new operating
partnership (the "Operating Partnership") formed as part of the Company's
reorganization, described below. Each Operating Partnership unit will be
exchangeable for one share of Host Marriott common stock (or its cash
equivalent). Upon completion of the acquisition, Blackstone will own
approximately 18% of the shares outstanding of Host Marriott common stock on a
fully converted basis. The Blackstone portfolio consists of two Ritz-Carltons,
two Four Seasons, one Grand Hyatt, three Hyatt Regencies and four Swissotel
properties and a mortgage on a third Four Seasons. These hotels are located in
major urban and convention/resort markets with significant barriers to new
competition.
In addition, on April 17, 1998, Host Marriott announced that its Board of
Directors (the "Board") has authorized the Company to reorganize its remaining
business operations to qualify as a real estate investment trust ("REIT"),
effective as of January 1, 1999, and to spin-off its senior living communities
business ("Senior Living") through a taxable stock dividend to its shareholders.
After the REIT reorganization, which is subject to shareholder and final Board
approval, the Company intends to operate as an "UPREIT," with all of its assets
and operations conducted through the Operating Partnership, of which Host
Marriott will be the general partner. Marriott International's role in managing
Marriott hotels owned by Host Marriott will be unchanged. The Operating
Partnership is currently a wholly owned subsidiary of the Company and is one of
the Co-Registrants that may issue or guarantee Debt Securities.
Host Marriott will distribute shares in Senior Living to its shareholders
at the time of the REIT reorganization and Host Marriott expects to make a cash
distribution at that time. The projected aggregate value of these distributions,
which are expected to be treated as taxable dividends to shareholders, is
currently estimated to be between $400 and $550 million. An additional taxable
distribution may be required in 1999. Senior Living is expected to own Host
Marriott's approximately $700 million portfolio of senior living properties.
This portfolio currently consists of 31 retirement communities, totaling 7,218
units in 12 states. The communities will continue to be managed by Marriott
International. In addition, Senior Living will lease substantially all of the
hotels owned by the REIT and its affiliates. Senior Living will operate
independently of Host Marriott, will be publicly listed and will pursue its own
growth opportunities. In order to facilitate the transition, there may initially
be some Board of Directors overlap, which will be eliminated over time.
Following the REIT reorganization, Host Marriott will own Operating
Partnership units in the Operating Partnership equal to the number of
outstanding shares of Host Marriott common stock at the time of the conversion.
The UPREIT structure will not affect the ownership by shareholders of their
existing Host Marriott shares. As part of the reorganization, limited partners
in Host Marriott's full-service hotel partnerships and joint ventures are
expected to be given an opportunity to receive, on a tax-deferred basis,
Operating Partnership units in exchange for their current partnership interests.
Furthermore, Host Marriott anticipates repurchasing or exchanging its
approximately $1.55 billion of outstanding debt securities, adjusting the
conversion
6
<PAGE>
ratio of its Quarterly Income Preferred Securities to reflect the distribution
of Senior Living and cash to Host Marriott stockholders, and issuing additional
debt and equity securities.
The Blackstone transaction is expected to close simultaneously with the
reorganization of Host Marriott as a real estate investment trust. At that
time, Blackstone's hotels and other assets will be contributed into the
Operating Partnership. The hotels will continue to be managed under the
existing management contracts.
The REIT expects to qualify as a real estate investment trust under federal
income tax law beginning January 1, 1999. However, consummation of the REIT
reorganization is subject to significant contingencies that are outside the
control of the Company, including final Board approval, consent of shareholders,
partners, bondholders, lenders, and ground lessors of Host Marriott, its
affiliates and other third parties. Accordingly, there can be no assurance that
the REIT reorganization will be completed or that it will be effective as of
January 1, 1999. Consummation of the Blackstone transaction is also subject to
certain conditions, including consummation of the REIT reorganization by March
31, 1999.
The Company's principal executive offices are located at 10400 Fernwood
Road, Bethesda, Maryland 20817-1109, and its telephone number is (301) 380-9000.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company and the Co-Registrants anticipate that any net proceeds from the sale
of Offered Securities will be used for general operational purposes, which may
include, but are not limited to, working capital, capital expenditures,
acquisitions and the repayment, refinancing or repurchase of the indebtedness of
the Company or its subsidiaries (including certain of the Co-Registrants) or
capital stock of the Company. The factors which the Company and the Co-
Registrants will consider in any refinancing will include the amount and
characteristics of any Offered Securities issued and may include, among others,
the impact of such refinancing on the liquidity of the Company or any Co-
Registrant or on their respective debt-to-capital ratios and earnings per share.
When a particular series of Offered Securities is offered, the Prospectus
Supplement relating thereto will set forth the intended use for the net proceeds
received from the sale of such Offered Securities. Pending the application of
the net proceeds, the Company and the Co-Registrants expect to invest such
proceeds in short-term, interest-bearing instruments or other investment-grade
debt securities or to reduce indebtedness under the Company's bank credit
agreement.
RISK FACTORS
CERTAIN OF THE SECURITIES TO BE OFFERED HEREBY THEMSELVES MAY INVOLVE A
HIGH DEGREE OF RISK. SUCH RISKS WILL BE SET FORTH IN THE PROSPECTUS SUPPLEMENT
RELATING TO SUCH OFFERED SECURITIES.
ERISA MATTERS
The Company and its subsidiaries may each be considered a "party in
interest" (within the meaning of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) or a "disqualified person" (within the meaning of
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code")) with
respect to many employee benefit plans ("Plans") that are subject to ERISA. The
purchase of Offered Securities by a Plan that is subject to the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
Section 4975 of the Code (including individual retirement arrangements and other
plans described in Section 4975(e)(1) of the Code) and with respect to which the
Company or any of its affiliates is a service provider (or otherwise is a party
in interest or a disqualified person) may constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, unless such Offered
Securities are acquired pursuant to and in accordance with an applicable
exemption. Any pension or other employee benefit plan proposing to acquire any
Offered Securities should consult with its counsel.
7
<PAGE>
RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's ratio of earnings to combined
fixed charges and preferred stock dividends on a historical basis for the
periods indicated.
<TABLE>
<CAPTION>
1st Quarter FISCAL YEAR
---------------- ------------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
------ ------ ------ ------ ------ ------ ------
(IN MILLIONS, EXCEPT RATIO DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to combined fixed
charges and preferred stock dividends(a)..... 1.7x 1.3x 1.3X 1.0X -- -- --
Deficiency of earnings to combined fixed
charges and preferred stock dividends (b).... -- -- -- -- $70 $12 $45
</TABLE>
_________________
(a) The ratio of earnings to fixed charges and preferred stock dividends is
computed by dividing income from continuing operations before income taxes
and fixed charges and preferred stock dividends by total fixed charges and
preferred stock dividends. Fixed charges represent interest expense
(including capitalized interest), the amortization of debt issuance costs,
and the portion of rental expense that represents interest.
(b) The deficiency of earnings to fixed charges and preferred stock dividends
in 1995, 1994 and 1993 is largely the result of depreciation and
amortization of $122 million in 1995, $113 million in 1994 and $196 million
in 1993. In addition, the deficiency for 1995 was impacted by the $60
million pre-tax charge to write-down the carrying value of one undeveloped
land parcel to its estimated sales value.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for the periods indicated.
<TABLE>
<CAPTION>
1st Quarter FISCAL YEAR
---------------- ------------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
------ ------ ------ ------ ------ ------ ------
(IN MILLIONS, EXCEPT RATIO DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges (a).... 1.7x 1.3x 1.3X 1.0X -- -- --
Deficiency of earnings to fixed
charges (b)............................. -- -- -- -- $70 $12 $45
</TABLE>
___________________
(a) The ratio of earnings to fixed charges is computed by dividing income from
continuing operations before income taxes and fixed charges by total fixed
charges. Fixed charges represent interest expense (including capitalized
interest), the amortization of debt issuance costs, and the portion of
rental expense that represents interest.
(b) The deficiency of earnings to fixed charges in 1995, 1994 and 1993 is
largely the result of depreciation and amortization of $122 million in 1995,
$113 million in 1994 and $196 million in 1993. In addition, the deficiency
for 1995 was impacted by the $60 million pre-tax charge to write down the
carrying value of one undeveloped land parcel to its estimated sales value.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities offered hereby are to be issued under an indenture (the
"Indenture") to be executed by the Company and/or the Co-Registrants issuing
such Debt Securities (for purposes of this section, the issuers of Debt
Securities are sometimes referred to as the "Issuer") and a trustee to be
identified in the applicable Prospectus Supplement, as trustee (the "Trustee").
The terms of the Debt Securities will include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(the "TIA") as in effect on the date of the Indenture. The Debt Securities will
be subject to all such terms, and potential purchasers of the Debt Securities
are referred to the Indenture and the TIA for a statement thereof. A copy of the
form of Indenture to be used by each Issuer in connection with any series of
Debt Securities has been filed as an exhibit to the Registration Statement.
Section references used in this Prospectus refer to sections of the Indenture.
The Company and the Co-Registrants may offer under this Prospectus up to
$2,500,000,000 aggregate principal amount of Debt Securities, or if Debt
Securities are issued at a discount, or in a foreign currency or composite
currency, such
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<PAGE>
principal amount as may be sold for an initial public offering price of up to
$2,500,000,000. Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities will represent direct, unsecured obligations of
the Issuer and will rank equally with all other unsecured and unsubordinated
indebtedness of the Issuer. The Company's payment obligations under any series
of Debt Securities may be guaranteed by certain of the Co-Registrants and the
payment obligations of any Co-Registrant issuing any series of Debt Securities
will be guaranteed by the Company and may be guaranteed by one or more of the
Co-Registrants.
The following statements relating to the Debt Securities and the Indenture
are summaries and do not purport to be complete. Such summaries may make use of
certain terms defined in the Indenture and are qualified in their entirety by
express reference to the Indenture. Certain other specific terms of any series
of Debt Securities will be described in the applicable Prospectus Supplement.
To the extent that any particular terms of the Debt Securities described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement.
GENERAL
The terms of each series of Debt Securities will be set forth or determined
in the manner provided in an Officers' Certificate or by a supplemental
indenture. (Indenture sec. 2.2) The particular terms of each series of Debt
Securities will be described in a Prospectus Supplement relating to such series
(including any pricing supplement thereto).
The Debt Securities that may be offered under the Indenture are not limited
in aggregate principal amount. The Debt Securities may be issued in one or more
series with the same or various maturities, at par, at a premium, or at a
discount. The Prospectus Supplement (including any pricing supplement thereto)
will set forth the initial offering price, the aggregate principal amount and
the following terms of the Debt Securities in respect of which this Prospectus
is delivered: (1) the title of such Debt Securities; (2) the price or prices
(expressed as a percentage of the aggregate principal amount thereof) at which
the Debt Securities will be issued; (3) any limit on the aggregate principal
amount of such Debt Securities; (4) the date or dates on which principal on such
Debt Securities will be payable; (5) the rate or rates (which may be fixed or
variable) per annum or, if applicable, the method used to determine such rate or
rates (including any commodity, commodity index, stock exchange index or
financial index) at which such Debt Securities will bear interest, if any, the
date or dates from which such interest, if any, will accrue, the date or dates
on which such interest, if any, will commence and be payable and any regular
record date for the interest payable on any interest payment date; (6) the place
or places where principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable; (7) the period or periods within which, the
price or prices at which and the terms and conditions upon which the Debt
Securities may be redeemed, in whole or in part, at the option of the Issuer;
(8) the obligation, if any, of the Issuer to redeem or purchase the Debt
Securities, in whole or in part, pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof; (9) the dates, if any, on which
and the price or prices at which the Debt Securities will be repurchased by the
Issuer at the option of the Holders thereof and other detailed terms and
provisions of such repurchase obligations; (10) the denominations in which such
Debt Securities may be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (11) whether the Debt Securities are to be issuable
in the form of Certificated Debt Securities (as defined below) or Global Debt
Securities (as defined below); (12) the portion of principal amount of such Debt
Securities that shall be payable upon declaration of acceleration of the
maturity date thereof, if other than the principal amount thereof; (13) the
currency of denomination of such Debt Securities; (14) the designation of the
currency, currencies or currency units in which payment of principal of,
premium, if any, and interest, if any, on such Debt Securities will be made;
(15) if payments of principal of, premium, if any, or interest, if any, on the
Debt Securities are to be made in one or more currencies or currency units other
than that or those in which such Debt Securities are denominated, the manner in
which the exchange rate with respect to such payments will be determined; (16)
the manner in which the amounts of payment of principal of, premium, if any, or
interest, if any, on such Debt Securities will be determined, if such amounts
may be determined by reference to an index based on a currency or currencies
other than that in which the Debt Securities are denominated or designated to be
payable or by reference to a commodity, commodity index, stock exchange index or
financial index; (17) the provisions, if any, relating to any security provided
for such Debt Securities; (18) any addition to or change in the Events of
Default described herein or in the Indenture with respect to such Debt
Securities; (19) any addition to or change in the covenants described herein or
in the Indenture with respect to such Debt Securities and any change in the
acceleration provisions described herein or in the Indenture with respect to
such Debt Securities; (20) the terms and conditions, if any, upon which the Debt
Securities shall be exchanged for or converted into Common Stock,
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<PAGE>
Preferred Stock or Depository Shares; (21) any other terms of such Debt
Securities, which may modify or delete any provision of the Indenture insofar as
it applies to such series; (22) any depositories, interest rate calculation
agents, exchange rate calculation agents or other agents with respect to the
Debt Securities; (23) whether such Debt Securities rank as senior subordinated
Debt Securities or subordinated Debt Securities or any combination thereof; and
(24) the form and terms of any guarantee of the Debt Securities. (Indenture sec.
2.2)
Debt Securities may be issued that provide for an amount less than the
stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to the terms of the Indenture
("Discount Debt Securities"). Federal income tax considerations and other
special considerations applicable to any such Discount Debt Securities will be
described in the applicable Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable to
bearer securities will be described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest, if any, on any series of Debt
Securities is payable in a foreign currency or currencies or a foreign currency
unit or units, the restrictions, elections, general tax considerations, specific
terms and other information with respect to such issue of Debt Securities and
such foreign currency or currencies or foreign currency unit or units will be
set forth in the applicable Prospectus Supplement.
EXCHANGE AND/OR CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged
for or converted into shares of Common Stock, Preferred Stock or Depository
Shares will be set forth in the Prospectus Supplement relating thereto.
TRANSFER AND EXCHANGE
Each Debt Security will be represented by either one or more global
securities (a "Global Debt Security") registered in the name of The Depository
Trust Company, as Depositary (the "Depositary") or a nominee of the Depositary
(each such Debt Security represented by a Global Debt Security being herein
referred to as a "Book-Entry Debt Security"), or a certificate issued in
definitive registered form (a "Certificated Debt Security"), as set forth in the
applicable Prospectus Supplement. Except as set forth under "-- Global Debt
Securities and Book-Entry System" below, Book-Entry Debt Securities will not be
issuable in certificated form.
CERTIFICATED DEBT SECURITIES. Certificated Debt Securities may be
transferred or exchanged at the Trustee's office or paying agencies in
accordance with the terms of the Indenture. No service charge will be made for
any transfer or exchange of Certificated Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The transfer of Certificated Debt Securities and the right to receive the
principal of, premium, if any, and interest, if any, on such Certificated Debt
Securities may be effected only by surrender of the certificate representing
such Certificated Debt Securities and either reissuance by the Company or the
Trustee of such certificate to the new Holder or the issuance by the Company or
the Trustee of a new certificate to the new Holder.
GLOBAL DEBT SECURITIES AND BOOK-ENTRY SYSTEM. Each Global Debt Security
representing Book-Entry Debt Securities will be deposited with, or on behalf of,
the Depositary, and registered in the name of the Depositary or a nominee of the
Depositary. Except as set forth below, Book-Entry Debt Securities will not be
exchangeable for Certificated Debt Securities and will not otherwise be issuable
as Certificated Debt Securities.
The procedures that the Depositary has indicated it intends to follow with
respect to Book-Entry Debt Securities are set forth below.
10
<PAGE>
Ownership of beneficial interests in Book-Entry Debt Securities will be
limited to persons that have accounts with the Depositary for the related Global
Debt Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Global Debt Security, the Depositary will
credit, on its book-entry registration and transfer system, the participants'
accounts with the respective principal amounts of the Book-Entry Debt Securities
represented by such Global Debt Security beneficially owned by such
participants. The accounts to be credited shall be designated by any dealers,
underwriters or agents participating in the distribution of such Book-Entry Debt
Securities. Ownership of Book-Entry Debt Securities will be shown on, and the
transfer of such ownership interests will be effected only through, records
maintained by the Depositary for the related Global Debt Security (with respect
to interests of participants) and on the records of participants (with respect
to interests of persons holding through participants). The laws of some states
may require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to own,
transfer or pledge beneficial interests in Book-Entry Debt Securities.
So long as the Depositary for a Global Debt Security, or its nominee, is
the registered owner of such Global Debt Security, the Depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Book-Entry Debt Securities represented by such Global Debt Security for all
purposes under the Indenture. Except as set forth below, beneficial owners of
Book-Entry Debt Securities will not be entitled to have such securities
registered in their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing such securities and
will not be considered the owners or Holders thereof under the Indenture.
Accordingly, each person beneficially owning Book-Entry Debt Securities must
rely on the procedures of the Depositary for the related Global Debt Security
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a Holder
under the Indenture.
The Company and the Co-Registrants understand, however, that under
existing industry practice, the Depositary will authorize the persons on whose
behalf it holds a Global Debt Security to exercise certain rights of Holders of
Debt Securities, and the Indenture provides that the Issuer, the Trustee and
their respective agents will treat as the Holder of a Debt Security the persons
specified in a written statement of the Depositary with respect to such Global
Debt Security for purposes of obtaining any consents or directions required to
be given by Holders of the Debt Securities pursuant to the Indenture. (Indenture
sec. 2.14.6)
Payments of principal of, premium, if any, and interest on Book-Entry Debt
Securities will be made to the Depositary or its nominee, as the case may be, as
the registered holder of the related Global Debt Security. (Indenture sec.
2.14.5) None of the Issuer, the Trustee or any other agent of the Issuer or
agent of the Trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in such Global Debt Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company and the Co-Registrants expect that the Depositary, upon receipt
of any payment of principal of, premium, if any, or interest, if any, on a
Global Debt Security, will immediately credit participants' accounts with
payments in amounts proportionate to the respective amounts of Book-Entry Debt
Securities held by each such participant as shown on the records of the
Depositary. The Company and the Co-Registrants also expect that payments by
participants to owners of beneficial interests in Book-Entry Debt Securities
held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such participants.
If the Depositary is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Exchange Act,
and a successor Depositary registered as a clearing agency under the Exchange
Act is not appointed by the Issuer within 90 days, the Issuer will issue
Certificated Debt Securities in exchange for each Global Debt Security. In
addition, the Issuer may at any time and in its sole discretion determine not
to have the Book-Entry Debt Securities of any series represented by one or more
Global Debt Securities and, in such event, will issue Certificated Debt
Securities in exchange for the Global Debt Securities of such series. Global
Debt Securities will also be exchangeable by the Holders for Certificated Debt
Securities if an Event of Default with respect to the Book Entry Debt Securities
represented by such Global Debt Securities has occurred and is continuing. Any
Certificated Debt Securities issued in exchange for a Global Debt Security will
be
11
<PAGE>
registered in such name or names as the Depositary shall instruct the Trustee.
It is expected that such instructions will be based upon directions received by
the Depositary from participants with respect to ownership of Book-Entry Debt
Securities relating to such Global Debt Security.
The foregoing information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources the Company and
the Co-Registrants believe to be reliable, but the Company and the
Co-Registrants take no responsibility for the accuracy thereof.
COVENANTS
Unless otherwise indicated in this Prospectus or a Prospectus Supplement,
the Debt Securities will not have the benefit of any covenants that limit or
restrict the Issuer's business or operations, the pledging of the Issuer's
assets or the incurrence of indebtedness by the Issuer.
The applicable Prospectus Supplement will describe any material covenants
in respect of a series of Debt Securities. Other than the covenants of the
Issuer included in the Indenture as described above or as described in the
applicable Prospectus Supplement, there are no covenants or other provisions in
the Indenture providing for a put or increased interest or otherwise that would
afford Holders of Debt Securities additional protection in the event of a
recapitalization transaction, a change of control of the Issuer or a highly
leveraged transaction.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Issuer may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its properties and assets to, any
Person (a "successor Person") unless (i) the Issuer is the surviving corporation
or the successor Person (if other than the Issuer) is a corporation,
partnership, limited liability company, trust or other entity organized and
validly existing under the laws of any U.S. domestic jurisdiction and expressly
assumes the Issuer's obligations on the Debt Securities and under the Indenture,
(ii) 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, shall have occurred and be continuing under the Indenture and
(iii) certain other conditions are met. In the event the Issuer's obligations on
the Debt Securities and under the Indenture are assumed by a successor Person,
the Issuer will be released from such obligations. (Indenture sec. 5.1)
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following will be Events of Default under the Indenture with respect to Debt
Securities of any series: (a) default in the payment of any interest upon any
Debt Security of that series when it becomes due and payable, and continuance of
such default for a period of 30 days (unless the entire amount of such payment
is deposited by the Company with the Trustee or with a paying agent prior to the
expiration of such period of 30 days); (b) default in the payment of principal
of or premium, if any, on any Debt Security of that series when due and payable,
at maturity, upon redemption or otherwise; (c) default in the deposit of any
sinking fund payment, when and as due in respect of any Debt Security of that
series; (d) default in the performance or breach of any other covenant or
warranty of the Issuer in the Indenture (other than a covenant or warranty that
has been included in the Indenture solely for the benefit of a series of Debt
Securities other than that series), which default continues uncured for a period
of 30 days after written notice to the Issuer by the Trustee or to the Issuer
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the outstanding Debt Securities of that series as provided in the Indenture; (e)
certain events of bankruptcy, insolvency or reorganization with respect to the
Issuer; and (f) any other Event of Default provided with respect to Debt
Securities of that series that is described in the Prospectus Supplement
accompanying this Prospectus. No Event of Default with respect to a particular
series of Debt Securities (except as to certain events of bankruptcy, insolvency
or reorganization with respect to the Issuer) necessarily constitutes an Event
of Default with respect to any other series of Debt Securities. (Indenture sec.
6.1). The occurrence of an Event of Default may constitute an event of default
under bank credit agreements, if any, of the Issuer in existence from time to
time. In addition, the occurrence of certain Events of Default or an
acceleration under the Indenture may constitute an event of default under
certain other indebtedness of the Issuer outstanding from time to time.
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If an Event of Default with respect to Debt Securities of any series
outstanding at the time occurs and is continuing, then in every such case the
Trustee or the holders of not less than 25% in principal amount of the
outstanding Debt Securities of that series may, by a notice in writing to the
Issuer (and to the Trustee if given by the holders), declare to be due and
payable immediately the principal (or, if the Debt Securities of that series are
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) of and accrued and unpaid interest, if
any, on all Debt Securities of that series. In the case of an Event of Default
resulting from certain events of bankruptcy, insolvency or reorganization, the
principal (or such specified amount) of and accrued and unpaid interest, if any,
on all outstanding Debt Securities shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder of outstanding Debt Securities. At any time after a declaration
of acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the holders of a majority in principal amount of the outstanding
Debt Securities of that series may rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal and
interest, if any, with respect to Debt Securities of that series have been
cured or waived as provided in the Indenture. (Indenture sec. 6.2) For
information as to waiver of defaults see the discussion set forth below under
"Modification and Waiver."
The Indenture provides that the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
holder of outstanding Debt Securities, unless the Trustee receives indemnity
satisfactory to it against any loss, liability or expense. (Indenture sec.
7.1(e)) Subject to certain rights of the Trustee, the Holders of a majority in
principal amount of the outstanding Debt Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Debt Securities of that series. (Indenture sec.
6.12)
No Holder of any Debt Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the Indenture
or for the appointment of a receiver or trustee, or for any remedy under the
Indenture, unless such holder shall have previously given to the Trustee written
notice of a continuing Event of Default with respect to Debt Securities of that
series and unless also the holders of at least 25% in principal amount of the
outstanding Debt Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of the outstanding Debt Securities of that series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. (Indenture sec. 6.7) Notwithstanding the foregoing,
the Holder of any Debt Security will have an absolute and unconditional right to
receive payment of the principal of, premium, if any, and any interest on such
Debt Security on or after the due dates expressed in such Debt Security and to
institute suit for the enforcement of any such payment. (Indenture sec. 6.8)
The Indenture requires the Issuer, within 120 days after the end of each
of its fiscal years, to furnish to the Trustee a statement as to compliance with
the Indenture. (Indenture sec. 4.3) The Indenture provides that the Trustee may
withhold notice to the holders of Debt Securities of any series of any Default
or Event of Default (except in payment on any Debt Securities of such series)
with respect to Debt Securities of such series if it in good faith determines
that withholding such notice is in the interest of the Holders of such Debt
Securities. (Indenture sec. 7.5)
MODIFICATION AND WAIVER
Modifications to, and amendments of, the Indenture may be made by the
Issuer and the Trustee with the consent of the Holders of at least a majority
in principal amount of the outstanding Debt Securities of each series affected
by such modifications or amendments; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
outstanding Debt Security affected thereby: (a) reduce the amount of Debt
Securities whose Holders must consent to an amendment or waiver affecting such
series; (b) reduce the rate of or extend the time for payment of interest
(including default interest) on any such Debt Security; (c) reduce the principal
of or premium, if any, on or change the fixed maturity of any such Debt Security
or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation with respect to such series of Debt
Securities; (d) reduce the principal amount of any such Discount Debt Securities
payable upon acceleration
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of the maturity thereof; (e) waive a Default or an Event of Default in the
payment of the principal of, premium, if any, or interest, if any, on any such
Debt Security (except a rescission of acceleration of the Debt Securities of any
series by the Holders of at least a majority in aggregate principal amount of
the then outstanding Debt Securities of such series and a waiver of the payment
default that resulted from such acceleration); (f) make the principal of or
premium, if any, or interest, if any, on any such Debt Security payable in
currency other than that stated in the Debt Security; (g) make any change to
certain provisions of the Indenture relating to, among other things, the right
of Holders of Debt Securities of such series to receive payment of the principal
of, premium, if any, and interest, if any, on such Debt Securities and to
institute suit for the enforcement of any such payment; or (h) waive a
redemption payment with respect to any such Debt Security. (Indenture sec. 9.3)
The Issuer and the Trustee may amend the Indenture without notice to or consent
of any holder of Debt Securities: (i) to cure any ambiguity, defect or
inconsistency; (ii) to comply with the Indenture's provisions regarding
successor obligors; (iii) to comply with any requirements of the Commission in
connection with the qualification of the Indenture under the TIA; (iv) to
provide for Global Debt Securities in addition to or in place of Certificated
Debt Securities; (v) to add to, change or eliminate any of the provisions of the
Indenture in respect of one or more series of Debt Securities provided however,
that any such addition, change or elimination (A) shall neither (i) apply to any
Debt Security of any series created prior to the execution of such amendment and
entitled to the benefit of such provision, nor (2) modify the rights of a holder
of any such Debt Security with respect to such provision, or (B) shall become
effective only when there is no outstanding Debt Security of any series created
prior to such amendment and entitled to the benefit of such provisions; (vi) to
make any change that does not adversely affect in any material respect the
interest of any holder; or (vii) to establish additional series of Debt
Securities as permitted by the Indenture.
The holders of at least a majority in principal amount of the outstanding
Debt Securities of any series may on behalf of the holders of all Debt
Securities of that series waive, insofar as that series is concerned, compliance
by the Company with provisions of the Indenture other than certain specified
provisions. (Indenture sec. 9.2) The Holders of a majority in principal amount
of the outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of such series waive any past default under the
Indenture with respect to such series and its consequences, except a default in
the payment of the principal of, premium, if any, or interest, if any, on any
Debt Security of that series or in respect of a covenant or provision which
cannot be modified or amended without the consent of the Holder of each
outstanding Debt Security of such series affected; provided, however, that the
Holders of a majority in principal amount of the outstanding Debt Securities of
any series may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration. (Indenture sec.
6.13)
DEFEASANCE OF SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
LEGAL DEFEASANCE. The Indenture provides that, unless otherwise provided by
the terms of the applicable series of Debt Securities, the Issuer may be
discharged from any and all Obligations in respect of the Debt Securities of any
series (except for certain obligations to register the transfer or exchange of
Debt Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying agents) upon the
deposit with the Trustee, in trust, of money and/or U.S. Government obligations
or, in the case of Debt Securities denominated in a single currency other than
U.S. Dollars, Foreign Government Obligations (as defined below), that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay and
discharge each installment of principal (and premium, if any) and interest, if
any, on and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. Such discharge may
occur only if, among other things, the Issuer shall have delivered to the
Trustee an opinion of counsel stating that the Issuer has received from, or
there has been published by, the United States Internal Revenue Service a ruling
or, since the date of execution of the Indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit, defeasance and
discharge and will be
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subject to United States federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred. (Indenture sec. 8.3)
DEFEASANCE OF CERTAIN COVENANTS. The Indenture provides that, unless
otherwise provided by the terms of the applicable series of Debt Securities,
upon compliance with certain conditions, (i) the Issuer may omit to comply with
the covenants described above under "--Consolidation, Merger and Sale of Assets"
and certain other covenants set forth in the Indenture, as well as any
additional restrictive covenants, or other provisions which may be set forth in
the applicable Prospectus Supplement, and any omission to comply with such
covenants will not constitute a Default or an Event of Default with respect to
the Debt Securities of such series ("covenant defeasance"). The conditions
include: the deposit with the Trustee of money and/or U.S. Government
Obligations or, in the case of Debt Securities denominated in a single currency
other than U.S. Dollars, Foreign Government Obligations, that, through the
payment of interest and principal in respect thereof in accordance with their
terms, will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants to pay and discharge each
installment of principal of, premium, if any, and interest, if any, on and any
mandatory sinking fund payments in respect of the Debt Securities of such series
on the stated maturity of such payments in accordance with the terms of the
Indenture and such Debt Securities; and the delivery to the Trustee of an
opinion of counsel to the effect that the Holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit and related covenant defeasance and
will be subject to United States federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit and related covenant defeasance had not occurred. (Indenture sec. 8.4)
COVENANT DEFEASANCE AND EVENTS OF DEFAULT. In the event the Issuer
exercises its option to effect covenant defeasance with respect to any series of
Debt Securities and the Debt Securities of such series are declared due and
payable because of the occurrence of any Event of Default, the amount of money
and/or U.S. Government Obligations or Foreign Government obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Debt Securities of
such series at the time of their stated maturity but may not be sufficient to
pay amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. However, the Issuer shall
remain liable for such payments.
"Foreign Government Obligations" means, with respect to Debt Securities of
any series that are denominated in a currency other than U.S. Dollars, (i)
direct obligations of the government that issued or caused to be issued such
currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by or acting as
an agency or instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof.
GUARANTEES
The Company's payment obligations under any series of Debt Securities may
be guaranteed by certain of the Co-Registrants and the payment obligations of
any Co-Registrant issuing any series of Debt Securities will be guaranteed by
the Company and may be guaranteed by one or more of the Co-Registrants. The
newly formed Operating Partnership described above is among the Co-Registrants
and may be an issuer of Debt Securities.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the internal laws of the State of New York. (Indenture sec.
10.10).
REGARDING THE TRUSTEE
The Trustee with respect to any series of Debt Securities will be
identified in the Prospectus Supplement relating to such Debt Securities. The
Indenture and the provisions of the TIA incorporated by reference therein
contain certain limitations on the rights of the Trustee, should it become a
creditor of the Issuer, to obtain payments of claims in certain cases, or to
realize on certain property received in respect of any such claim, as security
or otherwise. The Trustee and its affiliates may engage in, and will be
permitted to continue to engage in,
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other transactions with the Issuer and its affiliates, provided, however, that
if it acquires any conflicting interest (as defined in the TIA), it must
eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee. The TIA and the Indenture provide that in the case an Event of Default
shall occur (and be continuing), the Trustee will be required, in the exercise
of its rights and powers, to use the degree of care and skill of a prudent man
in the conduct of his own affairs. Subject to such provision, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the request of any of the holders of the Debt Securities issued
thereunder, unless they have offered to the Trustee indemnity satisfactory to
it.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company's Restated Certificate of Incorporation (the "Company
Certificate") authorizes the issuance of a total of 601,000,000 shares of all
classes of stock, of which 600,000,000 shares are Common Stock and 1,000,000
shares are Preferred Stock. As of June 2, 1998, 204,299,134 shares of Common
Stock were outstanding and no shares of Preferred Stock were outstanding. The
following summaries of certain provisions of the Company's capital stock do not
purport to be complete and are subject to and qualified in their entirety by the
provisions of the Company Certificate, the Company's Amended and Restated Bylaws
(the "Bylaws") and the Company's Rights Agreement (as defined), each of which is
included as an exhibit to the Registration Statement of which this Prospectus
forms a part, and by applicable law. In connection with the Company's adoption
of a shareholder rights plan, the Board authorized and reserved for issuance
300,000 shares of Series A Junior Participating Preferred Stock ("Junior
Preferred Stock"). No shares of Junior Preferred Stock are currently
outstanding.
COMMON STOCK
Subject to such preferential rights as may be granted by the Board in
connection with the future issuance of preferred stock, each holder of Common
Stock is entitled to one vote for each share registered in such holder's name on
the books of the Company on all matters submitted to a vote of shareholders.
Except as otherwise provided by law, the holders of Common Stock vote as one
class. Holders of Common Stock are entitled to such dividends as the Board may
declare out of funds legally available therefor. Subject to the prior rights of
creditors and the holders of any of the Company's preferred stock, if any, the
holders of Common Stock are entitled in the event of liquidation, dissolution or
winding up to share pro rata in the distribution of all remaining assets. There
are no redemption or sinking fund provisions applicable to the Common Stock, and
the Company Certificate provides that there shall be no preemptive rights. The
shares of Common Stock do not have cumulative voting rights. As a result, the
holders of Common Stock entitled to exercise more than 50% of the voting rights
in an election of directors will be able to elect 100% of the directors to be
elected if they choose to do so. All of the outstanding shares of Common Stock
are, and the shares of Common Stock offered hereby will be, fully paid and
nonaccessable.
PREFERRED STOCK
Under the Company Certificate, shares of Preferred Stock may be issued from
time to time, in one or more classes or series, as authorized by the Board,
generally without the approval of the shareholders. Prior to issuance of shares
of each series, the Board is required by the General Corporation Law of the
State of Delaware (the "DGCL") and the Company Certificate to adopt resolutions
and file a Certificate of Designation (the "Certificate of Designation") with
the Secretary of State of the State of Delaware, fixing for each such class or
series the designation, powers, preferences and rights of the shares of such
class or series and the qualifications, limitations or restrictions thereon,
including, but not limited to, dividend rights, dividend rate or rates,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preferences as are permitted by the DGCL. The Board could authorize the
issuance of shares of
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Preferred Stock with terms and conditions which could have the effect of
discouraging a takeover or other transaction which holders of some, or a
majority, of such shares might believe to be in their best interest or in which
holders of some, or a majority, of such shares might receive a premium for their
shares over the then-market price of such shares.
Subject to limitations prescribed by the DGCL, the Company Certificate and
the Bylaws, the Board is authorized to fix the number of shares constituting
each class or series of Preferred Stock and the designations and powers,
preferences and relative, participating, optional or other special rights,
including such provisions as may be desired concerning voting, redemption,
dividends, dissolution or the distribution of assets, conversion or exchange,
and such other subjects or matters as may be fixed by resolution of the Board or
duly authorized committee thereof. The Preferred Stock offered hereby will,
when issued, be fully paid and nonassessable and will not have, or be subject
to, any preemptive or similar rights.
Reference is made to the Prospectus Supplement relating to the class or
series of Preferred Stock being offered for the specific terms thereof,
including:
(i) The title and stated value of such Preferred Stock;
(ii) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the purchase price of such Preferred Stock;
(iii) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
(iv) Whether dividends shall be cumulative or non-cumulative and, if
cumulative, the date from which dividends on such Preferred Stock shall
accumulate;
(v) The procedures for any auction and remarketing, if any, for
such Preferred Stock;
(vi) The provisions for a sinking fund, if any, for such Preferred
Stock;
(vii) The provisions for redemption, if applicable, of such Preferred
Stock;
(viii) Any listing of such Preferred Stock on any securities exchange
or market;
(ix) The terms and conditions, if applicable, upon which such
Preferred Stock will be convertible into Common Stock of the Company, including
the conversion price (or manner of calculation thereof) and conversion period;
(x) The terms and conditions, if applicable, upon which Preferred
Stock will be exchangeable into Debt Securities, including the exchange price
(or manner of calculation thereof) and exchange period);
(xi) Voting rights, if any, of such Preferred Stock;
(xii) Whether interests in such Preferred Stock will be represented
by depositary shares;
(xiii) A discussion of any material and/or special United States
federal income tax considerations applicable to such Preferred Stock;
(xiv) The relative ranking and preferences of such Preferred Stock as
to dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company;
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(xv) Any limitations on issuance of any class or series of Preferred
Stock ranking senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company; and
(xvi) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
DELAWARE LAW; CERTAIN PROVISIONS OF THE COMPANY'S CERTIFICATE AND BYLAWS AND THE
MARRIOTT INTERNATIONAL PURCHASE AGREEMENT
COMPANY CERTIFICATE AND BYLAWS. The Company Certificate contains several
provisions that will make difficult an acquisition of control of the Company by
means of a tender offer, open market purchases, a proxy fight or otherwise, that
is not approved by the Board. The Bylaws also contain provisions that could have
an antitakeover effect.
The purposes of the relevant provisions of the Company Certificate and
Bylaws are to discourage certain types of transactions, described below, which
may involve an actual or threatened change of control of the Company and to
encourage persons seeking to acquire control of the Company to consult first
with the Board to negotiate the terms of any proposed business combination or
offer. The provisions are designed to reduce the vulnerability of the Company to
an unsolicited proposal for a takeover that does not contemplate the acquisition
of all outstanding shares or is otherwise unfair to shareholders of the Company
or an unsolicited proposal for the restructuring or sale of all or part of the
Company. The Company believes that, as a general rule, such proposals would not
be in the best interests of the Company and its shareholders.
CLASSIFIED BOARD OF DIRECTORS. The Company Certificate provides for the
Board to be divided into three classes serving staggered terms so that
directors' current terms will expire at the 1999, 2000 or 2001 annual meeting of
shareholders.
The classification of directors has the effect of making it more difficult
for shareholders to change the composition of the Board in a relatively short
period of time. At least two annual meetings of shareholders, instead of one,
will generally be required to effect a change in a majority of the Board. Such a
delay may help ensure that the Board, if confronted by a holder attempting to
force a stock repurchase at a premium above market prices, a proxy contest or an
extraordinary corporate transaction, will have sufficient time to review the
proposal and appropriate alternatives to the proposal and to act in what it
believes are the best interests of the shareholders.
The classified board provision could have the effect of discouraging a
third party from making a tender offer or otherwise attempting to obtain control
of the Company, even though such an attempt might be beneficial to the Company
and its shareholders. The classified board provision could thus increase the
likelihood that incumbent directors will retain their positions. In addition,
since the classified board provision is designed to discourage accumulations of
large blocks of the Company's stock by purchasers whose objective is to have
such stock repurchased by the Company at a premium, the classified board
provision could tend to reduce the temporary fluctuations in the market price of
the Company's stock that could be caused by accumulations of large blocks of
such stock. Accordingly, shareholders could be deprived of certain opportunities
to sell their stock at a temporarily higher market price.
The Company believes that a classified board of directors helps to assure
the continuity and stability of the Board and business strategies and policies
as determined by the Board, because generally a majority of the directors at any
given time will have had prior experience as directors of the Company. The
classified board provision also helps assure that the Board, if confronted with
an unsolicited proposal from a third party that has acquired a block of the
voting stock of the Company, will have sufficient time to review the proposal
and appropriate alternatives and to seek the best available result for all
shareholders.
REMOVAL; FILLING VACANCIES. The Company Certificate provides that, subject
to any rights of the holders of preferred stock, only a majority of the Board
then in office shall have the authority to fill any vacancies on the
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Board, including vacancies created by an increase in the number of directors. In
addition, the Company Certificate provides that a new director elected to fill a
vacancy on the Board will serve for the remainder of the full term of his or her
class and that no decrease in the number of directors shall shorten the term of
an incumbent. Moreover, the Company Certificate provides that directors may be
removed with or without cause only by the affirmative vote of holders of at
least 66 2/3% of the voting power of the shares entitled to vote at the election
of directors, voting together as a single class. These provisions relating to
removal and filling of vacancies on the Board will preclude shareholders from
enlarging the Board or removing incumbent directors and filling the vacancies
with their own nominees.
LIMITATIONS ON SHAREHOLDER ACTION BY WRITTEN CONSENT; SPECIAL MEETINGS.
The Company Certificate and Bylaws provide that shareholder action can be taken
only at an annual or special meeting of shareholders and prohibit shareholder
action by written consent in lieu of a meeting. The Company Certificate and
Bylaws provide that, subject to the rights of holders of any series of preferred
stock, special meetings of shareholders can be called only by a majority of the
entire Board. Shareholders are not permitted to call a special meeting or to
require that the Board call a special meeting of shareholders. Moreover, the
business permitted to be conducted at any special meeting of shareholders is
limited to the business brought before the meeting by or at the direction of the
Board.
The provisions of the Company Certificate and Bylaws restricting
shareholder action by written consent may have the effect of delaying
consideration of a shareholder proposal until the next annual meeting unless a
special meeting is called by a majority of the entire Board. These provisions
would also prevent the holders of a majority of the voting power of the voting
stock from using the written consent procedure to take shareholder action and
from taking action by consent without giving all the shareholders entitled to
vote on a proposed action the opportunity to participate in determining such
proposed action. Moreover, a shareholder could not force shareholder
consideration of a proposal over the opposition of the Board by calling a
special meeting of shareholders prior to the time the Board believed such
consideration to be appropriate.
The Company believes that such limitations on shareholder action will help
to assure the continuity and stability of the Board and the Company's business
strategies and policies as determined by the Board, to the benefit of all of the
Company's shareholders. If confronted with an unsolicited proposal from Company
shareholders, the Board will have sufficient time to review such proposal and to
seek the best available result for all shareholders, before such proposal is
approved by such shareholders by written consent in lieu of a meeting or through
a special meeting of shareholders.
NOMINATIONS OF DIRECTORS AND SHAREHOLDER PROPOSALS. The Bylaws establish
an advance notice procedure with regard to the nomination, other than by or at
the direction of the Board, of candidates for election as directors (the
"Nomination Procedure") and with regard to shareholder proposals to be brought
before an annual or special meeting of shareholders (the "Business Procedure").
The Nomination Procedure provides that only persons who are nominated by or
at the direction of the Board, or by a shareholder who has given timely prior
written notice to the Corporate Secretary of the Company prior to the meeting at
which directors are to be elected, will be eligible for election as directors.
The Business Procedure provides that shareholder proposals must be submitted in
writing in a timely manner in order to be considered at any annual or special
meeting. To be timely, notice must be received by the Company (i) in the case of
an annual meeting, not less than 90 days prior to the annual meeting for a
director nomination, and not less than 120 days prior to the annual meeting for
a shareholder proposal or (ii) in the case of a special meeting not later than
the seventh day following the day on which notice of such meeting is first given
to shareholders for both a director nomination and a shareholder proposal.
Under the Nomination Procedure, notice to the Company from a shareholder
who proposes to nominate a person at a meeting for election as a director must
contain certain information about that person, including age, business and
residence addresses, principal occupation, the class and number of shares of
Common Stock beneficially owned, the consent to be nominated and such other
information as would be required to be included in a proxy statement soliciting
proxies for the election of the proposed nominee, and certain information about
the shareholder proposing to nominate that person. Under the Business Procedure,
notice relating to a shareholder
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proposal must contain certain information about such proposal and about the
shareholder who proposes to bring the proposal before the meeting, including the
class and number of shares of Common Stock beneficially owned by such
shareholder. If the Chairman or other officer presiding at a meeting determines
that a person was not nominated in accordance with the Nomination Procedure,
such person will not be eligible for election as a director, or if he determines
that the shareholder proposal was not properly brought before such meeting, such
proposal will not be introduced at such meeting. Nothing in the Nomination
Procedure or the Business Procedure will preclude discussion by any shareholder
of any nomination or proposal properly made or brought before an annual or
special meeting in accordance with the above-mentioned procedures.
The purpose of the Nomination Procedure is, by requiring advance notice of
nomination by shareholders, to afford the Board a meaningful opportunity to
consider the qualifications of the proposed nominees and, to the extent deemed
necessary or desirable by the Board, to inform shareholders about such
qualifications. The purpose of the Business Procedure is, by requiring advance
notice of shareholder proposals, to provide a more orderly procedure for
conducting annual meetings of shareholders and, to the extent deemed necessary
or desirable by the Board, to provide the Board with a meaningful opportunity to
inform shareholders, prior to such meetings, of any proposal to be introduced at
such meetings, together with any recommendation as to the Board's position or
belief as to action to be taken with respect to such proposal, so as to enable
shareholders better to determine whether they desire to attend such meeting or
grant a proxy to the Board as to the disposition of any such proposal. Although
the Bylaws do not give the Board any power to approve or disapprove shareholder
nominations for the election of directors or of any other proposal submitted by
shareholders, the Bylaws may have the effect of precluding a nomination for the
election of directors or precluding the conducting of business at a particular
shareholder meeting if the proper procedures are not followed, and may
discourage or deter a third-party from conducting a solicitation of proxies to
elect its own slate of directors or otherwise attempting to obtain control of
the Company, even if the conduct of such solicitation or such attempt might be
beneficial to the Company and its shareholders.
FAIR PRICE PROVISION. Article Fifteen of the Company Certificate (the
"Fair Price Provision") requires approval by the holders of 66 2/3% of the
voting power of the outstanding capital stock of the Company entitled to vote
generally in the election of directors (the "Voting Stock") as a condition for
mergers and certain other business combinations ("Business Combinations")
involving the Company and any holder of more than 25% of such voting power (an
"Interested Shareholder") unless the transaction is either (i) approved by a
majority of the members of the Board who are not affiliated with the Interested
Shareholder and who were directors before the Interested Shareholder became an
Interested Shareholder (the "Disinterested Directors") or (ii) certain minimum
price and procedural requirements are met.
The Fair Price Provision is designed to prevent a third party from
utilizing two-tier pricing and similar inequitable tactics in a takeover
attempt. The Fair Price Provision is not designed to prevent or discourage
tender offers for the Company. It does not impede an offer for at least 66 2/3%
of the Voting Stock in which each shareholder receives substantially the same
price for his or her shares as each other shareholder or which the Board has
approved in the manner described herein. Nor does the Fair Price Provision
preclude a third party from making a tender offer for some of the shares of
Voting Stock without proposing a Business Combination in which the remaining
shares of Voting Stock are purchased. Except for the restrictions on Business
Combinations, the Fair Price Provision will not prevent an Interested
Shareholder having a controlling interest of the Voting Stock from exercising
control over the Company or increasing its interest in the Company. Moreover, an
Interested Shareholder could increase its ownership to 66 2/3% and avoid
application of the Fair Price Provision. However, the separate provisions
contained in the Company Certificate and the Bylaws relating to "Classified
Boards of Directors" discussed above will, as therein indicated, curtail an
Interested Shareholder's ability to exercise control in several respects,
including such shareholder's ability to change incumbent directors who may
oppose a Business Combination or to implement a Business Combination by written
consent without a shareholder meeting. The Fair Price Provision would, however,
discourage some takeover attempts by persons intending to acquire the Company in
two steps and to eliminate remaining shareholder interests by means of a
business combination involving less consideration per share than the acquiring
person would propose to pay for its initial interest in the Company. In
addition, acquisitions of stock by persons attempting to acquire control through
market purchases may cause the market price of the stock to reach levels which
are higher than would otherwise be the case. The Fair Price
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Provision may thereby deprive some holders of the Common Stock of an opportunity
to sell their shares at a temporarily higher market price.
Although the Fair Price Provision is designed to help assure fair treatment
of all shareholders vis-a-vis other shareholders in the event of a takeover, it
is not the purpose of the Fair Price Provision to assure that shareholders will
receive a premium price for their shares in a takeover. Accordingly, the Board
is of the view that the adoption of the Fair Price Provision does not preclude
the Board's opposition to any future takeover proposal which it believes would
not be in the best interests of the Company and its shareholders, whether or not
such a proposal satisfies the minimum price criteria and procedural requirements
of the Fair Price Provision.
In addition, under Section 203 of the Delaware General Corporation Law as
applicable to the Company, certain "business combinations" (defined generally to
include (i) mergers or consolidations between a Delaware corporation and an
interested shareholder (as defined below) and (ii) transactions between a
Delaware corporation and an interested shareholder involving the assets or stock
of such corporation or its majority-owned subsidiaries, including transactions
which increase the interested shareholder's percentage ownership of stock)
between a Delaware corporation, whose stock generally is publicly traded or held
of record by more than 2,000 shareholders, and an interested shareholder
(defined generally as those shareholders, who, on or after December 23, 1987,
become beneficial owners of 15% or more of a Delaware corporation's voting
stock) are prohibited for a three-year period following the date that such
shareholder became an interested shareholder, unless (i) prior to the date such
shareholder became an interested shareholder, the board of directors of the
corporation approved either the business combination or the transaction which
resulted in the shareholder becoming an interested shareholder, (ii) upon
consummation of the transaction that made such shareholder an interested
shareholder, the interested shareholder owned at least 85% of the voting stock
of the corporation outstanding at the time the transaction commenced (excluding
voting stock owned by officers who also are directors and voting stock held in
employee benefit plans in which the employees do not have a confidential right
to tender or vote stock held by the plan), or (iii) the business combination was
approved by the board of directors of the corporation and ratified by two-thirds
of the voting stock which the interested shareholder did not own. The three-year
prohibition also does not apply to certain business combinations proposed by an
interested shareholder following the announcement or notification of certain
extraordinary transactions involving the corporation and a person who had been
an interested shareholder during the previous three years or who became an
interested shareholder with the approval of a majority of the corporation's
directors.
SHAREHOLDER RIGHTS PLAN. The Company has adopted a shareholder rights plan
which may have anti- takeover effects. See "-- Preferred Stock Purchase Rights"
below.
AMENDMENT OF THE COMPANY CERTIFICATE AND BYLAWS. The Company Certificate
contains provisions requiring the affirmative vote of the holders of at least 66
2/3% the voting power of the stock entitled to vote generally in the election of
directors to amend certain provisions of the Company Certificate and Bylaws
(including the provisions discussed above). These provisions make it more
difficult for shareholders to make changes in the Company Certificate or Bylaws,
including changes designed to facilitate the exercise of control over the
Company. In addition, the requirement for approval by at least a 66 2/3%
shareholder vote will enable the holders of a minority of the Company's capital
stock to prevent holders of a less-than-66 2/3% majority from amending such
provisions of the Company's Certificate or Bylaws.
MARRIOTT INTERNATIONAL PURCHASE RIGHT. In connection with the Company's
spin-off distribution of Marriott International (the "Special Dividend"), the
Company has granted to Marriott International the right to purchase up to 20%
of each class of the Company's voting stock (determined after assuming full
exercise of the right) at its then fair market value (based on an average of
trading prices during a specified period), upon the occurrence of certain
specified events generally involving a change in control of the Company.
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PREFERRED STOCK PURCHASE RIGHTS
The Company has adopted a shareholder rights plan as set forth in a Rights
Agreement dated February 3, 1989, as amended, between the Company and the Bank
of New York, as rights agent (the "Rights Agreement"). The following is a
summary of the terms of the Rights Agreement.
RIGHTS. Following the occurrence of certain events (the "Occurrence Date")
and except as described below, each right (a "Preferred Stock Purchase Right" or
"Right," and, collectively, the "Rights") will entitle the registered holder
thereof to purchase from the Company one one-thousandth of a share (a "Unit") of
Junior Preferred Stock at a price (the "Purchase Price") of $150 per Unit,
subject to adjustment. The Rights are not exercisable until the Occurrence Date.
The Rights expire on the tenth anniversary of the adoption of the Rights
Agreement, unless exercised in connection with a transaction of the type
described below or unless earlier redeemed by the Company.
Until a Right is exercised, the holder thereof, as such, will have no
rights as the Company shareholder, including, without limitation, the right to
vote or to receive dividends.
Initially, ownership of the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate certificates
representing the Rights (the "Rights Certificates") will be distributed. Until
the Occurrence Date (or earlier redemption or expiration of the Rights), the
Rights will be transferable only with the Common Stock, and the surrender or
transfer of any certificate of Common Stock will also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate. The
Rights will separate from the Common Stock and an Occurrence Date will occur
upon the earlier of (i) 10 days following the date (a "Stock Acquisition Date")
of a public announcement that a person or group of affiliates or associated
persons (an
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"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding Common Stock or (ii) 10 business
days following the commencement of or announcement of an intention to make a
tender offer or exchange offer, the consummation of which would result in the
Acquiring Person becoming the beneficial owner of 30% or more of such
outstanding Common Stock (such date being called the Occurrence Date).
For purposes of the Rights Agreement, a person shall not be deemed to
beneficially own "Exempt Shares" which include (i) shares of Common Stock
acquired by such person by gift, bequest and certain other transfers, which
shares were Exempt Shares immediately prior to such transfer and were held by
such person continuously thereafter and (ii) shares acquired by such person in
connection with certain distributions of Common Stock with respect to Exempt
Shares which were held by such person continuously thereafter. In connection
with the Company's spin-off distribution of Marriott International, the Board
amended the Rights Agreement to provide that the shares of Common Stock acquired
by Marriott International upon exercise of the Marriott International Purchase
Right will be deemed "Exempt Shares" under the Rights Agreement, such that the
exercise of such right by Marriott International will not cause Marriott
International to be deemed an "Acquiring Person" under the Rights Agreement and
thus trigger a distribution of the Rights. See "--Delaware Law; Certain
Provisions of the Company's Certificate and Bylaws and the Marriott
International Purchase Agreement--Marriott International Purchase Right" above.
As soon as practicable following an Occurrence Date, Rights Certificates
will be mailed to holders of record of Common Stock as of the close of business
on the Occurrence Date. After such time, such separate Rights Certificates alone
will evidence the Rights and could trade independently from the Common Stock.
In the event (i) the Company is the surviving corporation in a merger with
an Acquiring Person and the Common Stock is not changed or exchanged, or (ii) an
Acquiring Person becomes the beneficial owner of 30% or more of the then
outstanding shares of Common Stock (except pursuant to an offer for all
outstanding shares of Common Stock which the Board determines to be fair to and
otherwise in the best interests of the Company and its shareholders), each
holder of a Right will, in lieu of the right to receive one one-thousandth of a
share of Junior Preferred Stock, thereafter have the right to receive, upon
exercise, Common Stock (or, in certain circumstances, cash, property or other
securities of the Company) having a value equal to two times the exercise price
of the Right. Notwithstanding any of the foregoing, following the occurrence of
any of the events set forth in this paragraph, all Rights that are (or, under
certain circumstances specified in the Rights Agreement, were) beneficially
owned by any Acquiring Person will be null and void. However, the Rights are not
exercisable following the occurrence of either of the events set forth above
until such time as the Rights are no longer redeemable by the Company as set
forth below.
For example, at an exercise price of $150 per Right, each Right not owned
by an Acquiring Person (or by certain related parties) following an event set
forth in the preceding paragraph would entitle its holder to purchase $300 worth
of Common Stock (or other consideration, as noted above) for $150. Assuming that
the Common Stock had a per share value of $30 at such time, the holder of each
valid Right would be entitled to purchase 10 shares of Common Stock for $150.
In the event that, at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or other business combination transaction in
which the Company is not the surviving corporation (other than a merger
described in the second preceding paragraph or a merger which follows an offer
described in the second preceding paragraph), or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as set forth above) shall
thereafter have the right to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the exercise price of the
Right.
In general, the Board may redeem the Rights in whole, but not in part, at
any time until 10 days following the Stock Acquisition Date, at a price of $.01
per Right. After the redemption period has expired, the Company's right of
redemption may be reinstated if an Acquiring Person reduces its beneficial
ownership to 10% or less of the outstanding shares of Common Stock in a
transaction or series of transactions not involving the Company.
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Immediately upon the action of the Board ordering redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the $.01 per Right redemption price.
The purchase price payable, and the number of shares of Junior Preferred
Stock or other securities or property issuable upon exercise of the Rights are
subject to adjustment upon the occurrence of certain events with respect to the
Company, including stock dividends, subdivisions, combinations,
reclassifications, rights or warrants offerings of Junior Preferred Stock at
less than the then current market price and certain distributions of property or
evidences of indebtedness of the Company to holders of Junior Preferred Stock,
all as set forth in the Rights Agreement.
The Rights have certain antitakeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board, except pursuant to an offer conditioned on a
substantial number of Rights being acquired. The Rights should not interfere
with any merger or other business combination approved by the Board since the
Rights may be redeemed by the Company as set forth above.
JUNIOR PREFERRED STOCK. The material terms of the Junior Preferred Stock
are summarized herein; however, such summary is subject to the terms of the
Company Certificate and the certificate of designation relating to the Junior
Preferred Stock (the "Junior Preferred Stock Certificate of Designation").
Subject to the prior payment of cumulative dividends on any class of
preferred stock ranking senior to the Junior Preferred Stock, a holder of Junior
Preferred Stock will be entitled to cumulative dividends out of funds legally
available therefor, when, as and if declared by the Board, at a quarterly rate
per share of Junior Preferred Stock equal to the greater of (a) $10.00 or (b)
1,000 times (subject to adjustment upon certain dilutive events) the aggregate
per share amount of all cash dividends and 1,000 times (subject to adjustment
upon certain dilutive events) the aggregate per share amount (payable in kind)
of all noncash dividends or other distributions (other than dividends payable in
Common Stock or a sub-division of the outstanding shares of Common Stock)
declared on Common Stock, since the immediately preceding quarterly dividend
payment date for the Junior Preferred Stock (or since the date of issuance of
the Junior Preferred Stock if no such dividend payment date has occurred).
A holder of Junior Preferred Stock will be entitled to 1,000 votes (subject
to adjustment upon certain dilutive events) per share of Junior Preferred Stock
on all matters submitted to a vote of the Company shareholders. Such holders
will vote together with the holders of the Common Stock as a single class on all
matters submitted to a vote of the Company shareholders.
In the event of a merger or consolidation of the Company which results in
Common Stock being exchanged or changed for other stock, securities, cash and/or
other property, the shares of Junior Preferred Stock shall similarly be
exchanged or changed in an amount per share equal to 1,000 times (subject to
adjustment upon certain dilutive events) the aggregate amount of stock,
securities, cash and/or other property, as the case may be, into which each
share of Common Stock has been exchanged or changed.
In the event of liquidation, dissolution or winding up of the Company, a
holder of Junior Preferred Stock will be entitled to receive $1,000 per share,
plus accrued and unpaid dividends and distributions thereon, before any
distribution may be made to holders of shares of stock of the Company ranking
junior to the Junior Preferred Stock, and the holders of Junior Preferred Stock
are entitled to receive an aggregate amount per share equal to 1,000 times
(subject to adjustment upon certain dilutive events) the aggregate amount to be
distributed per share to holders of Common Stock.
In the event that dividends on the Junior Preferred Stock are in arrears in
an amount equal to six quarterly dividends thereon, all holders of Junior
Preferred Stock, voting separately as a class with the holders of any other
series of preferred stock of the Company with dividends in arrears, will be
entitled to elect two directors pursuant to provisions of the Company
Certificate. Such right to elect two additional directors shall continue at each
annual meeting until all dividends in arrears (including the then-current
quarterly dividend payment) have been paid or declared and set apart for
payment. Upon payment or declaration and reservation of funds for payment of all
such
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dividends, the term of office of each director elected shall immediately
terminate and the number of directors shall be such number as may be provided
for in the Company Certificate or Bylaws.
The Junior Preferred Stock is not subject to redemption. The terms of the
Junior Preferred Stock provide that the Company is subject to certain
restrictions with respect to dividends and distributions on and redemptions and
purchases of shares of stock of the Company ranking junior to or on a parity
with the Junior Preferred Stock in the event that payments of dividends or other
distributions payable on the Junior Preferred Stock are in arrears.
OUTSTANDING WARRANTS
In March 1993, the Company reached an agreement in principle with certain
holders and recent purchasers of its senior notes and debentures who had either
instituted or threatened litigation in response to the Company's decision to
consummate the Special Dividend. In August 1993, the United States District
Court approved the agreement as a class action settlement. In connection with
such class action settlement, the Company issued warrants ("Outstanding
Warrants") to purchase up to 7.7 million shares of the Company's Common Stock.
As subsequently adjusted, each Outstanding Warrant entitles the holder, at any
time prior to 5:00 p.m. on October 8, 1998 (the "Expiration Time"), to
purchase one share of Common Stock from the Company and one-fifth share of
Host Marriott Services Corporation common stock, a former subsidiary of the
Company whose common stock is currently trading on the NYSE ("HM Services") at
a price (the "Exercise Price") of $10.00. The portion of the Exercise Price
attributable to the HM Services common stock is payable to HM Services. Both
the Exercise Price and the number of shares subject to the Outstanding Warrants
are subject to certain adjustments. Outstanding Warrants that are not exercised
prior to the Expiration Time expire and become void. The Company did not
receive any proceeds from the issuance of the Outstanding Warrants.
Outstanding Warrant holders will not be entitled to vote or to consent or
to receive notice as shareholders in respect of the meeting of shareholders or
the election of directors of the Company or any other matter, or possess any
rights whatsoever as to the operations of the Company.
The Company has also agreed to use its reasonable best efforts to obtain
any required approvals or registration under state securities laws for the
issuance of the Common Stock upon exercise of the Outstanding Warrants. Under
the Outstanding Warrant Agreement, however, Outstanding Warrants may not be
exercised by or, shares of Common Stock issued to, any Warrant holder in any
state where such exercise or issuance would be unlawful. The Outstanding
Warrants have no established trading market and no assurance can be given that
any such markets will develop.
As of June 2, 1998, approximately 550,000 Warrants were outstanding or
reserved for issuance.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may issue receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fractional interest of a share of a
particular series of Preferred Stock, as specified in the applicable Prospectus
Supplement. Shares of Preferred Stock of each series represented by Depositary
Shares will be deposited under a separate Deposit Agreement (each, a "Deposit
Agreement") among the Company and the depositary named therein (the "Preferred
Stock Depositary"). Subject to the terms of the Deposit Agreement, each owner of
a Depositary Receipt will be entitled, in proportion to the fractional interest
of a share of a particular series of Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipt, to all the rights and
preferences of the Preferred Stock represented by such Depositary Shares
(including dividend, voting, conversion, redemption and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Stock by the Company to the Preferred Stock
Depositary, the Company will cause the Preferred Stock Depositary to issue, on
behalf of the
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Company, the Depositary Receipts. Copies of the applicable form of Deposit
Agreement and Depositary Receipt may be obtained from the Company upon request,
and the statements made hereunder relating to the Deposit Agreement and the
Depositary Receipts to be issued thereunder are summaries of certain provisions
thereof and do not purport to be complete and are subject to, and qualified in
their entirety by reference to, all of the provisions of the applicable Deposit
Agreement and related Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock to the record
holders of Depositary Receipts evidencing the related Depositary Shares in
proportion to the number of such Depositary Receipts owned by such holders,
subject to certain obligations of holders to file proofs, certificates and other
information and to pay certain charges and expenses to the Preferred Stock
Depositary.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the Preferred Stock Depositary, unless the Preferred Stock
Depositary determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the Company,
sell such property and distribute the net proceeds from such sale to such
holders.
No distribution will be made in respect of any Depositary Share to the
extent that it represents any Preferred Stock converted into other securities.
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate trust office of
the Preferred Stock Depositary (unless the related Depositary Shares have
previously been called for redemption or converted into other securities), the
holders thereof will be entitled to delivery at such office, to or upon such
holder's order, of the number of whole or fractional shares of the Preferred
Stock and any money or other property represented by the Depositary Shares
evidenced by such Depositary Receipts. Holders of Depositary Receipts will be
entitled to receive whole or fractional shares of the related Preferred Stock on
the basis of the proportion of Preferred Stock represented by such Depositary
Share as specified in the applicable Prospectus Supplement, but holders of such
shares of Preferred Stock will not thereafter be entitled to receive Depositary
Shares therefor. If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the number of Depositary Shares
representing the number of shares of Preferred Stock to be withdrawn, the
Preferred Stock Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems shares of Preferred Stock held by the
Preferred Stock Depositary, the Preferred Stock Depositary will redeem, as of
the same redemption date, the number of Depositary Shares representing shares of
the Preferred Stock so redeemed, provided the Company shall have paid in full to
the Preferred Stock Depositary the redemption price of the Preferred Stock to be
redeemed plus an amount equal to any accrued and unpaid dividends thereon to the
date fixed for redemption. The redemption price per Depositary Share will be
equal to the corresponding proportion of the redemption price and any other
amounts per share payable with respect to the Preferred Stock. If fewer than all
the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
will be selected pro rata (as nearly as may be practicable without creating
fractional Depositary Shares) or by any other equitable method determined by the
Company.
From and after the date fixed for redemption, all dividends in respect of
the shares of Preferred Stock so called for redemption will cease to accrue, the
Depositary Shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary Receipts evidencing
the Depositary Shares so called for redemption will cease, except the right to
receive any moneys payable upon such redemption and any money or
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other property to which the holders of such Depositary Receipts were entitled
upon such redemption and surrender thereof to the Preferred Stock Depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Preferred Stock Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Receipts evidencing the Depositary Shares which represent such
Preferred Stock. Each record holder of Depositary Receipts evidencing
Depositary Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled to instruct the Preferred Stock
Depositary as to the exercise of the voting rights pertaining to the amount of
Preferred Stock represented by such holder's Depositary Shares. The Preferred
Stock Depositary will vote the amount of Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
Preferred Stock Depositary in order to enable the Preferred Stock Depositary to
do so. The Preferred Stock Depositary will abstain from voting the amount of
Preferred Stock represented by such Depositary Shares to the extent it does not
receive specific instructions from the holders of Depositary Receipts evidencing
such Depositary Shares. The Preferred Stock Depositary shall not be responsible
for any failure to carry out any instruction to vote, or for the manner or
effect of any such vote made, as long as such action or non-action is in good
faith and does not result from negligence or willful misconduct of the Preferred
Stock Depositary.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each Depositary Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depositary Shares, as such, are not convertible into Common Stock or
any other securities or property of the Company. Nevertheless, if so specified
in the applicable Prospectus Supplement relating to an offering of Depositary
Shares, the Depositary Receipts may be surrendered by holders thereof to the
Preferred Stock Depositary with written instructions to the Preferred Stock
Depositary to instruct the Company to cause conversion of the Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipts into
whole shares of Common Stock, other shares of Preferred Stock of the Company or
other shares of stock, and the Company has agreed that upon receipt of such
instructions and any amounts payable in respect thereof, it will cause the
conversion thereof utilizing the same procedures as those provided for delivery
of Preferred Stock to effect such conversion. If the Depositary Shares
evidenced by a Depositary Receipt are to be converted in part only, a new
Depositary Receipt or Receipts will be issued for any Depositary Shares not to
be converted. No fractional shares of Common Stock will be issued upon
conversion, and if such conversion would result in a fractional share being
issued, an amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common Stock on the last
business day prior to the conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Stock
Depositary. However, any amendment that materially and adversely alters the
rights of the holders of Depositary Receipts or that would be materially and
adversely inconsistent with the rights granted to the holders of the related
Preferred Stock will not be effective unless such amendment has been approved by
the existing holders of at least 66% of the Depositary Shares evidenced by the
Depositary Receipts then outstanding. No amendment shall impair the right,
subject to certain exceptions in the Depositary Agreement, of any holder of
Depositary Receipts to surrender any Depositary Receipt with instructions to
deliver to the holder the related Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply with law.
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Every holder of an outstanding Depositary Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
The Deposit Agreement may be terminated by the Company upon not less than
30 days prior written notice to the Preferred Stock Depositary if a majority of
each series of Preferred Stock affected by such termination consents to such
termination, whereupon the Preferred Stock Depositary shall deliver or make
available to each holder of Depositary Receipts, upon surrender of the
Depositary Receipts held by such holder, such number of whole or fractional
shares of Preferred Stock as are represented by the Depositary Shares evidenced
by such Depositary Receipts together with any other property held by the
Preferred Stock Depositary with respect to such Depositary Receipt. In
addition, the Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed, (ii) there shall have
been a final distribution in respect of the related Preferred Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Depositary
Receipts evidencing the Depositary Shares representing such Preferred Stock or
(iii) each share of the related Preferred Stock shall have been converted into
securities of the Company not so represented by Depositary Shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the Preferred Stock Depositary in
connection with the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and expenses of the
Preferred Stock Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF DEPOSITORY
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary. A successor
Preferred Stock Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Preferred Stock Depositary under the Deposit Agreement will be
limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of Preferred
Stock represented by the Depositary Shares), gross negligence or willful
misconduct, and the Company and the Preferred Stock Depositary will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Receipts, Depositary Shares or shares of Preferred Stock represented
thereby unless satisfactory indemnity is furnished. The Company and the
Preferred Stock Depositary may rely on written advice of counsel or accountants,
or information provided by persons presenting shares of Preferred Stock
represented thereby for deposit, holders of Depositary Receipts or other persons
believed in good faith to be competent to give such information, and on
documents believed in good faith to be genuine and signed by a proper party.
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In the event the Preferred Stock Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on the
one hand, and the Company, on the other hand, the Preferred Stock Depositary
shall be entitled to act on such claims, requests or instructions received from
the Company.
DESCRIPTION OF WARRANTS
The Company may issue warrants to purchase Debt Securities (the "Debt
Warrants"), Preferred Stock (the "Preferred Stock Warrants"), Depositary Shares
(the "Depositary Shares Warrants") or Common Stock (the "Common Stock Warrants,"
collectively the "Warrants"). Warrants may be issued independently or together
with any Offered Securities and may be attached to or separate from such Offered
Securities. The Warrants are to be issued under warrant agreements (each a
"Warrant Agreement") to be entered into between the Company and a bank or trust
company, as warrant agent (the "Warrant Agent"), all as shall be set forth in
the Prospectus Supplement relating to the Warrants being offered pursuant
thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and Debt Warrant certificates representing such Debt Warrants, including the
following:
(i) the title for such Debt Warrants;
(ii) the aggregate number of such Debt Warrants;
(iii) the price or prices at which such Debt Warrants will be issued;
(iv) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of such Debt Warrants, and the procedures
and conditions relating to the exercise of such Debt Warrants;
(v) the designation and terms of any related Debt Securities with which
such Debt Warrants are issued, and the number of such Debt Warrants issued with
each such security;
(vi) the date, if any, on and after which such Debt Warrants and the
related Debt Securities will be separately transferable;
(vii) the principal amount of Debt Securities purchasable upon exercise of
each Debt Warrant, and the price at which such principal amount of Debt
Securities may be purchased upon such exercise;
(viii) the date on which such right shall expire;
(ix) the maximum or minimum number of such Debt Warrants which may be
exercised at any time;
(x) a discussion of the material United States federal income tax
considerations applicable to the exercise of such Debt Warrants; and
(xi) any other terms of such Debt Warrants and terms, procedures and
limitations relating to the exercise of such Debt Warrants.
Debt Warrant certificates will be exchangeable for new Debt Warrant
certificates of different denominations, and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders of
the securities purchasable upon such exercise and will not be entitled to
payments of principal of (or premium, if any) or interest, if any, on the
securities purchasable upon such exercise.
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OTHER WARRANTS
The applicable Prospectus Supplement will describe the following terms of
Preferred Stock Warrants, the Depositary Share Warrants or Common Stock Warrants
in respect of which this Prospectus is being delivered:
(i) the title of such Warrants;
(ii) the securities for which such Warrants are exercisable;
(iii) the price or prices at which such Warrants will be issued;
(iv) the number of such Warrants issued with each share of Preferred
Stock or Common Stock ;
(v) any provisions for adjustment of the number or amount of shares of
Preferred Stock or Common Stock receivable upon exercise of such Warrants or the
exercise price of such Warrants;
(vi) if applicable, the date on and after which such Warrants and the
related Preferred Stock or Common Stock will be separately transferable;
(vii) if applicable, a discussion of the material United States federal
income tax considerations applicable to the exercise of such Warrants;
(viii) any other terms of such Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Warrants;
(ix) the date on which the right to exercise such Warrants shall
commence, and the date on which such right shall expire; and
(x) the maximum or minimum number of such Warrants which may be
exercised at any time.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase for cash such
principal amount of Debt Securities or shares of Preferred Stock, Common Stock
or Depositary Shares at such exercise price as shall in each case be set forth
in, or be determinable as set forth in, the Prospectus Supplement relating to
the Warrants offered thereby. Warrants may be exercised at any time up to the
close of business on the expiration date set forth in the Prospectus Supplement
relating to the Warrants offered thereby. After the close of business on the
expiration date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. Upon receipt of payment and the
Warrant certificate properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, forward the Debt
Securities or shares of Preferred Stock or Common Stock purchasable upon such
exercise. If less than all of the Warrants represented by such Warrant
certificate are exercised, a new Warrant certificate will be issued for the
remaining Warrants.
DESCRIPTION OF SUBSCRIPTION RIGHTS
The Company may issue Subscription Rights to purchase (i) Common Stock (the
"Common Stock Rights"), (ii) Preferred Stock (the "Preferred Stock Rights"),
(iii) Depositary Shares (the "Depositary Share Rights") or (iv) Warrants to
purchase Preferred Stock or Common Stock (the "Warrant Rights" and, collectively
with the Common Stock Rights, Preferred Stock Rights and the Depository Share
Rights, the "Subscription Rights"). Subscription Rights may be issued
independently or together with any other Offered Security and may or may not be
transferable by the purchaser receiving the Subscription Rights. In connection
with any Subscription Rights
30
<PAGE>
offering to the Company's shareholders, the Company may enter into a standby
underwriting arrangement with one or more underwriters pursuant to which such
underwriter will purchase any Offered Securities remaining unsubscribed for
after such Subscription Rights offering. In connection with a Subscription
Rights offering to the Company's shareholders, certificates evidencing the
Subscription Rights and a Prospectus Supplement will be distributed to the
Company's shareholders on the record date for receiving Subscription Rights in
such Subscription Rights offering set by the Company.
The applicable Prospectus Supplement will describe the following terms of
Subscription Rights in respect of which this Prospectus is being delivered:
(i) the title of such Subscription Rights;
(ii) the securities for which such Subscription Rights are exercisable;
(iii) the exercise price for such Subscription Rights;
(iv) the number of such Subscription Rights issued to each shareholder;
(v) the extent to which such Subscription Rights are transferable;
(vi) if applicable, a discussion of the material United States federal
income tax considerations applicable to the issuance or exercise of such
Subscription Rights;
(vii) any other terms of such Subscription Rights, including terms,
procedures and limitations relating to the exchange and exercise of such
Subscription Rights;
(viii) the date on which the right to exercise such Subscription Rights
shall commence, and the date on which such right shall expire.
(ix) the extent to which such Subscription Rights includes an over-
subscription privilege with respect to unsubscribed securities.
(x) if applicable, the material terms of any standby underwriting
arrangement entered into by the Company in connection with the Rights offering.
EXERCISE OF SUBSCRIPTION RIGHTS
Each Subscription Right will entitle the holder of Subscription Rights to
purchase for cash such principal amount of shares of Preferred Stock, Depository
Shares, Common Stock, Preferred Stock Warrants, Depository Share Warrants,
Common Stock Warrants or any combination thereof, at such exercise price as
shall in each case be set forth in, or be determinable as set forth in, the
Prospectus Supplement relating to the Subscription Rights offered thereby.
Subscription Rights may be exercised at any time up to the close of business on
the expiration date for such Subscription Rights set forth in the Prospectus
Supplement. After the close of business on the expiration date, all unexercised
Subscription Rights will become void.
Subscription Rights may be exercised as set forth in the Prospectus
Supplement relating to the Subscription Rights offered thereby. Upon receipt of
payment and the Subscription Rights certificate properly completed and duly
executed at the corporate trust office of the Rights Agent or any other office
indicated in the Prospectus Supplement, the Company will, as soon as
practicable, forward the shares of Preferred Stock or Common Stock, Depository
Shares, Common Stock Warrants or Preferred Stock Warrants purchasable upon such
exercise. In the event that not all of the Subscription Rights issued in any
Rights offering are exercised, the Company may determine to offer any
unsubscribed Offered Securities directly to persons other than shareholders, to
or through agents, underwriters or dealers or through a combination of such
methods, (including pursuant to standby underwriting arrangements), as set forth
in the applicable Prospectus Supplement.
31
<PAGE>
PLAN OF DISTRIBUTION
The Company and the Co-Registrants may sell the Offered Securities being
offered hereby: (i) directly to purchasers; (ii) through agents; (iii) through
dealers; (iv) through underwriters; (v) directly to the Company's shareholders
(in the case of Subscription Rights); or (vi) through a combination of any such
methods of sale.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions either: (i) at a fixed price or prices, which
may be changed; (ii) at market prices prevailing at the time of sale; (iii) at
prices related to such prevailing market prices; or (iv) at negotiated prices.
Offers to purchase Offered Securities may be solicited directly by the
Company and/or the Co-Registrants. Offers to purchase Offered Securities may
also be solicited by agents designated by the Company and/or the Co-Registrants
from time to time. Any such agent, who may be deemed to be an "underwriter" as
that term is defined in the Securities Act, involved in the offer or sale of the
Offered Securities in respect of which this Prospectus is delivered will be
named, and any commissions payable by the Company and Co-Registrants to such
agent will be set forth in the Prospectus Supplement.
If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, the Company and/or the Co-Registrants will
sell such Offered Securities to the dealer, as principal. The dealer, who may be
deemed to be an "underwriter" as that term is defined in the Securities Act, may
then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale.
If an underwriter is, or underwriters are, utilized in the sale, the
Company and/or the Co-Registrants will execute an underwriting agreement with
such underwriters at the time of sale to them and the names of the underwriters
will be set forth in the Prospectus Supplement, which will be used by the
underwriter to make resales of the Offered Securities in respect of which this
Prospectus is delivered to the public. In connection with the sale of Offered
Securities, such underwriter may be deemed to have received compensation from
the Company and/or the Co-Registrants in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of Offered
Securities for whom they may act as agents. Underwriters may also sell Offered
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents. Any
underwriting compensation paid by the Company to underwriters in connection with
the offering of Offered Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in the applicable Prospectus Supplement.
Pursuant to any standby underwriting agreement entered into in connection
with a Subscription Rights offering to the Company's shareholders, persons
acting as standby underwriters may receive a commitment fee for all securities
underlying the Subscription Rights that the underwriter commits to purchase on a
standby basis. Additionally, prior to the expiration date with respect to any
Subscription Rights, any standby underwriters in a Subscription Rights offering
to the Company's shareholders may offer such securities on a when-issued basis,
including securities to be acquired through the purchase and exercise of
Subscription Rights, at prices set from time to time by the standby
underwriters. After the expiration date with respect to such Subscription
Rights, the underwriters may offer securities of the type underlying the
Subscription Rights, whether acquired pursuant to a standby underwriting
agreement, the exercise of the Subscription Rights or the purchase of such
securities in the market, to the public at a price or prices to be determined by
the underwriters. The standby underwriters may thus realize profits or losses
independent of the underwriting discounts or commissions paid by the Company. In
the event that the Company does not enter into a standby underwriting
arrangement in connection with a Subscription Rights offering to the Company's
shareholders, the Company may elect to retain a dealer-manager to manage such a
Subscription Rights offering for the Company. Any such dealer-manager may offer
securities of the type underlying the Subscription Rights acquired or to be
acquired pursuant to the purchase and exercise of Subscription Rights and may
thus realize profits or losses independent of any dealer-manager fee paid by the
Company.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that may be entered into with the Company and/or the Co-Registrants,
to indemnification by the Company and/or the Co-Registrants against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which they may be required to make in
respect thereof.
32
<PAGE>
Underwriters and agents may engage in transactions with, or perform services
for, the Company and/or the Co-Registrants in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company and/or
the Co-Registrants will authorize underwriters, dealers or other persons to
solicit offers by certain institutions to purchase Offered Securities pursuant
to contracts providing for payment and delivery on a future date or dates.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others. The obligations of any
purchasers under any such contract will not be subject to any conditions except
that (i) the purchase of the Offered Securities shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject, and (ii) if the Offered Securities are also being sold to
underwriters, the Company and/or the Co-Registrants shall have sold to such
underwriters the Offered Securities not sold for delayed delivery. The
underwriters, dealers and such other persons will not have any responsibility in
respect of the validity or performance of such contracts. The Prospectus
Supplement relating to such contracts will set forth the price to be paid for
Offered Securities pursuant to such Contracts, the commission payable for
solicitation of such contracts and the date or dates in the future for delivery
of Offered Securities pursuant to such contracts.
Any underwriter may engage in stabilizing and syndicate covering
transactions in accordance with Rule 104 under the Exchange Act. Rule 104
permits stabilizing bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. The underwriters may over-
allot shares of the Common Stock in connection with an offering of Common Stock,
thereby creating a short position in the underwriters' account. Syndicate
covering transactions involve purchases of the Debt Securities in the open
market after the distribution has been completed in order to cover syndicate
short positions. Stabilizing and syndicate covering transactions may cause the
price of the Debt Securities to be higher than it would otherwise be in the
absence of such transactions. These transactions, if commenced, may be
discontinued at any time.
The anticipated date of delivery of Offered Securities will be set forth in
the applicable Prospectus Supplement relating to each offer.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
and/or the Co-Registrants by Christopher G. Townsend, Esq., Senior Vice
President and General Counsel of the Company or by other counsel to the Company
and/or the Co-Registrants. If the Offered Securities are distributed in an
underwritten offering or through agents, certain legal matters may be passed
upon for any agents or underwriters by counsel for such agents or underwriters
identified in the applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements and schedules of Host Marriott
Corporation and HMH Properties, Inc. incorporated by reference in this
prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said reports.
33
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate of the fees and expenses, other than
underwriting discounts and commissions, payable or reimbursable by the Company
in connection with the distribution of the Offered Securities:
<TABLE>
<S> <C>
SEC Registration Fee........................................................ $ 737,500
Rating Agency Fees.......................................................... 30,000
Legal Fees and Expenses..................................................... 600,000
Accounting Fees and Expenses................................................ 250,000
Printing Expenses........................................................... 500,000
Trustee/Issuing & Paying Agent Fees and Expenses............................ 50,000
Miscellaneous............................................................... 25,000
----------
Total................................................................ $2,192,500
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Eleven and Article Sixteen of the Company Certificate and Section
7.7 of the Bylaws limit the personal liability of directors to the Company or
its shareholders for monetary damages for breach of fiduciary duty. The
provisions of the Company Certificate and Bylaws are collectively referred to
herein as the "Director Liability and Indemnification Provisions."
Set forth below is a description of the Director Liability and
Indemnification Provisions. Such description is intended as a summary only and
is qualified in its entirety by reference to the Company Certificate and the
Bylaws.
Elimination of Liability in Certain Circumstances. Article Sixteen of the
Company Certificate protects directors against monetary damages for breaches of
their fiduciary duty of care, except as set forth below. Under the Delaware
General Corporation Law, absent such limitation of liability provisions as are
provided in Article Sixteen, directors could generally be held liable for gross
negligence for decisions made in the performance of their duty of care but not
for simple negligence. Article Sixteen eliminates liability of directors for
negligence in the performance of their duties, including gross negligence. In a
context not involving a decision by the directors (i.e., a suit alleging loss to
the Company due to the directors' inattention to a particular matter), a simple
negligence standard might apply. Directors remain liable for breaches of their
duty of loyalty to the Company and its shareholders, as well as acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law and transactions from which a director derives improper
personal benefit. Article Sixteen does not eliminate director liability under
Section 174 of the Delaware General Corporation Law, which makes directors
personally liable for unlawful dividends or unlawful stock repurchases or
redemptions and expressly sets forth a negligence standard with respect to such
liability.
While the Director Liability and Indemnification Provisions provide
directors with protection from awards of monetary damages for breaches of the
duty of care, they do not eliminate the directors' duty of care. Accordingly,
these provisions will have no effect on the availability of equitable remedies
such as an injunction or rescission based upon a director's breach of the duty
of care. The provisions of Article Sixteen, which eliminates liability as
described above, will apply to officers of the Company only if they are
directors of the Company and are acting in their capacity as directors, and will
not apply to officers of the Company who are not directors. The
II-1
<PAGE>
elimination of liability of directors for monetary damages in the circumstances
described above may deter persons from bringing third-party or derivative
actions against directors to the extent such actions seek monetary damages.
Indemnification and Insurance. Under Section 145 of the Delaware General
Corporation Law, directors and officers as well as other employees and
individuals may be indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action") if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful. A similar standard of care is applicable in
the case of derivative actions, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with defense or
settlement of such an action, and the Delaware General Corporation Law requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation.
Section 7.7 of the Bylaws provides that the Company shall indemnify any
person to whom, and to the extent, indemnification may be granted pursuant to
Section 145 of the Delaware General Corporation law.
Article Eleven of the Company Certificate provides that a person who was or
is made a party to, or is involved in, any action, suit or proceeding by reason
of the fact that he is or was a director, officer or employee of the Company
will be indemnified by the Company against all expenses and liabilities,
including counsel fees, reasonably incurred by or imposed upon him, except in
such cases where the director, officer or employee is adjudged guilty of willful
misconduct or malfeasance in the performance of his duties. Article Eleven also
provides that the right of indemnification shall be in addition to and not
exclusive of all other rights to which such director, officer or employee may be
entitled.
The charter documents of the Co-Registrants contain provisions similar to those
detailed above.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
-- ----------------------
<S> <C>
1.1* -- Form of Underwriting Agreement
3.1(i) -- Restated Certificate of Incorporation of Marriott Corporation
(incorporated by reference to Current Report on Form 8-K dated
October 23, 1993).
3.1(ii) -- Certificate of Correction filed to correct a certain error in the
Restated Certificate of Incorporation of Host Marriott Corporation
filed in the Office of the Secretary of State of Delaware on
August 11, 1992, filed in the Office of the Secretary of State of
Delaware on October 11, 1994 (incorporated by reference to
Registration Statement No. 33-54545).
3.2 -- Amended Marriott Corporation Bylaws (incorporated by reference to
Current Report on Form 8-K dated October 23, 1993).
4.1++ -- Form of Indenture
4.2* -- Specimen Common Stock Certificate
4.3* -- Certificate of Designation
4.4* -- Form of Preferred Stock Certificate
4.5* -- Form of Warrant Agreement
4.6* -- Form of Warrant
4.7* -- Form of Subscription Rights Certificate
5.1++ -- Opinion of company counsel
12.1++ -- Computation of Ratio of Earnings to Fixed Charges
12.2++ -- Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends
23.1* -- Consent of company counsel (included as part of their opinion
listed as Exhibit 5.1)
23.2++ -- Consent of Arthur Andersen LLP, independent public accountants
24.1++ -- Powers of Attorney (included on signature pages)
25.1** -- Statement of Eligibility of Trustee on Form T-1
</TABLE>
____________________
* To be filed by amendment or by a Current Report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2).
++ Filed herewith
ITEM 17. UNDERTAKINGS
(a) The undersigned registrants hereby undertake:
II-2
<PAGE>
(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 material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities which remain unsold at the termination of the
offering.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement 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.
(c) The undersigned registrants hereby undertake to supplement the
prospectus, after the expiration of the subscription period, to set forth the
results of the subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities to be purchased
by the underwriters, and the terms of any subsequent reoffering thereof. If any
public offering by the underwriters is to be made on terms differing from those
set forth on the cover page of the prospectus, a post-effective amendment will
be filed to set forth the terms of such offering.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions, or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant 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, the registrants will, unless
in the opinion of its counsel 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 Act and
will be governed by the final adjudication of such issue.
(e) The Registrants hereby undertake that:
(1) For purposes of determining any liability under the
Securities Act of 1933, 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 Registrants 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.
(2) For purposes of determining any liability under the
Securities Act of 1933, 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.
(f) The undersigned registrant hereby undertakes 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 in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Host Marriott Corporation
By: *
--------------------------
Robert E. Parsons, Jr.
Executive Vice President and
Chief Financial Officer
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President, Chief Executive Officer and Director June 11, 1998
- ------------------------------------ (Principal Executive Officer)
Terence C. Golden
* Executive Vice President and Chief June 11, 1998
- ------------------------------------ Financial Officer (Principal Financial Officer)
Robert E. Parsons, Jr.
* Senior Vice President and Corporate June 11, 1998
- ------------------------------------ Controller (Principal Accounting Officer)
Donald D. Olinger
* Chairman of the Board of Directors June 11, 1998
- ------------------------------------
Richard E. Marriott
* Director June 11, 1998
- ------------------------------------
R. Theodore Ammon
* Director June 11, 1998
- ------------------------------------
Robert M. Baylis
* Director June 11, 1998
- ------------------------------------
J.W. Marriott, Jr.
* Director June 11, 1998
- ------------------------------------
Anne Dore McLaughlin
* Director June 11, 1998
- ------------------------------------
Harry L. Vincent, Jr.
/s/ John Schreiber Director June 11, 1998
- ------------------------------------
John Schreiber
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Farrell's Ice Cream Parlour Restaurants, Inc.
Saga Property Leasing Corporation
Saga Restaurants, Inc.
Sparky's Virgin Islands, Inc.
By: /s/ Christopher J. Nassetta
---------------------------
Christopher J. Nassetta
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher J. Nassetta President (Principal Executive Officer) June 11, 1998
- --------------------------- and Director
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ---------------------------
Christopher G. Townsend
/s/ Bruce D. Wardinski Treasurer (Principal Accounting Officer June 11, 1998
- ---------------------- and Principal Financial Officer)
Bruce D. Wardinski
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 9, 1998.
HMC AP Canada, Inc.
HMC Toronto Air, Inc.
By: /s/ Robert E. Parsons, Jr.
-------------------------------
Robert E. Parsons, Jr.
President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive, Financial and June 9, 1998
- ------------------------------- Accounting Officer)
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President, Secretary and Director June 9, 1998
- -------------------------------
Christopher G. Townsend
/s/ Joan C.G. Kennedy Director June 9, 1998
- -------------------------------
Joan C.G. Kennedy
/s/ Ernest McNee Director June 9, 1998
- -------------------------------
Ernest McNee
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC Airport, Inc.
HMC Mexpark, Inc
HMC Polanco, Inc.
HMC Ventures, Inc.
HMC Waterford, Inc.
By: /s/ Robert E. Parsons, Jr.
--------------------------
Robert E. Parsons, Jr.
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive June 11, 1998
- -------------------------- Officer) and Director
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President, Secretary and June 11, 1998
- --------------------------- Director
Christopher G. Townsend
/s/ Bruce D. Wardinski Treasurer (Principal Accounting June 11, 1998
- ----------------------- Officer and Principal Financial
Bruce D. Wardinski Officer)
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC Retirement Properties, Inc.
By: /s/ Christopher G. Townsend.
----------------------------
Christopher G. Townsend.
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Christopher G. Townsend President and Director June 11, 1998
- ------------------------------------ (Principal Executive Officer)
Christopher G. Townsend
* Vice President, Chief Financial Officer June 11, 1998
- ------------------------------------ and Director (Principal Financial Officer
Robert E. Parsons, Jr. and Principal Accounting Officer)
* Vice President and Director June 11, 1998
- ------------------------------------
Christopher J. Nassetta
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC BN Corporation
By: *
---------------------------
Robert E. Parsons, Jr.
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Director (Principal Executive June 11, 1998
- ------------------------------------ Officer)
Robert E. Parsons, Jr.
* Vice President (Principal Accounting Officer) June 11, 1998
- ------------------------------------
Donald D. Olinger
* Treasurer (Principal Financial Officer) June 11, 1998
- ------------------------------------
Bruce D. Wardinski
/s/ Christopher G. Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
* Director June 11, 1998
- ------------------------------------
Christopher J. Nassetta
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC Boyton Beach, Inc
Tecon Hotel Corporation
By: /s/ Christopher J. Nassetta
----------------------------------
Christopher J. Nassetta
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher J. Nassetta President (Principal Executive June 11, 1998
- --------------------------- Officer) and Director
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President, Secretary and June 11, 1998
- --------------------------- Director
Christopher G. Townsend
/s/ Robert E. Parsons, Jr. Vice President and Director June 11, 1998
- -------------------------- (Principal Financial Officer)
Robert E. Parsons, Jr.
/s/ Bruce D. Wardinski Treasurer (Principal Accounting June 11, 1998
- ---------------------- Officer)
Bruce D. Wardinski
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC Capital Resources Corporation
YBG Associates LLC
By: /s/ Christopher G. Townsend
-------------------------------------
Christopher G. Townsend
President, Secretary and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher G. Townsend President (Principal Executive June 11, 1998
- --------------------------- Officer) Secretary and Director
Christopher G. Townsend
/s/ Robert E. Parsons, Jr. Vice President (Principal Financial June 11, 1998
- -------------------------- Officer) and Director
Robert E. Parsons, Jr.
/s/ Donald D. Olinger Vice President and Director June 11, 1998
- ---------------------
Donald D. Olinger
/s/ Bruce D. Wardinski Treasurer (Principal Accounting June 11, 1998
- ---------------------- Officer)
Bruce D. Wardinski
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC Capital Resources Holdings Corporation
HMC Hartford, Inc.
HMC Manhattan Beach, Inc.
HMH Norfolk, Inc.
By: /s/ Robert E. Parsons, Jr.
-------------------------------------------
Robert E. Parsons, Jr.
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive June 11, 1998
- -------------------------- Officer) and Director
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ---------------------------
Christopher G. Townsend
/s/ Bruce D. Wardinski Vice President and Treasurer June 11, 1998
- ---------------------- (Principal Accounting Officer and
Bruce D. Wardinski Principal Financial Officer)
/s/ Christopher J. Nassetta Vice President and Director June 11, 1998
- ---------------------------
Christopher J. Nassetta
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 9, 1998.
HMC Charlotte (Calgary), Inc.
By: /s/ Mungo Hardwicke-Brown
-------------------------------------------
Mungo Hardwicke-Brown
President, Secretary and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Mungo Hardwicke-Brown President, Secretary and June 9, 1998
- ------------------------- Director (Principal
Mungo Hardwicke-Brown Executive, Financial
and Accounting Officer)
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC East Side Financial Corporation
Marriott Properties, Inc.
By: /s/ Robert E. Parsons, Jr.
------------------------------------------
Robert E. Parsons, Jr.
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive June 11, 1998
- --------------------------- Officer) and Director
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ----------------------------
Christopher G. Townsend
/s/ Christopher J. Nassetta Vice President and Director June 11, 1998
- ---------------------------- (Principal Financial Officer)
Christopher J. Nassetta
/s/ Bruce D. Wardinski Treasurer (Principal Accounting June 11, 1998
- ----------------------- Officer)
Bruce D. Wardinski
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC East Side, Inc.
By: /s/ Robert E. Parsons, Jr.
------------------------------------------
Robert E. Parsons, Jr.
President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive June 11, 1998
- -------------------------- Officer)
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ---------------------------
Christopher G. Townsend
/s/ Bruce F. Stemerman Vice-President-Finance (Principal June 11, 1998
- ---------------------- Accounting Officer and Principal
Bruce F. Stemerman Financial Officer) and Director
/s/ Christopher J. Nassetta Director June 11, 1998
- ---------------------------
Christopher J. Nassetta
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC Gateway, Inc.
By: /s/ Bruce F. Stemerman
-------------------------------------------
Bruce F. Stemerman
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any and all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Bruce F. Stemerman President (Principal Executive June 11, 1998
- ---------------------- Officer and Principal Accounting
Bruce F. Stemerman Officer) and Director
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ---------------------------
Christopher G. Townsend
/s/ Robert E. Parsons, Jr. Vice President and Director June 11, 1998
- -------------------------- (Principal Financial Officer)
Robert E. Parsons, Jr.
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC Hotel Development Corporation
By: *
---------------------------
Robert E. Parsons, Jr.
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Director June 11, 1998
- ------------------------------------ (Principal Executive Officer)
Robert E. Parsons, Jr.
* Vice President (Principal Accounting Officer) June 11, 1998
- ------------------------------------
Donald D. Olinger
* Vice President and Treasurer June 11, 1998
- ------------------------------------ (Principal Financial Officer)
Bruce D. Wardinski
/s/ Christopher G Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
* /s/ Christopher G. Townsend
----------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC SFO, Inc.
By: *
---------------------------
Christopher J. Nassetta
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Director (Principal June 11, 1998
- ------------------------------------ Executive Officer)
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
* Vice President (Principal Accounting Officer June 11, 1998
- ------------------------------------ and Principal Financial Officer)
Donald D. Olinger
*/s/ Christopher G. Townsend
------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMH HPT Residence Inn, Inc.
By: /s/ Christopher J. Nassetta
------------------------------------------
Christopher J. Nassetta
President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any and all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher J. Nassetta President (Principal Executive June 11, 1998
- --------------------------- Officer)
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ---------------------------
Christopher G. Townsend
/s/ Bruce D. Wardinski Vice President (Principal Accounting June 11, 1998
- ---------------------- Officer) and Treasurer
Bruce D. Wardinski
/s/ Robert E. Parsons, Jr. Vice President and Director June 11, 1998
- -------------------------- (Principal Financial Officer)
Robert E. Parsons, Jr
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMH Marina, Inc.
By: *
---------------------------
Robert E. Parsons, Jr.
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President (Principal Executive Officer) June 11, 1998
- ------------------------------------
Robert E. Parsons, Jr.
* Vice President and Director (Principal Financial June 11, 1998
- ------------------------------------ Officer and Principal Accounting Officer)
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMH Pentagon Corporation.
By: *
---------------------------
Christopher J. Nassetta
President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President (Principal Executive Officer and June 11, 1998
- ------------------------------------ Principal Financial Officer)
Christopher J. Nassetta
* Vice President (Principal Accounting Officer) June 11, 1998
- ------------------------------------
Donald D. Olinger
* Vice President and Director June 11, 1998
- ------------------------------------
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
</TABLE>
* /s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMH Properties, Inc.
By: *
---------------------------
Robert E. Parsons, Jr.
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Director (Principal June 11, 1998
- ------------------------------------ Executive Officer)
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Executive Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
* Executive Vice President June 11, 1998
- ------------------------------------
Christopher J. Nassetta
* Senior Vice President and Treasurer (Principal June 11, 1998
- ------------------------------------ Financial Officer)
Bruce D. Wardinski
* Vice President and Corporate Controller June 11, 1998
- ------------------------------------ (Principal Accounting Officer)
Donald D. Olinger
</TABLE>
*/s/ Christopher G. Townsend
-----------------------------------
Christopher G. Townsend
Attorney-in-fact
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMH Realty Company, Inc.
By: *
---------------------------------
Christopher J. Nassetta
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATED INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Director (Principal June 11, 1998
- ------------------------------------ Executive Officer)
Christopher J. Nassetta
* Vice President and Director (Principal June 11, 1998
- ------------------------------------ Financial Officer)
Robert E. Parsons, Jr.
* Vice President and Treasurer (Principal June 11, 1998
- ------------------------------------ Accounting Officer)
Bruce D. Wardinski
/s/ Christopher G. Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
* /s/ Christopher G. Townsend
---------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMH Restaurants, Inc.
Marriott's Bickford's Family Fare, Inc.
PM Financial Corporation
By: /s/ Christopher J. Nassetta
----------------------------
Christopher J. Nassetta
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any and all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher J. Nassetta President (Principal Executive June 11, 1998
- ------------------------------------ Officer) and Director
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
/s/ Bruce D. Wardinski Treasurer (Principal Accounting June 11, 1998
- ------------------------------------ Officer)
Bruce D. Wardinski
/s/ Robert E. Parsons, Jr. Vice President and Director June 11, 1998
- ------------------------------------ (Principal Financial Officer)
Robert E. Parsons, Jr.
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMH Rivers, Inc.
By: /s/ Christopher G. Townsend.
----------------------------
Christopher G. Townsend.
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Christopher G. Townsend President and Director (Principal June 11, 1998
- ------------------------------------ Executive Officer)
Christopher G. Townsend
* Vice President and Director (Principal Financial June 11, 1998
- ------------------------------------ Officer)
Robert E. Parsons, Jr.
* Vice President (Principal Accounting Officer) June 11, 1998
- ------------------------------------
Donald D. Olinger
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Host Airport Hotels, Inc.
By: *
---------------------------
Christopher J. Nassetta
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Director (Principal Executive Officer) June 11, 1998
- ------------------------------------
Christopher J. Nassetta
* Vice President and Director (Principal Financial June 11, 1998
- ------------------------------------ Officer and Principal Accounting Officer)
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Host LaJolla, Inc.
By: /s/ Robert E. Parsons, Jr.
--------------------------
Robert E. Parsons, Jr.
President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive June 11, 1998
- ------------------------------------ Officer)
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
/s/ Christopher J. Nassetta Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer and Principal Financial
Christopher J. Nassetta Officer) and Director
/s/ Richard E. Marriott Director
- ------------------------------------
Richard E. Marriott
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Host Marriott Hospitality, Inc.
By: *
---------------------------
Terence C. Golden
President and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Chief Executive Officer June 11, 1998
- ------------------------------------ (Principal Executive Officer)
Terence C. Golden
* Executive Vice President and Director June 11, 1998
- ------------------------------------ (Principal Financial Officer)
Robert E. Parsons, Jr.
* Vice President (Principal Accounting Officer) June 11, 1998
- ------------------------------------
Donald D. Olinger
* Executive Vice President and Director June 11, 1998
- ------------------------------------
Christopher J. Nassetta
/s/ Christopher G. Townsend Senior Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Host Marriott, L.P.
By: HMC Real Estate Corporation as
General Partner
By: /s/ Robert E. Parsons Jr.
---------------------------
Robert E. Parsons Jr.
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive, June 11, 1998
- ------------------------------------ Financial and Accounting Office)
Robert E. Parsons, Jr. and Director
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Marriott Financial Services, Inc.
By: *
---------------------------
Robert E. Parsons, Jr.
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Director (Principal June 11, 1998
- ------------------------------------ Executive Officer)
Robert E. Parsons, Jr.
* Vice President (Principal Financial Officer June 11, 1998
- ------------------------------------ and Principal Accounting Officer)
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Host of Boston, Ltd.
Host of Houston, Ltd.
Host of Houston 1979
By: Host Airport Hotels, Inc. as General
Partner
By: /s/ Christopher J. Nassetta
----------------------------------
Christopher J. Nassetta
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher J. Nassetta President and Director June 11, 1998
- ------------------------------------ (Principal Executive Officer)
Christopher J. Nassetta
/s/ Robert E. Parsons, Jr. Vice President and Director June 11, 1998
- ------------------------------------ (Principal Financial and Accounting
Robert E. Parsons, Jr. Officer)
/s/ Christopher Townsend President and Director June 11, 1998
- ------------------------------------
Christopher Townsend
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Hot Shoppes, Inc.
By: /s/ Terence C. Golden
---------------------
Terence C. Golden
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Terence C. Golden President (Principal Executive June 11, 1998
- ------------------------------------ Officer) and Director
Terence C. Golden
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
/s/ Bruce D. Wardinski Vice President and Treasurer June 11, 1998
- ------------------------------------ (Principal Accounting Officer and
Bruce D. Wardinski Principal Financial Officer)
/s/ Richard E. Marriott Director June 11, 1998
- ------------------------------------
Richard E. Marriott
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
MHP Acquisition Corporation
By: /s/ Christopher J. Nassetta
---------------------------
Christopher J. Nassetta
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher J. Nassetta President (Principal Executive June 11, 1998
- ------------------------------------ Officer) and Director
Christopher J. Nassetta
/s/ Tracy M. J. Colden Secretary June 11, 1998
- ------------------------------------
Tracy M. J. Colden
/s/ Bruce D. Wardinski Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer and Principal Financial
Bruce D. Wardinski Officer)
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
MHP II Acquisition Corporation
By: /s/ Christopher J. Nassetta
---------------------------
Christopher J. Nassetta
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher J. Nassetta President (Principal Executive June 11, 1998
- ------------------------------------ Officer) and Director
Christopher J. Nassetta
/s/ Andrea Morehouse Jacob Secretary June 11, 1998
- ------------------------------------
Andrea Morehouse Jacob
/s/ Bruce D. Wardinski Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer and Principal Financial
Bruce D. Wardinski Officer)
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Marriott Park Ridge Corporation
Marriott SBM One Corporation
By: /s/ Bruce F. Stemerman
--------------------------
Bruce F. Stemerman
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for such person and in his
name, place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Bruce F. Stemerman President (Principal Executive June 11, 1998
- ------------------------------------ Officer) and Director
Bruce F. Stemerman
/s/ Christopher G. Townsend Vice President, Secretary June 11, 1998
- ------------------------------------ and Director
Christopher G. Townsend
/s/ Earla Stowe Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer)
Earla Stowe
/s/ Robert E. Parsons, Jr. Vice President and Director June 11, 1998
- ------------------------------------ (Principal Financial Officer)
Robert E. Parsons, Jr.
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Marriott Family Restaurants, Inc. of Illinois
Marriott Family Restaurants, Inc. of Vermont
Marriott Family Restaurants, Inc. of Wisconsin
By: /s/ Christopher J. Nassetta
----------------------------------
Christopher J. Nassetta
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Christopher J. Nassetta President (Principal Executive June 11, 1998
- ------------------------------------ Officer) and Director
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
/s/ Robert E. Parsons, Jr. Vice President and Director June 11, 1998
- ------------------------------------ (Principal Financial Officer)
Robert E. Parsons, Jr.
/s/ Donald D. Olinger Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer)
Donald D. Olinger
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Marriott PLP Corporation
By: /s/ Bruce F. Stemerman
-------------------------------
Bruce F. Stemerman
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Bruce F. Stemerman President (Principal Executive June 11, 1998
- ------------------------------------ Officer) and Director
Bruce F. Stemerman
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
/s/ Patricia Brady Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer)
Patricia Brady
/s/ Robert E. Parsons, Jr. Vice President and Director (Principal June 11, 1998
- ------------------------------------ Financial Officer)
Robert E. Parsons, Jr.
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Marriott MDAH One Corporation
By: /s/ Bruce F. Stemerman
----------------------------------------
Bruce F. Stemerman
President, Vice President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Bruce F. Stemerman President, Vice President (Principal June 11, 1998
- ------------------------------------ Executive Officer and Principal
Bruce F. Stemerman Financial Officer) and Director
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
/s/ Patricia Brady Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer)
Patricia Brady
/s/ Robert E. Parsons, Jr. Director June 11, 1998
- ------------------------------------
Robert E. Parsons, Jr.
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Marriott Marquis Corporation
By: /s/ Bruce F. Stemerman
----------------------------
Bruce F. Stemerman
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Bruce F. Stemerman President (Principal Executive June 11, 1998
- ------------------------------------ Officer and Principal Financial
Bruce F. Stemerman Officer) and Director
/s/ Christopher G. Townsend Vice President, Secretary June 11, 1998
- ------------------------------------ and Director
Christopher G. Townsend
/s/ Patricia Brady Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer)
Patricia Brady
/s/ Robert E. Parsons, Jr. Director June 11, 1998
- ------------------------------------
Robert E. Parsons, Jr.
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Marriott SBM Two Corporation.
By: *
---------------------------
Robert E. Parsons, Jr.
President and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* President and Director (Principal June 11, 1998
- ------------------------------------ Executive Officer)
Robert E. Parsons, Jr.
* Vice President and Director (Principal Financial June 11, 1998
- ------------------------------------ Officer and Principal Accounting Officer)
Christopher J. Nassetta
/s/ Christopher G. Townsend Vice President and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
*/s/ Christopher G. Townsend
- ------------------------------------
Christopher G. Townsend
Attorney-in-fact
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Philadelphia Airport Hotel Corporation
By: /s/ Robert E. Parsons, Jr.
----------------------------------------
Robert E. Parsons, Jr.
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any and all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive June 11, 1998
- ------------------------------------ Officer and Principal Financial
Robert E. Parsons, Jr. Officer) and Director
/s/ Christopher G. Townsend Vice President, Secretary and Director June 11, 1998
- ------------------------------------
Christopher G. Townsend
/s/ Bruce F. Stemerman Vice President and Director June 11, 1998
- ------------------------------------
Bruce F. Stemerman
/s/ Donald D. Olinger Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer)
Donald D. Olinger
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
Willmar Distributors, Inc.
By: /s/ Robert E. Parsons, Jr.
----------------------------------
Robert E. Parsons, Jr.
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive June 11, 1998
- ------------------------------------ Officer) and Director
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President, Treasurer, June 11, 1998
- ------------------------------------ Secretary and Director
Christopher G. Townsend
/s/ Christopher J. Nassetta Vice President (Principal Accounting June 11, 1998
- ------------------------------------ Officer and Principal Financial
Christopher J. Nassetta Officer) and Director
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
HMC Partnership Holdings, Inc.
HMH General Partner Holdings, Inc.
HMH HPT Courtyard, Inc.
By: /s/ Robert E. Parsons, Jr.
------------------------------------------
Robert E. Parsons, Jr.
President and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any and all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive June 11, 1998
- -------------------------- Officer) and Director
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President, Secretary June 11, 1998
- --------------------------- and Director
Christopher G. Townsend
/s/ Bruce D. Wardinski Vice President (Principal Accounting June 11, 1998
- ---------------------- Officer and Principal Financial
Bruce D. Wardinski Officer) and Treasurer
</TABLE>
<PAGE>
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 Bethesda, State of Maryland, on June 11, 1998.
PRM Corporation
By: /s/ Robert E. Parsons, Jr.
--------------------------------------
Robert E. Parsons, Jr.
President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher G. Townsend as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Robert E. Parsons, Jr. President (Principal Executive, June 11, 1998
- --------------------------- Financial and Accounting Officer)
Robert E. Parsons, Jr.
/s/ Christopher G. Townsend Vice President and Secretary June 11, 1998
- ---------------------------
Christopher G. Townsend
</TABLE>
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------------
[NAME OF ISSUER]
as issuer
-------------------------
FORM OF
INDENTURE
Dated as of _________, 199_
------------------------------
[NAME OF TRUSTEE]
as Trustee
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE.......................1
Section 1.1. Definitions...................................................1
Section 1.2. Other Definitions.............................................4
Section 1.3. Incorporation by Reference of Trust Indenture Act.............5
Section 1.4. Rules of Construction.........................................5
ARTICLE II. THE SECURITIES...................................................5
Section 2.1. Issuable in Series............................................5
Section 2.2. Establishment of Terms of Series of Securities................6
Section 2.3. Execution and Authentication..................................7
Section 2.4. Registrar and Paying Agent....................................8
Section 2.5. Paying Agent to Hold Money in Trust...........................9
Section 2.6. Securityholder Lists..........................................9
Section 2.7. Transfer and Exchange.........................................9
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities..............9
Section 2.9. Outstanding Securities.......................................10
Section 2.10. Treasury Securities..........................................10
Section 2.11. Temporary Securities.........................................11
Section 2.12. Cancellation.................................................11
Section 2.13. Defaulted Interest...........................................11
Section 2.14. Global Securities............................................11
Section 2.15. CUSIP Numbers................................................12
ARTICLE III. REDEMPTION......................................................12
Section 3.1. Notice to Trustee............................................12
Section 3.2. Selection of Securities to be Redeemed.......................12
Section 3.3. Notice of Redemption.........................................13
Section 3.4. Effect of Notice of Redemption...............................13
Section 3.5. Deposit of Redemption Price..................................14
Section 3.6. Securities Redeemed in Part..................................14
ARTICLE IV. COVENANTS.......................................................14
Section 4.1. Payment of Principal and Interest............................14
Section 4.2. SEC Reports..................................................14
Section 4.3. Compliance Certificate.......................................14
Section 4.4. Stay, Extension and Usury Laws...............................14
Section 4.5. Corporate Existence..........................................15
Section 4.6. Taxes........................................................15
ARTICLE V. SUCCESSORS......................................................15
Section 5.1. When Company May Merge, Etc..................................15
Section 5.2. Successor Person Substituted.................................15
ARTICLE VI. DEFAULTS AND REMEDIES...........................................16
Section 6.1. Events of Default............................................16
Section 6.2. Acceleration of Maturity; Rescission and Annulment...........17
<PAGE>
TABLE OF CONTENTS
Page
----
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.....................................................18
Section 6.4. Trustee May File Proofs of Claim.............................18
Section 6.5. Trustee May Enforce Claims Without Possession of Securities..19
Section 6.6. Application of Money Collected...............................19
Section 6.7. Limitation on Suits..........................................19
Section 6.8. Unconditional Right of Holders to Receive Principal and
Interest....................................................20
Section 6.9. Restoration of Rights and Remedies...........................20
Section 6.10. Rights and Remedies Cumulative...............................20
Section 6.11. Delay or Omission Not Waiver.................................20
Section 6.12. Control by Holders...........................................20
Section 6.13. Waiver of Past Defaults......................................21
Section 6.14. Undertaking for Costs........................................21
ARTICLE VII. TRUSTEE.........................................................21
Section 7.1. Duties of Trustee............................................21
Section 7.2. Rights of Trustee............................................22
Section 7.3. Individual Rights of Trustee.................................23
Section 7.4. Trustee's Disclaimer.........................................23
Section 7.5. Notice of Defaults...........................................23
Section 7.6. Reports by Trustee to Holders................................23
Section 7.7. Compensation and Indemnity...................................23
Section 7.8. Replacement of Trustee.......................................24
Section 7.9. Successor Trustee by Merger, etc.............................25
Section 7.10. Eligibility; Disqualification................................25
Section 7.11. Preferential Collection of Claims Against Company............25
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE..........................25
Section 8.1. Satisfaction and Discharge of Indenture......................25
Section 8.2. Application of Trust Funds; Indemnification..................26
Section 8.3. Legal Defeasance of Securities of any Series.................26
Section 8.4. Covenant Defeasance..........................................28
Section 8.5. Repayment to Company.........................................28
ARTICLE IX. AMENDMENTS AND WAIVERS..........................................29
Section 9.1. Without Consent of Holders...................................29
Section 9.2. With Consent of Holders......................................29
Section 9.3. Limitations..................................................29
Section 9.4. Compliance with Trust Indenture Act..........................30
Section 9.5. Revocation and Effect of Consents............................30
Section 9.6. Notation on or Exchange of Securities........................30
Section 9.7. Trustee Protected............................................31
ARTICLE X. MISCELLANEOUS...................................................31
Section 10.1. Trust Indenture Act Controls.................................31
Section 10.2. Notices......................................................31
Section 10.3. Communication by Holders with Other Holders..................32
Section 10.4. Certificate and Opinion as to Conditions Precedent...........32
Section 10.5. Statements Required in Certificate or Opinion................32
Section 10.6. Rules by Trustee and Agents..................................32
<PAGE>
TABLE OF CONTENTS
Page
----
Section 10.7. Legal Holidays..............................................32
Section 10.8. No Recourse Against Others..................................32
Section 10.9. Counterparts................................................33
Section 10.10. Governing Laws..............................................33
Section 10.11. No Adverse Interpretation of Other Agreements...............33
Section 10.12. Successors..................................................33
Section 10.13. Severability................................................33
Section 10.14. Table of Contents, Headings, Etc............................33
Section 10.15. Securities in a Foreign Currency or in ECU..................33
Section 10.16. Judgment Currency...........................................34
ARTICLE XI. SINKING FUNDS...................................................34
Section 11.1. Applicability of Article....................................34
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.......35
Section 11.3. Redemption of Securities for Sinking Fund...................35
<PAGE>
[NAME OF ISSUER]
Reconciliation and tie between the Trust Indenture Act of 1939, as amended
and the Indenture, dated as of ________, 199_
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ---------------------- -----------------
<S> <C>
(S) 310(a)(1)............................................ 7.10
(a)(2)............................................ 7.10
(a)(3)............................................ Not Applicable
(a)(4)............................................ Not Applicable
(a)(5)............................................ 7.10
(b)............................................... 7.10
(S) 311(a)............................................... 7.11
(b)............................................... 7.11
(c)............................................... Not Applicable
(S) 312(a)............................................... 2.6
(b)............................................... 10.3
(c)............................................... 10.3
(S) 313(a)............................................... 7.6
(b)(1)............................................ 7.6
(b)(2)............................................ 7.6
(c)(1)............................................ 7.6
(d)............................................... 7.6
(S) 314(a)............................................... 4.2, 10.5
(b)............................................... Not Applicable
(c)(1)............................................ 10.4
(c)(2)............................................ 10.4
(c)(3)............................................ Not Applicable
(d)............................................... Not Applicable
(e)............................................... 10.5
(f)............................................... Not Applicable
(S) 315(a)............................................... 7.1
(b)............................................... 7.5
(c)............................................... 7.1
(d)............................................... 7.1
(e)............................................... 6.14
(S) 316(a)............................................... 2.10
(a)(1)(A)......................................... 6.12
(a)(1)(B)......................................... 6.13
(b)............................................... 6.8
(S) 317(a)(1)............................................ 6.3
(a)(2)............................................ 6.4
(b)............................................... 2.5
(S) 318(a)............................................... 10.1
</TABLE>
- ---------------------
Note: This reconciliation and tie shall not, for any purposes, be deemed to be
part of the Indenture.
<PAGE>
Indenture dated as of ___________, 1998 between [Name of Issuer], a
(the "Company"), and [Name of Trustee], a ________________, as Trustee
("Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Securities (as
defined below), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolution of the Board of
Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
-----------
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day for at
least five days in each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is
made or given by the Trustee shall constitute a sufficient publication of such
notice.
"Bearer" means anyone in possession from time to time of a Bearer
Security.
"Bearer Security" means any Security, including any interest coupon
appertaining thereto, that does not provide for the identification of the Holder
thereof.
"Board of Directors" means the Board of Directors of the Company or
any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of the certificate (and delivered
to the Trustee, if appropriate).
"Business Day" means, unless otherwise provided by Board Resolution,
Officers' Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or
executive order to close.
<PAGE>
"Company" means the party named as such above until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
"Company Order" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board, a President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered.
"Debt" of any person as of any date means, without duplication, all
indebtedness of such person in respect of borrowed money, including all
interest, fees and expenses owed in respect thereto (whether or not the recourse
of the lender is to the whole of the assets of such person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depository" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person, "Depository" as used with
respect to the Securities of any Series shall mean the Depository with respect
to the Securities of such Series.
"Discount Security" means any Security that provides for an amount
less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"Dollars" means the currency of The United States of America.
"ECU" means the European Currency Unit as determined by the Commission
of the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to Securities of
any Series that are denominated in a Foreign Currency, (i) direct obligations of
the government that issued or caused to be issued such currency for the payment
of which obligations its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by or acting as an agency or instrumentality
of such government the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by such government, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for
such Series or its nominee, and registered in the name of such Depository or
nominee.
2
<PAGE>
"Holder" or "Securityholder" means a person in whose name a Security
is registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended or supplemented from time
to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
"interest" with respect to any Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
"Maturity," when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption, notice of option to elect repayment or otherwise.
"Officer" means the Chairman of the Board, the President, any Vice-
President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Company's principal executive officer, principal
financial officer or principal accounting officer.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on, and any Additional Amounts in respect
of, the Security.
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt instruments of
the Company of any Series authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Series" or "Series of Securities" means each series of debentures,
notes or other debt instruments of the Company created pursuant to Sections 2.1
and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary
of the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
regulation is in effect on the date hereof, or (ii) any group of direct or
indirect Subsidiaries of the Company that, taken together as a group, would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation is in effect on
the date hereof.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
3
<PAGE>
"Subsidiary" of any specified person means any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by such person, or
by one or more other Subsidiaries, or by such person and one or more other
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb), as amended from time to time, and as in effect on the date of
this Indenture; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder, and
if at any time there is more than one such person, "Trustee" as used with
respect to the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by The United States of America, and which in the case of (i)
and (ii) are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
Section 1.2. Other Definitions.
------------------
<TABLE>
<CAPTION>
DEFINED IN
TERM SECTION
- ---- ------------
<S> <C>
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"successor person" 5.1
</TABLE>
4
<PAGE>
Section 1.3. 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.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
Section 1.4. Rules of Construction.
---------------------
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(c) references to "generally accepted accounting principles" shall
mean generally accepted accounting principles in effect as of the time when
and for the period as to which such accounting principles are to be
applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural
include the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series.
------------------
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more Series. All Securities of a Series shall be identical except as
may be set forth in a Board Resolution, a supplemental indenture or an Officers'
Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of the Indenture.
5
<PAGE>
Section 2.2. Establishment of Terms of Series of Securities.
----------------------------------------------
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2.1 and either as to such Securities within the Series or as to the
Series generally in the case of Subsections 2.2.2 through 2.2.24) by a Board
Resolution, a supplemental indenture or an Officers' Certificate pursuant to
authority granted under a Board Resolution:
2.2.1. the title of the Series (which shall distinguish the
Securities of that particular Series from the Securities of any other Series);
2.2.2. the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Securities of the Series will
be issued;
2.2.3. any limit upon the aggregate principal amount of the
Securities of the Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the Securities of
the Series is payable;
2.2.5. the rate or rates (which may be fixed or variable) per annum
or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest payment date;
2.2.6. the place or places where the principal of, premium, if any,
and interest, if any, on the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company to redeem or purchase
the Securities of the Series, in whole or in part, pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
2.2.9. the dates, if any, on which and the price or prices at which
the Securities of the Series will be repurchased by the Company at the option of
the Holders thereof and other detailed terms and provisions of such repurchase
obligations;
2.2.10. if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.11. the forms of the Securities of the Series in bearer or fully
registered form (and, if in fully registered form, whether the Securities will
be issuable as Global Securities);
2.2.12. if other than the principal amount thereof, the portion of
the principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity date thereof pursuant to Section
6.2;
6
<PAGE>
2.2.13. the currency of denomination of the Securities of the Series,
which may be Dollars or any Foreign Currency, including, but not limited to, the
ECU, and if such currency of denomination is a composite currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite currency;
2.2.14. the designation of the currency, currencies or currency units
in which payment of the principal of, premium, if any, and interest, if any, on
the Securities of the Series will be made;
2.2.15. if payments of principal of, premium, if any, or interest, if
any, on the Securities of the Series are to be made in one or more currencies or
currency units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16. the manner in which the amounts of payment of principal of,
premium, if any, or interest, if any, on the Securities of the Series will be
determined, if such amounts may be determined by reference to an index based on
a currency or currencies other than that in which the Securities of the Series
are denominated or designated to be payable or by reference to a commodity,
commodity index, stock exchange index or financial index;
2.2.17. the provisions, if any, relating to any security provided for
the Securities of the Series;
2.2.18. any addition to or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 6.2;
2.2.19. any addition to or change in the covenants set forth in
Articles IV or V which applies to Securities of the Series;
2.2.20. the terms and condition, if any, upon which the Securities of
the Series shall be exchanged for or converted into common stock, preferred
stock or depositary shares of the Company.
2.2.21. any other terms of the Securities of the Series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1, but which may modify or delete any provision of this
Indenture insofar as it applies to such Series);
2.2.22. any depositories, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to Securities of such
Series if other than those appointed herein;
2.2.23. whether the Securities rank as senior subordinated Securities
or subordinated Securities or any combination thereof; and
2.2.24. the form and terms of any guarantee of any Securities of the
Series.
All Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers' Certificate.
Section 2.3. Execution and Authentication.
----------------------------
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
7
<PAGE>
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt
by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series; (b) an Officers' Certificate complying with
Section 10.4; and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken; or (b) if the
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or vice-presidents shall determine that
such action would expose the Trustee to personal liability to Holders of any
then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.4. Registrar and Paying Agent.
--------------------------
The Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series pursuant to Section
2.2, an office or agency where Securities of such Series may be presented or
surrendered for payment ("Paying Agent"), where Securities of such Series may be
surrendered for registration of transfer or exchange ("Registrar") and where
notices and demands to or upon the Company in respect of the Securities of such
Series and this Indenture may be served ("Service Agent"). The Registrar shall
keep a register with respect to each Series of Securities and to their transfer
and exchange. The Company will give prompt written notice to the Trustee of the
name and address, and any change in the name or address, of each Registrar,
Paying Agent or Service Agent. If at any time the Company shall fail to
maintain any such required Registrar, Paying Agent or Service Agent or shall
fail to furnish the Trustee with the name and address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more co-
registrars, additional paying agents or additional service agents and may from
time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar,
8
<PAGE>
Paying Agent and Service Agent in each place so specified pursuant to Section
2.2 for Securities of any Series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the name or address of any such co-registrar, additional paying agent
or additional service agent. The term "Registrar" includes any co-registrar; the
term "Paying Agent" includes any additional paying agent; and the term "Service
Agent" includes any additional service agent.
The Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Service Agent for each Series unless another Registrar, Paying Agent
or Service Agent, as the case may be, is appointed prior to the time Securities
of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Company or
a Subsidiary) shall have no further liability for the money. If the Company or
a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of Securityholders of any Series of Securities all
money held by it as Paying Agent.
Section 2.6. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities and shall otherwise comply with TIA
(S) 312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least ten days before each interest payment date and at such
other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of
Securityholders of each Series of Securities.
Section 2.7. Transfer and Exchange.
---------------------
Where Securities of a Series are presented to the Registrar or a co-
registrar with a request to register a transfer or to exchange them for an equal
principal amount of Securities of the same Series, the Registrar shall register
the transfer or make the exchange if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall be
made for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business fifteen days immediately preceding the
mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
9
<PAGE>
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9. Outstanding Securities.
----------------------
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
In determining whether the Holders of the requisite principal amount
of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2.
Section 2.10. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver Securities of a Series owned by the Company
or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
10
<PAGE>
Section 2.11. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a Company
Order. Temporary Securities shall 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 shall prepare and
the Trustee upon request shall authenticate definitive Securities of the same
Series and date of maturity in exchange for temporary Securities. Until so
exchanged, temporary securities shall have the same rights under this Indenture
as the definitive Securities.
Section 2.12. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act) and
deliver a certificate of such destruction to the Company, unless the Company
otherwise directs. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the extent permitted
by law, any interest payable on the defaulted interest, to the persons who are
Securityholders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 30 days before the record
date, the Company shall mail to the Trustee and to each Securityholder of the
Series a notice that states the record date, the payment date and the amount of
interest to be paid. The Company may pay defaulted interest in any other lawful
manner.
Section 2.14. Global Securities.
-----------------
2.14.1. Terms of Securities.
-------------------
A Board Resolution, a supplemental indenture hereto or an Officers'
Certificate shall establish whether the Securities of a Series shall be
issued in whole or in part in the form of one or more Global Securities and
the Depository for such Global Security or Securities.
2.14.2. Transfer and Exchange.
---------------------
Notwithstanding any provisions to the contrary contained in Section 2.7 of
the Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.7 of the Indenture for Securities
registered in the names of Holders other than the Depository for such
Security or its nominee only if: (i) such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails
to appoint a successor Depository within 90 days of such event; (ii) the
Company executes and delivers to the Trustee an Officers' Certificate to
the effect that such Global Security shall be so exchangeable; or (iii) an
Event of Default with respect to the Securities represented by such Global
Security shall have happened and be continuing. Any Global Security that
is exchangeable pursuant to the preceding sentence shall be exchangeable
for Securities registered in such names as the Depository shall direct in
writing in an aggregate principal amount equal to the principal amount of
the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security may not be
transferred except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such Depository
to such Depository or another nominee of such Depository or by
11
<PAGE>
the Depository or any such nominee to a successor Depository or a nominee
of such a successor Depository.
2.14.3. Legend.
------
Any Global Security issued hereunder shall bear a legend in substantially
the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This Security is exchangeable for
Securities registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository."
2.14.4. Acts of Holders.
---------------
The Depository, as a Holder, may appoint agents and otherwise authorize
participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give
or take under the Indenture.
2.14.5. Payments.
--------
Notwithstanding the other provisions of this Indenture, unless otherwise
specified as contemplated by Section 2.2, payment of the principal of and
interest, if any, on any Global Security shall be made to the Holder
thereof.
2.14.6. Consents, Declaration and Directions.
------------------------------------
Except as provided in Section 2.14.5, the Company, the Trustee and any
Agent shall treat a person as the Holder of such principal amount of
outstanding Securities of such Series represented by a Global Security as
shall be specified in a written statement of the Depository with respect to
such Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to this
Indenture.
Section 2.15. 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 elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
-----------------
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity
thereof at such time and on such terms as provided for in such Securities. If a
Series of Securities is redeemable and the Company wants or is obligated to
redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of Series of Securities to be
redeemed. The Company shall give the notice at least 45 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).
12
<PAGE>
Section 3.2. Selection of Securities to be Redeemed.
--------------------------------------
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems
fair and appropriate. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that
have denominations larger than $1,000. Securities of the Series and portions of
them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or,
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.2.10, the minimum principal denomination for each Series
and integral multiples thereof. Provisions of this Indenture that apply to
Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.
Section 3.3. Notice of Redemption.
--------------------
Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers' Certificate, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed and if any Bearer Securities are outstanding,
publish on one occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to be redeemed
and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date; and
(f) any other information as may be required by the terms of the
particular Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed or published as provided in
Section 3.3, Securities of a Series called for redemption become due and payable
on the redemption date and at the redemption price. A notice of redemption may
not be conditional. Upon surrender to the Paying Agent, such Securities shall
be paid at the redemption price plus accrued interest to the redemption date.
Section 3.5. Deposit of Redemption Price.
---------------------------
On or before the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest, if any, on all Securities to be redeemed on that date.
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Section 3.6. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
---------------------------------
The Company covenants and agrees for the benefit of the Holders of
each Series of Securities that it will duly and punctually pay the principal of
and interest, if any, on the Securities of that Series in accordance with the
terms of such Securities and this Indenture.
Section 4.2. SEC Reports.
-----------
The Company shall deliver to the Trustee within 15 days after it files
them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the 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 Exchange Act. The
Company also shall comply with the other provisions of TIA (S) 314(a).
Section 4.3. Compliance Certificate.
----------------------
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge, the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws.
------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.5. Corporate Existence.
-------------------
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary
14
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and the rights (charter and statutory), licenses and franchises of the Company
and its Significant Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any Significant Subsidiary, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries taken as a
whole and that the loss thereof is not adverse in any material respect to the
Holders.
Section 4.6. Taxes.
-----
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.
ARTICLE V.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
---------------------------
The Company shall not consolidate with or merge into, or convey,
transfer or lease all or substantially all of its properties and assets to, any
person (a "successor person"), and may not permit any person to merge into, or
convey, transfer or lease its properties and assets substantially as an
entirety to, the Company, unless:
(a) the successor person (if any) is a corporation, partnership,
trust or other entity organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes the Company's obligations
on the Securities and under this Indenture and
(b) immediately after giving effect to the transaction, no Default or
Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 5.2. Successor Person Substituted.
----------------------------
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor person formed by such consolidation
into or with which the Company is merged or to which such sale, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor person has been named as the Company
herein; provided, however, that the predecessor Company in the case of a sale,
lease, conveyance or other disposition shall not be released from the obligation
to pay the principal of and interest, if any, on the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
any Series, means any one of the following events, unless in establishing a
Board Resolution, supplemental indenture or Officers' Certificate, it is
provided that such Series shall not have the benefit of said Event of Default:
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(a) default in the payment of any interest on any Security of that
Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited
by the Company with the Trustee or with a Paying Agent prior to the
expiration of such period of 30 days);
(b) default in the payment of the principal of, or premium, if any,
on any Security of that Series when such payment becomes due and payable,
at its Maturity, upon redemption or otherwise;
(c) default in the deposit of any sinking fund payment, when and as
due in respect of any Security of that Series;
(d) default in the performance or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty that
has been included in this Indenture solely for the benefit of Series of
Securities other than that Series), which default continues uncured for a
period of 30 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the
outstanding Securities of that Series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(e) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is unable to pay its debts as the same become due;
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case;
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its
property; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60 days; or
(g) any other Event of Default provided with respect to Securities of
that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate, in accordance with Section
2.2.18.
The term "Bankruptcy Law" means title 11 of the U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
16
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Section 6.2. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of Default as to
the Company referred to in Section 6.1(e) or (f)) then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if
any Securities of that Series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) of and
premium, if any, and accrued and unpaid interest, if any, on all of the
Securities of that Series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount), premium, if any
and accrued and unpaid interest, if any, shall become immediately due and
payable. If an Event of Default specified in Section 6.1(e) or (f) shall occur
as to the Company, the principal amount (or specified amount) of and premium, if
any, and accrued and unpaid interest, if any, on all outstanding Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
any Series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the outstanding
Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest, if any, on all Securities of that
Series;
(ii) the principal of any Securities of that Series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities;
(iii) to the extent that payment of such interest is lawful,
interest upon any overdue principal and overdue interest at the rate
or rates prescribed therefor in such Securities; and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(b) all Events of Default with respect to Securities of that Series,
other than the non-payment of the principal of Securities of that Series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall effect any subsequent Default or impair any
right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days;
(b) default is made in the payment of principal of any Security at
the Maturity thereof; or
(c) default is made in the deposit of any sinking fund payment when
and as due by the terms of a Security,
17
<PAGE>
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
Series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding;
and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an
18
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express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 6.6. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
7.7; and
Second: To the payment of the amounts then due and unpaid for
principal of and premium, if any, and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium and interest, respectively;
and
Third: To the Company.
Section 6.7. Limitation on Suits.
-------------------
No Holder of any Security of any Series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
Series;
(b) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal and
-------------------------------------------------------
Interest.
- --------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Security on
the Stated Maturity or Stated Maturities expressed in such Security (or, in the
case of redemption, on the
19
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redemption date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 6.9. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 6.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 6.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal of
or interest on any Security of such Series (provided, however, that the Holders
of a majority in principal amount of the outstanding Securities of any Series
may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration). Upon any such waiver, such
Default shall cease to exist, and any Event of
20
<PAGE>
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 6.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others;
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; however, in the case
of any such Officers' Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they 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 willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method and
place of conducting any proceeding for any remedy
21
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available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities
of such Series.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this Section.
(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 shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk
its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent
shall be entitled to the protections, immunities and standard of care as
are set forth in paragraphs (a), (b) and (c) of this Section with respect
to the Trustee.
Section 7.2. Rights of Trustee.
-----------------
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon 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. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care. No
Depository shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any Depository.
(d) The Trustee shall 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.
(e) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction.
Section 7.3. 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 an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
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Section 7.4. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
------------------
If a Default or Event of Default occurs and is continuing with respect
to the Securities of any Series and if it is known to a Responsible Officer of
the Trustee, the Trustee shall mail to each Securityholder of the Securities of
that Series and, if any Bearer Securities are outstanding, publish on one
occasion in an Authorized Newspaper, notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the
Trustee has knowledge of such Default or Event of Default. Except in the case
of a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as
its corporate trust committee or a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of
Securityholders of that Series.
Section 7.6. Reports by Trustee to Holders.
-----------------------------
Within 60 days after May 15 in each year, the Trustee shall transmit
by mail to all Securityholders, as their names and addresses appear on the
register kept by the Registrar and, if any Bearer Securities are outstanding,
publish in an Authorized Newspaper, a brief report dated as of such May 15, in
accordance with, and to the extent required under, TIA (S) 313.
A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock exchange.
Section 7.7. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (including the cost of
defending itself) against any loss, liability or expense incurred by it except
as set forth in the next paragraph in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
23
<PAGE>
Section 7.8. Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove
the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) 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 shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or
more Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at
least 10% in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities of any one or more
Series fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series and, if any Bearer Securities are
outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 hereof shall continue for the benefit of
the retiring trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b).
24
<PAGE>
Section 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(a) either:
(i) all Securities theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen and
that have been replaced or paid) have been delivered to the Trustee
for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation:
(1) have become due and payable; or
(2) will become due and payable at their Stated Maturity
within one year; or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company; or
(4) are deemed paid and discharged pursuant to Section
8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to
the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the
provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall survive.
25
<PAGE>
Section 8.2. Application of Trust Funds; Indemnification.
-------------------------------------------
(a) Subject to the provisions of Section 8.5, all money deposited
with the Trustee pursuant to Section 8.1, all money and U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee
pursuant to Section 8.3 or 8.4 and all money received by the Trustee in
respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in
trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with
or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to
Sections 8.3 or 8.4 or the interest and principal received in respect of
such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which,
in the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof delivered
to the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such U.S.
Government Obligations or Foreign Government Obligations or money were
deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations or Foreign Government
Obligations held under this Indenture.
Section 8.3. Legal Defeasance of Securities of any Series.
--------------------------------------------
Unless this Section 8.3 is otherwise specified pursuant to Section
2.2.21, to be inapplicable to Securities of any Series, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute proper instruments acknowledging the same), except as
to:
(a) the rights of Holders of Securities of such Series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of
the principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such
principal or installment of principal or interest and (ii) the benefit of
any mandatory sinking fund payments applicable to the Securities of such
Series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities (i) in
the case of Securities of such Series denominated in Dollars, cash in
Dollars (or such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations, or (ii) in the case
of Securities of such
26
<PAGE>
Series denominated in a Foreign Currency (other than a composite currency),
money and/or Foreign Government Obligations, which through the payment of
interest and principal in respect thereof, in accordance with their terms,
will provide (and without reinvestment and assuming no tax liability will
be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal (and premium, if any) (including
mandatory sinking fund or analogous payments) of and interest, if any, on
all the Securities of such Series on the dates such installments of
interest or principal are due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had
not occurred;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series over any
other creditors of the company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such
deposit constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified under
such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 8.4. Covenant Defeasance.
-------------------
Unless this Section 8.4 is otherwise specified pursuant to Section
2.2.21 to be inapplicable to Securities of any Series, on and after the 91st day
after the date of the deposit referred to in subparagraph (a) hereof, the
Company may omit to comply with any term, provision or condition set forth under
Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional covenants
contained in a supplemental indenture hereto for a particular Series of
Securities or a Board Resolution or an Officers' Certificate delivered pursuant
to Section 2.2.21 (and the failure to comply with any such covenants shall not
constitute a Default or Event of Default under Section 6.1), with respect to the
Securities of such Series, provided that the following conditions shall have
been satisfied:
(a) With reference to this Section 8.4, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in Dollars, cash
in Dollars (or such other money or currencies as shall then be legal tender
in the United States) and/or U.S. Government Obligations, or (ii) in
27
<PAGE>
the case of Securities of such Series denominated in a Foreign Currency
(other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay principal
(and premium, if any) and interest, if any, on and any mandatory sinking
fund in respect of the Securities of such Series on the dates such
installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(d) the Company shall have delivered to the Trustee an Opinion of
Counsel confirming that Holders of the Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred;
(e) the Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
Section 8.5. Repayment to Company.
--------------------
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
--------------------------
The Company and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(d) to make any change that does not adversely affect the rights of
any Securityholder;
28
<PAGE>
(e) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as permitted by this Indenture;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more Series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(g) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
-----------------------
The Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal amount
of the outstanding Securities of each Series affected by such waiver by notice
to the Trustee (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
Section 9.3. Limitations.
-----------
Without the consent of each Securityholder affected, an amendment or
waiver may not:
(a) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest
(including default interest) on any Security;
(c) reduce the principal of, or premium, if any on or change the
Stated Maturity of any Security or reduce the amount of, or postpone the
date fixed for, the payment of any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable upon
acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the
principal of, premium, if any or interest, if any, on any Security (except
a rescission of acceleration of the Securities of any Series by the Holders
of at least a majority in principal amount of the outstanding Securities of
such Series and a waiver of the payment default that resulted from such
acceleration);
29
<PAGE>
(f) make the principal of or premium, if any or interest, if any, on
any Security payable in any currency other than that stated in the
Security;
(g) make any change in Sections 6.8, 6.13, 9.3 (this sentence), 10.15
or 10.16; or
(h) waive a redemption payment with respect to any Security or change
any of the provisions with respect to the redemption of any Securities.
Section 9.4. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to this Indenture or the Securities of one or more
Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
---------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by 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 his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
-------------------------------------
The Trustee may place an appropriate notation about an amendment or
waiver on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall
authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 9.7. Trustee Protected.
-----------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.
30
<PAGE>
Section 10.2. Notices.
-------
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company:
[Name of Issuer]
10400 Fernwood Road
Bethesda, Maryland
Attention: General Counsel
_______________________
_______________________
Attention: ____________
if to the Trustee:
[Name of Trustee]
[Address]
_______________________
_______________________
Attention: ____________
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar and,
if any Bearer Securities are outstanding, published in an Authorized Newspaper.
Failure to mail a notice or communication to a Securityholder of any Series or
any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3. Communication by Holders with Other Holders.
-------------------------------------------
Securityholders of any Series may communicate pursuant to TIA (S)
312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
Section 10.4. 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, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
31
<PAGE>
Section 10.5. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA
(S) 314(e) and shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 10.7. Legal Holidays.
--------------
Unless otherwise provided by Board Resolution, Officers' Certificate
or supplemental indenture for a particular Series, a "Legal Holiday" is any day
that is not a Business Day. If a 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 shall accrue for the intervening period.
Section 10.8. No Recourse Against Others.
--------------------------
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
------------
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10. Governing Laws.
--------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
32
<PAGE>
Section 10.12. Successors.
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.13. Severability.
------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14. Table of Contents, Headings, Etc.
--------------------------------
The Table of Contents, Reconciliation between the TIA, and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities in a Foreign Currency or in ECU.
------------------------------------------
Unless otherwise specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate delivered pursuant to Section 2.2
of this Indenture with respect to a particular Series of Securities, whenever
for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series
or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.15, "Market Exchange Rate" shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Union (or any successor thereto) as published in the Official
Journal of the European Union (such publication or any successor publication,
the "Journal"). If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question or, in the case of ECUs, in
Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
Section 10.16. Judgment Currency.
-----------------
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of
or interest or other amount on the Securities of any Series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day
33
<PAGE>
is not a New York Banking Day, then, the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable, and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or
executive order to close.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of a Series, except as otherwise permitted
or required by any form of Security of such Series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of the Securities of any Series is herein referred to as a "mandatory
sinking fund payment" and any other amount provided for by the terms of
Securities of such Series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any Series to be made pursuant to
the terms of such Securities (1) deliver outstanding Securities of such Series
to which such sinking fund payment is applicable (other than any of such
Securities previously called for mandatory sinking fund redemption) and (2)
apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received by the Trustee, together with an Officers'
Certificate with respect thereto, not later than 15 days prior to the date on
which the Trustee begins the process of selecting Securities for redemption, and
shall be credited for such purpose by the Trustee at the price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly. If as a result of
the delivery or credit of Securities in lieu of cash payments pursuant to this
Section 11.2, the principal amount of Securities of such Series to be redeemed
in order to exhaust the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee or such
Paying Agent shall from time to time upon receipt of a Company Order pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
Series purchased by the Company having an unpaid principal amount equal to the
cash payment required to be released to the Company.
34
<PAGE>
Section 11.3. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officers' Certificate in respect of
a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
35
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
[Name of Issuer]
By:
------------------------------
Name:
Its:
[Name of Trustee]
By:
------------------------------
Name:
Its:
36
<PAGE>
Exhibit 5.1
[LETTERHEAD OF LATHAM & WATKINS]
June 15, 1998
Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20817-1109
Re: $2,500,000,000 Aggregate Offering Price of
Securities of Host Marriott Corporation
------------------------------------------
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 of Host
Marriott Corporation and the Co-Registrants (as defined below), as amended
through the date hereof, (the "Registration Statement") filed on April 22, 1998
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), you have requested
our opinion with respect to the matters set forth below.
You have provided us with a draft prospectus (the "Prospectus") which
is a part of the Registration Statement. The Prospectus provides that it will
be supplemented in the future by one or more supplements (each a "Prospectus
Supplement"). The Prospectus as supplemented by various Prospectus Supplements
will provide for the issuance and sale by Host Marriott Corporation, a Delaware
corporation (the "Company"), of up to $2,500,000,000 aggregate offering price
of: (i) debt securities of the Company consisting of debentures, notes or other
evidences of indebtedness (the "Debt Securities"); (ii) shares of common stock
of the Company, par value $1.00 per share (the "Common Stock"); (iii) shares of
preferred stock of the Company, without par value (the "Preferred Stock"); (iv)
shares of Preferred Stock represented by depositary shares (the "Depositary
Shares"); (v) warrants to purchase Debt Securities, Common Stock, Preferred
Stock or Depositary Shares (the "Warrants"); and (vi) subscription rights
evidencing the right to purchase Debt Securities, Common Stock, Preferred Stock,
Depositary Shares or Warrants (the "Subscription Rights"). In addition, Debt
Securities may be issued, directly or through agents, dealers or underwriters
designated from time to time, by one or more
<PAGE>
June 15, 1998
Page 2
of the Company's direct or indirect wholly owned subsidiaries which are co-
registrants on the Registration Statement (each such subsidiary, a "Co-
Registrant," and collectively, the "Co-Registrants"). The Registration Statement
provides that Debt Securities may be convertible into shares of Common Stock,
Preferred Stock or Depositary Shares, and that shares of Preferred Stock may be
convertible into shares of Common Stock or Debt Securities. The Registration
Statement provides that the Company's payment obligations under any series of
Debt Securities may be guaranteed by certain of the Co-Registrants and the
Registration Statement provides that the payment obligation of any Co-Registrant
issuing any series of Debt Securities will be guaranteed by the Company and may
be guaranteed by one or more of the Co-Registrants (each entity providing such
guarantee, a "Guarantor" and collectively, the "Guarantors"). The Debt
Securities, the Common Stock, the Preferred Stock, the Depositary Shares, the
Warrants and the Subscription Rights are referred to herein as the "Offered
Securities".
The Debt Securities will be issued pursuant to one or more indentures
in the form filed as an exhibit to the Registration Statement, as amended or
supplemented from time to time (each, an "Indenture") between the Company or any
one of the Co-Registrants, as the case may be, as obligor, and a trustee chosen
by the Company and qualified to act as such under the Trust Indenture Act of
1939, as amended (each, a "Trustee"). The Depositary Shares will be issued
under one or more deposit agreements (each, a "Deposit Agreement"), by and among
the Company and a financial institution identified therein as the depositary
(each, a "Depositary"). The Warrants will be issued under one or more warrant
agreements (each, a "Warrant Agreement"), by and among the Company and a
financial institution identified therein as warrant agent (each, a "Warrant
Agent").
For purposes of this opinion, we have assumed that all proceedings
taken and proposed to be taken by the Company in connection with the
authorization and issuance of the Offered Securities and all the proceedings
taken and proposed to be taken by such Co-Registrant in connection with the
authorization and issuance of Debt Securities will be timely and properly
completed, in accordance with all requirements of applicable Delaware and New
York laws, in the manner presently proposed.
We have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction, of all such documents, corporate records and
instruments of the Company and the Co-Registrants as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to authentic original documents of all
documents submitted to us as copies.
We have been furnished with, and with your consent have exclusively
relied upon, certificates of officers of the Company and the Co-Registrants with
respect to certain factual matters. In addition, we have obtained and relied
upon such certificates and assurances from public officials as we have deemed
necessary.
<PAGE>
June 15, 1998
Page 3
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Delaware and, with respect to the
opinions set forth in paragraphs 1, 2, 5 and 6 below, the internal laws of the
State of New York, and we express no opinion with respect to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction or, in the
case of Delaware, any other laws, or as to any matters of municipal law or the
laws of any local agencies within any state.
Subject to the foregoing and the other qualifications set forth
herein, it is our opinion that, as of the date hereof:
1. (a) When the Company or any one of the Co-Registrants, as the case
may be, and the Trustee duly execute and deliver an Indenture and the specific
terms of a particular Debt Security have been duly established in accordance
with the terms of such Indenture, and such Debt Securities have been duly
authenticated by the Trustee and duly executed and delivered on behalf of the
Company or such Co-Registrant against payment therefor in accordance with the
terms and provisions of the Indenture and as contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), and (b) when
the Registration Statement and any required post-effective amendments thereto
have all become effective under the Securities Act, and (c) assuming that the
terms of the Debt Securities as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
and (d) assuming that the Debt Securities as executed and delivered do not
violate any law applicable to the Company or any such Co-Registrant or result in
a default under or breach of any agreement or instrument binding upon the
Company or such Co-Registrant and (e) assuming that the Debt Securities as
executed and delivered comply with all requirements and restrictions, if any,
applicable to the Company or such Co-Registrant whether imposed by any court or
governmental or regulatory body having jurisdiction over the Company or such Co-
Registrant and (f) assuming that the Debt Securities are then issued and sold
as contemplated in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), the Debt Securities will constitute valid and binding
obligations of the Company or such Co-Registrant enforceable against the Company
or such Co-Registrant in accordance with the terms of the Debt Securities.
2. (a) When the Company, or any one of the Co-Registrants, as the
case may be, the Guarantors delivering Guarantees of Debt Securities and the
Trustee duly execute and deliver an Indenture and the specific terms of the
Guarantees and the related Debt Securities have been duly established in
accordance with the terms of the applicable Indenture, the Guarantees have been
duly executed and delivered and the related Debt Securities have been duly
authenticated by the Trustee and duly executed and delivered on behalf of the
Company or such Co-Registrant against payment therefor in accordance with the
terms and provision of the applicable Indenture and as contemplated by the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
and (b) when the Registration Statement and any required post-effective
amendment thereto have all become effective under the Securities Act, and (c)
<PAGE>
June 15, 1998
Page 4
assuming that the terms of the Guarantees as executed and delivered are as
described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (d) assuming that the Guarantees as executed and
delivered do not violate any law applicable to any Guarantor delivering a
Guarantee or result in a default under or breach of any agreement or instrument
binding upon any such Guarantor, and (e) assuming that the Guarantees as
executed and delivered comply with all requirements and restrictions, if any,
applicable to any Guarantor delivering a Guarantee, whether imposed by any court
or governmental or regulatory body having jurisdiction over each such Guarantor,
and (f) assuming that the Guarantees are then issued as contemplated in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
the Guarantees will constitute valid and binding obligations of each Guarantor
delivering a Guarantee, enforceable against each such Guarantor in accordance
with the terms of the Guarantees.
3. (a) When the Common Stock has been duly adopted by the Board of
Directors of the Company by a resolution in form and content as required by
applicable law and as contemplated by the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (b) when the Registration
Statement and any required post-effective amendments thereto have all become
effective under the Securities Act, and (c) assuming that the terms of the
Common Stock as set forth in the Restated Certificate of Incorporation (the
"Certificate") are as described in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (d) assuming that the Common Stock
as set forth in the Certificate does not violate any law applicable to the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company, and (e) assuming that the Common Stock as set forth in
the Certificate complies with all requirements and restrictions, if any,
applicable to the Company, whether imposed by any court or governmental or
regulatory body having jurisdiction over the Company and (f) assuming that the
Common Stock as set forth in the Certificate is then issued as contemplated in
the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (g) upon issuance and delivery of and payment for such Common
Stock in the manner contemplated by the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), such shares of Common Stock will be
validly issued, fully paid and nonassessable. For purposes of this opinion, we
have assumed that the total number of shares of Common Stock previously issued
or reserved, in addition to the shares of Common Stock to be issued and
delivered pursuant to such resolution and Prospectus Supplement, does not exceed
the number of shares of Common Stock authorized to be issued under the
Certificate.
4. (a) When a series of Preferred Stock has been duly established in
accordance with the terms of the Certificate and applicable law and duly adopted
by the Board of Directors of the Company by a resolution in form and content as
required by applicable law and as contemplated by the Registration Statement,
the Prospectus and the related Prospectus Supplement(s), and (b) when the
Registration Statement and any required post-effective amendments thereto have
all become effective under the Securities Act, and (c) assuming that the
<PAGE>
June 15, 1998
Page 5
terms of any series of Preferred Stock as set forth in the Certificate are as
described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (d) assuming that the series of Preferred Stock as
set forth in the Certificate does not violate any law applicable to the Company
or result in a default under or breach of any agreement or instrument binding
upon the Company, and (e) assuming that any series of Preferred Stock as set
forth in the Certificate complies with all requirements and restrictions, if
any, applicable to the Company, whether imposed by any court or governmental or
regulatory body having jurisdiction over the Company and (f) assuming that any
series of Preferred Stock as set forth in the Certificate is then issued as
contemplated in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (g) upon issuance and delivery of and payment for
such shares in the manner contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and by such resolution, such
shares of such series of Preferred Stock will be validly issued, fully paid and
nonassessable. For purposes of this opinion, we have assumed that the total
number of shares of Preferred Stock previously issued or reserved, in addition
to the shares of Preferred Stock to be issued and delivered pursuant to such
resolution and Prospectus Supplement, does not exceed the number of shares of
Preferred Stock authorized to be issued under the Certificate.
5. (a) When the Company and the Depositary duly execute and deliver a
Deposit Agreement and the specific terms of a particular issuance of Depositary
Shares have been duly established in accordance with the terms of a Deposit
Agreement and have been duly executed and delivered by the Depositary and
delivered to and paid for by the purchasers thereof in accordance with the terms
and provisions of the Deposit Agreement, and as contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), and (b) when
the Registration Statement and any required post-effective amendments thereto
have all become effective under the Securities Act, and (c) assuming that the
terms of the Depositary Shares as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
and (d) assuming that the Depositary Shares as executed and delivered do not
violate any law applicable to the Company or result in a default under or breach
of any agreement or instrument binding upon the Company, and (e) assuming that
the Depositary Shares as executed and delivered comply with all requirements and
restrictions, if any, applicable to the Company, whether imposed by any court or
governmental or regulatory body having jurisdiction over the Company, and (f)
assuming that the Depositary Shares are then issued and sold as contemplated in
the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), the Depositary Shares will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
6. (a) When the Company and the Warrant Agent duly execute and
deliver a Warrant Agreement and the specific terms of a particular Warrant have
been duly established in accordance with the terms of such Warrant Agreement,
and such Warrants have been duly authenticated by the Warrant Agent and duly
executed and delivered on behalf of the Company against payment therefor in
accordance with the terms and provisions of the Warrant Agreement
<PAGE>
June 15, 1998
Page 6
and as contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and (b) when the Registration Statement and
any required post-effective amendments thereto have all become effective under
the Securities Act, and (c) assuming that the terms of the Warrants as executed
and delivered are as described in the Registration Statement, the Prospectus and
the related Prospectus Supplement(s), and (d) assuming that the Warrants as
executed and delivered do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company, and (e) assuming that the Warrants as executed and delivered comply
with all requirements and restrictions, if any, applicable to the Company,
whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company, and (f) assuming that the Warrants are then
issued and sold as contemplated in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), the Warrants will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
7. (a) When specific terms of a Subscription Right have been duly
established and a certificate bearing such terms (the "Subscription Right
Certificate") has been duly executed and delivered by or on behalf of the
Company as contemplated in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and (b) when the Registration Statement and
any required post-effective amendments thereto have all become effective under
the Securities Act, and (c) assuming that the terms of the Subscription Right as
set forth in the Subscription Right Certificate are as described in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
and (d) assuming that the Subscription Right as set forth in the Subscription
Right Certificate does not violate any law applicable to the Company or result
in a default under or breach of any agreement or instrument binding upon the
Company, and (e) assuming that the Subscription Right as set forth in the
Subscription Right Certificate complies with all requirements and restrictions,
if any, applicable to the Company, whether imposed by any court or governmental
or regulatory body having jurisdiction over the Company and (f) assuming that
the Subscription Right as set forth in the Subscription Right Certificate is
then issued as contemplated in the Registration Statement, the Prospectus and
the related Prospectus Supplement(s), the Subscription Rights will be validly
issued.
The opinions set forth in paragraphs 1, 2, 5 and 6 above are subject
to the following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors; (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at law,
and the discretion of the court before which any proceeding therefor may be
brought; (iii) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of, or
contribution to, a party with respect to a liability where such indemnification
or contribution is contrary to public policy; (iv) we express no opinion
concerning the enforceability of any waiver of rights or defenses with respect
to stay, extension or usury laws; and (v) we express no opinion with respect to
whether acceleration of Debt
<PAGE>
June 15, 1998
Page 7
Securities may affect the collectibility of any portion of the stated principal
amount thereof which might be determined to constitute unearned interest
thereon.
To the extent that the obligations of the Company or any Co-
Registrant, as the case may be, and the Guarantors under an Indenture may be
dependent upon such matters, we assume for purposes of this opinion that each of
the Company or such Co-Registrant and the Guarantors has been duly organized and
is validly existing under applicable state law, and has the organizational power
and authority to issue and sell Debt Securities; that the applicable Indenture
has been duly authorized by all necessary organizational action by the Company
or such Co-Registrant and the Guarantors, has been duly executed and delivered
by the Company or such Co-Registrant and the Guarantors and constitutes the
legally valid, binding and enforceable obligation of each of the Company or such
Co-Registrant and the Guarantors enforceable against each of the Company or such
Co-Registrant and the Guarantors in accordance with its terms; that the Trustee
for each Indenture is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization; that the Trustee is duly
qualified to engage in the activities contemplated by the applicable Indenture;
that the applicable Indenture has been duly authorized, executed and delivered
by the Trustee and constitutes a legally valid, binding and enforceable
obligation of the Trustee, enforceable against the Trustee in accordance with
its terms; that the Trustee is in compliance, generally and with respect to
acting as Trustee under the applicable Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under the applicable Indenture.
To the extent that the obligations of the Company under a Deposit
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware and has the corporate power
and authority to issue and sell the Depositary Shares; that the applicable
Deposit Agreement has been duly authorized by all necessary corporate action by
the Company, has been duly executed and delivered by the Company and constitutes
the legally valid, binding and enforceable obligation of the Company enforceable
against the Company in accordance with its terms; that the Depositary is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; that the Depositary is duly qualified to engage in
the activities contemplated by the Deposit Agreement; that the Deposit Agreement
has been duly authorized, executed and delivered by the Depositary and
constitutes the legally valid, binding and enforceable obligation of the
Depositary, enforceable against the Depositary in accordance with its terms;
that the Depositary is in compliance, generally and with respect to acting as a
Depositary under the Deposit Agreement, with all applicable laws and
regulations; and that the Depositary has the requisite organizational and legal
power and authority to perform its obligations under the Deposit Agreement.
To the extent that the obligations of the Company under a Warrant
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the Company
<PAGE>
June 15, 1998
Page 8
has been duly incorporated and is validly existing as a corporation under the
laws of the State of Delaware and has the corporate power and authority to issue
and sell the Warrants; that the applicable Warrant Agreement has been duly
authorized by all necessary corporate action by the Company, has been duly
executed and delivered by the Company and constitutes the legally valid, binding
and enforceable obligation of the Company enforceable against the Company in
accordance with its terms; that the Warrant Agent is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; that the Warrant Agent is duly qualified to engage in the
activities contemplated by the Warrant Agreement; that the Warrant Agreement has
been duly authorized, executed and delivered by the Warrant Agent and
constitutes the legally valid, binding and enforceable obligation of the Warrant
Agent, enforceable against the Warrant Agent in accordance with its terms; that
the Warrant Agent is in compliance, generally and with respect to acting as a
Warrant Agent under the Warrant Agreement, with all applicable laws and
regulations; and that the Warrant Agent has the requisite organizational and
legal power and authority to perform its obligations under the Warrant
Agreement.
To the extent that the obligations of the Company under a Subscription
Right may be dependent upon such matters, we assume for purposes of this opinion
that the Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware and has the corporate power
and authority to issue and sell the Subscription Rights; that the applicable
Subscription Right has been duly authorized by all necessary corporate action by
the Company, and that the applicable Subscription Right Certificates have been
duly executed and delivered by the Company and constitute the legally valid,
binding and enforceable obligations of the Company enforceable against the
Company in accordance with their terms.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
Very truly yours,
/s/ Latham and Watkins
<PAGE>
EXHIBIT 12.1
HOST MARRIOTT CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN MILLIONS, EXCEPT RATIO AMOUNTS)
<TABLE>
<CAPTION>
1st Quarter Fiscal Year
-------------- -----------------------------------------------
1998 1997 1997 1996 1995 1994 1993
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss from continuing operations before income taxes..... $ 52 $ 11 $ 83 $ (8) $ (75) $ (16) $ (65)
Add (deduct)
Fixed charges................................................ 100 81 378 285 206 184 157
Capitalized interest......................................... -- (1) (1) (3) (5) (10) (8)
Amortization of capitalized interest......................... 1 1 5 7 6 8 5
Net losses related to certain 50% or less owned affiliate.... -- -- (1) 1 2 5 22
Minority interest in consolidated affiliates................. 16 11 32 6 2 1 1
------ ------ ------ ------ ------ ------ ------
Adjusted earnings............................................... $169 $103 $496 $288 $136 $172 $112
====== ====== ====== ====== ====== ====== ======
Fixed charges:
Interest on indebtedness and amortization of deferred
financing costs............................................. $ 82 $ 63 $302 $239 $178 $165 $147
Dividends on Convertible Preferred Securities of Subsidiary
Trust....................................................... 9 9 37 3 -- -- --
Portion of rents representative of the interest factor....... 9 9 39 33 17 11 2
Debt service guarantee interest expense of unconsolidated
affiliates.................................................. -- -- -- 10 11 8 8
------ ------ ------ ------ ------ ------ ------
Total fixed charges............................................. $100 $ 81 $378 $285 $206 $184 $157
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges.............................. 1.69x 1.27x 1.31x 1.01x -- -- --
====== ====== ====== ====== ====== ====== ======
Deficiency of earnings to fixed charges......................... -- -- -- -- $ 70 $ 12 $ 45
====== ====== ====== ====== ====== ====== ======
</TABLE>
<PAGE>
EXHIBIT 12.2
HOST MARRIOTT CORPORATION AND SUBSIDIARIES
COMPUTATIONS OF RATIO OF EARNINGS TO FIXED CHARGES
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(IN MILLIONS, EXCEPT RATIO AMOUNTS)
<TABLE>
<CAPTION>
1st Quarter Fiscal Year
-------------- -----------------------------------------------
1998 1997 1997 1996 1995 1994 1993
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss from continuing operations before income taxes..... $ 52 $ 11 $ 83 $ (8) $ (75) $ (16) $ (65)
Add (deduct)
Fixed charges................................................ 100 81 378 285 206 184 157
Capitalized interest......................................... -- (1) (1) (3) (5) (10) (8)
Amortization of capitalized interest......................... 1 1 5 7 6 8 5
Net losses related to certain 50% or less owned affiliate.... -- -- (1) 1 2 5 22
Minority interest in consolidated affiliates................. 16 11 32 6 2 1 1
------ ------ ------ ------ ------ ------ ------
Adjusted earnings............................................... $169 $103 $496 $288 $136 $172 $112
====== ====== ====== ====== ====== ====== ======
Fixed charges:
Interest on indebtedness and amortization of deferred
financing costs............................................. $ 82 $ 63 $302 $239 $178 $165 $147
Dividends on Convertible Preferred Securities of Subsidiary
Trust....................................................... 9 9 37 3 -- -- --
Portion of rents representative of the interest factor....... 9 9 39 33 17 11 2
Debt service guarantee interest expense of unconsolidated
affiliates.................................................. -- -- -- 10 11 8 8
------ ------ ------ ------ ------ ------ ------
Total fixed charges............................................. $100 $ 81 $378 $285 $206 $184 $157
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges and preferred stock
dividends...................................................... 1.69x 1.27x 1.31x 1.01x -- -- --
====== ====== ====== ====== ====== ====== ======
Deficiency of earnings to fixed charges and preferred stock
dividends...................................................... -- -- -- -- $ 70 $ 12 $ 45
====== ====== ====== ====== ====== ====== ======
</TABLE>
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
February 27, 1998 included in Host Marriott Corporation's Form 10-K for the
fiscal year ended January 2, 1998 and HMH Properties, Inc.'s Form 10-K for the
fiscal year ended January 2, 1998 and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
Washington, D.C.
June 11, 1998
