<PAGE>
As filed with the Securities and Exchange Commission on January 19, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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THE ROUSE COMPANY
(Exact name of registrant as specified in its charter)
Maryland 52-0735512
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
(410) 992-6000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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Richard G. McCauley
Senior Vice President,
General Counsel and Secretary
The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
(410) 992-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Timothy E. Peterson, Esq. Joseph C. Shenker, Esq.
Fried, Frank, Harris, Shriver & Jacobson Sullivan & Cromwell
One New York Plaza 250 Park Avenue
New York, New York 10004 New York, New York 10177
(212) 859-8000 (212) 558-4000
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[_]
If any of the securities being registered on this form are being 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, please check the following box. [x]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Securities Offering Price Aggregate Registration
to be Registered Amount to be Registered per Unit (2) Offering Price(2) Fee
========================================================================================================================
<S> <C> <C> <C> <C>
Debt Securities .............. $150,000,000(1) 100% $150,000,000 $51,725
========================================================================================================================
</TABLE>
(1) Or, if any Debt Securities are issued at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $150,000,000, or, if any Debt Securities are denominated in any
currency other than United States dollars, such principal amount as shall
result in an aggregate initial offering price that is the equivalent of
$150,000,000 at or about the time of initial offering.
(2) Estimated solely for purpose of calculating amount of registration fee.
-----------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JANUARY 19, 1995
THE ROUSE COMPANY
Debt Securities
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The Company may from time to time offer Debt Securities consisting of
debentures, notes and/or other unsecured evidences of indebtedness in one or
more series at an aggregate initial offering price not to exceed $150,000,000.
The Debt Securities may be offered as separate series in amounts, at prices and
on terms to be determined at the time of sale. The accompanying Prospectus
Supplement sets forth with regard to the Debt Securities in respect of which
this Prospectus is being delivered the title, aggregate principal amount,
denominations (which may be in United States dollars, in any other currency or
in composite currencies), maturity, rate, if any (which may be fixed or
variable), and time of payment of any interest, any terms for redemption at the
option of the Company or the holder, any terms for sinking fund payments, any
listing on a securities exchange and the initial public offering price and any
other terms in connection with the offering and sale of such Debt Securities.
The Company may sell Debt Securities to or through underwriters, and also
may sell Debt Securities directly to other purchasers or through agents. Such
underwriters may include Goldman, Sachs & Co., or may be a group of underwriters
represented by firms including Goldman, Sachs & Co. Goldman, Sachs & Co. may
also act as agents. The accompanying Prospectus Supplement sets forth the names
of any underwriters or agents involved in the sale of the Debt Securities in
respect of which this Prospectus is being delivered, the principal amounts, if
any, to be purchased by underwriters and the compensation, if any, of such
underwriters or agents.
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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.
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THE ATTORNEY GENERAL OF THE STATE OF NEW YORK
HAS NOT PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING.
ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
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The date of this Prospectus is January __, 1995.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-
ALLOT OR EFFECT TRANSACTIONS THAT STABILIZE OR MAINTAIN THE
MARKET PRICE OF THE DEBT SECURITIES OFFERED HEREBY AT A LEVEL
ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Rouse Company (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
and information statements and other information filed with the Commission can
be inspected and copied at the Public Reference Room of the Commission, Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549; and its
regional offices located at Suite 1400, Northwestern Atrium Center, 500 West
Madison Street, Chicago, Illinois 60661; and 7 World Trade Center, New York, New
York 10048. Copies of such material can be obtained from the Public Reference
Room of the Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does 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, reference
is hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus the
following documents filed with the Commission: its Annual Report on Form 10-K
for the fiscal year ended December 31, 1993 and its Quarterly Reports on Form
10-Q for the quarters ended March 31, 1994, June 30, 1994 and September 30,
1994.
All other documents filed by the Company 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 the Debt Securities shall be
deemed incorporated by reference in this Prospectus and to be a part hereof from
the date of the filing of such documents. See "Available Information." Any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is 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.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered upon request of any such
person, a copy of any or all of the foregoing documents incorporated herein by
reference (other than exhibits to such documents
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not specifically incorporated by reference). Written or telephone requests
should be directed to David L. Tripp, Vice President and Director of Investor
Relations, The Rouse Company, 10275 Little Patuxent Parkway, Columbia, Maryland
21044-3456, Telephone: (410) 992-6000.
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<PAGE>
THE COMPANY
The Company and Its Business
The Rouse Company (the "Company" or "Rouse") is one of the largest
publicly-traded real estate companies in the United States. The Company
develops, acquires, owns and manages income-producing properties across the
United States. The Company also develops and sells land, almost exclusively
related to activities in Columbia, Maryland.
OPERATING PROPERTIES
The Company manages a portfolio of operating properties totalling more than
58 million square feet in almost 200 buildings, classified into two business
categories: (i) retail centers and (ii) office, mixed-use and other properties.
Retail Centers. At November 30, 1994, the Company managed 77 retail centers
totalling 46,286,000 square feet of space and including 149 department stores
and 20,995,000 square feet of small store gross leasable area (GLA). Included in
the 77 retail centers are eight Columbia village centers (848,000 sq. ft.) and
five centers (636,000 sq. ft. of small shops) that are parts of large, mixed-use
projects. The remaining 64 centers include 56 regional malls (18,083,000 sq. ft.
of mall space) that primarily are in the suburbs of major metropolitan areas and
have three or more department stores attached, and also include eight specialty
retail centers (1,428,000 sq. ft.) that are in the downtowns of major cities and
do not have department stores attached. Major retail properties owned and
managed by the Company include Willowbrook, Woodbridge Center and Paramus Park
in New Jersey and Faneuil Hall Marketplace, South Street Seaport and Harborplace
in the downtowns of Boston, New York and Baltimore.
The majority of the Company's revenues, Earnings Before Depreciation and
Deferred Taxes (EBDT), and Current Value Shareholders' Equity is derived from
its retail centers, particularly those where the Company has a significant
ownership interest in the centers. The 64 retail centers (excluding eight
Columbia village centers and five mixed-use projects) include 43 centers where
the Company has ownership interests ranging from 37% to 100%. In the remaining
21 centers, the Company's ownership interest is generally 10% or less, and the
Company normally receives fees for management, leasing and development
activities and an incentive participation in the growth of the centers' cash
flows and values.
Office, Mixed-Use and Other Properties. At November 30, 1994, the Company
managed more than 100 office/industrial buildings totalling approximately 11,
990,000 square feet of gross leasable area. Of this total, 1,842,000 square feet
is located in seven buildings which are part of major mixed-use projects in
Phoenix, Baltimore, Seattle and Portland; 3,056,000 square feet is located in
Columbia in projects that are wholly-owned; 728,000 square feet is located at
Owings Mills, Maryland in four buildings that are jointly-owned; 637,000 square
feet is located at or near retail centers; and the remaining 5,727,000 square
feet is primarily located in the Baltimore-Washington corridor and is part of a
joint venture owned by the Company (5%) and Teachers Insurance and Annuity
Association of America (95%).
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<PAGE>
The Company owns and manages two hotels, one each in Baltimore and
Columbia, and has an ownership position in a third hotel in Baltimore.
LAND SALES
The Company, through its subsidiaries and affiliates, develops and sells
land primarily in and around Columbia, Maryland, which is a new town launched by
the Company in 1962. Today, Columbia has a population of more than 75,000 and is
home to 2,500 businesses which employ 55,000 people. There are presently
approximately 2,000 acres of net saleable land available for residential,
commercial and industrial uses. Subsidiaries of the Company may develop and own
certain projects in Columbia, primarily retail centers and office buildings.
DEVELOPMENT
The majority of the Company's operating properties were developed by the
Company or its subsidiaries. At the present time, the Company has publicly
announced that it is developing two major new regional shopping centers (in
Orlando, Florida and Spartanburg, South Carolina); three expansions to existing
retail centers (Oakwood Center in New Orleans, Mall St. Matthews in Louisville
and The Citadel in Colorado Springs); and is investigating additional new retail
center developments, expansions and potential acquisitions. Any such new retail
center developments, expansions or acquisitions will be funded using cash
generated from operations, from the issuance of additional equity securities or
from the proceeds of any additional indebtedness.
USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement, the
net proceeds from the issuance of the Debt Securities offered hereby will be
used for general corporate purposes, including the repayment of existing
indebtedness.
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<PAGE>
SELECTED FINANCIAL DATA
The following selected financial information of the Company for the
years ended December 31, 1993, 1992 and 1991, and the nine months ended
September 30, 1994 and 1993 was derived from the Company's consolidated
financial statements contained in its Annual Report on Form 10-K for the year
ended December 31, 1993 and its Quarterly Report on Form 10-Q for the quarter
ended September 30, 1994 and is qualified in its entirety by such documents. See
"Incorporation of Certain Documents by Reference." The selected financial
information of the Company for the years ended December 31, 1990 and 1989 was
derived from the audited consolidated financial statements of the Company for
such periods which have not been incorporated herein by reference. Results for
the nine months ended September 30, 1994 and 1993 are unaudited. Results for the
nine months ended September 30, 1994 are not necessarily indicative of results
for the year ended December 31, 1994.
<TABLE>
<CAPTION>
Nine months ended
September 30, Year ended December 31,
------------------- -----------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
-------- -------- -------- -------- -------- -------- --------
(in thousands, except ratios and per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Operating results:
Revenues from continuing operations........ $498,846 $472,963 $646,805 $597,105 $573,498 $529,570 $498,100
Earnings (loss) from continuing
operations............................... 2,445 (2,031) (1,291) (15,849) 2,424 (1,165) 10,361
Earnings (loss) from continuing operations
available for common shareholders
(per share of common stock).............. (.16) (.22) (.27) (.33) .05 (.07) .16
Earnings before depreciation and deferred
taxes from operations (EBDT)............... 67,115 53,066 78,281 52,282 46,820 50,290 57,084
Ratio of earnings to fixed
charges (1)(2)............................. 1.04 -- 1.01 -- -- --
Consolidated coverage ratio (3).............. 1.42 1.34 1.37 1.25 1.24 1.29 1.37
Total assets-cost basis...................... 2,897,922 2,851,397 2,874,982 2,726,281 2,637,452 2,614,877 2,299,615
Total assets-current value basis (4). -- -- 4,588,636 4,217,819 4,174,093 4,362,153 4,129,645
Debt, capital leases and redeemable
Preferred stock............................ 2,550,453 2,468,975 2,473,596 2,498,983 2,374,527 2,344,095 1,995,769
Shareholders' equity (deficit):
Historical cost basis ..................... 80,763 125,029 113,151 (34,848) 17,328 25,339 52,951
Current value basis (4).................... -- -- 1,525,606 1,188,896 1,274,070 1,470,088 1,730,075
Shareholders' equity (deficit) per share
of common stock:
Historical cost basis (5).................... 1.42 2.19 1.98 (.74) .36 .53 1.10
Current value basis (4)(5)................. -- -- 26.75 25.50 26.60 30.10 34.80
Cash dividends per share of common
stock...................................... .51 .45 .62 .60 .60 .60 .56
Market price per share of common stock at
end of period (6).......................... 19.13 20.25 17.75 18.00 18.25 14.50 26.00
Weighted average common shares
outstanding................................ 47,563 47,363 47,411 47,994 48,157 48,019 47,910
Number of common shares outstanding
at end of period........................... 47,568 47,534 47,562 47,292 48,193 48,130 47,973
</TABLE>
___________________
(1) The ratio of earnings to fixed charges is computed by dividing fixed
charges into net earnings (loss) before income taxes, extraordinary
loss and cumulative effect of change in accounting principle, adjusted
for minority interest in earnings, amortization of interest costs
previously capitalized and certain other items, plus fixed charges
other than capitalized interest. Fixed charges include interest costs,
the estimated interest component of rent expense and certain other
items.
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(2) Total fixed charges exceeded the Company's earnings available for
fixed charges by $66,000 for the nine months ended September 30, 1993,
$29,449,000, $10,347,000, $24,575,000 and $354,000 for the years ended
December 31, 1992, 1991, 1990 and 1989, respectively.
(3) Consolidated coverage ratio is the ratio of EBDT plus consolidated
interest expense to consolidated interest expense. Consolidated
interest expense includes dividends on redeemable Preferred Stock
(retired for financial reporting purposes in 1990), which is included
because the stock was subject to mandatory redemption requirements for
cash.
(4) Current value basis financial information is not presented for interim
periods.
(5) Historical cost basis shareholders' equity per share of common stock
and current value basis shareholders' equity per share of common stock
assume the conversion of the Series A Convertible Preferred Stock.
(6) The market price per share of common stock of the Company as of the
close of business on January 11, 1995 was $18.75 per share.
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<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by the Prospectus Supplement (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Offered Debt Securities.
The Offered Debt Securities are to be issued under an Indenture (the
"Indenture") between the Company and The First National Bank of Chicago, as
trustee (the "Trustee"), a copy of which Indenture is filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
Indenture and the Debt Securities do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all provisions of the
Indenture, including the definitions therein of certain terms and of those terms
made a part thereof by the Trust Indenture Act. Wherever particular provisions
or defined terms of the Indenture are referred to, such provisions or defined
terms are incorporated herein by reference. Certain defined terms in the
Indenture are capitalized herein.
GENERAL
The Debt Securities will be unsecured obligations of the Company.
The Debt Securities to be offered by this Prospectus are limited to
$150,000,000 in aggregate issue price. The Indenture does not limit the amount
of Debt Securities that may be issued thereunder and provides that Debt
Securities may be issued thereunder from time to time in one or more series. All
Debt Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of any Holder,
for issuances of additional Debt Securities of such series. (Sections 301 and
303) The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities.
Reference is made to the Prospectus Supplement relating to the Offered
Debt Securities for the following terms, where applicable, of the Offered Debt
Securities: (1) the title of the Offered Debt Securities; (2) any limit on the
aggregate principal amount of the Offered Debt Securities; (3) the date or
dates, or the method or methods, if any, by which such date or dates shall be
determined, on which the Offered Debt Securities will mature; (4) the rate or
rates (which may be fixed or variable) at which the Offered Debt Securities will
bear interest, if any, and the date or dates from which such interest will
accrue; (5) the dates on which such interest, if any, will be payable and the
Regular Record Dates for such Interest Payment Dates, or the method or methods
by which such rate or rates shall be determined and the basis upon which
interest shall be calculated if other than that of a 360-day year of twelve 30-
day months; (6) any mandatory or optional sinking fund or analogous provisions;
(7) the price at which, the periods within which, and the terms and conditions
upon which the Offered Debt Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed at the option of the Company; (8)
the terms and conditions upon which the Offered Debt Securities may be repayable
prior to final maturity at the option of the holder thereof (which option may be
conditional); (9) the
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portion of the principal amount of the Offered Debt Securities, if other than
the principal amount thereof, payable upon acceleration of maturity thereof;
(10) the right of the Company to defease the Offered Debt Securities or certain
restrictive covenants and certain Events of Default under the Indenture; (11) if
other than in United States dollars, the currency or currencies, including
composite currencies, of payment of principal of and premium, if any, and
interest on the Offered Debt Securities (and federal income tax consequences and
other special considerations applicable to any such Offered Debt Securities
denominated in a currency or currencies other than United States dollars); (12)
any index used to determine the amount of payments of principal of and premium,
if any, and interest, if any, on the Offered Debt Securities; (13) if the
Offered Debt Securities will be issuable only in the form of a Global Security
as described under "Global Securities," the Depository or its nominee with
respect to the Offered Debt Securities and the circumstances under which the
Global Security may be registered for transfer or exchange in the name of a
Person other than the Depository or its nominee; (14) any addition to, or
modification or deletion of, any Events of Default or covenants provided for
with respect to the Offered Debt Securities; (15) the terms, if any, pursuant to
which the Offered Debt Securities will be made subordinate and subject in right
of payment to the prior payment in full of all Senior Indebtedness of the
Issuer, and the definition of any such Senior Indebtedness; and (16) any other
terms of the Offered Debt Securities. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating to
Offered Debt Securities, principal of and premium, if any, and interest, if any,
on the Debt Securities will be payable, and the Debt Securities will be
exchangeable and transfers thereof will be registrable, at the office of the
Trustee at its principal executive offices (see "Concerning the Trustee"),
provided that, at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as it appears in the
Security Register. (Sections 301, 305 and 1002). Any payment of principal and
premium, if any, and interest, if any, required to be made on an Interest
Payment Date, Redemption Date or at Maturity which is not a Business Day need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date,
Redemption Date or at Maturity, as the case may be, and no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date or
Maturity. (Section 113)
Unless otherwise indicated in the Prospectus Supplement relating to
Offered Debt Securities, the Debt Securities will be issued only in fully
registered form, without coupons, in denominations of $1,000 or any integral
multiple thereof. (Section 302). No service charge will be made for any transfer
or exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount from their
stated principal amount. In addition, under Treasury Regulations it is possible
that Debt Securities which are offered and sold at their stated principal amount
would, under certain circumstances, be treated as issued at an original issue
discount for federal income tax purposes. Federal income tax consequences and
other special considerations applicable to any such Original Issue Discount
Securities (or other Debt Securities treated as issued at an original issue
discount) will be described in the Prospectus Supplement relating thereto.
"Original Issue Discount Security" means a security, including any security that
does not provide for the payment
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of interest prior to Maturity, which is issued at a price lower than the
principal amount thereof and which provides that upon redemption or acceleration
of the Stated Maturity thereof an amount less than the principal amount thereof
shall become due and payable. (Section 101)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or
more Global Securities that will be deposited with a Depository or its nominee
identified in the Prospectus Supplement relating to the Offered Debt Securities.
In such a case, one or more Global Securities will be issued in a denomination
or aggregate denominations equal to the portion of the aggregate principal
amount of Outstanding Debt Securities of the series to be represented by such
Global Security or Securities. Unless and until it is exchanged in whole or in
part for Debt Securities in definitive registered form, a Global Security may
not be registered for transfer or exchange except as a whole by the Depository
for such Global Security to a nominee of such Depository and except in the
circumstances described in the Prospectus Supplement relating to the Offered
Debt Securities. (Sections 204 and 305). The specific terms of the depositary
arrangement with respect to a series of Debt Securities will be described in the
Prospectus Supplement relating to such series.
CERTAIN COVENANTS
LIMITATION ON THE INCURRENCE OF DEBT. The Company and its consolidated
Subsidiaries may not incur any Debt if, after giving effect to such Incurrence,
the Ratio Calculation is less than 1.1 to 1.
Notwithstanding the foregoing paragraph, the Company and its
consolidated Subsidiaries may incur the following additional Debt without regard
to the foregoing limitation (although the additional Debt so Incurred will be
included in the determination of the Consolidated Coverage Ratio thereafter):
(i) the Debt Securities issued under the Indenture not to exceed an aggregate
issue price of $150,000,000; (ii) intercompany Debt (representing Debt to which
the only parties are the Company and any of its consolidated Subsidiaries (but
only so long as such Debt is held solely by any of the Company and its
consolidated Subsidiaries)); (iii) any drawings or redrawings under lines of
credit existing on the date of the Indenture and any new lines of credit or
replacements, amendments or extensions of existing lines of credit, provided,
however, that the maximum amount that may be drawn under all lines of credit
pursuant to this clause (iii) may not at any time exceed the maximum amount that
may be drawn under all lines of credit that exist as of the date of the
Indenture; (iv) refinancings, renewals, refundings or extensions of any Debt, in
any case in an amount not to exceed the principal amount of the Debt so
refinanced plus any prepayment premium or accrued interest, provided that (a)
such refinancing Debt is either (I) Debt of the Company that ranks pari passu
with or junior to the Debt being refinanced, (II) Debt of a Subsidiary that the
Company or another Subsidiary guarantees or (III) Debt of a Subsidiary and (b)
such refinancing Debt (giving effect to any right of the holder thereof to
require, directly or indirectly, an early repayment, defeasance or retirement of
such Debt) either has a weighted average life equal to or longer than the
remaining weighted average life of the Debt being refinanced or has a minimum
term of five years; (v) third party Debt of a Subsidiary, including Debt of a
Subsidiary that carries a Company guarantee of repayment, directly relating to
the development of projects or the expansion, renovation or improvement of
existing properties; (vi) third party Debt
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of a Subsidiary directly relating to the acquisition of assets; (vii)
reimbursement obligations under letters of credit, bankers' acceptances or
similar facilities, provided that at the time of Incurring any additional
obligations pursuant to this clause (vii) the amount of all such obligations,
whether or not currently due, aggregate at any time less than 5% of Consolidated
Net Tangible Assets at such date; (viii) Debt that by its terms is subordinate
in right of payment to any of the other Debt of the Company; provided however,
that, pursuant to clauses (i) through (ix), the aggregate principal amount of
such subordinated Debt may not at any time exceed the aggregate issue price of
such subordinated Debt as of the date of the Indenture plus $100,000,000; (ix)
Attributable Debt; and (x) in addition to Debt referred to in clauses (i)
through (ix) above, Debt in the aggregate principal amount of $50,000,000 which
is to be used only for working capital purposes. (Section 1008)
LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The Company will not, nor
will it permit any Restricted Subsidiary to, enter into any arrangement with any
bank, insurance company or other lender or investor (not including the Company
or any consolidated Subsidiary) or to which any such lender or investor is a
party, providing for the leasing by the Company or any such Restricted
Subsidiary for a period, including renewals, in excess of three years, of any
Principal Property owned by the Company or such Restricted Subsidiary, which has
been or is to be sold or transferred more than one year after either the
acquisition thereof or the completion of construction and commencement of full
operation thereof by the Company or any such Restricted Subsidiary, to such
lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal Property
(herein referred to as a "Sale/Leaseback Transaction") unless (A) the aggregate
amount of Attributable Debt for the proposed and all existing Sale/Leaseback
Transactions is less than 10% of Consolidated Net Tangible Assets and (B) if the
Ratio Calculation is less than 1.1 to 1 after giving effect to the proposed
Sale/Leaseback Transaction, the Company and its subsidiaries, within 270 days
after the sale or transfer shall have been made by the Company or by any such
Restricted Subsidiary, must apply an amount equal to the net proceeds of the
sale of the Principal Property sold and leased back pursuant to such arrangement
to either (or a combination of) (x) the purchase of property, facilities or
equipment (other than the property, facilities or equipment involved in such
Sale/Leaseback Transaction) or (y) the retirement of Debt of the Company or a
Restricted Subsidiary, including the Debt Securities, which either has an
initial term of greater than 12 months or is a bona fide acquisition loan or a
construction or bridge loan entered in connection with a construction project or
other real estate development. (Section 1009)
CONSOLIDATION, MERGER, SALE, CONVEYANCE, AND LEASE. The Indenture
permits the Company to consolidate or merge with or into any other entity or
entities, or to sell, convey or lease all or substantially all of its Assets to
any other entity authorized to acquire and operate the same; provided, however,
(i) that the Person (if other than the Company) formed by such consolidation, or
into which the Company is merged or which acquires or leases substantially all
of the Assets of the Company, expressly assumes the Company's obligations on the
Debt Securities and under the Indenture, (ii) that the Company or such successor
entity shall not immediately after such consolidation or merger, or such
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sale, conveyance or lease, be in default in the performance of any covenant or
condition of the Indenture, (iii) that the Company or such successor entity
shall not, immediately after giving effect to such consolidation or merger, or
such sale, conveyance or lease, have a Ratio Calculation of less than 1.1 to 1
and (iv) that certain other conditions are met. (Section 801)
PROVISION OF FINANCIAL INFORMATION. The Indenture provides that,
whether or not the Company is subject to Section 13(a) or 15(d) of the Exchange
Act, the Company will, to the extent permitted under the Exchange Act, file with
the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13(a) or 15(d) ("Financial Statements") if the Company were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (y) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder. (Section 1011)
CERTAIN DEFINITIONS
"Asset" means, with respect to one or more transactions occurring
within any 12-month period, any asset or group of assets of the Company or its
Subsidiaries (including, but not limited to, all balance sheet items and all
intangible assets including management contracts, goodwill and trade secrets)
with a fair market or book value, whichever is larger, greater than 5% of
Consolidated Net Tangible Assets on the date of such transaction.
"Attributable Debt" shall mean, as to any particular lease under which
the Company or any Restricted Subsidiary is at the time liable, at any date as
of which the amount thereof is to be determined, the lesser of (i) the fair
value of the property subject to such lease (as determined by certain officers
of the Company as set forth in the Indenture) or (ii) the total new amount of
rent required to be paid by the Company under such lease during the remaining
term thereof, discounted from the respective due dates thereof to such date at
the rate of interest per annum equal to 8.5%, compounded semi-annually. The net
amount of rent required to be paid under any such lease for any such period
shall be the amount of the rent payable by the lessee with respect to such
period, after excluding amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water rates and similar charges. In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
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"Capital Lease Obligations" of any Person means the obligations to pay
rent or other amounts under a lease of (or other Debt arrangements conveying the
right to use) real or personal property of such Person which are required to be
classified and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with generally accepted accounting
principles, and the amount of such obligations shall be the capitalized amount
thereof in accordance with generally accepted accounting principles and the
stated maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty.
"Consolidated Coverage Ratio" of any Person means for any period the
ratio of (i) EBDT for such period plus Consolidated Interest Expense for the
same period for such Person to (ii) Consolidated Interest Expense for the same
period for such Person.
"Consolidated Interest Expense" means with respect to any Person for
any period the Consolidated Interest Expense included in a consolidated income
statement (without deduction of consolidated interest income) of such Person for
such period (based on the accounting principles reflected in the Company's
Consolidated Statement of Operations for the nine months ended September 30,
1994 contained in the Company's Form 10-Q for such period), including, without
limitation or duplication (or, to the extent not so included, with the addition
of) (i) the portion of any rental obligation in respect of any Capital Lease
Obligation allocable to interest expense in accordance with generally accepted
accounting principles; (ii) the amortization of Debt discounts; (iii) any
payments or fees (other than up-front fees) with respect to letters of credit,
bankers' acceptances or similar facilities; (iv) fees (other than up-front fees)
with respect to interest rate swap or similar agreements, or foreign currency
hedge, exchange or similar agreements; (v) the interest portion of any rental
obligation with respect to any Sale/Leaseback Transaction (determined as if such
obligations were treated as a Capital Lease Obligation); and (vi) any dividends
attributable to any equity security which may be converted into a debt security
of the Company at any time or is mandatorily redeemable for cash within 20 years
from its initial issuance.
"Consolidated Net Tangible Assets" shall mean the aggregate amount of
assets (less applicable reserves and other property deductible items) after
deducting therefrom (i) all current liabilities (excluding any thereof which are
by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed and excluding current maturities of long-term indebtedness and Capital
Lease Obligations) and (ii) all goodwill, all as shown in the consolidated
balance sheet of the Company and its Subsidiaries as of the end of the latest
fiscal quarter for which consolidated Financial Statements are available.
"Debt" means (without duplication), with respect to any Person, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, excluding any trade payments and other accrued current
liabilities arising in the ordinary course of business, (iii) every currently
due reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of
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property (but excluding trade accounts payable and other accrued current
liabilities arising in the ordinary course of business which are not overdue by
more than 90 days or which are being contested in good faith), (v) every Capital
Lease Obligation of such Person, (vi) the maximum fixed redemption or repurchase
price of any equity security which may be converted into a debt security of such
Person at any time or is mandatorily redeemable for cash within 20 years from
its initial issuance, and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of another Person
the payment of which, in either case, such Person has guaranteed or for which
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise.
"EBDT" shall mean Earnings Before Depreciation and Deferred Taxes from
Operations for the Company and its consolidated Subsidiaries based on the
accounting principles reflected in the Company's Consolidated Statement of
Operations for the nine months ended September 30, 1994 contained in the
Company's Form 10-Q for such period, and assuming that any dividends paid on any
equity security shall not be deducted in calculating EBDT unless such equity
security may be converted into a debt security at any time or is mandatorily
redeemable for cash within 20 years from its initial issuance.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of any such Person (and "incurrence," "incurred," "incurrable" and
"incurring" shall have meanings correlative to the foregoing); provided that a
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
incurrence of such Debt.
"Principal Property" shall mean any land, and any building, structure
or other facility, together with the land upon which it is erected and fixtures
comprising a part thereof, in each case the net book value of which on the date
as of which the determination is being made exceeds 2% of Consolidated Net
Tangible Assets at such date; provided, however, that Principal Property shall
not include (i) any building, structure or facility which, in the opinion of the
Board of Directors of the Company, is not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety or (ii)
any portion of a particular building, structure or facility which, in the
opinion of the Board of Directors of the Company, is not of material importance
to the use or operation of such building, structure or facility.
"Ratio Calculation" shall mean that, immediately after either the
Incurrence of such Debt or the sale of or other disposal of such Asset, as the
case may be, the Company, or its agent, shall calculate the Consolidated
Coverage Ratio for the four full fiscal quarter period preceding such
Incurrence, sale or disposal for which consolidated Financial Statements are
available. In making such calculation, (a) the Consolidated Interest Expense
attributable to interest on any Debt to be Incurred bearing a floating interest
rate shall be computed on a pro forma basis as if the rate in effect on the date
of computation had been the applicable rate for the entire period and (b) with
respect to any Debt which bears, at the option of the Company, a fixed or
floating rate of interest, the Company shall apply the same rate for
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purposes of calculating the Consolidated Coverage Ratio as it chooses to apply
to the Debt. In addition, such calculation shall be performed using the
consolidated Financial Statements which shall be reformulated on a pro forma
basis as if such Debt had been incurred or such Asset had been sold or otherwise
disposed of, as the case may be, at the beginning of such four fiscal quarter
period. Such reformulation shall give effect, as if the relevant event had
occurred at the beginning of such four fiscal quarter period, to any actual use
of proceeds of such Debt being incurred or Asset being sold or disposed of and
to any Incurrences or repayments of Debt and other sales, disposals or
acquisitions of Assets occurring after the end of the last quarter for which
there are consolidated Financial Statements available. If any portion of the
proceeds has not been used, it shall be assumed that such portion of the
proceeds was invested in one-year Treasury bills on the first day of such four
fiscal quarter period.
"Restricted Subsidiary" shall mean any subsidiary of the Company which
has a 50% or greater ownership interest in a Principal Property or Properties.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect
to Debt Securities of any series: (a) failure to pay principal of or premium, if
any, on any Debt Security of that series when due; (b) failure to pay any
interest on any Debt Security of that series when due, continued for 30 days;
(c) failure to deposit any sinking fund payment, when due, in respect of any
Debt Security of that series; (d) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture solely
for the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice as provided in the Indenture; (e)
certain events in bankruptcy, insolvency or reorganization; (f) a default under
any bond, debenture, note, mortgage, indenture or other evidence of indebtedness
for money borrowed by the Company (or by any Subsidiary, the repayment of which
the Company has guaranteed or for which the Company is directly responsible or
liable as obligor or guarantor) having an aggregate principal amount outstanding
of at least $10,000,000, whether such indebtedness now exists or shall hereafter
be created, which default shall have resulted in such indebtedness being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such acceleration having been rescinded or
annulled within 10 days after written notice as provided in the Indenture; and
(g) any other Event of Default provided with respect to Debt Securities of that
series. (Section 501). No Event of Default with respect to a particular series
of Debt Securities issued under the Indenture necessarily constitutes an Event
of Default with respect to any other series of Debt Securities issued
thereunder.
The Trustee shall, within 90 days after the occurrence of a default
with respect to Debt Securities of any series, give all holders of Debt
Securities of such series then outstanding notice of all uncured defaults known
to it (the term default to mean the events specified above without grace
periods); provided that, except in the case of a default in the payment of
principal of (and premium, if any, on) or interest on, if any, any Debt Security
of any series, or in the payment of any sinking fund installment with respect to
Debt Securities of any series, the Trustee shall be protected in withholding
such notice if it in good faith determines that the withholding of such notice
is in the interest of all holders of Debt Securities of such series then
outstanding. (Trust Indenture Act of 1939)
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If an Event of Default with respect to Outstanding Debt Securities of
any series shall occur and be continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities of
that series may declare the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Debt
Securities of that series to be due and payable immediately. 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 based on acceleration has been
obtained, the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series may, under certain circumstances, rescind and annul
such acceleration. (Section 502). For information as to waiver of defaults, see
"Modification and Waiver."
Reference is made to the Prospectus Supplement relating to each series
of Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
The Indenture provides that the Trustee will be under no obligation,
subject to the duty of the Trustee during the default to act with the required
standard of care, to exercise any of its rights or powers under the Indenture at
the request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603). Subject to such
provisions for indemnification of the Trustee, the Holders of a majority in
principal amount of the Outstanding Debt Securities of any series will 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. (Section 512)
The Company will furnish to the Trustee annually a certificate as to
compliance by the Company with all conditions and covenants under the Indenture.
(Section 1007)
DEFEASANCE
The Prospectus Supplement will state if any defeasance provision will
apply to the Offered Debt Securities.
Defeasance and Discharge
The Indenture provides that, if applicable, the Company will 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, to maintain paying agencies and to hold monies for
payment in trust) upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations (as defined) which through the payment of interest
and principal in respect thereof in accordance with their terms will provide
money in an amount sufficient to pay the principal of and premium, if any, and
each installment of interest on the Debt Securities of such series on the Stated
Maturity of such payments in accordance with the terms of the Indenture and the
Debt Securities of such series. Such a trust may
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only be established if, among other things, the Company has received from, or
there has been published by, the Internal Revenue Service a ruling to the effect
that Holders of the Debt 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. (Section 403)
Defeasance of Certain Covenants and Certain Events of Default
The Indenture provides that, if applicable, the Company may omit to
comply with certain restrictive covenants applicable to such Debt Securities
(described in clause (d) under the caption "Events of Default" above) and that
such omission shall not be deemed to be an Event of Default under the Indenture
and the Debt Securities of any series, upon the deposit with the Trustee, in
trust, of money and/or U.S. Government Obligations (as defined) which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide money in an amount sufficient to pay the principal of
and premium, if any, and each installment of interest on the Debt Securities of
such series on the Stated Maturity of such payments in accordance with the terms
of the Indenture and the Debt Securities of such series. The obligations of the
Company under the Indenture and the Debt Securities of such series other than
with respect to the covenants referred to above and the Events of Default other
than the Event of Default referred to above shall remain in full force and
effect. Such a trust may only be established if, among other things, the Company
has delivered to the Trustee an Opinion of Counsel (who may be an employee of or
counsel for the Company) to the effect that the Holders of the Debt Securities
of such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain covenants and
Events of Default 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 and defeasance had not occurred. (Section 1006)
Defeasance and Certain Other Events of Default
In the event the Company exercises its option to omit compliance with
certain covenants of the Indenture with respect to the Debt Securities of any
series as described above and the Debt Securities of such series are declared
due and payable because of the occurrence of any Event of Default other than the
Event of Default described in clause (d) under "Events of Default", the amount
of money and U.S. 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 Company shall remain liable for such
payments.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security
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affected thereby, (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security, (b) reduce the
principal amount of, or the premium, if any, or interest, if any, on, any Debt
Security, (c) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the Maturity thereof, (d) change the place
or currency of payment of principal of, or premium, if any, or interest, if any,
on, any Debt Security, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security, or (f)
reduce the percentage in principal amount of Outstanding Debt Securities of any
series, the consent of the Holders of which is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults. (Section 902)
The Holders of 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 certain restrictive provisions of the Indenture. (Section 1008).
The Holders of 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 any past default under the Indenture with respect to that series, except a
default in the payment of the principal of or premium, if any, or interest on
any Debt Security of that series or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of that series affected. (Section 513)
CONCERNING THE TRUSTEE
The First National Bank of Chicago, a national banking association
duly organized and existing under the laws of the United States of America, with
its principal offices at One First National Plaza, Suite 0126, Chicago, Illinois
60670, will act as Trustee for the benefit of the Holders of the Debt Securities
under the Indenture. The Trustee also serves as the trustee under the indenture
in respect of the Company's $120,000,000 8.50% Notes due January 15, 2003. The
Company maintains other banking relationships with the Trustee in the ordinary
course of business, including maintaining a line of credit with and obtaining
loans from the Trustee.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters, and
also may sell Debt Securities directly to other purchasers or through agents.
Such underwriters may also act as agents.
The distribution of the Debt Securities, if any, may be effected from
time to time in one or more transactions at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may
receive compensation from the Company or from purchasers of Debt Securities for
whom they may act as agents, in the form of discounts, concessions or
commissions. Underwriters may sell Debt 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.
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Underwriters, dealers and agents that participate in the distribution of Debt
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Debt
Securities by them may be deemed to be underwriting discounts and commissions,
under the Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement accompanying this Prospectus.
Under agreements which may be entered into by the Company,
underwriters and agents who participate in the distribution of Debt Securities
may be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act.
If so indicated in the Prospectus Supplement accompanying this
Prospectus, the Company will authorize underwriters or other persons acting as
the Company's agents to solicit offers by certain institutions to purchase Debt
Securities from the Company pursuant to contracts providing for payment and
delivery on a future date. 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, but in
all cases such institutions must be approved by the Company. The obligations of
any purchaser under any such contract will be subject to the condition that the
purchase of the Offered Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any responsibility
in respect of the validity or performance of such contracts.
Certain of the underwriters or agents and their associates may engage
in transactions with and perform services for the Company in the ordinary course
of business.
LEGAL MATTERS
Unless otherwise indicated in the Prospectus Supplement relating to
the Offered Debt Securities, the validity of the Debt Securities will be passed
upon for the Company by Fried, Frank, Harris, Shriver & Jacobson (a partnership
including professional corporations), One New York Plaza, New York, New York,
and for the Underwriters by Sullivan & Cromwell, 250 Park Avenue, New York, New
York. Fried, Frank, Harris, Shriver & Jacobson and Sullivan & Cromwell may rely
upon Richard G. McCauley, Esq., Senior Vice-President, General Counsel and
Secretary of the Company, with respect to certain matters governed by laws of
the State of Maryland. As of December 31, 1994, Mr. McCauley was the direct
owner of 105,037 shares of the Company's Common Stock (excluding shares of the
Company's Common Stock held in his account under the Company's 401(k) Savings
Plan), certain family members owned 21,295 shares (as to which shares he
disclaims beneficial ownership) and he held options to purchase 112,500 shares,
of which options to purchase 39,500 shares were presently exercisable.
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EXPERTS
The audited consolidated financial statements and schedules
incorporated herein by reference are incorporated by reference in reliance upon
(1) the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated herein by reference, and the authority of that firm as
experts in accounting and auditing, and (2) with respect to the current value
basis financial statements, the report of Landauer Associates, Inc., real estate
counselors and consultants, incorporated herein by reference, and upon the
authority of that firm as experts in real estate consultation. The report of
KPMG Peat Marwick LLP covering the December 31, 1991 financial statements refers
to a change in the Company's method of accounting for income taxes.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of estimated expenses (other than
underwriting discounts and commissions) to be incurred in connection with the
sale of the Debt Securities. Except for the registration fee, the amounts listed
below are estimates.
<TABLE>
<S> <C>
Registration Fee-Securities and Exchange Commission................. $51,725
Legal fees and disbursements ....................................... *
Accounting fees and disbursements .................................. *
Blue Sky fees and expenses (including legal fees)................... *
Printing and Engraving Expenses .................................... *
Fees and Expenses of Trustee ....................................... *
Rating Agency fees ................................................. *
Miscellaneous ...................................................... *
------
TOTAL $ *
=======
</TABLE>
All of the foregoing expenses will be borne by the Company.
* To be filed by amendment.
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XIII of the By-laws of the Company provides that directors and
officers of the Company shall be indemnified by the Company to the fullest
extent permitted by Maryland law as now or hereafter in force, including the
advance of related expenses. If any determination is required under applicable
law as to whether a director or officer is entitled to indemnification, such
determination shall be made by independent legal counsel retained by the Company
and appointed by either the Board of Directors or the Chief Executive Officer. A
copy of Section 2-418 of the Corporations and Associations Article of the
Annotated Code of Maryland is included as an Exhibit to this Registration
Statement.
The Company maintains directors and officers insurance on behalf of its
directors, officers and certain other persons against any liability asserted
against them in any such capacity. The form of Underwriting Agreement contained
in Exhibit 1 provides for indemnification of the directors and officers signing
the Registration Statement and certain controlling persons of the Company
against certain liabilities, including certain liabilities under the Securities
Act of 1933, as amended, in certain instances by each underwriter participating
in an offering of Debt Securities.
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Item 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement
(including by incorporation by reference form documents that are found in
Commission File number 0-1743):
<TABLE>
<C> <S>
1.1 Form of Distribution Agreement.*
1.2 Form of Underwriting Agreement (including form of Delayed Delivery Contract).*
4.1 Form of Indenture between the Company and the Trustee.*
4.2 Form of Debt Securities (included in Exhibit 4.1 at pages ___ through ___).*
4.3 Form of Medium-Term Note (Fixed Rate).*
4.4 Form of Medium-Term Note (Floating Rate).*
5.1 Opinion and Consent of Fried, Frank, Harris, Shriver & Jacobson.*
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges.*
12.2 Statement of Computation of Consolidated Coverage Ratio.*
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Landauer Associates, Inc.
23.3 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit 5.1 above).*
24.1 Power of Attorney, dated March 16, 1993.
24.2 Power of Attorney, dated September 24, 1992 (which is incorporated by reference from
the Exhibits to the Company's Form S-3 Registration Statement (No. 33-52458)).
24.3 Power of Attorney, dated December 3, 1992 (which is incorporated by reference from
the Exhibits to the Company's Form S-3 Registration Statement (No. 33-52458)).
25.1 Statement of Eligibility and Qualification of The First National Bank of Chicago, as
Trustee, on Form T-1.*
99.1 Section 2-418 of the Corporations and Associations Article of the Annotated Code of
Maryland (which is incorporated by reference from the Exhibits to the Company's Form
S-3 Registration Statement (33-56646)).
</TABLE>
______________
* To be filed by amendment.
Item 17. UNDERTAKINGS.
Undertakings to Update Annually. The undersigned registrant hereby
undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any Prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
-22-
<PAGE>
(ii) to reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement; and
(iii) 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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference 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; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
INCORPORATION OF SUBSEQUENT EXCHANGE ACT DOCUMENTS. The undersigned
registrant hereby undertakes 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 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.
INDEMNIFICATION. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions referred to in
Item 15 of this Registration Statement, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act 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 registrant 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.
-23-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Howard and the State of Maryland, on the 19th day
of January, 1995.
THE ROUSE COMPANY
By: /s/ Mathias J. DeVito
__________________________________
Mathias J. DeVito
Chairman of the Board,
Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<S> <C> <C>
Principal Executive Officers:
/s/ Mathias J. DeVito Chairman of the Board, January 19, 1995
___________________________ Chief Executive Officer
Mathias J. DeVito and Director
/s/ Anthony W. Deering President, Chief Operating January 19, 1995
____________________________ Officer and Director
Anthony W. Deering
Principal Financial Officer:
/s/ Jeffrey H. Donahue Senior Vice President and January 19, 1995
_____________________________ Chief Financial Officer
Jeffrey H. Donahue
Principal Accounting Officer:
/s/ George L. Yungmann Senior Vice President January 19, 1995
____________________________ and Controller
George L. Yungmann
</TABLE>
-24-
<PAGE>
THE BOARD OF DIRECTORS
David H. Benson, Jeremiah E. Casey, Anthony W. Deering, Rohit M. Desai, Mathias
J. DeVito, Juanita T. James, Thomas J. McHugh, Hanne M. Merriman, Roger W.
Schipke and Alexander B. Trowbridge.
<TABLE>
<S> <C> <C>
For himself and as January 19, 1995
/s/ Mathias J. DeVito Attorney-in-Fact for the
____________________________ above-named members
Mathias J. DeVito of the Board of Directors
</TABLE>
-25-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description No.
- ------ ----------- ----
<C> <S> <C>
1.1 Form of Distribution Agreement.*
1.2 Form of Underwriting Agreement (including form of Delayed Delivery Contract).*
4.1 Form of Indenture between the Company and the Trustee.*
4.2 Form of Debt Securities (included in Exhibit 4.1 at pages ___ through ___).*
4.3 Form of Medium-Term Note (Fixed Rate).*
4.4 Form of Medium-Term Note (Floating Rate).*
5.1 Opinion and Consent of Fried, Frank, Harris, Shriver & Jacobson.*
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges.*
12.2 Statement of Computation of Consolidated Coverage Ratio.*
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Landauer Associates, Inc.
23.3 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit 5.1 above).*
24.1 Power of Attorney, dated March 16, 1993.
24.2 Power of Attorney, dated September 24, 1992 (which is incorporated by reference
from the Exhibits to the Company's Form S-3 Registration Statement (No. 33-52458)).
24.3 Power of Attorney, dated December 3, 1992 (which is incorporated by reference
from the Exhibits to the Company's Form S-3 Registration Statement (No. 33-52458)).
25.1 Statement of Eligibility and Qualification of The First National Bank of Chicago, as Trustee,
on Form T-1.*
99.1 Section 2-418 of the Corporations and Associations Article of the Annotated Code
of Maryland (which is incorporated by reference from the Exhibits to the
Company's Form S-3 Registration Statement (33-56646)).
</TABLE>
_______________
* To be filed by amendment.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
The Board of Directors
The Rouse Company:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
-------------------------
KPMG PEAT MARWICK LLP
Baltimore, Maryland
January 19, 1995
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT REAL ESTATE CONSULTANTS
----------------------------------------------
The Board of Directors of The Rouse Company:
We consent to the incorporation by reference in the Registration
Statement of The Rouse Company (the "Company") on Form S-3
(Registration No. 33- ) of our report dated February 23, 1994, on our
concurrence with the Company's estimates of the market value of its equity and
other interests in certain real property owned and/or managed by the Company and
its subsidiaries as of December 31, 1992 and 1993, which report appears on page
21 of the 1993 Annual Report to Shareholders that is incorporated by reference
in the Annual Report on Form 10-K of the Company for the year ended December 31,
1993, and to the reference to our firm under the heading "Experts" in the
Prospectus that is a part of such Registration Statement.
/s/ Landauer Associates, Inc.
-----------------------------
LANDAUER ASSOCIATES, INC.
New York, New York
January 19, 1995
<PAGE>
Exhibit 24.1
THE ROUSE COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of THE
ROUSE COMPANY, a Maryland corporation, constitutes and appoints MATHIAS J.
DeVITO AND RICHARD G. McCAULEY, or either of them, the true and lawful agents
and attorneys-in-fact of the undersigned with full power and authority to sign
for the undersigned and in his respective name as officer or director of the
Company, such Registration Statement or Statements of the Company on Form S-3,
or any successor or alternative Form, as may be filed from time to time (either
separately or in connection with the Company's Form S-8 Registration Statement)
with the Securities and Exchange Commission, Washington, D.C., under the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder, and any amendment or
amendments to such Form S-3 Registration Statement or Statements, hereby
ratifying and confirming all acts taken by such agents and attorneys-in-fact, as
herein authorized.
Dated: March 16, 1993 /s/ Anthony W. Deering (SEAL)
---------------------------
Anthony W. Deering
