AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
AND
POST-EFFECTIVE AMENDMENT NO. 1
(Registration No. 333-20781)
TO
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
(State or other jurisdiction of incorporation or organization)
52-0735512
(I.R.S. Employer Identification No.)
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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Bruce I. Rothschild
Vice President,
General Counsel and Secretary
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
(410) 992-6400
(Name, address including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Kenneth R. Blackman
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004-1980
(212) 859-8000
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Approximate date of commencement of proposed sale to public: As soon as
practicable after the Registration Statement becomes effective.
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. |X|
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Proposed Maximum
Securities Aggregate Amount of
to be Registered (1) Offering Price (2)(3)(4) Registration Fee
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Common Stock, $0.01
par value
Preferred Stock,
$0.01 par value
Debt Securities $2,000,000,003 $590,001 (4)
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(1) Also includes such indeterminate number of shares of Common Stock and
Debt Securities as may be issued upon conversion of or exchange for
Preferred Stock or other Debt Securities.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457.
(3) In U.S. dollars or the equivalent thereof in foreign currency or
currency units.
(4) Does not include an additional $250,999,997 aggregate offering price
of Common Stock, Preferred Stock and Debt Securities of the registrant
(the "Previously Registered Securities") registered under a
Registration Statement on Form S-3 (No. 333-20781) (the "Previous
Registration Statement") which are being carried forward to this
Registration Statement pursuant to Rule 429. A registration fee of
$76,061 was paid with the filing of the Previous Registration
Statement. The Previous Registration Statement was declared effective
on February 6, 1997.
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This Registration Statement, which is a new Registration Statement,
also constitutes Post-Effective Amendment No. 1 to the Registration
Statement on Form S-3 (No. 333-20781) previously filed by the registrant
and declared effective on February 6, 1997 (the "Previous Registration
Statement"). Such Post-Effective Amendment No. 1 shall hereafter become
effective concurrently with the effectiveness of this Registration
Statement and in accordance with Section 8(c) of the Securities Act of
1933. Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
filed as part of this Registration Statement also constitutes a Prospectus
for the Previous Registration Statement.
-------------------------
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.
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[RED HERRING]
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 MAY 1, 1998
THE ROUSE COMPANY
Common Stock, Preferred Stock and Debt Securities
-------------------------
The Rouse Company (the "Company" or "Rouse") may offer, from time to
time, together or separately, (i) shares of its common stock, $0.01 par
value per share (the "Common Stock"), (ii) shares of its preferred stock,
$0.01 par value per share (the "Preferred Stock"), and (iii) debt
securities (the "Debt Securities"), in each case, in amounts, at prices and
on such terms to be determined at the time of the offering. The Common
Stock, the Preferred Stock and the Debt Securities are collectively called
the "Securities."
The Securities offered pursuant to this Prospectus may be issued in
one or more series and/or issuances and will have an aggregate public
offering price of up to $2,251,000,000 (or the equivalent thereof, based on
the applicable exchange rate at the time of sale, in one or more foreign
currencies, currency units or composite currencies as shall be designated
by the Company). Certain specific terms of the particular Securities in
respect of which this Prospectus is being delivered are set forth in the
accompanying Prospectus Supplement (the "Prospectus Supplement"),
including, where applicable, (i) in the case of Common Stock, the aggregate
number of shares offered, the public offering price and other terms of the
offering and sale thereof, (ii) in the case of Preferred Stock, the
specific title, the aggregate number of shares offered, any dividend
(including the method of calculating payment of dividends), liquidation,
redemption, voting and other rights, any terms for any conversion or
exchange into other securities, and the public offering price and other
terms of the offering and sale thereof and (iii) in the case of Debt
Securities, the specific title, the aggregate principal amount, the
aggregate offering price, the denomination, the maturity, the premium, if
any, the interest rate (which may be fixed, floating or adjustable), if
any, the time and method of calculating payment of interest, if any, the
place or places where principal of, premium, if any, and interest, if any,
on such Debt Securities will be payable, the currency in which principal
of, premium, if any, and interest, if any, on such Debt Securities will be
payable, any terms of redemption at the option of the Company or repayment
at the option of the holder thereof, any sinking fund provisions, the terms
for any conversion or exchange into other securities, any other special
terms, and the public offering price and other terms of the offering and
sale thereof. If so specified in the applicable Prospectus Supplement, Debt
Securities of a series may be issued in whole or in part in the form of one
or more temporary or permanent global securities.
The Common Stock is listed on the New York Stock Exchange (the "NYSE")
under the trading symbol "RSE." Any Common Stock sold pursuant to a
Prospectus Supplement will be listed on such exchange, subject to official
notice of issuance.
Unless otherwise specified in a Prospectus Supplement, the Debt
Securities, when issued, will be unsecured and unsubordinated obligations
of the Company and will rank pari passu in right of payment with all other
unsecured and unsubordinated indebtedness of the Company.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
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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.
-------------------------
The Securities may be sold directly, through agents, underwriters or
dealers as designated from time to time, or through a combination of such
methods. If agents of the Company or any dealers or underwriters are
involved in the sale of the Securities in respect of which this Prospectus
is being delivered, the names of such agents, dealers or underwriters and
any applicable commissions or discounts will be set forth in or may be
calculated from the Prospectus Supplement with respect to such Securities.
-------------------------
The date of this Prospectus is , 1998.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE
SECURITIES OFFERED HEREBY. SUCH TRANSACTIONS MAY INCLUDE STABILIZING, THE
PURCHASE OF SECURITIES OFFERED HEREBY TO COVER SYNDICATE SHORT POSITIONS
AND THE IMPOSITION OF PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES,
SEE "PLAN OF DISTRIBUTION."
-------------------------
AVAILABLE INFORMATION
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"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices at Seven World Trade Center, 13th Floor, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material can be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
also maintains a Web site (http://www.sec.gov) from which such reports,
proxy statements and other information may be obtained. In addition,
reports, proxy statements and other information concerning the Company may
be inspected at the offices of the NYSE, 20 Broad Street, New York, New
York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments, supplements and exhibits thereto,
the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), of which this Prospectus constitutes a part. This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which were omitted in accordance
with the rules and regulations of the Commission. For further information,
reference is hereby made to the Registration Statement. Any statements
contained herein concerning the provisions of any document filed as an
exhibit to the Registration Statement or otherwise filed with the
Commission are not necessarily complete, and in each instance reference is
made to the copy of such document so filed. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company
pursuant to the Exchange Act are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1997
(the "1997 10-K").
2. Current Report on Form 8-K dated January 15, 1998.
3. Description of Contingent Stock Agreement (as herein defined) is
incorporated by reference to the caption "The Contingent Stock
Agreement; The Contractual Rights" contained in the Registration
Statement on Form S-4 (File No. 333-1693) filed March 13, 1996,
as amended.
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 this offering shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof
from the respective dates of the filing of such documents.
Any statement contained herein or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein
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 a
beneficial owner, to whom a copy of this Prospectus has been delivered,
upon the written or oral request of any such person, a copy of any and all
of the documents incorporated herein by reference into this Prospectus,
other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference in such documents). Requests for
such copies should be directed to David L. Tripp, Vice President and
Director of Investor Relations and Corporate Communications, The Rouse
Company, 10275 Little Patuxent Parkway, Columbia, Maryland 21044-3456,
Telephone: (410) 992-6000.
FORWARD-LOOKING STATEMENTS
This Prospectus, including the documents incorporated by reference
herein, contains forward-looking statements which reflect the Company's
current views with respect to future events and financial performance.
These forward-looking statements are subject to certain risks and
uncertainties which could cause actual results to differ materially from
historical results or those anticipated. See Exhibit 99.2 to the 1997 10-K.
The words "believe," "expect," "anticipate" and similar expressions
identify forward-looking statements, which speak only as of the dates on
which they were made. The Company undertakes no obligation to publicly
update or revise any forward-looking statements, whether as a result of new
information, future events, or otherwise. Readers are cautioned not to
place undue reliance on these forward-looking statements.
THE COMPANY
The Rouse Company, which intends to elect to be taxed as a real estate
investment trust (a "REIT") effective January 1, 1998, is one of the
largest publicly-traded real estate companies in the United States. Through
its subsidiaries, affiliates and non-REIT subsidiaries (collectively, with
The Rouse Company, and individually, the "Company"), the Company is engaged
or has a material financial interest in (i) the ownership, management,
acquisition and development of income-producing and other real estate in
the United States, including retail centers, office buildings, mixed-use
projects and community retail centers, and the management of one retail
center in Canada and (ii) the development and sale of land primarily in
Maryland and the Las Vegas, Nevada metropolitan area for residential,
commercial and industrial uses. The Company's principal offices are located
at The Rouse Company Building, 10275 Little Patuxent Parkway, Columbia,
Maryland 21044-3456, and its telephone number is (410) 992-6000.
USE OF PROCEEDS
Unless otherwise indicated in any accompanying Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the Securities
for general corporate purposes, including the repayment of indebtedness and
for acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth (i) the ratio of earnings to fixed
charges and (ii) the ratio of earnings to combined fixed charges and
Preferred stock dividend requirements of the Company for the periods
indicated:
Years Ended December
--------------------------
31,
--------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
Ratio of earnings to fixed
charges(1)(FN1)..................... 1.25 1.16 1.04 1.06 1.01
Ratio of earnings to combined fixed
charges and Preferred stock dividend
requirements(2)(3)(FN2)(FN3)........ 1.20 1.08 -- -- --
- ----------------------------
(1) The ratio of earnings to fixed charges is computed by dividing fixed
charges into net earnings 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,
distributions on Company-obligated mandatorily redeemable preferred
securities, the estimated interest component of rent expense and
certain other items.
(2) The ratio of earnings to combined fixed charges and Preferred stock
dividend requirements is computed by dividing total combined fixed
charges and amounts of pre-tax earnings required to cover Preferred
stock dividend requirements into net earnings 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, distributions on Company-obligated mandatorily
redeemable preferred securities, the estimated interest component of
rent expense and certain other items.
(3) Total combined fixed charges and Preferred stock dividend requirements
exceeded the Company's earnings available for combined fixed charges
and Preferred stock dividend requirements by $14,086,000, $8,934,000
and $17,722,000 for the years ended December 31, 1995, 1994 and 1993,
respectively.
DESCRIPTION OF COMMON STOCK
General
The following summary of certain terms and provisions of the Common
Stock does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the Maryland General Corporation Law (the
"MGCL") and to the terms and provisions of the Amended and Restated
Articles of Incorporation, as amended, including all Articles Supplementary
thereto, of the Company (the "Charter") and the By-laws, as amended, of the
Company (the "By-laws"), copies of which are filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
The Charter authorizes the issuance of 250,000,000 shares of Common
Stock and, as of April 29, 1998, 68,465,886 shares of Common Stock were
issued and outstanding. The Common Stock is listed on the NYSE under the
trading symbol "RSE."
In connection with the Company's acquisition in June 1996 (the "Hughes
Acquisition") of all the outstanding equity interests in The Hughes
Corporation and its affiliated partnership, Howard Hughes Properties,
Limited Partnership (collectively, "Hughes"), the Company entered into an
agreement (the "Contingent Stock Agreement") for the benefit of the former
Hughes equity owners (or their successors) (the "Hughes Owners") pursuant
to which shares of Common Stock, or under certain circumstances, Increasing
Rate Cumulative Preferred Stock, par value $0.01 per share (the "Increasing
Rate Preferred Stock"), of the Company may be issued to the Hughes Owners
over a 14-year period ending in 2009. The number of shares of Common Stock
(or, under certain circumstances, Increasing Rate Preferred Stock) that may
be issued will be determined on the basis of the net cash flow generated
from and the appraised value of certain assets acquired in the Hughes
Acquisition. Any shares of Increasing Rate Preferred Stock, if issued, will
be exchangeable, at the Company's option, for shares of Common Stock.
During the first quarter of 1997, the Company issued 4,050,000 shares
of its Series B Convertible Preferred Stock, par value $0.01 per share (the
"Series B Convertible Preferred Stock"). The Series B Convertible Preferred
Stock is convertible, in whole or in part, at the option of the holder
thereof at any time, unless previously redeemed, into shares of Common
Stock, at a conversion price of $38.125 per share of Common Stock
(equivalent to a conversion rate of 1.311 shares of Common Stock per share
of Series B Convertible Preferred Stock), subject to adjustment in certain
circumstances. The Series B Convertible Preferred Stock is not redeemable
prior to April 1, 2000, and at no time is it redeemable for cash. On or
after April 1, 2000, the Series B Convertible Preferred Stock will be
redeemable by the Company, in whole or in part, at the Company's option and
subject to certain conditions, for such number of shares of Common Stock as
are issuable at a conversion rate of 1.311 shares of Common Stock for each
share of Series B Convertible Preferred Stock, subject to adjustment in
certain circumstances. See "Description of Preferred Stock -- Series B
Convertible Preferred Stock."
The Company has outstanding $130,000,000 aggregate principal amount of
5 3/4% Convertible Subordinated Debentures due 2002. The debentures are
convertible by the holders thereof into Common Stock at a conversion price
equal to $28.625 principal amount of each debenture for each share of
Common Stock, subject to adjustment in certain circumstances.
Dividend Rights
The holders of Common Stock are entitled to receive such dividends as
are declared by the Board of Directors of the Company, after payment of, or
provision for, full cumulative dividends for outstanding Preferred Stock.
Voting Rights
Each share of Common Stock is entitled to one vote on all matters
submitted to a vote of stockholders, including the election of directors.
Cumulative voting for directors is not permitted. Holders of Common Stock
and Preferred Stock, when outstanding and when entitled to vote, vote as a
class, except with respect to matters that (i) relate only to the rights,
terms or conditions of Preferred Stock, (ii) affect only the holders of
Preferred Stock or (iii) relate to the rights of the holders of Preferred
Stock if the Company fails to fulfill any of its obligations regarding such
stock.
Liquidation Rights
Upon any dissolution, liquidation or winding up of the Company, the
holders of Common Stock are entitled to receive pro rata all of the
Company's assets and funds remaining after payment of, or provision for,
creditors and distribution of, or provision for, preferential amounts and
unpaid accumulated dividends to holders of Preferred Stock.
Preemptive Rights
Holders of Common Stock have no preemptive right to purchase or
subscribe for any shares of the Company's capital stock.
Special Statutory Requirements for Certain Transactions
The summaries of the following statutes do not purport to be complete
and are subject to and qualified in their entirety by reference to the
applicable provisions of the MGCL.
Business Combination Statute. The MGCL establishes special
requirements with respect to "business combinations" between Maryland
corporations and "interested stockholders," unless exemptions are
applicable. Among other things, the law prohibits for a period of five
years a merger or other specified transactions between a company and an
interested stockholder and requires a super-majority vote for such
transactions after the end of such five-year period.
"Interested stockholders" are all persons owning beneficially,
directly or indirectly, 10% or more of the outstanding voting stock of a
Maryland corporation. "Business combinations" include any merger or similar
transaction subject to a statutory vote and additional transactions
involving transfers of assets or securities in specified amounts to
interested stockholders or their affiliates. Unless an exemption is
available, transactions of these types may not be consummated between a
Maryland corporation and an interested stockholder or its affiliates for a
period of five years after the date on which the stockholder first became
an interested stockholder and thereafter may not be consummated unless
recommended by the board of directors of the Maryland corporation and
approved by the affirmative vote of at least 80% of the votes entitled to
be cast by all holders of outstanding shares of voting stock and 66 2/3% of
the votes entitled to be cast by all holders of outstanding shares of
voting stock other than the interested stockholder. A business combination
with an interested stockholder which is approved by the board of directors
of a Maryland corporation at any time before an interested stockholder
first becomes an interested stockholder is not subject to the five-year
moratorium or special voting requirements. The By-laws specifically provide
that the foregoing provisions apply to any such business combination with
the Company. An amendment to a Maryland corporation's charter electing not
to be subject to the foregoing requirements must be approved by the
affirmative vote of at least 80% of the votes entitled to be cast by all
holders of outstanding shares of voting stock and 66 2/3% of the votes
entitled to be cast by holders of outstanding shares of voting stock who
are not interested stockholders. Any such amendment is not effective until
18 months after the vote of stockholders and does not apply to any business
combination of a corporation with a stockholder who was an interested
stockholder on the date of the stockholder vote. The Company has not
adopted any such amendment to its charter.
Control Share Acquisition Statute. The MGCL imposes limitations on the
voting rights of shares acquired in a "control share acquisition." The
Maryland statute defines a "control share acquisition" at the 20%, 33 1/3%
and 50% acquisition levels, and requires a two-thirds stockholder vote
(excluding shares owned by the acquiring person and certain members of
management) to accord voting rights to stock acquired in a control share
acquisition. The statute also requires Maryland corporations to hold a
special meeting at the request of an actual or proposed control share
acquirer generally within 50 days after a request is made with the
submission of an "acquiring person statement," but only if the acquiring
person (a) posts a bond for the cost of the meeting and (b) submits a
definitive financing agreement to the extent that financing is not provided
by the acquiring person. In addition, unless the charter or By-laws provide
otherwise, the statute gives the Maryland corporation, within certain time
limitations, various redemption rights if there is a stockholder vote on
the issue and the grant of voting rights is not approved, or if an
"acquiring person statement" is not delivered to the target within ten days
following a control share acquisition. Moreover, unless the charter or
By-laws provide otherwise, the statute provides that, if, before a control
share acquisition occurs, voting rights are accorded to control shares
which result in the acquiring person having majority voting power, then
minority stockholders have appraisal rights. An acquisition of shares may
be exempted from the control share statute provided that a charter or
By-law provision is adopted for such purpose prior to the control share
acquisition. The By-laws specifically provide that the statutory provisions
relating to control share acquisitions do not apply.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is The Bank of
New York, New York, New York.
DESCRIPTION OF PREFERRED STOCK
General
The following summaries of certain terms and provisions of the
Preferred Stock do not purport to be complete and are subject to, and
qualified in their entirety by reference to, the MGCL and the terms and
provisions of the Charter, including the Articles Supplementary setting
forth the particular terms of (i) the Series B Convertible Preferred Stock,
(ii) the Increasing Rate Preferred Stock and (iii) the 10.25% Junior
Preferred Stock, Series 1996 (the "Junior Preferred Stock"), and to the
By-laws, copies of which are incorporated by reference into the
Registration Statement of which this Prospectus forms a part.
The Charter authorizes the issuance of 50,000,000 shares of Preferred
Stock, of which (i) 4,600,000 shares have been classified as Series B
Convertible Preferred Stock, (ii) 10,000,000 shares have been classified as
Increasing Rate Cumulative Preferred Stock and (iii) 37,362 shares have
been classified as 10.25% Junior Preferred Stock, 1996 Series. Preferred
Stock may be issued from time to time in one or more series, without
stockholder approval, with such voting powers (full or limited),
designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions as shall be
established by the Board of Directors of the Company. Thus, without
stockholder approval, the Company could authorize the issuance of Preferred
Stock with voting, conversion and other rights that could dilute the voting
power and other rights of the holders of Common Stock.
The particular terms of any series of Preferred Stock offered by any
Prospectus Supplement will be described in the Prospectus Supplement
relating to such series of Preferred Stock. At any time that any series of
Preferred Stock is authorized, the Board of Directors of the Company or a
duly authorized Committee of such Board of Directors will fix the dividend
rights, any conversion rights, any voting rights, redemption provisions,
liquidation preferences and any other rights, preferences, privileges and
restrictions of such series, as well as the number of shares constituting
such series and the designation thereof. The description of the terms of a
particular series of Preferred Stock that will be set forth in a Prospectus
Supplement does not purport to be complete and will be qualified in its
entirety by reference to the Articles Supplementary relating to such
series.
Currently, no shares of Increasing Rate Preferred Stock, 37,362 shares
of Junior Preferred Stock and 4,050,000 shares of Series B Convertible
Preferred Stock are issued and outstanding.
Series B Convertible Preferred Stock
General. On January 30, 1997, the Board of Directors of the Company
classified and authorized the Company to issue up to an aggregate of
4,600,000 shares of the Series B Convertible Preferred Stock as part of the
50,000,000 shares of the authorized Preferred Stock.
The holders of the Series B Convertible Preferred Stock have no
preemptive rights with respect to any shares of capital stock of the
Company or any other securities of the Company convertible into or carrying
rights or options to purchase any such shares. The Series B Convertible
Preferred Stock is not subject to any sinking fund or other obligation of
the Company to redeem or retire the Series B Convertible Preferred Stock.
Unless converted or redeemed by the Company, the Series B Convertible
Preferred Stock has a perpetual term, with no maturity. The Series B
Convertible Preferred Stock is listed on the NYSE under the trading symbol
"RSE Pr B." The shares of Common Stock issuable upon conversion or
redemption of the Series B Convertible Preferred Stock are listed on the
NYSE.
Ranking. The Series B Convertible Preferred Stock ranks senior to the
Increasing Rate Preferred Stock, the Junior Preferred Stock and the Common
Stock with respect to payment of dividends and amounts upon liquidation,
dissolution or winding up.
While any shares of Series B Convertible Preferred Stock are
outstanding, the Company may not authorize, create or increase the
authorized amount of any class or series of stock that ranks senior to the
Series B Convertible Preferred Stock with respect to the payment of
dividends or amounts upon liquidation, dissolution or winding up without
the consent of the holders of two-thirds of the outstanding shares of
Series B Convertible Preferred Stock and all other shares of Voting
Preferred Shares (defined below), voting as a single class. However, the
Company may create additional classes of stock, increase the authorized
number of shares of Preferred Stock or issue series of Preferred Stock
ranking on a parity with the Series B Convertible Preferred Stock with
respect, in each case, to the payment of dividends and amounts upon
liquidation, dissolution and winding up (a "Series B Parity Stock") without
the consent of any holder of Series B Convertible Preferred Stock. See "--
Voting Rights" below.
Dividends. Holders of shares of Series B Convertible Preferred Stock
are entitled to receive, when, as and if declared by the Board of Directors
of the Company, out of funds of the Company legally available for payment,
cumulative cash dividends at the rate per annum of 6.0% per share on the
liquidation preference thereof or $3.00 per share of Series B Convertible
Preferred Stock. Dividends on the Series B Convertible Preferred Stock are
payable quarterly on the first calendar day of January, April, July and
October of each year (and, in the case of any accrued but unpaid dividends,
at such additional times and for such interim periods, if any, as
determined by the Board of Directors), at such annual rate. Each such
dividend is payable to holders of record as they appear on the stock
records of the Company at the close of business on such record dates, not
exceeding 60 days preceding the payment dates thereof as shall be fixed by
the Board of Directors of the Company. Dividends are cumulative from the
most recent dividend payment date to which dividends have been paid,
whether or not in any dividend period or periods there shall be funds of
the Company legally available for the payment of such dividends.
Accumulations of dividends on shares of Series B Convertible Preferred
Stock will not bear interest. Dividends payable on the Series B Convertible
Preferred Stock for any period greater or less than a full dividend period
will be computed on the basis of a 360-day year consisting of twelve 30-day
months. Dividends payable on the Series B Convertible Preferred Stock for
each full dividend period are computed by dividing the annual dividend rate
by four.
No dividend may be declared or paid on any Series B Parity Stock
unless full cumulative dividends have been declared and paid or are
contemporaneously declared and funds sufficient for payment set aside on
the Series B Convertible Preferred Stock for all prior dividend periods,
provided, however, that if accrued dividends on the Series B Convertible
Preferred Stock for all prior dividend periods have not been paid in full
then any dividend declared on the Series B Convertible Preferred Stock for
any dividend period and on any Series B Parity Stock will be declared
ratably in proportion to accrued and unpaid dividends on the Series B
Convertible Preferred Stock and such Series B Parity Stock.
The Company may not (i) declare, pay or set apart funds for the
payment of any dividend or other distribution with respect to any Series B
Junior Stock (as defined below) or (ii) redeem, purchase or otherwise
acquire for consideration any Series B Junior Stock through a sinking fund
or otherwise (other than (i) a redemption or purchase or other acquisition
of shares of Common Stock made for purposes of an employee incentive or
benefit plan of the Company or any subsidiary or (ii) a purchase or other
acquisition of shares of Common Stock made for purposes of distribution
pursuant to the Contingent Stock Agreement), unless (A) all cumulative
dividends with respect to the Series B Convertible Preferred Stock and any
Series B Parity Stock at the time such dividends are payable have been paid
or funds have been set apart for payment of such dividends and (B)
sufficient funds have been paid or set apart for the payment of the
dividend for the current dividend period with respect to the Series B
Convertible Preferred Stock and any Series B Parity Stock. The foregoing
limitations do not restrict the Company's ability to take the foregoing
actions with respect to any Series B Parity Stock.
As used herein, (i) the term "dividend" does not include dividends
payable solely in shares of Series B Junior Stock on Series B Junior Stock,
or in options, warrants or rights to holders of Series B Junior Stock to
subscribe for or purchase any Series B Junior Stock, and (ii) the term
"Series B Junior Stock" means the Common Stock, and any other class of
capital stock of the Company now or hereafter issued and outstanding that
ranks junior as to the payment of dividends or amounts upon liquidation,
dissolution and winding up to the Series B Convertible Preferred Stock.
Redemption. Shares of Series B Convertible Preferred Stock are not
redeemable by the Company prior to April 1, 2000, and at no time is the
Series B Convertible Preferred Stock redeemable for cash. On and after
April 1, 2000, the shares of Series B Convertible Preferred Stock will be
redeemable at the option of the Company, in whole or in part, for such
number of shares of Common Stock as equals the liquidation preference of
the Series B Convertible Preferred Stock to be redeemed divided by the
Conversion Price (as defined below under "-- Conversion Rights") as of the
opening of business on the date set for such redemption (equivalent to a
conversion rate of 1.311 shares of Common Stock for each share of Series B
Convertible Preferred Stock), subject to adjustment in certain
circumstances. The Company may exercise this option only if for 20 trading
days within any period of 30 consecutive trading days, including the last
trading day of such period, the closing price of the Common Stock on NYSE
exceeds $45.75, subject to adjustment in certain circumstances. In order to
exercise its redemption option, the Company must issue a press release
announcing the redemption prior to the opening of business on the second
trading day after the conditions in the preceding sentences have, from time
to time, been met, but in no event prior to February 1, 2000.
On the redemption date, the Company must pay on each share of Series B
Convertible Preferred Stock to be redeemed any accrued and unpaid
dividends, in arrears, for any dividend period ending on or prior to the
redemption date. In the case of a redemption date falling after a dividend
payment record date and prior to the related payment date, the holders of
the Series B Convertible Preferred Stock at the close of business on such
record date will be entitled to receive the dividend payable on such shares
on the corresponding dividend payment date, notwithstanding the redemption
of such shares prior to such dividend payment date. Except as provided for
in the preceding sentences, no payment or allowance will be made for
accrued dividends on any shares of Series B Convertible Preferred Stock
called for redemption or on the shares of Common Stock issuable upon such
redemption.
In the event that full cumulative dividends on the Series B
Convertible Preferred Stock and any Series B Parity Stock have not been
paid or declared and set apart for payment, the Series B Convertible
Preferred Stock may not be redeemed in part and the Company may not
purchase or acquire shares of Series B Convertible Preferred Stock
otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of shares of Series B Convertible Preferred Stock.
On and after the date fixed for redemption, provided that the Company
has made available at the office of the Registrar and Transfer Agent a
sufficient number of shares of Common Stock and an amount of cash to effect
the redemption, dividends will cease to accrue on the Series B Convertible
Preferred Stock called for redemption (except that, in the case of a
redemption date after a dividend payment record date and prior to the
related dividend payment date, holders of Series B Convertible Preferred
Stock on the dividend payment record date will be entitled on such dividend
payment date to receive the dividend payable on such shares), such shares
shall no longer be deemed to be outstanding and all rights of the holders
of such shares as holders of Series B Convertible Preferred Stock shall
cease except the right to receive the shares of Common Stock upon such
redemption and any cash payable upon such redemption, without interest from
the date of such redemption. At the close of business on the redemption
date, each holder of Series B Convertible Preferred Stock (unless the
Company defaults in the delivery of the shares of Common Stock or cash)
will be, without any further action, deemed a holder of the number of
shares of Common Stock for which such Series B Convertible Preferred Stock
is redeemable.
Fractional shares of Common Stock are not to be issued upon redemption
of the Series B Convertible Preferred Stock, but, in lieu thereof, the
Company will pay a cash adjustment based on the current market price of the
Common Stock on the trading day prior to the redemption date.
Liquidation Preference. The holders of shares of Series B Convertible
Preferred Stock are entitled to receive in the event of any liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary,
$50.00 per share of Series B Convertible Preferred Stock plus an amount per
share of Series B Convertible Preferred Stock equal to all dividends
(whether or not earned or declared) accrued and unpaid thereon to the date
of final distribution to such holders (the "Series B Liquidation
Preference"), and no more.
Until the holders of the Series B Convertible Preferred Stock have
been paid the Series B Liquidation Preference in full, no payment will be
made to any holder of Series B Junior Stock upon the liquidation,
dissolution or winding up of the Company. If, upon any liquidation,
dissolution or winding up of the Company, the assets of the Company, or
proceeds thereof, distributable among the holders of the shares of Series B
Convertible Preferred Stock are insufficient to pay in full the Series B
Liquidation Preference and the liquidation preference with respect to any
other shares of Series B Parity Stock, then such assets, or the proceeds
thereof, will be distributed among the holders of shares of Series B
Convertible Preferred Stock and any such Series B Parity Stock ratably in
accordance with the respective amounts which would be payable on such
shares of Series B Convertible Preferred Stock and any such Series B Parity
Stock if all amounts payable thereon were paid in full. Neither a
consolidation or merger of the Company with another corporation, a
statutory share exchange by the Company nor a sale or transfer of all or
substantially all of the Company's assets will be considered a liquidation,
dissolution or winding up, voluntary or involuntary, of the Company.
Voting Rights. Except as indicated below, or except as otherwise from
time to time required by applicable law, the holders of shares of Series B
Convertible Preferred Stock have no voting rights.
If and whenever six quarterly dividends (whether or not consecutive)
payable on the Series B Convertible Preferred Stock or any other Series B
Parity Stock are in arrears, whether or not earned or declared, the number
of directors then constituting the Board of Directors of the Company will
be increased by two and the holders of shares of Series B Convertible
Preferred Stock, voting together as a class with the holders of any other
series of Series B Parity Stock (any such other series, the "Voting
Preferred Shares"), will have the right to elect two additional directors
to serve on the Company's Board of Directors at an annual meeting of
stockholders or a properly called special meeting of the holders of the
Series B Convertible Preferred Stock and such Voting Preferred Shares and
at each subsequent annual meeting of stockholders until all such dividends
and dividends for the current quarterly period on the Series B Convertible
Preferred Stock and such other Voting Preferred Shares have been paid or
declared and set aside for payment.
The approval of two-thirds of the outstanding shares of Series B
Convertible Preferred Stock and all other series of Voting Preferred
Shares, acting as a single class regardless of series either at a meeting
of shareholders or by written consent, is required in order to amend the
Charter and Articles Supplementary to affect materially and adversely the
rights, preferences or voting powers of the holders of the Series B
Convertible Preferred Stock or the Voting Preferred Shares or to authorize,
create, or increase the authorized amount of, any class of stock having
rights senior to the Series B Convertible Preferred Stock with respect to
the payment of dividends or amounts upon liquidation, dissolution or
winding up. However, the Company may create additional classes of Series B
Parity Stock and Series B Junior Stock, increase the authorized number of
shares of Series B Parity Stock and Series B Junior Stock and issue
additional series of Series B Parity Stock and Series B Junior Stock
without the consent of any holder of Series B Convertible Preferred Stock.
Except as required by law, the holders of Series B Convertible
Preferred Stock are not entitled to vote on any merger or consolidation
involving the Company or a sale of all or substantially all of the assets
of the Company. See "-- Conversion Price Adjustments" below.
Conversion Rights. Shares of Series B Convertible Preferred Stock are
convertible, in whole or in part, at any time, at the option of the holders
thereof, into shares of Common Stock at a conversion price of $38.125 per
share of Common Stock (equivalent to a conversion rate of 1.311 shares of
Common Stock for each share of Series B Convertible Preferred Stock),
subject to adjustment as described below ("Conversion Price"). The right to
convert shares of Series B Convertible Preferred Stock called for
redemption terminates at the close of business on a redemption date.
Each conversion will be deemed to have been effected immediately prior
to the close of business on the date on which the certificates for shares
of Series B Convertible Preferred Stock shall have been surrendered and
notice shall have been received by the Company as aforesaid (and if
applicable, payment of any amount equal to the dividend payable on such
shares shall have been received by the Company as described below) and the
conversion shall be at the Conversion Price in effect at such time and on
such date.
Holders of shares of Series B Convertible Preferred Stock at the close
of business on a dividend payment record date are entitled to receive the
dividend payable on such shares on the corresponding dividend payment date
notwithstanding the conversion of such shares following such dividend
payment record date and prior to such dividend payment date. However,
shares of Series B Convertible Preferred Stock surrendered for conversion
during the period between the close of business on any dividend payment
record date and ending with the opening of business on the corresponding
dividend payment date (except shares converted after the issuance of a
notice of redemption with respect to a redemption date during such period
or coinciding with such dividend payment date, which will be entitled to
such dividend) must be accompanied by payment of an amount equal to the
dividend payable on such shares on such dividend payment date. A holder of
shares of Series B Convertible Preferred Stock on a dividend record date
who (or whose transferee) tenders any such shares for conversion into
shares of Common Stock on such dividend payment date will receive the
dividend payable by the Company on such shares of Series B Convertible
Preferred Stock on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of shares of Series B
Convertible Preferred Stock for conversion. Except as provided above, the
Company will make no payment or allowance for unpaid dividends, whether or
not in arrears, on converted shares or for dividends on the shares of
Common Stock issued upon such conversion.
Fractional shares of Common Stock are not to be issued upon conversion
but, in lieu thereof, the Company will pay a cash adjustment based on the
current market price of the Common Stock on the trading day prior to the
conversion date.
Conversion Price Adjustments. The Conversion Price is subject to
adjustment upon certain events, including (i) the payment of dividends (and
other distributions) payable in Common Stock on any class of capital stock
of the Company, (ii) the issuance to all holders of Common Stock of certain
rights or warrants entitling them to subscribe for or purchase Common Stock
at a price per share less than the fair market value per share of Common
Stock, (iii) subdivisions, combinations and reclassifications of Common
Stock, and (iv) distributions to all holders of Common Stock of evidences
of indebtedness of the Company or assets (including securities, but
excluding those dividends, rights, warrants and distributions referred to
above and dividends and distributions paid in cash out of equity, including
revaluation equity, applicable to Common Stock). In addition to the
foregoing adjustments, the Company may make such reductions in the
Conversion Price as it considers to be advisable in order that any event
treated for Federal income tax purposes as a dividend of stock or stock
rights will not be taxable to the holders of the Common Stock.
In case the Company shall be a party to any transaction (including,
without limitation, a merger, consolidation, statutory share exchange,
tender offer for all or substantially all of the shares of Common Stock or
sale of all or substantially all of the Company's assets), in each case as
a result of which shares of Common Stock will be converted into the right
to receive stock, securities or other property (including cash or any
combination thereof), each share of Series B Convertible Preferred Stock,
if convertible after the consummation of the transaction, will thereafter
be convertible into the kind and amount of shares of stock and other
securities and property receivable (including cash or any combination
thereof) upon the consummation of such transaction by a holder of that
number of shares or fraction thereof of Common Stock into which one share
of Series B Convertible Preferred Stock was convertible immediately prior
to such transaction (assuming such holder of Common Stock failed to
exercise any rights of election and received per share the kind and amount
received per share by a plurality of non-electing shares). The Company may
not become a party to any such transaction unless the terms thereof are
consistent with the foregoing.
No adjustment of the Conversion Price is required to be made in any
case until cumulative adjustments amount to 1% or more of the Conversion
Price. Any adjustments not so required to be made will be carried forward
and taken into account in subsequent adjustments.
Transfer Agent, Registrar, Dividend Disbursing Agent and Redemption
Agent. The transfer agent, registrar, dividend disbursing agent and
redemption agent for the shares of Series B Convertible Preferred Stock is
The Bank of New York, New York, New York.
Increasing Rate Preferred Stock
General. On February 22, 1996, the Board of Directors of the Company
classified, and authorized the Company to issue, the Increasing Rate
Preferred Stock as part of the 50,000,000 shares of authorized Preferred
Stock. The Increasing Rate Preferred Stock is issuable only in connection
with the Hughes Acquisition and only to Hughes Owners. Pursuant to the
terms of the Contingent Stock Agreement, the Company will be obligated to
issue and deliver shares of Increasing Rate Preferred Stock to Hughes
Owners if the representatives of the Hughes Owners (which representatives
have been appointed under the Contingent Stock Agreement (the
"Representatives")) require the Company to issue and deliver such shares of
Increasing Rate Preferred Stock following certain events of default under
the Agreement.
If and when issued, the Increasing Rate Preferred Stock will be
validly issued, fully paid and nonassessable. The holders of Increasing
Rate Preferred Stock will have no preemptive rights with respect to any
shares of capital stock of the Company or any other securities of the
Company convertible into or carrying rights or options to purchase any such
shares. The Increasing Rate Preferred Stock will not be subject to any
sinking fund. Unless exchanged for Common Stock or redeemed, the Increasing
Rate Preferred Stock will have a perpetual term, with no maturity. The
shares of Common Stock issuable upon the exchange of Increasing Rate
Preferred Stock will be listed on the NYSE.
Ranking. The Increasing Rate Preferred Stock will rank pari passu with
any Parity Stock (as defined below) and will rank senior to the Junior
Preferred Stock, the Common Stock and any other Increasing Rate Junior
Stock (as defined below) with respect to the payment of dividends and
amounts upon liquidation, dissolution or winding up.
While any shares of Increasing Rate Preferred Stock are outstanding,
unless the Company first obtains the consent of the Representatives or the
consent of the holders of at least 66 2/3% of the outstanding shares of
Increasing Rate Preferred Stock, the Company may not, either directly or
indirectly or through a merger or consolidation of the Company with another
entity (a "Rouse Merger"), (i) issue (or approve the issuance of) or
increase the authorized number of shares of any Increasing Rate Parity
Dividend Stock, Increasing Rate Parity Liquidation Stock or Increasing Rate
Prior Stock (as such terms are defined below), (ii) declare, pay or set
apart funds for the payment of any dividends (other than dividends payable
in Increasing Rate Junior Stock) or make any other distribution on or with
respect to shares of Increasing Rate Junior Stock, (iii) declare, pay or
set apart funds for the payment of any dividends (other than dividends
payable in Increasing Rate Junior Stock) or make any other distribution on
or with respect to shares of Increasing Rate Parity Dividend Stock or
Increasing Rate Parity Liquidation Stock, unless simultaneously therewith a
proportionate dividend on the Increasing Rate Preferred Stock is ratably
distributed or (iv) redeem, retire or otherwise acquire for value or set
apart any funds for the redemption or purchase of any shares of Increasing
Rate Junior Stock (other than Common Stock to effect an Exchange (as
defined below)) or any warrant, option or right to acquire shares thereof.
"Increasing Rate Junior Stock" means the Common Stock and any other
capital stock of the Company ranking junior to the Increasing Rate
Preferred Stock with respect to distributions of assets upon the
dissolution, liquidation or winding up of the Company, whether voluntary or
involuntary, or with respect to the payment of dividends.
"Increasing Rate Parity Dividend Stock" means any capital stock of the
Company ranking on a parity with the Increasing Rate Preferred Stock with
respect to the payment of dividends.
"Increasing Rate Parity Liquidation Stock" means any capital stock of
the Company ranking on a parity with the Increasing Rate Preferred Stock
with respect to distributions of assets upon the dissolution, liquidation
or winding up of the Company, whether voluntary or involuntary.
"Parity Stock" means any capital stock of the Company ranking on a
parity with the Increasing Rate Preferred Stock with respect to
distributions of assets upon the dissolution, liquidation or winding up of
the Company, whether voluntary or involuntary, or with respect to the
payment of dividends.
"Increasing Rate Prior Stock" means any capital stock of the Company
ranking prior to the Increasing Rate Preferred Stock with respect to
distributions of assets upon the dissolution, liquidation or winding up of
the Company, whether voluntary or involuntary, or with respect to the
payment of dividends.
Dividends. Holders of shares of Increasing Rate Preferred Stock will
be entitled to receive for each such share, when and as declared by the
Board of Directors of the Company, out of funds of the Company legally
available for payment, cumulative cash dividends on the Liquidation Value
(as defined below) of such share at the Dividend Rate (as defined below).
Dividends on the Increasing Rate Preferred Stock will be payable
semi-annually (each, a "Dividend Payment Date") at such rate on the first
business day following the end of each six-month period beginning January 1
and July 1 of each year (each such six-month period, a "Dividend Period").
Dividends will be payable to holders of record as they appear on the stock
records of the Company at the close of business 15 days prior to the end of
the applicable Dividend Period. Dividends on shares of Increasing Rate
Preferred Stock (whether or not earned or declared) will accrue from the
date of issuance of such shares (the "Issue Date") until such shares are
redeemed or exchanged as described below. Dividends will be cumulative from
the Issue Date, whether or not in any Dividend Period or Periods there are
funds of the Company legally available for the payment of such dividends.
Accumulations of dividends on shares of Increasing Rate Preferred Stock
will not bear interest.
Unless all accrued and unpaid dividends on Increasing Rate Preferred
Stock have been paid in full or funds sufficient for such payment have been
set apart therefor, the Company may not (i) pay or set apart funds for the
payment of any dividend with respect to any Junior Dividend Stock (as
defined below), (ii) pay or set apart funds for the payment of any dividend
with respect to any Increasing Rate Parity Dividend Stock, other than pro
rata with, and recognizing all accrued and unpaid dividends on, the
Increasing Rate Preferred Stock and all other classes or series of
Increasing Rate Parity Dividend Stock, (iii) make any distribution (other
than in Junior Dividend Stock) on, redeem or purchase any Junior
Liquidation Stock or (iv) make any distribution on, redeem or purchase any
Increasing Rate Parity Liquidation Stock.
To the extent that the Company does not have sufficient funds to pay
(or set apart for payment) the full amount of accrued but unpaid dividends
on the Increasing Rate Preferred Stock on any given Dividend Payment Date,
any payments made (or funds set apart for such payments) by the Company in
respect of such dividends will be made ratably to the holders of such
Increasing Rate Preferred Stock in proportion to the number of shares held
by them.
"Base Rate" means (i) with respect to the Dividend Period during which
Rouse issues shares of Increasing Rate Preferred Stock for the first time,
the dividend rate, as determined by a nationally recognized investment
banking firm selected by the Company for such purpose and reasonably
acceptable to the Representatives, which would be required in order for the
Company to successfully sell at par (i.e., stated liquidation value), in a
private placement transaction, a class or series of its perpetual preferred
stock as of such time and (ii) with respect to each subsequent Dividend
Period, the dividend rate, as determined by a nationally recognized
investment banking firm selected by the Company for such purpose and
reasonably acceptable to the Representatives, which would be required in
order for the Company to successfully sell at par (i.e., stated liquidation
value), in a private placement transaction, a class of its perpetual
preferred stock as of the first day of such Dividend Period.
"Dividend Rate" means a rate per annum equal to the Base Rate plus the
Spread, in each case as in effect during a Dividend Period; provided,
however, that in the event that any share of Increasing Rate Preferred
Stock shall have an Issue Date other than on the first day of any Dividend
Period, the Dividend Rate with respect to such share during the Dividend
Period in which such Issue Date occurs shall be calculated on the basis of
the applicable Dividend Rate for such Dividend Period for the period
commencing with the Issue Date to and including the last day of such
Dividend Period.
"Junior Dividend Stock" means Common Stock and any other capital stock
of the Company ranking junior to the Increasing Rate Preferred Stock with
respect to the payment of dividends.
"Junior Liquidation Stock" means Common Stock and any capital stock of
the Company junior to the Increasing Rate Preferred Stock with respect to
distributions of assets upon the dissolution, liquidation or winding up of
the Company, whether voluntary or involuntary.
"Liquidation Value" means, with respect to a share of Increasing Rate
Preferred Stock, $100 plus all dividends (whether or not earned or
declared), accrued and unpaid on such share.
"Spread" (i) for the Dividend Period during which Rouse issues shares
of Increasing Rate Preferred Stock for the first time shall be 3.50% per
annum and (ii) for each Dividend Period thereafter shall be the Spread for
the immediately preceding Dividend Period plus 0.50%.
Redemption. Any holder of Increasing Rate Preferred Stock may elect to
have the Company redeem all or any portion of such holder's shares on any
Dividend Payment Date (the "Redemption Date") by delivering to the Company
a redemption notice at least 30 but not more than 60 days prior to such
Redemption Date; provided, however, that any shares subject to redemption
must have been issued at least one year prior to the date of such
redemption notice.
For each share of Increasing Rate Preferred Stock to be redeemed, the
Company must pay on the Redemption Date an amount equal to the sum of (i)
110% of the Liquidation Value of such share as of such Redemption Date plus
(ii) all accrued and unpaid dividends (whether or not earned or declared)
on such share as of such Redemption Date. In the event the Company is
required to redeem shares of the Increasing Rate Preferred Stock but does
not have sufficient funds legally available to redeem all such shares, the
Company must apply the funds it does have legally available to redeem on a
ratable basis as many shares subject to redemption as is possible. If the
Company fails to redeem all shares required to be redeemed by it on any
given Redemption Date because of insufficient legally available funds, the
holders of Increasing Rate Preferred Stock will be able to exercise the
Special Voting Right described below.
Exchange. The Company may, at its option, exchange shares of Common
Stock on any Dividend Payment Date (an "Exchange Date") for any or all
shares of Increasing Rate Preferred Stock outstanding on such Exchange Date
(each, an "Exchange"), provided that in connection with such Exchange, (i)
the Company delivers an exchange notice at least 30 but not more than 60
days prior to such Exchange Date and (ii) on the Exchange Date, the Company
pays each holder of the shares of Increasing Rate Preferred Stock to be
exchanged an amount equal to all accrued but unpaid dividends on such
shares to such Exchange Date. The number of shares of Common Stock to be
exchanged for each share of Increasing Rate Preferred Stock will be a
number equal to the Liquidation Value divided by the Current Share Value on
the last day of the Dividend Period immediately preceding the Exchange
Date. If, in connection with an Exchange, the Company intends to exchange
fewer than all the outstanding shares of Increasing Rate Preferred Stock,
the number of shares of Increasing Rate Preferred Stock to be exchanged
will be determined ratably among the holders of such stock according to the
respective number of shares held by them.
Liquidation. The holders of shares of Increasing Rate Preferred Stock
will be entitled to receive in the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, the
Liquidation Value for each share of Increasing Rate Preferred Stock (the
"Junior Preferred Liquidation Preference"), and no more.
Until the holders of the Increasing Rate Preferred Stock have been
paid the Junior Preferred Liquidation Preference in full, no payment may be
made to any holder of Junior Liquidation Stock upon the liquidation,
dissolution or winding up of the Company. If, upon any liquidation,
dissolution or winding up of the Company, the assets of the Company, or any
proceeds thereof, distributable among the holders of the shares of
Increasing Rate Preferred Stock are insufficient to pay in full the Junior
Preferred Liquidation Preference, then such assets, or the proceeds
thereof, will be distributed among the holders of shares of Increasing Rate
Preferred Stock ratably in accordance with the respective amounts which
would be payable on such shares of Increasing Rate Preferred Stock if all
amounts payable thereon were paid in full. Neither a merger or
consolidation of the Company with or into another entity nor a voluntary
sale, lease, conveyance, exchange or transfer of all or substantially all
of the Company's assets (except in connection with a plan of liquidation,
dissolution or winding up of the Company) will be considered a liquidation,
dissolution or winding up, voluntary or involuntary, of the Company.
Voting Rights. Except as described below, or except as otherwise from
time to time required by applicable law, the holders of shares of
Increasing Rate Preferred Stock will have no voting rights.
Whenever (i) any accrued but unpaid dividends on the Increasing Rate
Preferred Stock (whether or not earned or declared) are in arrears for at
least one Dividend Period, (ii) the Company fails to effect any redemption
described above or (iii) the Company fails to effect any Exchange, then (x)
the number of directors then constituting the Board of Directors of the
Company will be increased by one and (y) the holders of shares of
Increasing Rate Preferred Stock, voting separately as a class, will have
the exclusive right (the "Special Voting Right") to elect a director to
fill such vacancy either (1) at a properly called special meeting of the
holders of the Increasing Rate Preferred Stock called for such purpose or
(2) at any annual meeting of stockholders of the Company. Holders of
Increasing Rate Preferred Stock will have the right to exercise the Special
Voting Right until such time as (i) all accumulated dividends on the
Increasing Rate Preferred Stock shall have been paid in full, (ii) all
redemptions required to be made on any Redemption Date shall have been made
and (iii) all Exchanges required to be made shall have been made. In
exercising the Special Voting Right, each share of Increasing Rate
Preferred Stock will be entitled to one vote.
In addition, so long as any shares of Increasing Rate Preferred Stock
are outstanding, the consent of the Representatives or the affirmative vote
of the holders of 66 2/3% of the shares of the Increasing Rate Preferred
Stock is required to issue any preferred stock on parity with or senior to
the Increasing Rate Preferred Stock, amend the articles supplementary
relating to the Increasing Rate Preferred Stock, issue or take certain
actions affecting the Increasing Rate Preferred Stock or make distributions
with respect to stock on parity with or junior to the Increasing Rate
Preferred Stock.
Transfer Agent and Registrar. The transfer agent and registrar for the
Increasing Rate Preferred Stock will be The Bank of New York, New York, New
York.
Junior Preferred Stock
General. On February 22, 1996, the Board of Directors of the Company
classified, and authorized the Company to issue, up to 37,362 shares of the
Junior Preferred Stock as part of the 50,000,000 shares of authorized
Preferred Stock.
In connection with the Hughes Acquisition, 37,362 shares of Junior
Preferred Stock were issued to a non-REIT subsidiary of the Company and are
currently outstanding.
Ranking. The Junior Preferred Stock ranks senior to the Common Stock
and junior to all other Preferred Stock (unless the terms of such Preferred
Stock specifically provide that it will rank junior to or on parity with
the Junior Preferred Stock), with respect to payment of dividends and
amounts upon liquidation, dissolution or winding up.
Dividends. Holders of shares of Junior Preferred Stock are entitled to
receive for each such share, when and as declared by the Board of Directors
of the Company, out of funds of the Company legally available for payment,
a cumulative annual cash dividend equal to the greater of (i) 10.25% of the
liquidation preference of such Junior Preferred Stock (the "Junior
Preferred Liquidation Preference") or (ii) the lesser of 200% of the amount
determined under clause (i) above or the Junior Preferred Liquidation
Preference divided by the average closing price of Common Stock used to
determine the exchange ratio in connection with the Hughes Acquisition (the
"Multiplier") multiplied by the aggregate per share amount of all cash and
non-cash dividends (other than dividends payable in Common Stock), subject
to adjustment for stock splits, combinations and dividends on the Common
Stock. Accumulations of dividends on shares of Junior Preferred Stock will
not bear interest.
Until all accumulated dividends are paid in full, the Company may not,
without first obtaining the consent of the holders of at least 66 2/3% of
the outstanding shares of Junior Preferred Stock, (i) declare or pay
dividends on or make any other distribution on, or redeem or purchase or
otherwise acquire for consideration any shares of the Company's capital
stock ranking junior to the Junior Preferred Stock (other than such shares
acquired in exchange for other shares of the Company's capital stock
ranking junior to the Junior Preferred Stock), (ii) declare or pay
dividends on or make any other distributions on any shares of the Company's
capital stock ranking on parity with the Junior Preferred Stock other than
dividends payable ratably on the Junior Preferred Stock and any other
parity stock or (iii) redeem or purchase or otherwise acquire for
consideration any shares of the Company's capital stock ranking on a parity
with the Junior Preferred Stock, except pursuant to an offer that treats
fairly and equitably all holders of Junior Preferred Stock and such parity
stock.
Redemption. The Junior Preferred Stock is not subject to redemption.
Liquidation. The holders of shares of Junior Preferred Stock are
entitled to receive in the event of any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, a liquidation
preference for each share of Junior Preferred Stock equal to the greater of
(i) the sum of $4,148.60 plus all accrued and unpaid dividends on such
share to the date of payment and (ii) an amount equal to the Multiplier
multiplied by the aggregate per share amount to be distributed to holders
of Common Stock in connection with such liquidation, dissolution or winding
up, in each case subject to adjustment for stock splits, combinations and
dividends on the Common Stock. Until the holders of the Junior Preferred
Stock have been paid their aggregate liquidation preference in full, no
payment will be made to (i) any holder of the Company's capital stock
ranking on a parity with the Junior Preferred Stock, except distributions
made ratably on the Junior Preferred Stock and any stock ranking on parity
therewith or (ii) any holder of the Company's capital stock ranking junior
to the Junior Preferred Stock.
Voting Rights. Except as otherwise from time to time required by
applicable law, the holders of shares of Junior Preferred Stock have no
voting rights; however, when dividends are in arrears, a vote of 66 2/3% of
the outstanding shares is required for the Company to pay distributions on
or redeem any stock junior to or on parity with the Junior Preferred Stock.
Consolidation, Merger. In the event of a merger, consolidation or
other transaction in which shares of Common Stock are exchanged for cash,
stock, securities or other property, holders of Junior Preferred Stock are
entitled to receive for each share of their stock the per share
consideration received by holders of Common Stock multiplied by the
Multiplier, subject to adjustment for stock splits, combinations and
dividends on the Common Stock.
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
$2,251,000,000 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. (Section 301) 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 or series of
which they are a part; (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 principal of such Offered Debt Securities will be payable; (4) the rate
or rates (which may be fixed, floating or adjustable) at which the Offered
Debt Securities will bear interest, if any, the date or dates from which
such interest will accrue, the Interest Payment Dates on which any such
interest will be payable and the Regular Record Date for any such interest
payable on any Interest Payment Date; (5) the place or places where the
principal of and any premium and interest on such Offered Debt Securities
will be payable; (6) the period or periods within which, the price or
prices at which and the terms and conditions upon which such Offered Debt
Securities may be redeemed, in whole or in part, at the option of the
Company; (7) the obligation, if any, of the Company to redeem or purchase
any of such Offered Debt Securities 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 on which any of such Offered Debt Securities will be redeemed or
purchased, in whole or in part, pursuant to any such obligation; (8) the
denominations in which such Offered Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof; (9)
if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Offered Debt Securities will be payable (and the manner in
which the equivalent of the principal amount thereof in the currency of the
United States of America is to be determined for any purpose, including for
the purpose of determining the principal amount deemed to be outstanding at
any time); (10) if the amount of payments of principal of or any premium or
interest on such Offered Debt Securities may be determined with reference
to an index or pursuant to a formula, the manner in which such amounts will
be determined; (11) if the principal of or any premium or interest on such
Securities is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than those in
which the Offered Debt Securities are stated to be payable, the currency,
currencies or currency units in which payment of any such amount as to
which such election is made will be payable, and the periods within which
and the terms and conditions upon which such election is to be made; (12)
if other than the principal amount thereof, the portion of the principal
amount of such Offered Debt Securities which will be payable upon
declaration of acceleration of the Maturity thereof; (13) if applicable,
that such Offered Debt Securities are defeasible as provided in the
Indenture; (14) whether such Offered Debt Securities are convertible into
or exchangeable for Common Stock, Preferred Stock or other Securities and
the terms and conditions upon which such conversion or exchange will be
effected; (15) whether such Offered Debt Securities will be issuable in
whole or in part in the form of one or more Global Securities and, if so,
the Depositary or Depositaries for such Global Security or Global
Securities and any circumstances other than those described under "Global
Securities" in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof and
in which any such transfer may be registered; (16) any addition to, or
modification or deletion of, any Events of Default or covenants provided
for with respect to the Offered Debt Securities; (17) 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 Company, and the definition of any such Senior
Indebtedness; and (18) any other terms of such Securities not inconsistent
with the provisions of the Indenture. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating to
Offered Debt Securities, principal of and any premium or interest 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 any premium or interest 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 (as defined below) 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 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 Depositary 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 Depositary for
such Global Security to a nominee of such Depositary 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.
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 any premium or interest on 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)
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 601) 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 1004)
Consolidation, Merger and Transfer of Assets
Under the Indenture, the Company may not consolidate with or merge
into any corporation, or transfer its assets substantially as an entirety
to any Person, unless: (i) the successor corporation or transferee assumes
the Company's obligations on the Debt Securities and under the Indenture;
(ii) 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; and (iii) certain other
conditions are met. (Section 901)
Satisfaction, Discharge and Defeasance
The Prospectus Supplement will state if any defeasance provision will
apply to the Offered Debt Securities.
The Indenture, with respect to any series of Debt Securities (except
for certain specified surviving obligations, including (A) any rights of
registration of transfer and exchange and (B) rights to receive the
principal, premium, if any, and interest on the Debt Securities) will be
discharged and cancelled upon the satisfaction of certain conditions,
including the following: (i) all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation have become due or
payable, will become due and payable at their Stated Maturity within one
year or are to be called for redemption within one year and (ii) the
deposit with such Trustee of an amount in the Specified Currency sufficient
to pay the principal, premium, if any, and interest to the Maturity of all
Debt Securities of such series. (Section 501)
If so specified in the Prospectus Supplement with respect to Debt
Securities of any series, the Company at its option, (i) will be discharged
from any and all obligations in respect of the Debt Securities of such
series (except for certain obligations to register the transfer or exchange
of Debt Securities of such series, replace stolen, lost or mutilated Debt
Securities of such series, maintain certain offices or agencies in each
Place of Payment and hold moneys for payment in trust), or (ii) will not be
subject to provisions of the applicable Indenture described above under
"--Consolidation, Merger and Transfer of Assets" with respect to the Debt
Securities of such series, in each case if the Company irrevocably deposits
with the Trustee, in trust, money or U.S. Government Obligations which
through the payment of interest thereon and principal thereof in accordance
with their terms will provide money in an amount sufficient (in the opinion
of independent public accountants) to pay all the principal (including any
mandatory sinking fund payments) of, and premium, if any, and interest on,
the Debt Securities of such series on the dates such payments are due in
accordance with the terms of such Debt Securities. To exercise any such
option, the Company is required to deliver to the applicable Trustee (1) an
opinion of counsel to the effect that (a) the deposit and related
defeasance would not cause the Holders of the Debt Securities of such
series to recognize income, gain or loss for federal income tax purposes,
(b) the Company's exercise of such option will not cause any violation of
the Investment Company Act of 1940, as amended, and (c) if the Debt
Securities of such series are then listed on the NYSE, such Debt Securities
would not be delisted as a result of the exercise of such option and (2) in
the case of the Debt Securities of such series being discharged, a ruling
received from or published by the United States Internal Revenue Service to
the effect that the deposit and related defeasance would not cause the
Holders of the Debt Securities of such series to recognize income, gain or
loss for federal income tax purposes.
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 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 any premium or
interest on, any Debt Security, (c) reduce the amount of principal of an
Original Issue Discount Security or other Security payable upon
acceleration of the Maturity thereof, (d) change the place or currency of
payment of principal of, or any premium or interest 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, (f) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent
of whose Holders is required for modification or amendment of the
Indenture, (g) reduce the percentage in principal amount of Outstanding
Debt Securities of any series necessary for waiver of certain defaults or
(h) modify such provisions with respect to modification and waiver.
(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 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)
Governing Law
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the law of the State of New York, but without
regard to principles of conflicts of law. (Section 112)
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 (i) the Company's $120,000,000
aggregate principal amount of 8.5% Notes due January 15, 2003, (ii) the
Company's $150,000,000 aggregate issue amount of Medium-Term Notes due Nine
Months or More from Date of Issue and (iii) $141,753,000 aggregate
principal amount of 9 1/4% Junior Subordinated Debentures due 2025. The
Company maintains other banking relationships with the Trustee in the
ordinary course of business, including maintaining a line of credit in
which the Trustee is a participating lender and obtaining loans from the
Trustee.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through one or more underwriters
or dealers and also may sell Securities directly to institutional investors
or other purchasers, or through agents.
The distribution of the Securities 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 Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Securities for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell 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. Underwriters, dealers and agents that
participate in the distribution of 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 Securities by them may be deemed to
be underwriting discounts and commissions under the Securities Act. Any
such underwriter or agent will be identified, and any such compensation
received from the Company will be described, in the related Prospectus
Supplement.
Under agreements which may be entered into by the Company,
underwriters and agents who participate in the distribution of Securities
may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, or to
contribution by the Company with respect to payments they may be required
to make in respect thereof.
If so indicated in the related Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase 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 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.
Until the distribution of the Securities is completed, the rules of
the Commission may limit the ability of underwriters and certain selling
group members to bid for and purchase the Securities. As an exception to
these rules, underwriters are permitted to engage in certain transactions
that stabilize the price of the Securities. Such transactions consist of
bids or purchases for the purpose of pegging, fixing or maintaining the
price of the Securities.
If any underwriters create a short position in the Securities in
connection with the offering, i.e., if they sell more Securities than are
set forth on the cover page of the applicable Prospectus Supplement, the
underwriters may reduce that short position by purchasing Securities in the
open market.
Underwriters may also impose a penalty bid on certain selling group
members. This means that if the underwriters purchase Securities in the
open market to reduce the underwriters' short position or to stabilize the
price of the Securities, they may reclaim the amount of the selling
concession from the selling group members who sold those Securities as part
of the offering.
In general, purchases of a security for the purpose of stabilization
or to reduce a short position could cause the price of the security to be
higher than it might be in the absence of such purchases. The imposition of
a penalty bid might also have an effect on the price of the Securities to
the extent that is discourages resales of the Securities.
Neither the Company nor any underwriter makes any representation or
prediction as to the direction or magnitude of any effect that the
transactions described above may have on the price of the Securities. In
addition, neither the Company nor any underwriter makes any representation
that the underwriter will engage in such transactions or that such
transactions, once commenced, will not be discontinued without notice.
The Securities may or may not be listed on a national securities
exchange (other than the Common Stock, which is listed on the NYSE). Any
Common Stock sold pursuant to a Prospectus Supplement will be listed on the
NYSE, subject to official notice of issuance. No assurances can be given
that there will be an active trading market for the Securities.
Certain of the underwriters or agents and their associates may engage
in transactions with and perform services for the Company or its affiliates
in the ordinary course of their respective businesses.
EXPERTS
The consolidated financial statements and schedules of the Company and
its subsidiaries as of December 31, 1997 and 1996, and for each of the
years in the three-year period ended December 31, 1997, incorporated by
reference in this Registration Statement have been incorporated by
reference in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
The validity of the Common Stock and the Preferred Stock will be
passed upon for the Company by Bruce I. Rothschild, Esq., Vice President
and General Counsel of the Company. The validity of the Debt Securities
will be passed upon for the Company by Fried, Frank, Harris, Shriver &
Jacobson (a partnership including professional corporations), New York, New
York.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission registration fee...... $590,001
Printing expenses........................................ 500,000
Rating agency fees....................................... 1,500,000
New York Stock Exchange listing fee...................... 230,000
Trustee's fees........................................... 60,000
Legal fees and expenses.................................. 400,000
Accounting expenses...................................... 60,000
Blue Sky fees and expenses............................... 15,000
Other.................................................... 144,999
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Total.............................................. $3,500,000
============
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* Except for the Securities and Exchange Commission registration fee, all
of the foregoing expenses have been estimated.
Item 15. Indemnification of Directors and Officers
Article IX of the Bylaws 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. Paragraph (f) of Article Seventh
of the Amended and Restated Articles of Incorporation of the Company
provides that to the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no director or officer of the
Company shall be personally liable to the Company or its stockholders for
money damages. A copy of Section 2-418 of the Corporations and Associations
Article of the Annotated Code of Maryland is incorporated by reference into
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 1.1 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 the
Preferred Securities.
Item 16. Exhibits
Set forth below is a list of the exhibits included as part of this
Registration Statement.
Exhibit
No. Description
------- -------------
1.1 Form of Underwriting Agreement for Common Stock or Preferred
Stock
1.2 Form of Underwriting Agreement for Debt Securities
1.3 Form of Distribution Agreement for Debt Securities
4.1 Charter of the Company, as amended and restated effective
May 27, 1988, (which is incorporated by reference from the
Exhibits to the Company's Form 10-K Annual Report for the
fiscal year ended December 31, 1988 (see Commission File No.
0-1743))
4.2 Articles of Amendment to the Charter of the Company,
effective January 10, 1991, (which are incorporated by
reference from the Exhibits to the Company's Form 10-K
Annual Report for the fiscal year ended December 31, 1990
(see Commission File No. 0-1743))
4.3 The Articles Supplementary to the Charter of the Company,
dated February 17, 1993 (which are incorporated by reference
from the Exhibits to the Company's Form 10-K Annual Report
for the fiscal year ended December 31, 1992 (see Commission
File No. 0-1743))
4.4 The Articles Supplementary to the Charter of the Company,
dated September 26, 1994 (which are incorporated by
reference from the Exhibits to the Company's Form S-3
Registration Statement (No. 33-57707))
4.5 The Articles Supplementary to the Charter of the Company,
dated December 27, 1994 (which are incorporated by reference
from the Exhibits to the Company's Form S-3 Registration
Statement (No. 33-57707))
4.6 The Articles Supplementary to the Charter of the Company,
dated June 5, 1996, relating to the Company's Increasing
Rate Cumulative Preferred Stock, par value $0.01 per share
(which are incorporated by reference from the Exhibits to
the Company's Form S-3 Registration Statement (No.
333-20781))
4.7 The Articles Supplementary to the Charter of the Company,
dated June 11, 1996, relating to the Company's 10.25% Junior
Preferred Stock, 1996 Series, par value $0.01 per share
(which are incorporated by reference from the Exhibits to
the Company's Form S-3 Registration Statement (No.
333-20781))
4.8 The Articles Supplementary to the Charter of the Company,
dated February 21, 1997, relating to the Company's Series B
Convertible Preferred Stock, par value $0.01 per share
(which are incorporated by reference from the Exhibits to
the Company's Current Report on Form 8-K, dated February 26,
1997 (see Commission File No. 0-1743)).
4.9 The Bylaws of the Company, as amended November 19, 1996 and
January 30, 1997 (which are incorporated by reference from
the Exhibits to the Company's Form S-3 Registration
Statement (No. 333-20781))
4.10 Contingent Stock Agreement, effective as of January 1, 1996,
by the Company in favor of and for the benefit of the
Holders and Representatives named therein (which is
incorporated by reference to Exhibit 2.3 to the Company's
Form S-4 Registration Statement (No. 333-1693).
4.11 Indenture, dated as of February 24, 1995, between the
Company and The First National Bank of Chicago, as trustee
(which is incorporated by reference from the Exhibits to the
Company's Form 10-K Annual Report for the fiscal year ended
December 31, 1995 (see Commission File No. 0-1743))
4.12 Form of Fixed Rate Medium-Term Note
4.13 Form of Floating Rate Medium-Term Note
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson
5.2 Opinion of Bruce I. Rothschild, Esq., Vice President and
General Counsel of the Company
12.1 Computation of Ratio of Earnings to Fixed Charges (which is
incorporated by reference from the Company's Annual Report
for the fiscal year ended December 31, 1997 (see Commission
File No. 0-1743))
12.2 Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividend Requirements (which is
incorporated by reference from the Company's Annual Report
for the fiscal year ended December 31, 1997 (see Commission
File No. 0-1743))
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1 above)
23.3 Consent of Bruce I. Rothschild, Esq., Vice President and
General Counsel of the Company (included in Exhibit 5.2
above)
24.1 Power of Attorney, dated May 1, 1998
24.2 Power of Attorney, dated May 1, 1998
25.1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The First National Bank of Chicago, as
trustee under the Indenture
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 (No. 33-56646))
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement;
notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities
Act of 1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii)to include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement;
provided, however, that the undertakings set forth in paragraphs
(1)(i) and (ii) above do not apply if 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 this 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 being registered which remain unsold at the
termination of the offering.
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 15(d) of the
Securities Exchange Act of 1934 that are 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.
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 foregoing provisions
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 questions 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.
The undersigned registrant hereby undertakes to provide to the
underwriter, at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required
by the underwriter to permit prompt delivery to each purchaser.
The undersigned registrant hereby undertakes 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
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose 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.
The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustees 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 Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Rouse
Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and it has duly caused this
Registration Statement and Post-Effective Amendment No. 1 to the
Registration Statement (File No. 333-20781) to be signed on its behalf by
the undersigned, thereunto duly authorized, in the County of Howard, State
of Maryland, on the 1st day of May, 1998.
THE ROUSE COMPANY
By: /s/ Anthony W. Deering
Anthony W. Deering
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and Post-Effective Amendment No. 1 to the
Registration Statement (File No. 333-20781) has been signed by the
following persons in the capacities and on the date indicated.
Principal Executive Officer:
/s/ Anthony W. Deering Chairman of the Board, May 1, 1998
- -----------------------------
Anthony W. Deering President and Chief
Executive Officer
Principal Financial Officer:
/s/ Jeffrey H. Donahue Senior Vice President May 1, 1998
- ----------------------------- and Chief Financial
Jeffrey H. Donahue Officer
Principal Accounting
Officer:
/s/ George L. Yungmann Senior Vice President and May 1, 1998
- ----------------------------- Controller
George L. Yungmann
THE BOARD OF DIRECTORS
David H. Benson, Jeremiah E. Casey, Anthony W. Deering, Rohit M. Desai,
Mathias J. DeVito, Juanita T. James, William R. Lummis, Thomas J. McHugh,
Hanne M. Merriman, Roger W. Schipke, Alexander B. Trowbridge and Gerard J.
M. Vlak.
/s/ Anthony W. Deering For himself May 1, 1998
- ----------------------------- and as
Anthony W. Deering Attorney-in-Fact
Attorney-in-Fact for the
above-named
members of
the Board
of Directors
EXHIBITS
Exhibit
No. Description
------- -------------
1.1 Form of Underwriting Agreement for Common Stock or Preferred
Stock
1.2 Form of Underwriting Agreement for Debt Securities
1.3 Form of Distribution Agreement for Debt Securities
4.1 Charter of the Company, as amended and restated effective
May 27, 1988, (which is incorporated by reference from the
Exhibits to the Company's Form 10-K Annual Report for the
fiscal year ended December 31, 1988 (see Commission File No.
0-1743))
4.2 Articles of Amendment to the Charter of the Company,
effective January 10, 1991, (which are incorporated by
reference from the Exhibits to the Company's Form 10-K
Annual Report for the fiscal year ended December 31, 1990
(see Commission File No. 0-1743))
4.3 The Articles Supplementary to the Charter of the Company,
dated February 17, 1993 (which are incorporated by reference
from the Exhibits to the Company's Form 10-K Annual Report
for the fiscal year ended December 31, 1992 (see Commission
File No. 0-1743))
4.4 The Articles Supplementary to the Charter of the Company,
dated September 26, 1994 (which are incorporated by
reference from the Exhibits to the Company's Form S-3
Registration Statement (No. 33-57707))
4.5 The Articles Supplementary to the Charter of the Company,
dated December 27, 1994 (which are incorporated by reference
from the Exhibits to the Company's Form S-3 Registration
Statement (No. 33-57707))
4.6 The Articles Supplementary to the Charter of the Company,
dated June 5, 1996, relating to the Company's Increasing
Rate Cumulative Preferred Stock, par value $0.01 per share
(which are incorporated by reference from the Exhibits to
the Company's Form S-3 Registration Statement (No.
333-20781))
4.7 The Articles Supplementary to the Charter of the Company,
dated June 11, 1996, relating to the Company's 10.25% Junior
Preferred Stock, 1996 Series, par value $0.01 per share
(which are incorporated by reference from the Exhibits to
the Company's Form S-3 Registration Statement (No.
333-20781))
4.8 The Articles Supplementary to the Charter of the Company,
dated February 21, 1997, relating to the Company's Series B
Convertible Preferred Stock, par value $0.01 per share
(which are incorporated by reference from the Exhibits to
the Company's Current Report on Form 8-K, dated February 26,
1997 (see Commission File No. 0-1743)).
4.9 The Bylaws of the Company, as amended November 19, 1996 and
January 30, 1997 (which are incorporated by reference from
the Exhibits to the Company's Form S-3 Registration
Statement (No. 333-20781))
4.10 Contingent Stock Agreement, effective as of January 1, 1996,
by the Company in favor of and for the benefit of the
Holders and Representatives named therein (which is
incorporated by reference to Exhibit 2.3 to the Company's
Form S-4 Registration Statement (No. 333-1693).
4.11 Indenture, dated as of February 24, 1995, between the
Company and The First National Bank of Chicago, as trustee
(which is incorporated by reference from the Exhibits to the
Company's Form 10-K Annual Report for the fiscal year ended
December 31, 1995 (see Commission File No. 0-1743))
4.12 Form of Fixed Rate Medium-Term Note
4.13 Form of Floating Rate Medium-Term Note
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson
5.2 Opinion of Bruce I. Rothschild, Esq., Vice President and
General Counsel of the Company
12.1 Computation of Ratio of Earnings to Fixed Charges (which is
incorporated by reference from the Company's Annual Report
for the fiscal year ended December 31, 1997 (see Commission
File No. 0-1743))
12.2 Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividend Requirements (which is
incorporated by reference from the Company's Annual Report
for the fiscal year ended December 31, 1997 (see Commission
File No. 0-1743))
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1 above)
23.3 Consent of Bruce I. Rothschild, Esq., Vice President and
General Counsel of the Company (included in Exhibit 5.2
above)
24.1 Power of Attorney, dated May 1, 1998
24.2 Power of Attorney, dated May 1, 1998
25.1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The First National Bank of Chicago, as
trustee under the Indenture
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 (No. 33-56646))
EXHIBIT 1.1
THE ROUSE COMPANY
[COMMON STOCK] [PREFERRED STOCK]
UNDERWRITING AGREEMENT
------------, ----
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time The Rouse Company, a Maryland corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain shares of its [Common Stock, par
value $0.01 per share] [Preferred Stock, par value $0.01 per share] (the
"Shares") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Firm Shares"). If specified in such Pricing
Agreement, the Company may grant to the Underwriters the right to purchase
at their election an additional number of shares, specified in such Pricing
Agreement as provided in Section 3 hereof (the "Optional Shares"). The Firm
Shares and the Optional Shares, if any, which the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"Designated Shares".
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time
to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The
term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters
who act without any firm being designated as its or their representatives.
This Underwriting Agreement (the "Agreement") shall not be construed as an
obligation of the Company to sell any of the Shares or as an obligation of
any of the Underwriters to purchase the Shares. The obligation of the
Company to issue and sell any of the Shares and the obligation of any of
the Underwriters to purchase any of the Shares shall be evidenced by the
Pricing Agreement with respect to the Designated Shares specified therein.
Each Pricing Agreement shall specify the aggregate number of Firm Shares,
the maximum number of Optional Shares, if any, the initial public offering
price of such Firm Shares and Optional Shares or the manner of determining
such price, the purchase price to the Underwriters of such Designated
Shares, the names of the Underwriters of such Designated Shares, the names
of the Representatives of such Underwriters and the number of such
Designated Shares to be purchased by each Underwriter and the commission,
if any, payable to the Underwriters with respect thereto and shall set
forth the date, time and manner of delivery of such Firm Shares and
Optional Shares, if any, and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Shares. A
Pricing Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-_____) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Representatives, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus included therein, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) of the
rules and regulations of the Commission under the Act which became
effective upon filing, no other document with respect to such registration
statement or document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission (other than the
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued, and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) of the
rules and the regulations of the Commission under the Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A of the rules and
regulations of the Commission under the Act to be part of the Initial
Registration Statement at the time it was declared effective and (ii) the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus relating
to the Shares, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under
the Act on or prior to the date of this Agreement, is hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of the Form S-3 form
under the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated therein by
reference; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the
Prospectus shall be deemed to refer to and include the Prospectus as
amended or supplemented in relation to the applicable Designated Shares in
the form filed or transmitted for filing with the Commission pursuant to
Rule 424(b) under the Act and in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder; the
Registration Statement and any amendment thereto do not and will not, as of
the applicable effective date, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus and
any amendment or supplement thereto, as of the applicable filing date, do
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus relating to such Shares;
(d) The Company and its subsidiaries, taken as a whole, have not
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other than
issuances of capital stock (i) pursuant to bonus stock awards granted in
the ordinary course of business, (ii) upon exercise of options and stock
appreciation rights and upon conversions of convertible securities and
(iii) pursuant to the terms of the Contingent Stock Agreement, effective as
of January 1, 1996, executed in connection with the acquisition by the
Company of all of the outstanding equity interests in The Hughes
Corporation and its affiliated partnership, Howard Hughes Properties,
Limited Partnership (the "Contingent Stock Agreement"), in each case,
except with respect to bonus stock awards granted in the ordinary course of
business, which were outstanding as of the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus), or any material and adverse change in the long-term debt of
the Company and its subsidiaries, taken as a whole (it being understood
that, absent unusual circumstances, an increase in long-term debt of the
Company and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to the Company and its subsidiaries, taken
as a whole), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, current value basis shareholders' equity or results of
operations (based on Funds from Operations) of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company and its subsidiaries have, or in those cases where
such subsidiary is a general partner in a partnership, such partnership
has, good and marketable fee simple and/or leasehold title (as the case may
be) to all real property (except for those lesser estates in real property
which, in the aggregate, are not material in value to the Company and its
subsidiaries), subject only to (A) those liens and encumbrances which have
been reflected generally or in the aggregate in the financial statements of
the Company as disclosed in the Prospectus or as are described
specifically, generally or in the aggregate in the Prospectus, or (B) such
liens and encumbrances (i) not required by generally accepted accounting
principles to be disclosed in the financial statements of the Company,
which (a) if all material covenants and conditions thereof are observed or
performed, will not materially interfere with the use made or proposed to
be made of such property by the Company and its subsidiaries or (b) are
reasonable and customary with regard to the normal operation of land and
improvements held for commercial purposes by first class owners and
operators of commercial real estate, or (ii) which were incurred after the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus in the ordinary course of business (including
financings) and which, in the aggregate (on a net basis), are not material
to the Company and its subsidiaries, taken as a whole. The Company and its
subsidiaries have title to the personal property owned by it or them and,
subject to the continued performance of the material covenants and
conditions of liens and encumbrances thereon, have the right to use such
without interference in the normal course of business, except for such
interference as would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Maryland, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the failure so to
qualify and maintain good standing would have a material adverse effect on
the Company and its subsidiaries, taken as a whole; and each subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation except for such failures to maintain good standing as would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned (with exceptions that are
disclosed (whether directly or through incorporation by reference) in the
Prospectus or are not material to the Company and its subsidiaries, taken
as a whole) directly or indirectly by the Company, free and clear of all
liens, encumbrances or claims (collectively, "Liens") except (i) Liens
relating to debt which has been disclosed specifically, generally or in the
aggregate in the Prospectus or incurred after the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus in the ordinary course of business (including financings), (ii)
Liens incurred in the ordinary course of business which are not materially
adverse to the operations of the Company and its subsidiaries, taken as a
whole, and (iii) restrictions on the transfer or use of the stock of any
subsidiary under any partnership, joint venture or lease agreements to
which the Company or any of its subsidiaries is a party;
(h) The Shares have been duly and validly authorized, and, when
Firm Shares are issued and delivered against payment therefor pursuant to
this Agreement and the Pricing Agreement with respect to such Designated
Shares and, in the case of Optional Shares, pursuant to Over-allotment
Options (as defined in Section 3 hereof) with respect to such Shares, such
Designated Shares will be duly and validly issued and fully paid and
non-assessable; the Shares conform to the description thereof contained in
the Registration Statement and the Designated Shares will conform to the
description thereof contained in the Prospectus with respect to such
Designated Shares; and the Designated Shares will have the rights set forth
in the Company's Articles of Incorporation, as then amended or
supplemented; and the holders of outstanding capital stock of the Company
are not entitled to preemptive or other rights afforded by the Company to
subscribe for the Designated Shares;
(i) The issue and sale of the Shares, the compliance by the
Company with all of the provisions of this Agreement, any Pricing Agreement
and each Over-allotment Option, if any, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject except for such conflict,
breach, violation or default which does not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, nor will such
actions result in any violation of the provisions of the Articles of
Incorporation, as then amended or supplemented, or the Bylaws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the other transactions
contemplated by this Agreement, any Pricing Agreement or any Over-allotment
Option, except such as have been, or will have been prior to each Time of
Delivery (as defined in Section 4 hereof), obtained under the Act and such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(j) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which are likely, individually or in the
aggregate, to have a material adverse effect on the Company and its
subsidiaries taken as a whole, and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(k) The Company is not, and after giving effect to each offering
and sale of the Shares will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(l) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes; and
(m) The independent certified public accountants of the Company,
who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release
of the Firm Shares, the several Underwriters propose to offer the Firm
Shares for sale upon the terms and conditions set forth in the Prospectus.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
number of Optional Shares set forth in such Pricing Agreement, on the terms
set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised by written notice from the
Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be
delivered, as determined by the Representatives but in no event earlier
than the First Time of Delivery (as defined in Section 4 hereof) or, unless
the Representatives and the Company otherwise agree in writing, earlier
than or later than the respective number of business days after the date of
such notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares
to be purchased by each Underwriter as set forth in Schedule I to the
Pricing Agreement applicable to such Designated Shares shall be, in each
case, the number of Optional Shares which the Company has been advised by
the Representatives have been attributed to such Underwriter; provided
that, if the Company has not been so advised, the number of Optional Shares
to be so added shall be, in each case, that proportion of Optional Shares
which the number of Firm Shares to be purchased by such Underwriter under
such Pricing Agreement bears to the aggregate number of Firm Shares
(rounded as the Representatives may determine to the nearest 100 shares).
The total number of Designated Shares to be purchased by all the
Underwriters pursuant to such Pricing Agreement shall be the aggregate
number of Firm Shares set forth in Schedule I to such Pricing Agreement
plus the aggregate number of Optional Shares which the Underwriters elect
to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement, and in such
authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer in federal (same day) funds, payable to the order of the Company
in the funds specified in such Pricing Agreement, (i) with respect to the
Firm Shares, all in the manner and at the place and time and date specified
in such Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and
date being herein called the "First Time of Delivery" and (ii) with respect
to the Optional Shares, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Shares, or at such other time and date as the Representatives and the
Company may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "Second Time of Delivery". Each such
time and date for delivery is herein called a "Time of Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus in relation to the applicable
Designated Shares in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Act no later than the
Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Shares or, if applicable, such earlier time as may be required
by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus after the date of the Pricing
Agreement relating to such Shares and prior to any Time of Delivery for
such Shares which shall be disapproved by the Representatives for such
Shares promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after any Time
of Delivery for such Shares and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Shares, and during such same period to
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or any order preventing or suspending the use
of any prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Shares
or suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein for as long as may be
necessary to complete the distribution of such Shares; provided, however,
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Shares and if at such time any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act
or the Exchange Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) During the period beginning from the date of the Pricing
Agreement for such Designated Shares and continuing to and including the
later of (i) the termination of trading restrictions for such Designated
Shares, as notified to the Company by the Representatives and (ii) the last
Time of Delivery for such Designated Shares, not to offer, sell, contract
to sell or otherwise dispose of any securities of the Company which are
substantially similar to such Designated Shares (other than pursuant to
employee stock option plans existing on or upon the conversion of
convertible or exchangeable securities outstanding as of, the date of the
Pricing Agreement for such Designated Shares, or pursuant to the Contingent
Stock Agreement), without the prior written consent of the Representatives;
and
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158).
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
all other amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of
printing and producing any Agreement among Underwriters, this Agreement,
any Pricing Agreement, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents so
long as such documents have been approved by the Company in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses
in connection with the qualification of the Shares for offering and sale
under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of the Company's counsel in connection with such
qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any filing fees incident to, and the reasonable fees and
disbursements of the Company's counsel in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms
of the sale of the Shares; (v) the cost of preparing the certificates for
the Shares; (vi) the reasonable fees and expenses of any transfer agent or
registrar or dividend disbursing agent; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder and under
any Over-allotment Options which are not otherwise specifically provided
for in this Section. It is understood, however, that, except as provided in
this Section, and Sections 8 and 11 hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Shares under
the Pricing Agreement relating to such Designated Shares shall be subject,
in the Representatives' discretion, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such
Designated Shares are true and correct at and as of each Time of Delivery
for such Designated Shares and the condition that prior to such Time of
Delivery the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) (i) The Prospectus in relation to the applicable Designated
Shares shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part
of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives;
(b) Counsel for the Underwriters, shall have furnished to the
Representatives such opinion or opinions, dated each Time of Delivery, with
respect to the incorporation of the Company, the Shares, the Registration
Statement, the Prospectus, and such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) The General Counsel of the Company, or other counsel for the
Company satisfactory to the Representatives, shall have furnished to the
Representatives such counsel's written opinion (which may be limited to the
laws of the State of Maryland and, with respect to clauses (xiii) and (xiv)
below, the federal securities laws), dated each Time of Delivery in form
and substance reasonably satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(iii) The Shares have been duly and validly authorized, and,
when Firm Shares are issued and delivered against payment therefor
pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Shares and, in the case of Optional Shares, pursuant
to Over-allotment Options (as defined in Section 3 hereof) with
respect to such Shares, such Designated Shares will be duly and
validly issued and fully paid and non-assessable; the Shares conform
to the description thereof contained in the Registration Statement and
the Designated Shares will conform to the description thereof in the
Prospectus with respect to such Designated Shares; and the Designated
Shares will have the rights set forth in the Company's Articles of
Incorporation, as then amended or supplemented; and the holders of
outstanding capital stock of the Company are not entitled to
preemptive or other rights afforded by the Company to subscribe for
the Designated Shares;
(iv) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the failure so to
qualify and maintain good standing would have a material adverse
effect on the Company and its subsidiaries, taken as a whole (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company);
(v) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which is likely, individually or in the
aggregate, to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect
to the Designated Shares have been duly authorized, executed and
delivered by the Company;
(vii) The Designated Shares have been duly authorized;
(viii) To the best of such counsel's knowledge, the issue
and sale of the Designated Shares being delivered at such Time of
Delivery, the compliance by the Company with all of the provisions of
this Agreement and the Pricing Agreement with respect to the
Designated Shares, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject except for
any such conflict, breach, violation or default which does not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole, nor will such actions result in any violation of the
provisions of the Articles of Incorporation, as then amended or
supplemented, or Bylaws of the Company or any statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties;
(ix) To the best of such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the
issue and sale of the Designated Shares being delivered at such Time
of Delivery or the consummation by the Company of the other
transactions contemplated by this Agreement or such Pricing Agreement,
except such as have been obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Shares by the
Underwriters;
(x) The Designated Shares will conform, in all material
respects, to the descriptions thereof contained in the Prospectus;
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act;
(xii) The documents incorporated by reference in the
Prospectus (other than the financial statements and related notes and
schedules therein and other financial data and statistical information
included therein or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission appeared
on their face to be appropriately responsive, in all material
respects, to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and nothing has come to such
counsel's attention to cause such counsel to believe that any of such
documents, when they were so filed contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(xiii) Nothing has come to such counsel's attention to cause
such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related notes and schedules therein and other
financial data and statistical information included therein or
excluded therefrom, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of the date of such
opinion, the Prospectus or any amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related notes and schedules therein and other financial
and statistical information data included therein or excluded
therefrom, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference or
described as required.
(d) Fried, Frank, Harris, Shriver & Jacobson, special counsel for
the Company, or other counsel for the Company satisfactory to the
Representatives, shall have furnished to the Representatives their written
opinion (which will be limited to the laws of the State of New York and
federal laws and may rely on an opinion of the General Counsel of the
Company, or other counsel for the Company reasonably satisfactory to the
Representatives, as to the laws of the State of Maryland), dated each Time
of Delivery in form and substance reasonably satisfactory to the
Representatives, to the effect that at the time the Registration Statement
was declared effective by the Commission, the Registration Statement and
the Prospectus (other than (a) the financial statements, notes and
schedules thereto, (b) other financial data and statistical information
included therein or omitted therefrom, and (c) the documents incorporated
by reference therein, as to which such counsel need not express an
opinion), appeared on their face to be responsive as to form in all
material respects to the requirements of the Act and the rules and
regulations promulgated thereunder;
(e) On the date of the Pricing Agreement for such Designated
Shares but prior to the execution of the Pricing Agreement with respect to
such Designated Shares and at such Time of Delivery for such Designated
Shares, the independent certified public accountants of the Company who
have certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement, or
such other independent certified public accountants as are reasonably
satisfactory to the Representatives, shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) The Company and its subsidiaries, taken as a whole, have
not sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus and (ii) since the respective dates as of
which information is given in the Prospectus prior to the date of the
Pricing Agreement relating to the Designated Shares there shall not have
been any change in the capital stock (other than issuances of capital stock
pursuant to bonus stock awards granted in the ordinary course of business
upon exercise of options and stock appreciation rights, or upon conversion
of convertible securities, in each case, except with respect to bonus stock
awards granted in the ordinary course of business which were outstanding as
of the date of the latest audited financial statements included or
incorporated by reference in the Prospectus or pursuant to the Contingent
Stock Agreement) or any material adverse change in the long-term debt of
the Company and its subsidiaries, taken as a whole (it being understood
that, absent unusual circumstances, an increase in long-term debt of the
Company and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to the Company and its subsidiaries, taken
as a whole), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, current value basis shareholders' equity or results of
operations (based on Funds from Operations) of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Shares on the terms and
in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in the Representatives' reasonable judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Firm
Shares or Optional Shares or both on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to
the Designated Shares;
(i) The Shares at each Time of Delivery shall have been duly
listed, subject to notice of issuance, on the New York Stock Exchange; and
(j) The Company shall have furnished or caused to be furnished to
the Representatives at each Time of Delivery for the Designated Shares a
certificate or certificates of officers of the Company in such form and
executed by such officers of the Company as shall be satisfactory to the
Representatives, as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section, and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the Shares,
or any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in light
of the circumstances under which they were made not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Shares, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus relating to such Shares.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Shares, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus and any other prospectus relating to the Shares, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. If the
indemnifying party does not assume the defense of such action, it is
understood that the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to one separate firm of local
attorneys in each such jurisdiction) at any time for all such indemnified
parties, which firms shall be designated in writing by you, if the
indemnified parties under this Section consist of any Underwriter of
Designated Shares or any of its respective controlling persons, or by the
Company, if the indemnified parties under this Section consist of the
Company or any of its directors, officers, administrative trustees or
controlling persons. The indemnifying party shall not be liable for any
settlement of an action or claim for monetary damages which an indemnified
party may effect without the consent of the indemnifying party, which
consent shall not be unreasonably withheld. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim),
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to, or
an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Shares on the other from
the offering of the Designated Shares to which such loss, claim, damage or
liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and the Underwriters of the Designated Shares on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total commissions or discounts received by such Underwriters in respect
thereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading relates to information supplied by the Company on the one
hand or by any such Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total public
offering price at which the applicable Designated Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Shares in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Shares or Optional Shares which it has agreed to purchase under
the Pricing Agreement relating to such Shares, the Representatives may in
their discretion arrange for themselves or another party or other parties
to purchase such Shares on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not
arrange for the purchase of such Firm Shares or Optional Shares, as the
case may be, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Shares on such terms.
In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the
purchase of such Shares, or the Company notifies the Representatives that
it has so arranged for the purchase of such Shares, the Representatives or
the Company shall have the right to postpone a Time of Delivery for such
Shares for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to
the Pricing Agreement with respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the number of Firm
Shares or Optional Shares, as the case may be, to be purchased at the
respective Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of Firm
Shares or Optional Shares, as the case may be, which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated
Shares and, in addition, to require each non-defaulting Underwriter to
purchase its pro-rata share (based on the number of Firm Shares or Optional
Shares, as the case may be, which such Underwriter agreed to purchase under
such Pricing Agreement) of the Firm Shares or Optional Shares, as the case
may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of Firm Shares or
Optional Shares, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate number of Firm Shares or Optional Shares, as
the case may be, to be purchased at the respective Time of Delivery as
referred to in subsection (b) above, or if the Company shall not exercise
the right described in subsection (b) above to require non- defaulting
Underwriters to purchase the Firm Shares or Optional Shares, as the case
may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Shares or the Over-allotment Option
relating to such Optional Shares, as the case may be, shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Shares.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof or if the condition in Section 7(h)
is not satisfied, the Company shall not then be under any liability to any
Underwriter with respect to the Firm Shares or Optional Shares covered by
such Pricing Agreement except as provided in Sections 6 and 8 hereof; but,
if for any other reason, Designated Shares are not delivered by or on
behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Shares,
but the Company shall then be under no further liability to any Underwriter
with respect to such Designated Shares except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Shares shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the Representatives, if any, as
may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement, Attention: General
Counsel; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any
of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
THE ROUSE COMPANY
By: __________________________________
Name:
Title:
[NAMES OF REPRESENTATIVES]
By: ___________________________
Name:
Title:
On behalf of each of the Underwriters
ANNEX I
Pricing Agreement
-----------------
-----------------, -----
[Name(s) of Representative(s)]
As Representative(s) of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
The Rouse Company, a Maryland corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ____________, ______ (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Shares specified in Schedule II hereto (the "Designated
Shares" consisting of Firm Shares and any Optional Shares the Underwriters
may elect to purchase). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus
relating to the Designated Shares which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of the Underwriters of the Designated Shares pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II
hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and, (b)
in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares, as provided below, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company at the
purchase price to the Underwriters set forth in Schedule II hereto that
portion of the number of Optional Shares as to which such election shall
have been exercised.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms
referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised by written notice from the
Representatives to the Company given within a period of 30 calendar days
after the date of this Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by the Representatives,
but in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, no earlier than
two or later than ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us [one for the Company and one for each of the
Representatives plus one for each counsel] counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted
to the Company for examination, upon request, but without warranty on the
part of the Representatives as to the authority of the signers thereof.
Very truly yours,
THE ROUSE COMPANY
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representatives]
By: ____________________________
Name:
Title:
On behalf of each of the Underwriters
ANNEX 1
SCHEDULE I
----------
Maximum Number of
Number of Firm Shares Optional Shares
Underwriter to be Purchased Which May be Purchased
- ----------- --------------------- ----------------------
---------------------- -----------------------
Total.................. ====================== =======================
ANNEX 1
SCHEDULE II
-----------
Title of Designated Shares:
Number of Designated Shares:
Number of Firm Shares:
Maximum Number of Optional Shares:
Initial Offering Price to Public:
[$........ per Share] [Formula]
Purchase Price by Underwriters:
[$........ per Share] [Formula]
[Commission Payable to Underwriters:
$........ per Share in [specify same form of funds as in Specified Funds below]]
Form of Designated Shares:
Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the Representatives]
Specified Funds for Payment of Purchase Price:
[New York] Clearing House (same day) funds
[Describe any blackout provisions with respect to the Designated Shares]
Time of Delivery:
......... a.m. (New York City time), .................., ........
Closing Location:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]*:
- ---------------------
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated Shares should be
set forth, or referenced to an attached or accompanying description, if
necessary, to ensure agreement as to the terms of the Designated Shares to
be purchased and sold. Such a description might appropriately be in the
form in which such features will be described in the Prospectus Supplement
for the offering.
ANNEX II
Accountants' Letter
-------------------
Pursuant to Section 7(d) of the Underwriting Agreement, the Company's
independent certified public accountants shall furnish letters to the
effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder
adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related rules and regulations thereunder adopted by the Commission;
and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
[separately] furnished to the Representatives [and are attached
hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [have been
separately furnished to the Representatives] [are attached hereto];
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the [Act and the Exchange] Act and the
related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
[Act and the Exchange] Act and the related rules and regulations
adopted by the Commission;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related rules and regulations adopted by
the Commission, or (ii) any material modifications should be made to
the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the rules and
regulations thereunder adopted by the Commission or the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of those statements;
(E) as of a specified date (where practicable not more
than five days prior to the date of such letter), there have been any
changes in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on the
date of the latest balance sheet included or incorporated by reference
in the Prospectus or issuance pursuant to the Contingent Stock
Agreement) or any increase in excess of 5% in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there were
any decreases in funds from operations or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the
letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for
purposes of the letter delivered at the Time of Delivery for such
Designated Shares.
EXHIBIT 1.2
THE ROUSE COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
------------, -----
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time The Rouse Company, a Maryland corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement (the "Agreement") shall not be
construed as an obligation of the Company to sell any of the Securities or
as an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-_____) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) of the
rules and regulations of the Commission under the Act which became
effective upon filing, no other document with respect to such registration
statement or document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission (other than the
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued, and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A of the rules and
regulations of the Commission under the Act to be part of the Initial
Registration Statement at the time it was declared effective and (ii) the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, but excluding the Statement of Eligibility and
Qualification of the Trustee on Form T-1 ("Form T-1"), each as amended at
the time such part of the Initial Registration Statement became effective
or such part of the Rule 462(b) Registration Statement, if any, became
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission pursuant to Rule 424(b) under the Act on or prior to the date of
this Agreement, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of the Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration Statement
that is incorporated by reference in the Registration Statement; and any
reference to the Prospectus shall be deemed to refer to and include the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under the Act and in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder; the Registration Statement and any amendment thereto do not and
will not, as of the applicable effective date, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Prospectus and any amendment or supplement thereto, as of the applicable
filing date, do not and will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus relating to such
Securities;
(d) The Company and its subsidiaries, taken as a whole, have not
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other than
issuances of capital stock (i) pursuant to bonus stock awards granted in
the ordinary course of business, (ii) upon exercise of options and stock
appreciation rights and upon conversions of convertible securities and
(iii) pursuant to the terms of the Contingent Stock Agreement, effective as
of January 1, 1996, executed in connection with the acquisition by the
Company of all of the outstanding equity interests in The Hughes
Corporation and its affiliated partnership, Howard Hughes Properties,
Limited Partnership (the "Contingent Stock Agreement"), in each case,
except with respect to bonus stock awards granted in the ordinary course of
business, which were outstanding as of the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus), or any material and adverse change in the long-term debt of
the Company and its subsidiaries, taken as a whole (it being understood
that, absent unusual circumstances, an increase in long term debt of the
Company and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to the Company and its subsidiaries, taken
as a whole), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, current value basis shareholders' equity or results of
operations (based on Funds from Operations) of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company and its subsidiaries have, or in those cases where
such subsidiary is a general partner in a partnership, such partnership
has, good and marketable fee simple and/or leasehold title (as the case may
be) to all real property (except for those lesser estates in real property
which, in the aggregate, are not material in value to the Company and its
subsidiaries), subject only to (A) those liens and encumbrances which have
been reflected generally or in the aggregate in the financial statements of
the Company as disclosed in the Prospectus or as are described
specifically, generally or in the aggregate in the Prospectus, or (B) such
liens and encumbrances (i) not required by generally accepted accounting
principles to be disclosed in the financial statements of the Company,
which (a) if all material covenants and conditions thereof are observed or
performed, will not materially interfere with the use made or proposed to
be made of such property by the Company and its subsidiaries or (b) are
reasonable and customary with regard to the normal operation of land and
improvements held for commercial purposes by first class owners and
operators of commercial real estate, or (ii) which were incurred after the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus in the ordinary course of business (including
financings) and which, in the aggregate (on a net basis), are not material
to the Company and its subsidiaries, taken as a whole. The Company and its
subsidiaries have title to the personal property owned by it or them and,
subject to the continued performance of the material covenants and
conditions of liens and encumbrances thereon, have the right to use such
without interference in the normal course of business, except for such
interference as would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Maryland, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the failure so to
qualify and maintain good standing would have a material adverse effect on
the Company and its subsidiaries, taken as a whole; and each subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation except for such failures to maintain good standing as would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned (with exceptions that are
disclosed (whether directly or through incorporation by reference) in the
Prospectus or are not material to the Company and its subsidiaries, taken
as a whole) directly or indirectly by the Company, free and clear of all
liens, encumbrances or claims (collectively, "Liens") except (i) Liens
relating to debt which has been disclosed specifically, generally or in the
aggregate in the Prospectus or incurred after the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus in the ordinary course of business (including financings), (ii)
Liens incurred in the ordinary course of business which are not materially
adverse to the operations of the Company and its subsidiaries, taken as a
whole, and (iii) restrictions on the transfer or use of the stock of any
subsidiary under any partnership, joint venture or lease agreements to
which the Company or any of its subsidiaries is a party;
(h) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms and the Designated Securities will conform to the
descriptions thereof contained in the Prospectus;
(i) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject except for such conflict,
breach, violation or default which does not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, nor will such
actions result in any violation of the provisions of the Articles of
Incorporation, as then amended or supplemented, or the Bylaws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any Pricing Agreement or the Indenture,
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act or the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which are likely, individually or in the
aggregate, to have a material adverse effect on the Company and its
subsidiaries taken as a whole, and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(k) The Company is not, and after giving effect to each offering
and sale of the Securities will not be, an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(l) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes; and
(m) The independent certified public accountants of the Company,
who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such
Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer in federal (same day) funds, payable to the order
of the Company in the funds specified in such Pricing Agreement, all in the
manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives
and the Company may agree upon in writing, such time and date being herein
called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act no later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus
after the date of the Pricing Agreement relating to such Securities and
prior to the Time of Delivery for such Securities which shall be
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after the Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein for as long as may be
necessary to complete the distribution of such Securities; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after the Time of Delivery and
which are substantially similar to such Designated Securities, without the
prior written consent of the Representatives; and
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158).
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing and producing any Agreement among Underwriters, this Agreement,
any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any
other documents so long as such documents have been approved by the Company
in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of the Company's
counsel in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating agencies for rating the Securities; (v) any filing fees incident to,
and the reasonable fees and disbursements of the Company's counsel in
connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi)
the cost of preparing the Securities; (vii) the reasonable fees and
expenses of any Trustee and any agent of any Trustee and any transfer or
paying agent of the Company and the reasonable fees and disbursements of
counsel for any Trustee or such agent in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the Representatives' discretion, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such
Designated Securities are true and correct at and as of the Time of
Delivery for such Designated Securities and the condition that prior to
such Time of Delivery the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) (i) The Prospectus in relation to the applicable Designated
Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part
of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives;
(b) Counsel for the Underwriters, shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery, with
respect to the incorporation of the Company, the Indenture, the Securities,
the Registration Statement, the Prospectus, and such other related matters
as the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) The General Counsel of the Company, or other counsel for the
Company satisfactory to the Representatives, shall have furnished to the
Representatives such counsel's written opinion (which may be limited to the
laws of the State of Maryland and, with respect to clauses (xii) and (xiii)
below, the federal securities laws), dated the Time of Delivery in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the failure so to
qualify and maintain good standing would have a material adverse
effect on the Company and its subsidiaries, taken as a whole (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company);
(iv) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which is likely, individually or in the
aggregate, to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(vi) The Designated Securities have been duly authorized;
(vii) The Indenture has been duly authorized, executed and
delivered by the Company;
(viii) To the best of such counsel's knowledge, the issue
and sale of the Designated Securities, the compliance by the Company
with all of the provisions of the Designated Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject except for any such
conflict, breach, violation or default which does not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
nor will such actions result in any violation of the provisions of the
Articles of Incorporation, as then amended or supplemented, or Bylaws
of the Company or any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(ix) To the best of such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the
issue and sale of the Designated Securities or the consummation by the
Company of the other transactions contemplated by this Agreement, such
Pricing Agreement or the Indenture, except such as have been obtained
under the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters;
(x) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(xi) The documents incorporated by reference in the
Prospectus (other than the financial statements and related notes and
schedules therein and other financial data and statistical information
included therein or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission appeared
on their face to be appropriately responsive, in all material
respects, to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and nothing has come to such
counsel's attention to cause such counsel to believe that any of such
documents, when they were so filed contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(xii) Nothing has come to such counsel's attention to cause
such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related notes and schedules therein and other
financial data and statistical information included therein or omitted
therefrom and the Form T-1, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of the date of
such opinion, the Prospectus or any amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related notes and schedules therein and other
financial data and statistical information included therein or omitted
therefrom and the Form T-1, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
and such counsel does not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of
a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference or
described as required.
(d) Fried, Frank, Harris, Shriver & Jacobson, special counsel for
the Company, or other counsel for the Company satisfactory to the
Representatives, shall have furnished to the Representatives their written
opinion (which will be limited to the laws of the State of New York and
federal laws and may rely on an opinion of the General Counsel of the
Company, or other counsel for the Company reasonably satisfactory to the
Representatives, as to the laws of the State of Maryland), dated the Time
of Delivery in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Designated Securities, when duly executed,
authenticated, issued and delivered by the Company, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms;
(ii) The Indenture constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms;
(iii) The Indenture has been qualified under the Trust
Indenture Act;
(iv) The Indenture conforms, and the Designated Securities
will conform, in all material respects to the descriptions thereof
contained in the Prospectus; and
(v) At the time the Registration Statement was declared
effective by the Commission, the Registration Statement and the
Prospectus (other than (a) the financial statements, notes and
schedules thereto, (b) other financial data and statistical
information included therein or omitted therefrom, (c) the documents
incorporated by reference therein and (d) the Form T-1, included
therein, as to which such counsel need not express an opinion),
appeared on their face to be responsive as to form in all material
respects to the requirements of the Act and the Trust Indenture Act
and the rules and regulations promulgated thereunder.
The opinion set forth in paragraphs (i) and (ii) above is subject to:
(i) applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other laws now or hereafter in effect affecting creditors'
rights generally; and (ii) general principles of equity (including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness) whether such principles are considered in a proceeding in
equity or at law;
(e) On the date of the Pricing Agreement for such Designated
Securities but prior to the execution of the Pricing Agreement with respect
to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent certified public accountants of the
Company who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement, or such other independent certified public accountants as are
reasonably satisfactory to the Representatives, shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) The Company and its subsidiaries, taken as a whole, have
not sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus and (ii) since the respective dates as of
which information is given in the Prospectus there shall not have been any
change in the capital stock (other than issuances of capital stock pursuant
to bonus stock awards granted in the ordinary course of business, upon
exercise of options and stock appreciation rights or upon conversion of
convertible securities in each case, except with respect to bonus stock
awards granted in the ordinary course of business, which were outstanding
as of the date of the latest audited financial statements included or
incorporated by reference in the Prospectus or pursuant to the Contingent
Stock Agreement) or any material adverse change in the long-term debt of
the Company and its subsidiaries, taken as a whole (it being understood
that, absent unusual circumstances, an increase in long-term debt of the
Company and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to the Company and its subsidiaries, taken
as a whole), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, current value basis shareholders' equity or results of
operations (based on Funds from Operations) of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in the Representatives' reasonable judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities; and
(i) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company in such form and
executed by such officers of the Company as shall be satisfactory to the
Representatives, as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section, and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. If the
indemnifying party does not assume the defense of such action, it is
understood that the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to one separate firm of local
attorneys in each such jurisdiction) at any time for all such indemnified
parties, which firms shall be designated in writing by you, if the
indemnified parties under this Section consist of any Underwriter of
Designated Securities or any of its respective controlling persons, or by
the Company, if the indemnified parties under this Section consist of the
Company or any of its directors, officers, administrative trustees or
controlling persons. The indemnifying party shall not be liable for any
settlement of an action or claim for monetary damages which an indemnified
party may effect without the consent of the indemnifying party, which
consent shall not be unreasonably withheld. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim),
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to, or
an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total commissions or discounts received by such Underwriters in respect
thereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading relates to information supplied by the Company on the one
hand or by any such Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total public
offering price at which the applicable Designated Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter
the Representatives do not arrange for the purchase of such Designated
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities
on such terms. In the event that, within the respective prescribed period,
the Representatives notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Designated Securities for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro-rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof or if the condition in Section 7(h) is not satisfied, the Company
shall not then be under any liability to any Underwriter with respect to
the Designated Securities covered by such Pricing Agreement except as
provided in Sections 6 and 8 hereof; but, if for any other reason,
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters,
and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made
or given by such Representatives jointly or by such of the Representatives,
if any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement, Attention: General
Counsel; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any
of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
THE ROUSE COMPANY
By:
-----------------------------------
Name:
Title:
[NAMES OF REPRESENTATIVES]
By:
-----------------------
Name:
Title:
On behalf of each of the Underwriters
ANNEX I
Pricing Agreement
-----------------, ----
[Name(s) of Representative(s)]
As Representative(s) of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
The Rouse Company, a Maryland corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ____________, ____ (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of the Underwriters of the Designated Securities pursuant to Section
12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II
hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us [one for the Company and one for each of the
Representatives plus one for each counsel] counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted
to the Company for examination, upon request, but without warranty on the
part of the Representatives as to the authority of the signers thereof.
Very truly yours,
THE ROUSE COMPANY
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representatives]
By:
------------------------------
Name:
Title:
On behalf of each of the Underwriters
ANNEX I
SCHEDULE I
----------
Principal Amount
of Designated
Underwriter Securities to be Purchased
- ----------- --------------------------
--------------------------
--------------------------
Total.............................. ==========================
ANNEX I
SCHEDULE II
-----------
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ________,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount (or for Original Issue Discount
Securities that do not currently pay interest, the issue price) of
the Designated Securities, plus accrued interest[, if any,] from
to [and accrued amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and accrued amortization[, if any,] from
to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging
at least twenty-four hours prior to the Time of Delivery at the
office of [The Depository Trust Company or its designated
custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its
designated custodian, to be made available for checking by the
Representatives at least twenty-four hours prior to the Time of
Delivery at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House (same day) funds
TIME OF DELIVERY:
a.m. (New York City time), ............... , ......
INDENTURE:
Indenture, dated as of February 24, 1995, between the Company and
The First National Bank of Chicago, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ................, ........]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through
the sinking fund, in whole or in part at the option of the
Company, in the amount of [$ ] or an integral multiple thereof,
[on or after ..........................., at the following redemption
prices (expressed in percentages of principal amount). If [redeemed on
or before ............, ....... %, and if] redeemed during the
12-month period beginning ................, ........
REDEMPTION
YEAR PRICE
- ---- -----
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ................,
........, at the election of the Company, at a redemption price equal
to the principal amount thereof, plus accrued interest to the date of
redemption.]] [Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for changes
in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions] [The Designated Securities are entitled
to the benefit of a sinking fund to retire [$ ] principal amount of
Designated Securities on ........................ in each of the years
through ........................ at 100% of their principal amount
plus accrued interest[, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional [$ ]
principal amount of Designated Securities in the years
........................ through ........................ at 100% of
their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities,
insert--EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter
the annual interest rate will be adjusted on ................,
........, and to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with year
........................ maturities as of the [insert date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities,
insert--FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and thereafter will be
adjusted [monthly] [on each ............, and ...............] [to an
annual rate of % above the average rate or year
[month][securities][certificates of deposit] issued by
........................ and [insert names of banks].] [and the annual
interest rate [thereafter] [from ........................ through
........................ ] will be the interest yield equivalent of
the weekly average per annum market discount rate for -month Treasury
bills plus % of Interest Differential (the excess, if any, of (i) the
then current weekly average per annum secondary market yield for
................-month certificates of deposit over (ii) the then
current interest yield equivalent of the weekly average per annum
market discount rate for ................ month Treasury bills); [from
and thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*
- ----------------------
* A DESCRIPTION OF PARTICULAR TAX, ACCOUNTING OR OTHER UNUSUAL FEATURES
(SUCH AS THE ADDITION OF EVENT RISK PROVISIONS) OF THE DESIGNATED
SECURITIES SHOULD BE SET FORTH, OR REFERENCED TO AN ATTACHED AND
ACCOMPANYING DESCRIPTION, IF NECESSARY, TO ENSURE AGREEMENT AS TO THE TERMS
OF THE DESIGNATED SECURITIES TO BE PURCHASED AND SOLD. SUCH A DESCRIPTION
MIGHT APPROPRIATELY BE IN THE FORM IN WHICH SUCH FEATURES WILL BE DESCRIBED
IN THE PROSPECTUS SUPPLEMENT FOR THE OFFERING.
ANNEX II
Accountants' Letter
-------------------
Pursuant to Section 7(e) of the Underwriting Agreement, the Company's
independent certified public accountants shall furnish letters to the
effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations thereunder adopted by the
Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related rules and regulations thereunder adopted by the Commission;
and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
[separately] furnished to the Representatives [and are attached
hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [have been
separately furnished to the Representatives] [are attached hereto];
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the [Act and the Exchange] Act and the
related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
[Act and the Exchange] Act and the related rules and regulations
adopted by the Commission;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus for them to be
in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the rules
and regulations thereunder adopted by the Commission or the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date (where practicable not more
than five days prior to the date of such letter), there have been
any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus or issuance
pursuant to the Contingent Stock Agreement) or any increase in
excess of 5% in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net
current assets or other items specified by the Representatives,
or any increases in any items specified by the Representatives,
in each case as compared with amounts shown in the latest balance
sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in funds from operations or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
audit in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the
letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
EXHIBIT 4.12
[Form of Fixed Rate Note]
REGISTERED REGISTERED
No. FXR- CUSIP:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO,
OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY
PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER
MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A
GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.*
THE ROUSE COMPANY
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE INITIAL MODIFIED If yes, state Issue
REDEMPTION: PAYMENT PERCENTAGE: Interest Rate:
MATURITY DATE: INTEREST PAYMENT APPLICABILITY OF
PRICE: DATE(S):
PERIOD: PERCENTAGE INCREASE:
INTEREST PAYMENT APPLICABILITY OF If yes, state each
ANNUAL: ANNUAL REDEMPTION redemption date and
PERCENTAGE REDUCTION: Interest Accrual
Percentage:
OPTIONAL REPAYMENT If yes, state reduction MANDATORY
DATE(S): and redemption date: REDEMPTION:
ANNUAL PRICE: APPLICABILITY OF DATE(S):
INITIAL REDEMPTION UPON ACCELERATION:
DATE:
The Rouse Company, a Maryland corporation (together with its
successors and assigns, the "Company"), for value received, hereby promises
to pay to ______________________, or registered assigns, the principal sum
of ____________________ on the Maturity Date specified above (except to the
extent redeemed or repaid prior to the Maturity Date) and to pay interest
thereon at the Interest Rate per annum specified above from the Original
Issue Date specified above until the principal hereof is paid or duly made
available for payment (except as provided below), in arrears monthly,
quarterly, semiannually, or annually as specified above as the Interest
Payment Period on each Interest Payment Date (as specified above),
commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date (or any
redemption or repayment date); provided, however, that if the Original
Issue Date occurs between a Record Date, as defined below, and the next
succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Original Issue Date to the
registered holder of this Note on the Record Date with respect to such
second Interest Payment Date.
- -------------------------------
* Applies only if this Note is a Registered Global Security.
If this Note is a Global Security, payment of the principal of
this Note, any premium and the interest due will be made by the Company
through the Trustee to the Depositary. If this Note is not a Global
Security, payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date)
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Trustee or such other paying agent as the
Company may determine maintained for that purpose (a "Paying Agent"), or at
the office or agency of such other Paying Agent as the Company may
determine. If this Note is not a Global Security, payments of interest to
be made other than at the Maturity Date may be made, at the option of the
Company, by check mailed to the address of the person entitled thereto as
it appears on the security register at the close of business on the Regular
Record Date corresponding to the relevant Interest Payment Date.
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Original Issue Date,
until the principal hereof has been paid or duly made available for payment
(except as provided below). The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date, will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the date 15 days prior to an Interest Payment Date (whether or not a
Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any redemption or repayment date)
will be payable to the person to whom the principal hereof shall be
payable.
Payment of the principal of and premium, if any, and interest on
this Note will be made in such coin or currency of the United States as at
the time of payment is legal tender for payment of public and private
debts.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee, as defined on the reverse hereof, by manual signature, this
Note shall not be entitled to any benefit under the Indenture, as defined
on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under a facsimile of its corporate seal.
DATED: THE ROUSE COMPANY
[SEAL]
By:
-------------------------
Title:
Attest:
By:
----------------------------
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued
under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:
-----------------------------
Authorized Officer
[FORM OF REVERSE OF NOTE]
THE ROUSE COMPANY
MEDIUM-TERM NOTE
This Note is one of a duly authorized issue of Medium-Term Notes
having maturities of more than nine months from the date of issue (the
"Notes") of the Company, limited in aggregate issue price to $____________.
The Notes are issuable under an indenture, dated as of February 24, 1995
between the Company and The First National Bank of Chicago (the "Trustee"),
as the same may be amended and supplemented from time to time (referred to
herein as the "Indenture"), to which Indenture reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities of the Company, the Trustee and holders of the Notes and the
terms upon which the Notes are, and are to be, authenticated and delivered.
The terms of individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or otherwise, all as
provided in the Indenture. To the extent not inconsistent herewith, the
terms of the Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof in accordance with
the provisions of the following two paragraphs, this Note will not be
subject to any sinking fund and will not be redeemable or subject to
repayment at the option of the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this Note may
not be redeemed prior to the Maturity Date. If the face of this Note
indicates that this Note is subject to (i) "Annual Redemption Percentage
Reduction" or (ii) "Annual Redemption Percentage Increase", then this Note
may be redeemed in whole or in part at the option of the Company on or
after the Initial Redemption Date specified on the face hereof on the terms
set forth on the face hereof, together with interest accrued and unpaid
hereon to the date of redemption (except as provided below). If this Note
is subject to "Annual Redemption Percentage Reduction", the Initial
Redemption Percentage indicated on the face hereof will be reduced on each
anniversary of the Initial Redemption Date specified above by the Annual
Percentage Reduction specified on the face hereof until the redemption
price of this Note is 100% of the principal amount hereof. If this Note is
subject to "Annual Redemption Percentage Increase", the redemption prices
of this Note from time to time shall be as set forth on the face hereof.
Notice of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 days nor more than 60 days prior to the
date of redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note
or Notes for the amount of the unredeemed portion hereof shall be issued in
the name of the holder hereof upon the presentation and cancellation
hereof.
Unless otherwise indicated on the face of this Note, this Note
shall not be subject to repayment at the option of the holder prior to the
Maturity Date. If so indicated on the face of this Note, this Note may be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 (provided that any remaining principal amount
hereof shall not be less than the minimum authorized denomination hereof)
at the option of the holder hereof at a price equal to 100% of the
principal amount to be repaid, together with interest hereon payable to the
date of repayment. For this Note to be repaid in whole or in part at the
option of the holder hereof, the Company must receive at the corporate
trust office of the Trustee, at least 30 days but not more than 60 days
prior to the repayment, (i) this Note with the form entitled "Option to
Elect Repayment" on the reverse hereof duly completed or (ii) a telegram,
facsimile transmission or a letter from a member of a national securities
exchange or a member of the National Association of Securities Dealers,
Inc. (the "NASD") or a commercial bank or trust company in the United
States which must set forth the name of the holder of this Note, the
principal amount of this Note, the principal amount of this Note to be
repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note to be repaid, together
with the duly completed form entitled "Option to Elect Repayment" on the
reverse hereof, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, facsimile transmission or
letter; provided, that such telegram, facsimile transmission or a letter
from a member of a national securities exchange or a member of the NASD or
a commercial bank or trust company in the United States shall only be
effective if in such case, this Note and form duly completed are received
by the Company by such fifth Business Day. Exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment
of this Note in part only, a new Note or Notes for the amount of the unpaid
portion hereof shall be issued in the name of the holder hereof upon
cancellation hereof.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or earlier
redemption or repayment date), as the case may be. Interest payments for
this Note will be computed and paid on the basis of a 360-day year of
twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date
(or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on
such date 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 or on the Maturity Date (or any redemption or
repayment date), and no interest shall accrue for the period from and after
the Interest Payment Date or the Maturity Date (or any redemption or
repayment date) to such next succeeding Business Day.
This Note is unsecured and ranks pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, in
denominations of $1,000 or any integral multiple of $1,000 in excess
thereof.
If an Event of Default with respect to the Notes shall occur and
be continuing, the principal hereof may be declared due and payable in the
manner and with the effect provided in the Indenture.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration," then the applicable Pricing
Supplement will set forth additional terms applicable hereto.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities
of any series under the Indenture at any time by the Company and the
Trustee with the consent of the holders of a majority in principal amount
of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the holders of a majority
in principal amount of the Securities of each series at the time
Outstanding on behalf of the holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the holder of this Note shall be conclusive and
binding upon such holder and upon all future holders of this Note and of
any Note issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any
premium and interest on this Note at the times, place, and rate, and in the
coin or currency, herein prescribed.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with the Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
the Indenture and the Securities.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Note are payable, duly
endorsed, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed, by the
holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge shall be made for any such transfer, but
the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Note, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose
name this Note is registered as the absolute owner hereof for all purposes,
whether or not this Note be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day", when used with respect to any Place
of Payment, means a day that is not a Saturday or Sunday and that is not a
day on which banking institutions are generally authorized or obligated by
law or executive order to close in that Place of Payment, the State of
Maryland or the City of New York;
(b) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories and
its possessions; and
(c) all other terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as Joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN
ACT-.......................Custodian.....................
(Cust) (Minor)
Under Uniform Gifts to Minors
Act.........................................
(State)
Additional abbreviations may also be used though not in the above
list.
---------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- ---------------------------------------!
!
- ---------------------------------------!
- -------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OR ASSIGNEE]
- -------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby
- -------------------------------------------------------------------------------
irrevocably constituting and appointing such person attorney
- -------------------------------------------------------------------------------
to transfer such Note on the books of the Company, with
- -------------------------------------------------------------------------------
full power of substitution in the premises.
Dated:
----------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) the Company to repay the
within Note (or portion thereof specified below) pursuant to its terms at a
price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned, at
- ------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be increments of $1,000)
which the holder elects to have repaid: _____________________; and specify
the denomination or denominations (which shall not be less than the minimum
authorized denomination) of the Notes to be issued to the holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being
repaid):
- --------------------------.
Dated:
-------------------- ---------------------------------------
NOTICE: The signature on this Option to
Elect Repayment must correspond
with the name as written upon the
face of the within instrument in
every particular without alteration
or enlargement.
EXHIBIT 4.13
[Form of Floating Rate Note]
REGISTERED REGISTERED
No. FLR- CUSIP:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO,
OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY
PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER
MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A
GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.*
THE ROUSE COMPANY
MEDIUM-TERM NOTE
(Floating Rate)
ORIGINAL ISSUE ALTERNATIVE RATE INTEREST RESET
DATE: EVENT SPREAD: APPLICABILITY OF DATES:
ANNUAL REDEMPTION
MATURITY DATE: PERCENTAGE INTEREST RESET
SPREAD MULTIPLIER: REDUCTION: PERIOD:
INTEREST PAYMENT INITIAL PAYMENT If yes, state Annual APPLICABILITY OF
DATE(S): DATE: Percentage Reduction: MODIFIED PAYMENT
UPON ACCRUAL
INITIAL INTEREST INITIAL APPLICABILITY OF REDEMPTION:
RATE: REDEMPTION DATE: ANNUAL REDEMPTION
PERCENTAGE DATE: If yes, state
INTEREST INCREASE Issue Price:
ACCELERATION:
If yes, state Annual OPTIONAL
MAXIMUM INTEREST Percentage Increase: REPAYMENT DATE(S):
RATE: PERCENTAGE:
SPREAD (PLUS OR BASE RATE: MINIMUM INTEREST MANDATORY
MINUS): RATE: REDEMPTION:
- ---------------------
* Applies only if this Note is a Registered Global Security.
The Rouse Company, a Maryland corporation (together with
its successors and assigns, the "Company"), for value received, hereby
promises to pay to _______________________, or registered assigns, the
principal sum of ______________________________ on the Maturity Date
specified above (except to the extent redeemed or repaid prior to the
Maturity Date) and to pay interest thereon, from the Original Issue Date
specified above at a rate per annum equal to the Initial Interest Rate
specified above until the first Interest Reset Date next succeeding the
Original Issue Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the reverse
hereof until the principal hereof is paid or duly made available for
payment. The Company will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period
on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date (or any redemption or repayment
date); provided, however, that if the Original Issue Date occurs between a
Record Date, as defined below, and the next succeeding Interest Payment
Date, interest payments will commence on the second Interest Payment Date
succeeding the Original Issue Date to the registered holder of this Note on
the Record Date with respect to such second Interest Payment Date; and
provided, further, that if an Interest Payment Date or the Maturity Date or
redemption or repayment date would fall on a day that is not a Business Day
(this and certain other capitalized terms used herein are defined on the
reverse of this Note), the required payment of principal, premium, if any,
or interest otherwise payable on such date need not be made on such date,
but may be made on the next succeeding Business Day, and no interest shall
accrue for the period from and after such Interest Payment Date, Maturity
Date or redemption or repayment date to such next succeeding Business Day.
If this Note is a Global Security, payment of the principal
of this Note, any premium and the interest due will be made by the Company
through the Trustee to the Depositary. If this Note is not a Global
Security, payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date)
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Trustee, or of such other paying agent as the
Company may determine maintained for that purpose (a "Paying Agent"), or at
the office or agency of such other Paying Agent as the Company may
determine. If this Note is not a Global Security, payments of interest to
be made other than at the Maturity Date may be made, at the option of the
Company, by check mailed to the address of the person entitled thereto as
it appears on the security register at the close of business on the Regular
Record Date corresponding to the relevant Interest Payment Date.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided for
or, if no interest has been paid or duly provided for, from the Original
Issue Date, until the principal hereof has been paid or duly made available
for payment (except as provided below). The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date, will,
subject to certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is registered at
the close of business on the date 15 days prior to an Interest Payment
Date (whether or not a Business Day) (the "Record Date"); provided,
however, that interest payable on the Maturity Date (or any redemption or
repayment date) will be payable to the person to whom the principal hereof
shall be payable.
Payment of the principal of and premium, if any, and
interest on this Note will be made in such coin or currency of the United
States as at the time of payment is legal tender for payment of public and
private debts.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee, as defined on the reverse hereof, by manual
signature, this Note shall not be entitled to any benefit under the
Indenture, as defined on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under a facsimile of its corporate seal.
DATED: THE ROUSE COMPANY
[SEAL] By ------------------------------------
Title: Vice President and Treasurer
Attest:
By -----------------------------
Title: Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued
under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:------------------------------------
Authorized Officer
[FORM OF REVERSE OF NOTE]
THE ROUSE COMPANY
MEDIUM-TERM NOTE
This Note is one of a duly authorized issue of Medium-Term
Notes, having maturities of more than nine months from the date of issue
(the "Notes") of the Company, limited in aggregate issue price to
$____________. The Notes are issuable under an indenture, dated as of
February 24, 1995 between the Company and The First National Bank of
Chicago (the "Trustee"), as the same may be amended and supplemented from
time to time (referred to herein as the "Indenture"), to which Indenture
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Company, the Trustee
and holders of the Notes and the terms upon which the Notes are, and are to
be, authenticated and delivered. The First National Bank of Chicago has
also been appointed Calculation Agent (the "Calculation Agent", which term
includes any successor calculation agent) with respect to the Notes. The
terms of individual Notes may vary with respect to interest rates, interest
rate formulas, issue dates, maturity dates, or otherwise, all as provided
in the Indenture. To the extent not inconsistent herewith, the terms of the
Indenture are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof in accordance
with the provisions of the following two paragraphs, this Note will not be
subject to any sinking fund and will not be redeemable or subject to
repayment at the option of the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Maturity Date. If the face of this
Note indicates that this Note is subject to (i) "Annual Redemption
Percentage Reduction" or (ii) "Annual Redemption Percentage Increase", then
this Note may be redeemed in whole or in part at the option of the Company
on or after the Initial Redemption Date specified on the face hereof on the
terms set forth on the face hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). If this
Note is subject to "Annual Redemption Percentage Reduction", the Initial
Redemption Percentage indicated on the face hereof will be reduced on each
anniversary of the Initial Redemption Date specified above by the Annual
Percentage Reduction specified on the face hereof until the redemption
price of this Note is 100% of the principal amount hereof. If this Note is
subject to "Annual Redemption Percentage Increase", the redemption prices
of this Note from time to time shall be as set forth on the face hereof.
Notice of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 days nor more than 60 days prior to the
date or redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note
or Notes for the amount of the unredeemed portion hereof shall be issued in
the name of the holder hereof upon the presentation and cancellation
hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the holder prior to
the Maturity Date. If so indicated on the face of this Note, this Note may
be subject to repayment at the option of the holder on the Optional
Repayment Date or Dates specified on the face hereof on the terms set forth
herein. On any Optional Repayment Date, this Note will be repayable in
whole or in part in increments of $1,000 (provided that any remaining
principal amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the holder hereof at a price equal to
100% of the principal amount to be repaid, together with interest hereon
payable to the date of repayment. For this Note to be repaid in whole or in
part at the option of the holder hereof, the Company must receive at the
corporate trust office of the Trustee, at least 30 days but not more than
60 days prior to the repayment, (i) this Note with the form entitled
"Option to Elect Repayment" on the reverse hereof duly completed or (ii) a
telegram, facsimile transmission or a letter from a member of a national
securities exchange or a member of the National Association of Securities
Dealers, Inc. (the "NASD") or a commercial bank or trust company in the
United States which must set forth the name of the holder of this Note, the
principal amount of this Note, the principal amount of this Note to be
repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note to be repaid, together
with the duly completed form entitled "Option to Elect Repayment" on the
reverse hereof, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, facsimile transmission or
letter; provided, that such telegram, facsimile transmission or a letter
from a member of a national securities exchange or a member of the NASD or
a commercial bank or trust company in the United States shall only be
effective if in such case, this Note and form duly completed are received
by the Company by such fifth Business Day. Exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment
of this Note in part only, a new Note or Notes for the amount of the unpaid
portion hereof shall be issued in the name of the holder hereof upon
cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base
Rate shown on the face hereof based on the Index Maturity, if any, shown on
the face hereof (i) plus or minus the Spread, if any, and/or (ii)
multiplied by the Spread Multiplier, if any, specified on the face hereof.
Commencing with the first Interest Reset Date next succeeding the Original
Issue Date specified on the face hereof, the rate at which interest on this
Note is payable shall be reset as of each Interest Reset Date. The Interest
Reset Dates will be the Interest Reset Dates specified on the face hereof;
provided, however, that (i) the interest rate in effect for the period from
the Original Issue Date to the first Interest Reset Date next succeeding
the Original Issue Date specified on the face hereof will be the Initial
Interest Rate, (ii) except in the case of Floating Rate Notes which are
reset daily or weekly, the interest rate in effect hereon for the ten
calendar days immediately prior to the Maturity Date hereof (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date) shall be that in effect on the tenth calendar day preceding
the Maturity Date hereof or such date of redemption or repayment, as the
case may be and (iii) in the case of Floating Rate Notes which are reset
daily or weekly, the interest rate in effect for the period beginning on
the second Business Day immediately prior to the Maturity Date or the date
of redemption or repayment and ending on such Maturity Date or date of
redemption or repayment, as the case may be, will be that in effect on the
second Business Day preceding such Maturity Date or date of redemption or
repayment, as the case may be. If any Interest Reset Date would otherwise
be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next succeeding day that is a Business Day, except that in
the case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Business Day.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD
Rate, Commercial Paper Rate, Federal Funds Rate and Prime Rate will be the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second London
Banking Day preceding such Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date for Notes bearing interest
calculated by reference to the Treasury Rate shall be the day of the week
in which such Interest Reset Date falls on which Treasury bills normally
would be auctioned; provided, however, that if as a result of a legal
holiday an auction is held on the Friday of the week preceding such
Interest Reset Date, the related Interest Determination Date shall be such
preceding Friday; and provided, further, that if an auction shall fall on
any Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
The "Calculation Date" pertaining to any Interest
Determination Date will be the earlier of (i) the tenth calendar day after
such Interest Determination Date (or, if such day is not a Business Day,
the next succeeding Business Day) or (ii) the Business Day immediately
preceding the applicable Interest Payment Date.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on
such date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)," or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Certificates of
Deposit." If neither of such rates is published by 3:00 P.M., New York City
time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to
on the face hereof and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such Interest
Determination Date, for certificates of deposit in the denomination of
$5,000,000 with a remaining maturity closest to the Index Maturity
specified on the face hereof of three leading non-bank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York
selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks of the highest credit standing in
the market for negotiable certificates of deposit; provided, however, that
if the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the rate of interest in effect for
the applicable period will be the same as the CD Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein)
of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof, as such rate shall be published in H.15(519)
under the heading "Commercial Paper," or if not so published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Commercial Paper Rate shall be the Money
Market yield of the rate on such Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper." If neither of
such rates is published by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 A.M., New
York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency: provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the same as the Commercial Paper
Rate for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
Money Market Yield = D x 360
--------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal and "M" refers
to the actual number of days in the interest period for which interest is
being calculated.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)," or,
if not so published by 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate." If
neither of such rates is published by 3:00 P.M., New York City time, on
such Calculation Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be
the arithmetic mean of the rates for the last transaction in overnight
Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the rate
of interest in effect for the applicable period will be the same as the
Federal Funds Rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be determined
on each Interest Determination Date as follows:
(a) LIBOR will be, as specified on the face of this Note,
either (i) the arithmetic mean of the offered rates for deposits in U.S.
dollars having the Index Maturity designated on the face of this Note,
commencing on the second London Business Day immediately following that
Interest Determination Date, that appear on the Reuters Screen LIBO Page as
of 11:00 a.m., London time, on that Interest Determination Date, if at
least two such offered rates appear on the Reuters Screen LIBO Page ("LIBOR
Reuters") or (ii) the rate for deposits in U.S. dollars having the Index
Maturity designated on the face of this Note, commencing on the second
London Business Day immediately following that Interest Determination Date,
that appears on the Telerate Page 3750 as of 11:00 a.m., London time, on
that Interest Determination Date ("LIBOR Telerate"). "Reuters Screen LIBO
Page" means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBO page on
that service for the purpose of displaying London interbank offered rates
of major banks). "Telerate Page 3750" means the display designated as page
"3750" on the Telerate Service (or such other page as may replace the 3750
page on that service or such other service or services as may be nominated
by the British Bankers' Association for the purpose of displaying London
interbank offered rates for U.S. dollar deposits). If neither LIBOR Reuters
nor LIBOR Telerate is specified on the face of this Note, LIBOR will be
determined as if LIBOR Telerate had been specified. If fewer than two
offered rates appear on the Reuters Screen LIBO Page, or if no rate appears
on the Telerate Page 3750, as applicable, LIBOR in respect of that Interest
Determination Date will be determined as if the parties had specified the
rate described in (b) below.
(b) With respect to an Interest Determination Date on which
fewer than two offered rates appear on the Reuters Screen LIBO Page, as
specified in (a)(i) above, or on which no rate appears on Telerate Page
3750, as specified in (a)(ii) above, as applicable, LIBOR will be
determined on the basis of the rates at which deposits in U.S. dollars
having the Index Maturity designated on the face of this Note are offered
at approximately 11:00 a.m., London time, on that Interest Determination
Date by four major banks in the London interbank market selected by the
Calculation Agent (the "LIBOR Reference Banks") to prime banks in the
London interbank market commencing on the second London Business Day
immediately following that Interest Determination Date and in a principal
amount equal to an amount of not less than $1,000,000 that is
representative of a single transaction in such market at such time. The
Calculation Agent will request the principal London office of each of the
LIBOR Reference Banks to provide a quotation of its rate. If at least two
such quotations are provided, LIBOR in respect of that Interest
Determination Date will be the arithmetic mean of such quotations. If fewer
than two quotations are provided, LIBOR in respect of that Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m., New York City time, on that Interest
Determination Date by three major banks in The City of New York selected by
the Calculation Agent for loans in U.S. dollars to leading European banks
having the Index Maturity designated on the face of this Note commencing on
the second London Business Day immediately following that Interest
Determination Date and in a principal amount equal to an amount of not less
than $1,000,000 that is representative of a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR with respect to such Interest Determination Date will be
the rate of LIBOR in effect on such date.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date, the Prime Rate for such Interest Determination
Date will be the arithmetic mean of the rates of interest publicly
announced by each bank named on the display designated as page "NYMF" on
the Reuters Monitor Money Rate Service (or such other page as may replace
the NYMF page on such service for the purpose of displaying the prime rate
or base lending rate of major New York City banks) (the "Reuters Screen
NYMF Page") as such bank's prime rate or base lending rate as in effect for
such Interest Determination Date as quoted on the Reuters Screen NYMF Page
on such Interest Determination Date, or, if fewer than four such rates
appear on the Reuters Screen NYMF Page for such Interest Determination
Date, the rate shall be the arithmetic mean of the prime rates quoted on
the basis of the actual number of days in the year divided by 360 as of the
close of business on such Interest Determination Date by at least two of
the three major money center banks in The City of New York selected by the
Calculation Agent from which quotations are requested. If fewer than two
quotations are provided, the Prime Rate shall be calculated by the
Calculation Agent and shall be determined as the arithmetic mean on the
basis of the prime rates in The City of New York by the appropriate number
of substitute banks or trust companies organized and doing business under
the laws of the United States, or any State thereof, in each case having
total equity capital of at least U.S.$500 million and being subject to
supervision or examination by Federal or State authority, selected by the
Calculation Agent to quote such rate or rates.
If in any month or two consecutive months the Prime Rate is
not published in H.15(519) and the banks or trust companies selected as
aforesaid are not quoting as mentioned in the preceding paragraph, the
"Prime Rate" for such Interest Reset Period will be the same as the Prime
Rate for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate). If this failure continues over three or more
consecutive months, the Prime Rate for each succeeding Interest
Determination Date until the maturity or redemption of this Note or, if
earlier, until this failure ceases, shall be LIBOR determined as if the
Base Rate specified on the face hereof were LIBOR, and the Spread, if any,
shall be the number of basis points specified on the face hereof as the
"Alternate Rate Event Spread."
Determination of Treasury Rate. If the Base Rate specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall
be the rate for the auction held on such date of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury
Bills--auction average (investment)," or if not so published by 9:00 A.M.,
New York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 P.M., New
York City time, on such Interest Determination Date, of three leading
primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate for
such Interest Reset Date will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or less than
the Minimum Interest Rate, if any, specified on the face hereof. The
Calculation Agent shall calculate the interest rate hereon in accordance
with the foregoing on or before each Calculation Date. The interest rate on
this Note will in no event be higher than the maximum rate permitted by New
York law, as the same may be modified by United States Federal law of
general application. At the request of the holder hereof, the Calculation
Agent will provide to the holder hereof the interest rate hereon then in
effect and, if determined, the interest rate that will become effective as
of the next Interest Reset Date. Interest payments on this Note will
include interest accrued to but excluding the Interest Payment Dates or the
Maturity Date (or earlier redemption or repayment date), as the case may
be; provided, however, that if the Interest Reset Period with respect to
this Note is daily or weekly, interest payable on any Interest Payment
Date, other than interest payable on any date on which principal hereof is
payable, will include interest accrued through and including the Record
Date next preceding the applicable Interest Payment Date. Accrued interest
hereon shall be an amount calculated by multiplying the face amount hereof
by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factor calculated for each day in the
period for which interest is being paid. The interest factor for each such
date shall be computed by dividing the interest rate applicable to such day
by 360 if the Base Rate is the CD Rate, Commercial Paper Rate, Federal
Funds Rate, Prime Rate or LIBOR, as specified on the face hereof, or by the
actual number of days in the year if the Base Rate is the Treasury Rate, as
specified on the face hereof. All percentages resulting from any
calculation of the rate of interest on this Note will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point
(.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on this
Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be the
applicable rate as reset on such date. The interest rate applicable to any
other day is the interest rate from the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Rate).
This Note is unsecured and ranks pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without
coupons, in denominations of $1,000 or any integral multiple of $1,000 in
excess thereof. If an Event of Default with respect to the Notes shall
occur and be continuing, the principal hereof may be declared due and
payable in the manner and with the effect provided in the Indenture.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration," then the applicable Pricing
Supplement will set forth additional terms applicable hereto.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities
of any series under the Indenture at any time by the Company and the
Trustee with the consent of the holders of a majority in principal amount
of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the holders of a majority
in principal amount of the Securities of each series at the time
Outstanding on behalf of the holders of all Securities of such series to
waive compliance by the Company with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the holder of this Note shall be conclusive and
binding upon such holder and upon all future holders of this Note and of
any Note issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
any premium and interest on this Note at the times, place, and rate, and in
the coin or currency, herein prescribed.
Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with the Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
the Indenture and the Securities.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in
the Note register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any
place where the principal of and any premium and interest on this Note are
payable, duly endorsed, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Note registrar duly executed,
by the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of like tenor, of authorized denominations
and for the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge shall be made for
any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the absolute owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day," when used with respect to any
Place of Payment, means a day that is not a Saturday or Sunday and that is
not a day on which banking institutions are generally authorized or
obligated by law or executive order to close in that Place of Payment, the
State of Maryland or the City of New York;
(b) the term "London Banking Day" means any day on which
dealings in deposits U.S. dollars are transacted in the London interbank
market;
(c) the term "United States" means the United States of
America (including the States and the District of Columbia), its
territories and its possessions; and
(d) all other terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription
on the face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as Joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT-...............Custodian....................
(Cust) (Minor)
Under Uniform Gifts to Minors Act.............................
(State)
Additional abbreviations may also be used though not in
the above list.
---------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- ---------------------------------------
- ---------------------------------------
- -------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OR ASSIGNEE]
- -------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby
- -------------------------------------------------------------------------------
irrevocably constituting and appointing such person attorney
- -------------------------------------------------------------------------------
to transfer such Note on the books of the Company, with
- -------------------------------------------------------------------------------
full power of substitution in the premises.
Dated:
-------------------
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) the Company to repay the
within Note (or portion thereof specified below) pursuant to its terms at a
price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned, at
- -------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be increments of $1,000)
which the holder elects to have repaid: _____________________; and specify
the denomination or denominations (which shall not be less than the minimum
authorized denomination) of the Notes to be issued to the holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being
repaid):
- ----------------------------
Dated:
-------------------------------- ---------------------------------
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.
EXHIBIT 5.1
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004-1980
212-859-8000
FAX: 212-859-4000
WRITER'S DIRECT LINE
(212) 859-8280
FAX: (212) 859-8586
May 1, 1998
The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044
Ladies and Gentlemen:
We are acting as special counsel to The Rouse Company, a Maryland
corporation (the "Company"), in connection with the preparation of (i)
Post-Effective Amendment No. 1 to the Company's Registration Statement on
Form S-3 (File No. 333-20781) (the "Post-Effective Amendment") and (ii) a
new Registration Statement on Form S-3 of the Company (together with the
Post-Effective Amendment, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), collectively
covering U.S. $2,251,000,000 aggregate issue amount of (i) common stock,
par value $0.01 per share, (ii) preferred stock, par value $0.01 per share,
and (iii) debt securities (the "Debt Securities"), in each case to be
issued from time to time by the Company. All capitalized terms used herein
that are defined in, or by reference in, the Registration Statement have
the meanings assigned to such terms therein or by reference therein, unless
otherwise defined herein. With your permission, all assumptions and
statements of reliance herein have been made without any independent
investigation or verification on our part except to the extent otherwise
expressly stated, and we express no opinion with respect to the subject
matter or accuracy of such assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or appropriate
for the purposes of this opinion. We have examined, among other documents,
the Indenture, dated as of February 24, 1995 (the "Indenture"), between the
Company and The First National Bank of Chicago, as trustee (the "Trustee").
In all such examinations, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
original and certified documents and the conformity to original or
certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the
opinion expressed herein, we have relied upon, and assume the accuracy of,
certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the Indenture with their covenants and agreements
contained therein. Our opinion is limited to our review of only those laws
and regulations that, in our experience, are normally applicable to
transactions of the type contemplated by the Indenture.
To the extent it may be relevant to the opinion expressed herein,
we have assumed that the Trustee has the power and authority to enter into
and perform the Indenture and to consummate the transactions contemplated
thereby, that the Indenture has been duly authorized, executed and
delivered by, and constitutes a legal, valid and binding obligation of the
Trustee enforceable against the Trustee in accordance with its terms, and
that the Trustee will comply with all of its obligations under the
Indenture and all laws applicable thereto.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein and in reliance to the
extent hereinafter stated upon the opinions of other counsel referred to
hereunder, we are of the opinion that, when the Registration Statement has
become effective under the Securities Act, the terms of the Debt Securities
and their issue and sale have been duly established in conformity with the
Indenture so as not to violate any applicable law or agreement or
instrument then binding on the Company and the Debt Securities have been
duly executed and authenticated in accordance with the terms of the
Indenture and issued and sold as contemplated in the Registration
Statement, the Debt Securities will constitute valid and binding
obligations of the Company.
We express no opinion as to the enforceability of any provision of
the Indenture specifying that provisions thereof may be waived only in
writing, to the extent that an oral agreement or an implied agreement by
trade practice or course of conduct has been created that modifies any
provision of the Indenture.
The opinion set forth above is subject to (i) applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and other similar
laws affecting creditors' rights and remedies generally, and (ii) general
principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable
defenses and limits as to the availability of equitable remedies, whether
such principles are considered in a proceeding at law or in equity.
We note that, as of the date of this opinion, in the case of a
Debt Security denominated in a foreign currency, a state court in the State
of New York rendering a judgment on such Debt Security would be required
under Section 27 of the New York Judiciary Law to render such judgment in
the foreign currency in which the Debt Security is denominated, and such
judgment would be converted into United States dollars at the exchange rate
prevailing on the date of entry of the judgment.
The opinion expressed herein is limited to the laws of the State
of New York and the federal laws of the United States of America. In so far
as our opinion involves the laws of the State of Maryland, we have relied
with your permission solely on the opinion of Bruce I. Rothschild, Esq.,
Vice President and General Counsel of the Company, addressed to us of even
date herewith (a copy of which is attached hereto as Exhibit A), without
any independent verification of the matters set forth therein. To the
extent that such opinion contains conditions and limitations, we are
incorporating such conditions and limitations herein. The opinion expressed
herein is given as of the date hereof, and we undertake no obligation to
supplement this letter if any applicable laws change after the date hereof
or if we become aware of any facts that might change the opinion expressed
herein after the date hereof or for any other reason.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the references to this firm under the
caption "Legal Matters" in the Prospectus and the caption "Validity of the
Notes" in any Prospectus Supplement forming a part of the Registration
Statement. In giving these consents, we do not hereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/Kenneth R. Blackman
---------------------------------------------
Kenneth R. Blackman
EXHIBIT A
THE ROUSE COMPANY
10275 LITTLE PATUXENT PARKWAY
COLUMBIA, MARYLAND 21044-3456
May 1, 1998
The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Ladies and Gentlemen:
I have acted as counsel for The Rouse Company, a Maryland
corporation (the "Company"), in connection with the preparation of (i)
Post-Effective Amendment No. 1 to the Company's Registration Statement on
Form S-3 (File No. 333-20781) (the "Post-Effective Amendment") and (ii) a
new Registration Statement on Form S-3 of the Company (together with the
Post-Effective Amendment, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), collectively covering U.S.
$2,251,000,000 aggregate issue amount of (i) common stock, par value
$0.01 per share, (ii) preferred stock, par value $0.01 per share, and (iii)
debt securities (the "Debt Securities") to be issued from time to time by
the Company. Capitalized terms used herein have the meanings specified in
the Registration Statement, unless otherwise defined herein.
In that capacity, I have examined the originals, or certified,
conformed or reproduction copies, of the Articles of Incorporation of the
Company, as amended and restated, the Bylaws of the Company, as amended,
and all corporate proceedings, records, agreements, instruments and
documents, and such statutory, constitutional and other material as I have
deemed relevant or necessary as the basis for the opinions hereinafter
expressed. In connection therewith, I have assumed the genuineness of all
signatures on original or certified copies and the conformity to original
or certified copies of all copies submitted to me as conformed or
reproduction copies. As to various questions of fact relevant to such
opinions, I have relied upon certificates and statements of public
officials and officers or representatives of the Company and others.
Based upon the foregoing, and subject to the limitations set forth
herein, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland.
2. The Company has all the requisite corporate power and authority
to enter into the Indenture and to issue the Debt Securities and to perform
its obligations thereunder.
3. Execution and delivery of the Indenture and the issuance of the
Debt Securities thereunder have been duly authorized by the Company.
I wish to advise you that I am a member of the Bar of the State
of Maryland and accordingly limit the opinions expressed herein to matters
of the laws of the State of Maryland.
I hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the references to my opinion under the
caption "Legal Matters" in the Prospectus and the caption "Validity of the
Notes" in any Prospectus Supplement forming a part of the Registration
Statement. In giving this consent, I do not admit that I am in the category
of persons whose consent is required under Section 7 of the Act. I hereby
also consent to the reliance on this opinion by Fried, Frank, Harris,
Shriver & Jacobson.
Very truly yours,
/s/ Bruce I. Rothschild
Bruce I. Rothschild
EXHIBIT 5.2
THE ROUSE COMPANY
10275 LITTLE PATUXENT PARKWAY
COLUMBIA, MARYLAND 21044-3456
May 1, 1998
The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
Ladies and Gentlemen:
I have acted as counsel for The Rouse Company, a Maryland
corporation (the "Company"), in connection with the preparation of (i)
Post-Effective Amendment No. 1 to the Company's Registration Statement on
Form S-3 (File No. 333-20781) (the "Post-Effective Amendment") and (ii) a
new Registration Statement on Form S-3 of the Company (together with the
Post-Effective Amendment, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), collectively covering U.S.
$2,251,000,000 aggregate issue amount of (i) common stock, par value
$0.01 per share, (ii) preferred stock, par value $0.01 per share, and (iii)
debt securities (the "Debt Securities") to be issued from time to time by
the Company. Capitalized terms used herein have the meanings specified in
the Registration Statement, unless otherwise defined herein.
In that capacity, I have examined the originals, or certified,
conformed or reproduction copies, of the Articles of Incorporation of the
Company, as amended and supplemented, the Bylaws of the Company, as
amended, and all corporate proceedings, records, agreements, instruments
and documents, and such statutory, constitutional and other material as I
have deemed relevant or necessary as the basis for the opinions hereinafter
expressed. In connection therewith, I have assumed the genuineness of all
signatures on original or certified copies and the conformity to original
or certified copies of all copies submitted to me as conformed or
reproduction copies. As to various questions of fact relevant to such
opinions, I have relied upon certificates and statements of public
officials and officers or representatives of the Company and others.
Based upon the foregoing, and subject to the limitations set forth
herein, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
2. When (i) the Registration Statement has become effective under the
Act, (ii) the terms of the Preferred Stock have been duly and properly
authorized for issuance and Articles Supplementary to the Charter of the
Company classifying the Preferred Stock and setting forth the terms thereof
have been filed, and (iii) such shares of Preferred Stock have been duly
issued and paid for in the manner contemplated in the Registration
Statement and any prospectus supplement relating thereto, such shares of
Preferred Stock will be validly issued, fully paid and nonassessable.
3. When (i) the Registration Statement has become effective under the
Act, (ii) the shares of Common Stock have been duly and properly authorized
for issuance, and (iii) the shares of Common Stock have been duly issued
and paid for in the manner as contemplated in the Registration Statement
and any prospectus supplement relating thereto, the shares of Common Stock
(including any Common Stock duly issued upon the conversion or exchange of
any shares of Preferred Stock that are convertible or exchangeable into
Common Stock or upon the conversion or exchange of any Debt Securities that
are convertible or exchangeable into Common Stock) will be validly issued,
fully paid and nonassessable.
I am a member of the Bar of the State of Maryland. The opinions
expressed herein are limited to matters governed by the laws of the State
of Maryland and the federal laws of the United States.
I hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the references to my opinion under the
caption "Legal Matters" in the Prospectus and the caption "Validity of the
Notes" in any Prospectus Supplement forming a part of the Registration
Statement. In giving this consent, I do not admit that I am in the category
of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Bruce I. Rothschild
Bruce I. Rothschild
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
May 1, 1998
EXHIBIT 24.1
THE ROUSE COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that, effective May 1, 1998, each
person whose signature appears below constitutes and appoints ANTHONY W.
DEERING, JEFFREY H. DONAHUE and BRUCE I. ROTHSCHILD, and each of them, such
person's true and lawful agents and attorneys-in-fact, with full power of
substitution and resubstitution, for such individual and in his name, place
and stead, in any and all capacities, to sign for the undersigned such
Registration Statement or Statements of The Rouse Company (the "Company")
on Form S-3, or any successor or alternative Form, as may be filed from
time to time, in connection with the issuance by the Company of its Common
Stock, par value $.01 per share, any class of Preferred Stock, par value
$.01 per share, or other equity securities or debt securities, and any
registration statement or statements relating to an offering contemplated
by such Registration Statement or Statements that are to be filed with the
Securities and Exchange Commission, Washington, D.C., under the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended, and the regulations promulgated thereunder,
including any and all amendments (including post-effective amendments) to
such Registration Statement or Statements and any registration statement
related to an offering contemplated by such Registration Statement or
Statements that are to be effective upon filing pursuant to Rule 462(b)
under the Securities Act, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission and any State or other regulatory authority, granting unto said
attorneys-in-fact and agents, and each of them, 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
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ Anthony W. Deering (SEAL)
----------------------------------------
Anthony W. Deering
Chairman of the Board,
President and Chief Executive Officer
/s/ Jeffrey H. Donahue (SEAL)
----------------------------------------
Jeffrey H. Donahue
Senior Vice President and
Chief Financial Officer
/s/ George L. Yungmann (SEAL)
----------------------------------------
George L. Yungmann
Senior Vice President
and Controller
EXHIBIT 24.2
THE ROUSE COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that, effective May 1, 1998, each
person whose signature appears below constitutes and appoints ANTHONY W.
DEERING, JEFFREY H. DONAHUE and BRUCE I. ROTHSCHILD, and each of them, such
person's true and lawful agents and attorneys-in-fact, with full power of
substitution and resubstitution, for such individual and in his or her
name, place and stead, in any and all capacities, to sign for the
undersigned such Registration Statement or Statements of The Rouse Company
(the "Company") on Form S-3, or any successor or alternative Form, as may
be filed from time to time, in connection with the issuance by the Company
of its Common Stock, par value $.01 per share, any class of Preferred
Stock, par value $.01 per share, or other equity securities or debt
securities, and any registration statement or statements relating to an
offering contemplated by such Registration Statement or Statements that are
to be filed with the Securities and Exchange Commission, Washington, D.C.,
under the Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, and the regulations
promulgated thereunder, including any and all amendments (including
post-effective amendments) to such Registration Statement or Statements and
any registration statement related to an offering contemplated by such
Registration Statement or Statements that are to be effective upon filing
pursuant to Rule 462(b) under the Securities Act, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with
the Securities and Exchange Commission and any State or other regulatory
authority, granting unto said attorneys-in-fact and agents, and each of
them, 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 or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents,
or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
/s/ David H. Benson (SEAL)
------------------------------
David H. Benson
Director
/s/ Jeremiah E. Casey (SEAL)
------------------------------
Jeremiah E. Casey
Director
/s/ Anthony W. Deering (SEAL)
------------------------------
Anthony W. Deering
Chairman of the Board
and Director
/s/ Mathias J. DeVito (SEAL)
------------------------------
Mathias J. DeVito
Chairman Emeritus
and Director
/s/ Rohit M. Desai (SEAL)
------------------------------
Rohit M. Desai
Director
/s/ Juanita T. James (SEAL)
------------------------------
Juanita T. James
Director
/s/ William R. Lummis (SEAL)
------------------------------
William R. Lummis
Director
/s/ Thomas J. McHugh (SEAL)
------------------------------
Thomas J. McHugh
Director
/s/ Hanne M. Merriman (SEAL)
------------------------------
Hanne M. Merriman
Director
/s/ Roger W. Schipke (SEAL)
------------------------------
Roger W. Schipke
Director
/s/ Alexander B. Trowbridge (SEAL)
------------------------------
Alexander B. Trowbridge
Director
/s/ Gerard J. M. Vlak (SEAL)
------------------------------
Gerard J. M. Vlak
Director
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
----------------------------------
The Rouse Company
(Exact name of obligor as specified in its charter)
Maryland 52-0735512
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification
number)
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; and The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, The First National Bank of Chicago, a
national banking association organized and existing under the
laws of the United States of America, has duly caused this
Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of
Chicago and State of Illinois, on the 29th day of April, 1998.
The First National Bank of Chicago,
Trustee
By: /s/ Sandra L. Caruba
--------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc., filed with the Securities and Exchange Commission on
October 2, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 29, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the indenture between The Rouse
Company and The First National Bank of Chicago, as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations,
may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ Sandra L. Caruba
--------------------------------
Sandra L. Caruba
Vice President
EXHIBIT 7
Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Page RC-1
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the last
business day of the quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
----
Thousands RCFD BIL MIL THOU
--------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)....... 0081 4,267,336 1.a.
b. Interest-bearing balances(2).................................... 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses.................. RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve........................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................ 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D).............................. 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases)............. 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M)......................... 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding.. 2155 644,340 9.
10. Intangible assets (from Schedule RC-M)........................... 2143 268,501 10.
11. Other assets (from Schedule RC-F)................................ 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11)...................... 2170 58,483,415 12.
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Page RC-2
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
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Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands BIL MIL THOU
--------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)............................... RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1)................................ RCON 6631 9,197,227 13.a.1
(2) Interest-bearing.................................... RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)........................ RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing................................... RCFN 6631 332,801 13.b.1
(2) Interest-bearing.................................... RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase:............................................... RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury.................. RCON 2840 43,763 15.a
b. Trading Liabilities (from Schedule RC-D).................. RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less........... RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through
three years............................................ A547 576,492 16.b
c. With a remaining maturity of more than three years....... A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding...... RCFD 2920 644,341 18
19. Subordinated notes and debentures (2)........................ RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)....................... RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20)............... RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................ RCFD 3838 0 23
24. Common stock............................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock)..... RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves.................... RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................ RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments.......... RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27)............ RCFD 3210 4,495,679 28
29. Total liabilities and equity capital
(sum of items 21 and 28)................................ RCFD 3300 58,483,415 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996............................................................RCFD 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
- ------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
