<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 6, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENERAL GROWTH PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 42-1283895
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 WEST MONROE STREET -- SUITE 3100
CHICAGO, ILLINOIS 60603
(312) 551-5000
(Address, including zip code and telephone number, including area code, of
registrant's principal executive offices)
MR. MATTHEW BUCKSBAUM
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GENERAL GROWTH PROPERTIES, INC.
55 WEST MONROE STREET -- SUITE 3100
CHICAGO, ILLINOIS 60603
(312) 551-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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with copies to:
MARSHALL E. EISENBERG, ESQ.
NEAL, GERBER & EISENBERG
TWO NORTH LASALLE STREET
CHICAGO, ILLINOIS 60602
(312) 269-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the Registration Statement becomes effective.
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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. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED(1) OFFERING PRICE(2)(3) REGISTRATION FEE(2)
- -------------------------------------------------------------------------------
<S> <C> <C>
Preferred Stock (par value
$100 per share), Depositary
Shares, Common Stock (par
value $.10 per share), Common
Stock Warrants and Debt
Securities $1,000,000,000 $303,031
- -------------------------------------------------------------------------------
</TABLE>
(1) Securities registered hereunder (the "Securities") may be sold separately,
together or as units with other Securities registered hereunder. The
Securities registered hereunder also include (i) an indeterminate number of
shares of Preferred Stock as may be sold, from time to time, by the
registrant, (ii) an indeterminate number of Depositary Shares as may be
sold, from time to time, by the registrant, (iii) an indeterminate number of
shares of Common Stock as may be sold, from time to time, by the registrant,
and an indeterminate number of shares of Common Stock, as shall be issuable
upon conversion of Common Stock Warrants or Preferred Stock registered
hereunder, (iv) an indeterminate number of Common Stock Warrants,
representing rights to purchase Common Stock registered hereunder, and (v)
an indeterminate principal amount of Debt Securities.
(2) Estimated in accordance with Rule 457 under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of computing the
registration fee.
(3) Pursuant to Rule 457(o) under the Securities Act, which permits the
registration fee to be calculated on the basis of the maximum offering price
of all the securities listed, the table does not specify by each class
information as to the amount to be registered, proposed maximum offering
price per unit or proposed maximum aggregate offering price.
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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<PAGE> 2
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 OCTOBER 6, 1997
GENERAL GROWTH PROPERTIES, INC.
PREFERRED STOCK, DEPOSITARY SHARES,
COMMON STOCK, COMMON STOCK WARRANTS
AND DEBT SECURITIES
-----------------------
General Growth Properties, Inc. (the "Company") may offer from time to
time, together or separately, in one or more series (a) shares of the Company's
preferred stock, par value $100 per share ("Preferred Stock"), (b) depositary
shares representing entitlement to all rights and preferences of a fraction of
a share of Preferred Stock of a specified series ("Depositary Shares"), (c)
shares of the Company's common stock, par value $.10 per share ("Common
Stock"), (d) warrants to purchase shares of Common Stock (the "Common Stock
Warrants") and (e) debt securities of the Company ("Debt Securities") (the
Preferred Stock, Depositary Shares, Common Stock, Common Stock Warrants and
Debt Securities are collectively referred to as the "Securities"), separately
or together, at an aggregate initial offering price not to exceed U.S.
$1,000,000,000, in amounts, at prices and on terms to be determined at the time
of sale.
The specific terms of any Securities offered pursuant to this Prospectus
will be set forth in an accompanying supplement to this Prospectus (a
"Prospectus Supplement"), together with the terms of the offering of such
Securities and the initial price and the net proceeds to the Company from the
sale thereof. The Prospectus Supplement will include, with regard to the
particular Securities, the following information: (a) in the case of Preferred
Stock, the designation, number of shares, liquidation preference per share,
initial offering price, dividend rate (or method of calculation thereof), dates
on which dividends shall be payable and dates from which dividends shall
accrue, any redemption or sinking fund provision, and any conversion or
exchange rights; (b) in the case of Common Stock, the number of shares and the
terms of the offering and sale thereof; (c) in the case of Common Stock
Warrants, the number and terms thereof, the designation and the number of
shares of Common Stock issuable upon exercise, the exercise price, the terms of
the offering and sale thereof, and where applicable, the duration and
detachability thereof; (d) in the case of Debt Securities, the specific
designation, aggregate principal amount, authorized denominations, currencies
in which such Debt Securities are issued or payable, maturity, rate (or manner
of calculation thereof) and time of payment of interest, if any, whether the
Debt Securities are issuable in registered form or bearer form or both, whether
any series of the Debt Securities will be represented by a single global
certificate, any terms for redemption or for sinking fund payments, the terms
and conditions, if any, on which the Debt Securities are convertible into
Common Stock or Debt Securities of a different series, the initial public
offering price and the net proceeds to the Company from the sale of the Debt
Securities; and (e) in the case of all Securities, whether such Securities will
be offered separately or as a unit with other Securities. The Prospectus
Supplement will also contain information, where applicable, about material
United States Federal income tax considerations relating to, and any listing on
a securities exchange of, the Securities covered by such Prospectus Supplement.
The Company's Common Stock is listed on the New York Stock Exchange (the
"NYSE") under the symbol "GGP". Any Common Stock offered pursuant to a
Prospectus Supplement will be listed on such exchange, subject to official
notice of issuance.
The Company may sell Securities directly through agents, underwriters or
dealers designated from time to time. If any agents, underwriters, or dealers
are involved in the sale of the Securities, the names of such agents,
underwriters, or dealers and any applicable commissions or discounts and the
net proceeds to the Company from such sale will be set forth in the applicable
Prospectus Supplement.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------------
The date of this Prospectus is ____________, 1997
<PAGE> 3
IN CONNECTION WITH AN OFFERING OF SECURITIES, THE UNDERWRITERS, IF ANY,
FOR SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICES OF THE SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE
NEW YORK STOCK EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
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, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the Commission, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549 and at the Commission's regional offices at Seven World
Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained from the Public Reference Room of the Commission, 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates.
Such materials also may be accessed electronically by means of the Commission's
home page on the Internet at http://www.sec.gov. The Company's Common Stock is
listed on the NYSE and such reports, proxy statements and other information
also can be inspected at the offices of the NYSE, 20 Broad Street, 17th Floor,
New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (herein, together with all amendments and exhibits referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Securities. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement, certain items of which are
contained in schedules and exhibits to the Registration Statement as permitted
by the rules and regulations of the Commission. Statements made in this
Prospectus as to the contents of any contract, agreement or other document
referred to are not necessarily complete. With respect to each such contract,
agreement or other document filed as an exhibit to the Registration Statement,
reference is made to the exhibit for a more complete description of the matter
involved, and each such statement shall be deemed qualified in its entirety by
such reference. Items and information omitted from this Prospectus but
contained in the Registration Statement may be inspected and copied at the
Public Reference Room of the Commission.
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained or incorporated by
reference in this Prospectus or the Prospectus Supplement, and, if given or
made, such information or representations must not be relied upon as having
been authorized. This Prospectus and the Prospectus Supplement do not
constitute an offer of any securities other than those to which it relates or
an offer to sell, or a solicitation of an offer to buy, to any person in any
jurisdiction where such an offer or solicitation would be unlawful. Neither
the delivery of this Prospectus or any Prospectus Supplement nor any sale made
hereunder or thereunder shall, under any circumstances, create any implication
that the information contained herein or therein is correct as of any time
subsequent to their respective dates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated in this Prospectus by reference and are
made a part hereof: (i) Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (the "Company 10-K"); (ii) Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997; (iii) Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997; (iv) Current Report on Form 8-K dated January 16,
1997; (v) Current Report on Form 8-K/A dated February 18, 1997; (vi) Current
Report on Form 8-K dated July 3, 1997; (vii) Current Report on Form 8-K dated
August 18, 1997; (viii) Current Report on Form 8-K/A dated August 28, 1997;
(ix) the portions of the Company's Proxy Statement
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for its 1997 Annual Meeting of Stockholders that have been incorporated by
reference into the Company 10-K; and (x) the description of the Company's Common
Stock which is contained in the Registration Statement on Form 8-A filed by the
Company with the Commission on January 12, 1993, pursuant to Section 12(b) of
the Exchange Act. All other documents and reports filed pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act from the date of this Prospectus
and prior to the termination of the offering of the Securities shall be deemed
to be incorporated by reference herein and shall be deemed to be a part hereof
from the date of the filing of such reports and documents (provided, however,
that the information referred to in Item 402(a)(8) of Regulation S-K of the
Commission shall not be deemed specifically incorporated by reference herein).
The Company will provide without charge to each person to whom a copy of
this Prospectus or any Prospectus Supplement is delivered, on written or oral
request of such person, a copy of any or all documents which are incorporated
herein by reference (not including the exhibits to such documents, unless such
exhibits are specifically incorporated by reference in the document which this
Prospectus incorporates). Requests should be directed to General Growth
Properties, Inc., 55 West Monroe Street - Suite 3100, Chicago, Illinois 60603,
Attention: Director of Investor Relations, Telephone (312) 551-5000.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any 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
The Company is a self-managed real estate trust which, through its general
partnership interest in GGP Limited Partnership, a Delaware limited partnership
(the "Operating Partnership"), and its interest in GGP\Homart, Inc.
("GGP/Homart"), owns, operates, acquires, develops and manages enclosed mall
shopping centers located throughout the United States. The Company and the
Operating Partnership together own, directly or indirectly, 100% of thirty-four
enclosed mall shopping centers, a 50% interest in two other enclosed mall
shopping centers and one property under development containing an aggregate of
approximately 26.7 million square feet of gross retail space, including anchor
stores, freestanding stores and mall tenant areas ("GLA"). In addition, the
Company, through the Operating Partnership's ownership of stock in GGP/Homart,
owns a 38.2% interest in substantially all of the regional mall assets formerly
owned by a subsidiary of Sears, Roebuck & Co. GGP/Homart currently owns
interests in twenty-five shopping centers and one property under development
containing an aggregate of approximately 23.1 million square feet of GLA. The
Company has qualified as a real estate investment trust (a "REIT") for federal
income tax purposes. In order to maintain such qualification, the Company is
required to distribute at least 95% of its taxable income each year. Dividends
on any Preferred Stock would be included as distributions for this purpose.
The Company's principal executive offices are located at 55 West Monroe
Street - Suite 3100, Chicago, Illinois 60603, and its telephone number is (312)
551-5000.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Securities will be used for general corporate
purposes, which may include the acquisition of shopping centers as suitable
opportunities arise, the expansion and improvement of certain properties in the
Company's portfolio, payment of development costs for new centers, and the
repayment of indebtedness outstanding at such time.
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CONSOLIDATED RATIOS OF EARNINGS TO
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for each of the last five fiscal years. There was no
Preferred Stock outstanding for any of the periods shown below. Accordingly,
the ratio of earnings to fixed charges and Preferred Stock dividends is
identical to the ratio of earnings to fixed charges.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------
1996 1995 1994 1993 1992
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed charges: 2.37 2.43 1.67 1.53 1.03
</TABLE>
CAPITAL STOCK
The authorized capital stock of the Company consists of 210,000,000 shares
of Common Stock, par value $.10 per share, and 5,000,000 shares of Preferred
Stock, par value $100 per share. The following summary description of the
capital stock of the Company does not purport to be complete and is qualified
in its entirety by reference to the Company's Second Amended and Restated
Certificate of Incorporation, as amended (the "Certificate"), and the
certificates of designations which will be filed with the Commission in
connection with any offering of Preferred Stock.
As of October 1, 1997, 35,753,708 shares of the Company's Common Stock
were issued and outstanding and no shares of the Company's Preferred Stock were
issued and outstanding. The Board of Directors is authorized to provide for
the issuance of shares of Preferred Stock in one or more series, to establish
the number of shares in each series and to fix the designation, powers,
preferences and rights of each such series and the qualifications, limitations
or restrictions thereof. See "Description of Preferred Stock". The Company's
Common Stock is listed on the New York Stock Exchange under the symbol "GGP".
DESCRIPTION OF COMMON STOCK
The holders of the Company's Common Stock are entitled to one vote per
share on all matters voted on by stockholders, including elections of
directors, and, except as otherwise required by law or provided in any
resolution adopted by the Board of Directors with respect to any series of
Preferred Stock establishing the powers, designations, preferences and
relative, participating, option or other special rights of such series
("Preferred Stock Designation"), the holders of such shares exclusively possess
all voting power. The Certificate does not provide for cumulative voting in
the election of directors. Subject to any preferential rights of any
outstanding series of Preferred Stock, the holders of Common Stock are entitled
to such dividends as may be declared from time to time by the Board of
Directors from funds legally available therefor, and upon liquidation are
entitled to receive pro rata all assets of the Company available for
distribution to such holders. All shares of Common Stock offered hereby, upon
issuance against full payment of the purchase price therefor, will be fully
paid and nonassessable and the holders thereof will not have preemptive rights.
RESTRICTIONS ON TRANSFER
For the Company to remain qualified as a REIT under the Internal Revenue
Code of 1986, as amended (the "Code"), not more than 50% in value of its
outstanding Common Stock and Preferred Stock (collectively, the "Capital
Stock") may be owned, directly or indirectly, by five or fewer individuals (as
defined in the Code) during the last half of a taxable year, the Capital Stock
must be beneficially owned (without regard to any rules of attribution of
ownership) by 100 or more persons during at least 335 days of a taxable year of
12 months or during
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a proportionate part of a shorter taxable year and certain percentages of
the Company's gross income must be derived from particular activities. Because
the Board of Directors believes it is essential for the Company to continue to
qualify as a REIT, the Company's Certificate restricts the acquisition of shares
of Capital Stock (the "Ownership Limit").
The Ownership Limit provides that, subject to certain exceptions specified
in the Certificate, no stockholder (other than Martin Bucksbaum, Matthew
Bucksbaum, their families and related trusts (collectively, the "Bucksbaums")
and the International Business Machines Retirement Plan (the "IBM Retirement
Plan")) may own, or be deemed to own by virtue of the applicable attribution
provisions of the Code, more than the Ownership Limit. The Ownership Limit was
originally set at 6.5% of the outstanding Capital Stock, and was increased to
7.5% of the value of the outstanding Capital Stock as a result of legislation
passed in 1993. The Board of Directors is authorized to further increase the
Ownership Limit to not more than 9.8%. The Bucksbaums and the IBM Retirement
Plan are each permitted by the Certificate to exceed the Ownership Limit and
the Bucksbaums currently exceed such limit and may continue to do so. The
Ownership Limit provides that the Bucksbaums may acquire additional shares
pursuant to certain rights granted to them in connection with the Company's
initial public offering or from other sources so long as the acquisition does
not result in the five largest beneficial owners of Capital Stock holding more
than 50% of the outstanding Capital Stock. The Board of Directors may waive
the Ownership Limit if presented with satisfactory evidence that such ownership
will not jeopardize the Company's status as a REIT (and, from time to time, the
Board of Directors has waived the Ownership Limit). As a condition of such
waiver, the Board of Directors may require opinions of counsel satisfactory to
it and/or an undertaking from the applicant with respect to preserving the REIT
status of the Company. The Ownership Limit will not apply if the Board of
Directors and the holders of Capital Stock determine that it is no longer in
the best interests of the Company to attempt to qualify, or to continue to
qualify, as a REIT. If shares of Common Stock in excess of the Ownership
Limit, or shares which would cause the Company to be beneficially owned by
fewer than 100 persons, are issued or transferred to any person, such issuance
or transfer shall be null and void and the intended transferee will acquire no
rights to such shares.
The Certificate further provides that upon a transfer or other event that
results in a person owning (either directly or by virtue of the applicable
attribution rules) Capital Stock in excess of the applicable Ownership Limit
("Excess Shares"), such person (a "Prohibited Owner") will not acquire or
retain any rights or beneficial economic interest in such Excess Shares.
Rather, the Excess Shares will be automatically transferred to a person or
entity unaffiliated with and designated by the Company to serve as trustee (the
"Trustee") of a trust for the exclusive benefit of a charitable beneficiary
(the "Beneficiary") to be designated by the Company within five (5) days after
the discovery of the transaction which created the Excess Shares. The Trustee
shall have the exclusive right to designate a person who may acquire the Excess
Shares without violating the applicable ownership restrictions (a "Permitted
Transferee") to acquire all of the shares held by the Trust. The Permitted
Transferee must pay the Trustee an amount equal to the fair market value
(determined at the time of transfer to the Permitted Transferee) for the Excess
Shares. The Trustee shall pay to the Prohibited Owner the lesser of: a) the
value of the shares at the time they became Excess Shares and b) the price
received by the Trustee from the sale of the Excess Shares to the Permitted
Transferee. The excess of: a) the sale proceeds from the transfer to the
Permitted Transferee over b) the amount paid to the Prohibited Owner, if any,
in addition to any dividends paid with respect to the Excess Shares will be
distributed to the Beneficiary.
The Ownership Limit will not be automatically removed even if the REIT
provisions of the Code are changed so as to no longer contain any ownership
concentration limitation or if the ownership concentration limitation is
increased. Except as otherwise described above, any change in the Ownership
Limit would require an amendment to the Certificate. Amendments to the
Certificate require the affirmative vote of holders owning a majority of the
outstanding Capital Stock. In addition to preserving the Company's status as a
REIT, the Ownership Limit may have the effect of precluding an acquisition of
control of the Company without the approval of the Board of Directors.
All certificates representing Capital Stock will bear a legend referring
to the restrictions described above.
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All persons who own, directly or by virtue of the attribution provisions
of the Code, more than 7.5% of the outstanding Capital Stock must file an
affidavit with the Company containing the information specified in the
Certificate within 30 days after January 1 and June 30 of each year. In
addition, each stockholder shall upon demand be required to disclose to the
Company in writing such information with respect to the direct, indirect and
constructive ownership of shares as the Board of Directors deems necessary to
comply with the provisions of the Code applicable to a REIT or to comply with
the requirements of any taxing authority or governmental agency. United States
Treasury Regulations (the "Regulations") currently require that the Company
annually request written statements requesting information as to the actual
ownership of the Capital Stock from each record holder of more than 1% of the
Company's outstanding Capital Stock. Depending upon the number of record
holders of the Capital Stock, the reporting threshold required by the
Regulations can fall as low as .5%. Record holders that fail to submit a
written statement in response to the request required by the Regulations are
required to attach to their federal income tax returns specified information
regarding the actual ownership of shares of Capital Stock of which they are the
record holder.
LIMITATION OF LIABILITY OF DIRECTORS
The Certificate provides that a director will not be personally liable for
monetary damages to the Company or its stockholders for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for paying a dividend or approving a stock repurchase
in violation of Section 174 of the Delaware General Corporation Law ("DGCL") or
(iv) for any transaction from which the director derived an improper personal
benefit.
While the Certificate provides directors with protection from awards for
monetary damages for breaches of their duty of care, it does not eliminate such
duty. Accordingly, the Certificate will have no effect on the availability of
equitable remedies such as an injunction or rescission based on a director's
breach of his or her duty of care. The provisions of the Certificate described
above apply to an officer of the Company only if he or she is a director of the
Company and is acting in his or her capacity as director, and do not apply to
officers of the Company who are not directors.
INDEMNIFICATION AGREEMENTS
The Company has entered into indemnification agreements with each of its
officers and directors. The indemnification agreements require, among other
things, that the Company indemnify its officers and directors to the fullest
extent permitted by law, and advance to the officers and directors all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also indemnify and advance
all expenses incurred by officers and directors seeking to enforce their rights
under the indemnification agreements, and cover officers and directors under
the Company's directors' and officers' liability insurance. Although the form
of the indemnification agreement offers substantially the same scope of
coverage afforded by provisions in the Company's Certificate and Bylaws, it
provides greater assurance to directors and officers that indemnification will
be available, because, as a contract, it cannot be modified unilaterally in the
future by the Board of Directors or by stockholders to eliminate the rights it
provides.
DELAWARE ANTI-TAKEOVER STATUTE
The Company is a Delaware corporation and is subject to Section 203 of the
DGCL. In general, Section 203 prevents an "interested stockholder" (defined
generally as a person owning 15% or more of the Company's outstanding voting
stock) from engaging in a "business combination" (as defined in Section 203)
with the Company for three years following the date that person becomes an
interested stockholder unless (a) before that person became an interested
stockholder, the Company's Board of Directors approved the transaction in which
the interested stockholder became an interested stockholder or approved the
business combination, (b) upon completion of the transaction that resulted in
the interested stockholder's becoming an interested stockholder, the interested
stockholder
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owns at least 85% of the Company's voting stock outstanding at the time the
transaction commenced (excluding stock held by directors who are also officers
of the Company and by employee stock plans that do not provide employees with
the right to determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer), or (c) following the
transaction in which that person became an interested stockholder, the business
combination is approved by the Company's Board of Directors and authorized at a
meeting of stockholders by the affirmative vote of the holders of at least
two-thirds of the Company's outstanding voting stock not owned by the interested
stockholder.
Under Section 203, these restrictions also do not apply to certain
business combinations proposed by an interested stockholder following the
announcement or notification of one of certain extraordinary transactions
involving the Company and a person who was not an interested stockholder during
the previous three years or who became an interested stockholder with the
approval of a majority of the Company's directors, if that extraordinary
transaction is approved or not opposed by a majority of the directors who were
directors before any person became an interested stockholder in the previous
three years or who were recommended for election or elected to succeed such
directors by a majority of such directors then in office.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions of
the Preferred Stock. The particular terms of any series of Preferred Stock
will be described in the applicable Prospectus Supplement. If so indicated in
a Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
The summary of terms of any series of the Company's Preferred Stock
contained in this Prospectus does not purport to be complete and is subject to,
and qualified in its entirety by, the provisions of the Certificate and the
applicable Preferred Stock Designation, which will be filed as an exhibit to or
incorporated by reference in the Registration Statement of which this
Prospectus is a part at or prior to the time of issuance of such series of the
Preferred Stock.
Under the Company's Certificate, the Board of Directors is authorized,
without further stockholder action, to provide for the issuance of up to
5,000,000 shares of Preferred Stock, par value $100 per share. No Preferred
Stock is outstanding as of the date of this Prospectus. The Preferred Stock
authorized by the Certificate may be issued, from time to time, in one or more
series in such amounts and with such designations, powers, preferences or other
rights, qualifications, limitations and restrictions as may be fixed by the
Board of Directors. Under certain circumstances, the issuance of Preferred
Stock could have the effect of delaying, deferring or preventing a change of
control of the Company and may adversely affect the voting and other rights of
the holders of Common Stock.
The Preferred Stock shall have the dividend, liquidation, redemption,
voting and certain other rights set forth below unless otherwise described in a
Prospectus Supplement relating to a particular series of Preferred Stock. The
applicable Prospectus Supplement will describe the following terms of the
series of Preferred Stock offered thereby: (1) the designation of such series
and the number of shares offered; (2) the liquidation preference of such
series; (3) the initial offering price at which such series will be issued; (4)
the dividend rate (or method of calculation), the dates on which dividends
shall be payable and the dates from which dividends shall commence to cumulate,
if any; (5) any redemption or sinking fund provisions; (6) any conversion or
exchange rights; (7) any additional voting, dividend, liquidation, redemption,
sinking fund and other rights, preferences, privileges, limitations and
restrictions; (8) any listing of such Preferred Stock on any securities
exchange; (9) a discussion of federal income tax considerations applicable to
such series; (10) the relative ranking and preferences of such series as to
dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company; (11) any limitations on issuance of any series of
Preferred Stock ranking senior to or on a parity with such series as to
dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company; (12) any limitations on direct or beneficial ownership
and restrictions on transfer, in each case as may be appropriate to
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preserve the status of the Company as a REIT for federal tax purposes; and (13)
any other specific terms, preferences, rights, limitations or restrictions of
such series.
The Preferred Stock offered hereby will be issued in one or more series.
The Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The liquidation preference is
not indicative of the price at which the Preferred Stock will actually trade on
or after the date of issuance.
RANK
The Preferred Stock shall, with respect to dividend rights and rights upon
liquidation, dissolution and winding up of the Company, rank prior to the
Common Stock and to all other classes and series of equity securities of the
Company now or hereafter authorized, issued or outstanding (the Common Stock
and such other classes and series of equity securities collectively may be
referred to herein as the "Junior Stock"), other than any classes or series of
equity securities of the Company which by their terms specifically provide for
a ranking on a parity with (the "Parity Stock") or senior to (the "Senior
Stock") the Preferred Stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the Company. The Preferred Stock shall be junior
to all outstanding debt of the Company. The Preferred Stock shall be subject
to creation of Senior Stock, Parity Stock and Junior Stock to the extent not
expressly prohibited by the Company's Certificate.
DIVIDENDS
Holders of Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors, out of assets of the Company legally
available for payment, dividends, or distributions in cash, property or other
assets of the Company or in Securities of the Company or from any other source
as the Board of Directors in their discretion shall determine and at such dates
and at such rates per share per annum as described in the applicable Prospectus
Supplement. Such rate may be fixed or variable or both. Each declared
dividend shall be payable to holders of record as they appear at the close of
business on the books of the Company on such record dates, not more than 90
calendar days preceding the payment dates therefor, as are determined by the
Board of Directors (each of such dates, a "Record Date").
Dividends on a series of Preferred Stock may be cumulative or
noncumulative. If dividends on a series of Preferred Stock are noncumulative
and if the Board of Directors fails to declare a dividend in respect of a
dividend period with respect to such series, then holders of such Preferred
Stock will have no right to receive a dividend in respect of such dividend
period, and the Company will have no obligation to pay the dividend for such
period, whether or not dividends are declared payable on any future dividend
payment dates. If dividends of a series of Preferred Stock are cumulative, the
dividends on such shares will accrue from and after the date set forth in the
applicable Preferred Stock Designation.
No full dividends shall be declared or paid or set apart for payment on
any series of Preferred Stock ranking, as to dividends, on a parity with or
junior to the series of Preferred Stock offered by the applicable Prospectus
Supplement for any period unless full dividends for the immediately preceding
dividend period on such Preferred Stock (including any accumulation in respect
of unpaid dividends for prior dividend periods, if dividends on such Preferred
Stock are cumulative) have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set apart for such
payment. When dividends are not so paid in full (or a sum sufficient for such
full payment is not so set apart) on such Preferred Stock and any Parity Stock
of the Company ranking on a parity as to dividends with such Preferred Stock,
dividends upon such Preferred Stock and dividends upon such Parity Stock shall
be declared pro rata so that the amount of dividends declared per share on such
Preferred Stock and such Parity Stock shall in all cases bear to each other the
same ratio that accrued dividends for the then-current dividend period per
share on such Preferred Stock (including any accumulation in respect of unpaid
dividends for prior dividend periods, if dividends on such Preferred Stock are
cumulative) and accrued dividends, including required or permitted
accumulations, if any, on shares of such Parity Stock, bear to each other.
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No interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment(s) on Preferred Stock which may be in arrears. Unless
full dividends on the series of Preferred Stock offered by the applicable
Prospectus Supplement have been declared and paid or set apart for payment for
the immediately preceding dividend period (including any accumulation in
respect of unpaid dividends for prior dividend periods, if dividends on such
Preferred Stock are cumulative), (a) no cash dividend or distribution (other
than in shares of Junior Stock) may be declared, set aside or paid on the
Junior Stock, (b) the Company may not, directly or indirectly, repurchase,
redeem or otherwise acquire any shares of its Junior Stock (or pay any monies
into a sinking fund for the redemption of any shares) except by conversion into
or exchange for Junior Stock, and (c) the Company may not, directly or
indirectly, repurchase, redeem or otherwise acquire any such Preferred Stock or
any Parity Stock ranking on parity with such Preferred Stock (or pay any monies
into a sinking fund for the redemption of any shares of any such stock)
otherwise than pursuant to pro rata offers to purchase or a concurrent
redemption of all, or a pro rata portion, of such Preferred Stock and such
Parity Stock (except by conversion into or exchange for Junior Stock).
Any dividend payment made on a series of Preferred Stock shall first be
credited against the earliest accrued but unpaid dividend due with respect to
shares of such series.
REDEMPTION
The terms, if any, on which Preferred Stock of any series may be redeemed
will be set forth in the applicable Prospectus Supplement.
CONVERSION RIGHTS
The terms and conditions, if any, upon which shares of any series of
Preferred Stock will be convertible into Common Stock will be set forth in the
applicable Prospectus Supplement. Such terms will include the number of shares
of Common Stock into which the Preferred Stock is convertible, the conversion
price (or manner of calculation thereof), the conversion period, provisions as
to whether conversion will be at the option of the holders of the Preferred
Stock or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of
such Preferred Stock.
LIQUIDATION
In the event of a voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, the holders of a series of Preferred
Stock will be entitled, subject to the rights of creditors, but before any
distribution or payment to the holders of Common Stock or any Junior Stock on
liquidation, dissolution or winding up of the Company, to receive a liquidating
distribution in the amount of the liquidation preference per share as set forth
in the applicable Prospectus Supplement plus accrued and unpaid dividends for
the then-current dividend period (including any accumulation in respect of
unpaid dividends for prior dividend periods, if dividends on such series of
Preferred Stock are cumulative). If the amounts available for distribution
with respect to a series of Preferred Stock and all other outstanding Parity
Stock are not sufficient to satisfy the full liquidation rights of all such
Preferred Stock outstanding and such other Parity Stock outstanding, then the
holders of each such series will share ratably in any such distribution of
assets in proportion to the full respective preferential amount (which in the
case of Preferred Stock may include accumulated dividends) to which they are
entitled. Unless otherwise provided in the applicable Preferred Stock
Designation for a particular series of Preferred Stock, after payment of the
full amount of the liquidation distribution, the holders of Preferred Stock
will not be entitled to any further participation in any distribution of assets
by the Company.
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VOTING
The Preferred Stock of a series will not be entitled to vote, except as
described below or in the applicable Prospectus Supplement. Without the
affirmative vote of a majority of the Preferred Stock then outstanding (voting
separately as a class together with any Parity Stock), the Company may not (i)
increase or decrease the aggregate number of authorized shares of such class or
increase the aggregate number of authorized shares of any security ranking
prior to the Preferred Stock, (ii) increase or decrease the par value of the
shares of holders of such class, or (iii) alter or change the voting or other
powers, preferences or special rights of such class so as to affect them
adversely. An amendment which increases the number of authorized shares of or
authorizes the creation or issuance of other classes or series of Junior Stock
or Parity Stock, or substitutes the surviving entity in a merger,
consolidation, reorganization or other business combination for the Company,
shall not be considered to be such an adverse change.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or described in the applicable Prospectus Supplement,
set forth in the Certificate or in the applicable Preferred Stock Designation
or as otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be described in
the related Prospectus Supplement.
RESTRICTIONS ON OWNERSHIP
As discussed above, for the Company to maintain its qualification as a
REIT under the Code, (i) not more than 50% in value of its outstanding Capital
Stock may be owned, directly or indirectly, by five or fewer individuals (as
defined in the Code) during the last half of a taxable year, (ii) the Capital
Stock, which term includes the Preferred Stock, must be beneficially owned by
100 or more persons during at least 335 days of a taxable year of 12 months or
during a proportionate part of a shorter taxable year and (iii) certain
percentages of the Company's gross income must be from particular activities.
For a discussion of the restriction on ownership of Preferred Stock, see
"Description of Common Stock-Restrictions on Transfer" above.
DELAWARE ANTI-TAKEOVER STATUTE
See "Description of Common Stock-Delaware Anti-Takeover Statute" above.
DESCRIPTION OF DEPOSITARY SHARES
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than a full share of Preferred Stock. In
such event, receipts ("Depositary Receipts") for such Depositary Shares, each
of which will represent a fraction (to be set forth in the Prospectus
Supplement relating to a particular series of Preferred Stock) of a share of a
particular series of Preferred Stock, will be issued as described below.
Any series of Preferred Stock represented by Depositary Shares will be
deposited under a Deposit Agreement (the "Deposit Agreement") between the
Company and a depositary specified in the applicable Prospectus Supplement (the
"Depositary"). Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of
a share of Preferred Stock represented by such Depositary
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Share, to all the rights and preferences of the Preferred Stock represented
thereby (including dividend, voting, redemption, subscription and liquidation
rights).
The description set forth above and in any Prospectus Supplement of
certain provisions of the Deposit Agreement, the Depositary Shares and the
Depositary Receipts does not purport to be complete and is subject to and
qualified in its entirety by reference to the forms of Deposit Agreement and
Depositary Receipts relating to each series of Preferred Stock which have been
or will be filed with the Commission at or prior to the time of the offering of
such series of the Preferred Stock. If so indicated in a Prospectus
Supplement, the terms of any series of Depositary Shares may differ from the
terms set forth herein.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and the balance not so distributed shall be added to and treated
as part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
in an equitable manner, unless the Depositary determines that it is not
feasible to make such distribution, in which case the Depositary may sell such
property and distribute the net proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Company to holders
of the Preferred Stock shall be made available to the holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of Preferred Stock held by the Depositary. The Depositary shall
mail notice of redemption not less than 30 and not more than 60 days prior to
the date fixed for redemption to the record holders of the Depositary Shares to
be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable with respect to
such series of the Preferred Stock. Whenever the Company redeems Preferred
Stock held by the Depositary, the Depositary will redeem as of the same
redemption date the number of Depositary Shares representing Preferred Stock so
redeemed. If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata as may be
determined to be equitable by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be outstanding and all rights of the holders of the
Depositary Shares will cease, except the right to receive the money,
securities, or other property payable upon such redemption and any money,
securities, or other property to which the holders of such Depositary Shares
were entitled upon such redemption upon surrender to the Depositary of the
Depositary Receipts evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the information
contained in such notices of meeting to the record holders of the Depositary
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Shares relating to such Preferred Stock. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of the Preferred Stock
represented by such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all reasonable action which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting the Preferred Stock to the extent it does
not receive specific instructions from the holder of Depositary Shares
representing such shares of Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended at any time by agreement
between the Company and the Depositary. However, any amendment which
materially and adversely alters the rights of the holders of Depositary Shares
will not be effective unless such amendment has been approved by the holders of
at least a majority of the Depositary Shares then outstanding. The Deposit
Agreement will only terminate if (i) all outstanding Depositary Shares related
thereto have been redeemed or (ii) there has been a final distribution in
respect of the Preferred Stock in connection with any liquidation, dissolution
or winding up of the Company and such distribution has been distributed to the
holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of
the Preferred Stock and issuance of Depositary Receipts, all withdrawals of
Preferred Stock by owners of Depositary Shares and any redemption of the
Preferred Stock. Holders of Depositary Receipts will pay all other transfer
and other taxes and governmental charges and such other charges as are
expressly provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the
Depositary, any such resignation or removal to take effect upon the appointment
of a successor Depositary and such successor Depositary's acceptance of the
appointment. Such successor Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
RESTRICTIONS ON OWNERSHIP
In order to safeguard the Company against an inadvertent loss of REIT
status, the Deposit Agreement or the Certificate will contain provisions
restricting the ownership and transfer of Depositary Shares. Such restrictions
will be described in the applicable Prospectus Supplement and will be
referenced on the applicable Depositary Receipts.
MISCELLANEOUS
The Depositary will forward all reports and communications from the
Company which are delivered to the Depositary and which the Company is required
or otherwise determines to furnish to the holders of the Preferred Stock.
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Neither the Depositary nor the Company will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares or
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by persons
presenting Preferred Stock for deposit, holders of Depositary Shares or other
persons believed to be competent and on documents believed to be genuine.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue warrants for the purchase of Common Stock ("Common
Stock Warrants"). Common Stock Warrants may be issued independently or
together with any other Securities and may be attached to or separate from any
such Securities. Each series of Common Stock Warrants will be issued under a
separate warrant agreement (a "Warrant Agreement") to be entered into between
the Company and a warrant agent specified in the applicable Prospectus
Supplement (the "Warrant Agent"). The Warrant Agent will act solely as an
agent of the Company in connection with the Common Stock Warrants of such
series and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of Common Stock Warrants. The
following summary of certain provisions of the Common Stock Warrants does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, the provisions of the Warrant Agreement that will be filed with
the Commission in connection with the offering of such Common Stock Warrants.
The applicable Prospectus Supplement will describe the terms of the Common
Stock Warrants in respect of which this Prospectus is being delivered,
including, where applicable, the following: (a) the title of such Common Stock
Warrants; (b) the aggregate number of such Common Stock Warrants; (c) the price
or prices at which such Common Stock Warrants will be issued; (d) the number of
shares of Common Stock purchasable upon exercise of such Common Stock Warrants;
(e) if applicable, the designation and terms of the Securities with which such
Common Stock Warrants are issued and the number of such Common Stock Warrants
issued with each such Security; (f) the date, if any, from and after which such
Common Stock Warrants and any Securities issued therewith will be separately
transferable; (g) the number of shares of Common Stock purchasable upon
exercise of a Common Stock Warrant and the price at which such shares may be
purchased upon exercise (which price may be payable in cash, securities, or
other property); (h) the date on which the right to exercise such Common Stock
Warrant shall commence and the date on which such right shall expire; (i) the
minimum or maximum amount of such Common Stock Warrants which may be exercised
at any one time; (j) the antidilution provisions of such Common Stock Warrants,
if any; (k) a discussion of certain federal income tax considerations; and (l)
any other terms of such Common Stock Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Common Stock
Warrants.
Reference is made to the section captioned "Description of Common Stock"
for a general description of the Common Stock to be acquired upon the exercise
of the Common Stock Warrants, including a description of certain restrictions
on the ownership of Common Stock.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms and provisions of the series of Debt Securities offered by a
Prospectus Supplement, including any additional covenants or changes to
existing covenants relating to such series, and the extent to which such
general terms and provisions described below may apply thereto, will be
described in the Prospectus Supplement relating to such series of Debt
Securities.
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The Debt Securities are to be issued under an Indenture, as supplemented
(the "Debt Indenture"), between the Company and a trustee to be named prior to
an offering of Debt Securities (the "Debt Trustee"). The following summaries
of certain provisions of the Debt Securities and the Debt Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all provisions of the Debt Securities and the Debt Indenture,
including the definitions therein of certain terms. Particular sections of the
Debt Indenture which are relevant to the discussion are cited parenthetically.
Wherever particular sections or defined terms of the Debt Indenture are
referred to, it is intended that such sections or defined terms shall be
incorporated herein by reference. Capitalized terms not otherwise defined
herein shall have the meaning ascribed to such terms in the Debt Indenture.
GENERAL
The Debt Indenture does not limit the amount of Debt Securities which can
be issued thereunder or the amount of debt which may otherwise be incurred by
the Company, and additional Debt Securities may be issued under the Debt
Indenture up to the aggregate principal amount which may be authorized from
time to time by, or pursuant to a resolution of, the Company's Board of
Directors or by a supplemental indenture. Reference is made to the applicable
Prospectus Supplement for the following terms, if applicable, of the particular
series of Debt Securities being offered thereby: (i) the title of the Debt
Securities of the series; (ii) any limit upon the aggregate principal amount of
the Debt Securities of the series; (iii) the date or dates on which the
principal of the Debt Securities of the series will be payable; (iv) the rate
or rates (or manner of calculation thereof), if any, at which the Debt
Securities of the series will bear interest, the date or dates from which any
such interest will accrue and on which such interest will be payable, and, with
respect to Debt Securities of the series issued in registered form, the record
date for the interest payable on any interest payment date; (v) the place or
places where the principal of and interest, if any, on the Debt Securities of
the series will be payable; (vi) any redemption or sinking fund provisions;
(vii) the denominations in which Debt Securities of the series shall be
issuable; (viii) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which will be payable upon
declaration of acceleration of the maturity thereof; (ix) whether the Debt
Securities of the series will be issuable in registered or bearer form or both,
any restrictions applicable to the offer, sale or delivery of Debt Securities
in bearer form ("bearer Debt Securities") and whether and the terms upon which
bearer Debt Securities will be exchangeable for Debt Securities in registered
form ("registered Debt Securities") and vice versa; (x) the terms and
conditions, if any, on which the Debt Securities of the series are convertible
into Common Stock or Debt Securities of a different series; (xi) whether and
under what circumstances the Company will pay additional amounts on the Debt
Securities of the series held by a person who is not a U.S. person (as defined
below) in respect of taxes or similar charges withheld or deducted and, if so,
whether the Company will have the option to redeem such Debt Securities rather
than pay such additional amounts; (xii) the currencies in which payments of
interest, premium or principal are payable with respect to such Debt
Securities; (xiii) whether the Debt Securities of any series will be issued as
one or more Global Securities; (xiv) whether Debt Securities of the series will
be issuable in Tranches; and (xv) any additional provisions or other terms not
inconsistent with the provisions of the Debt Indenture, including any terms
which may be required by or advisable under United States laws or regulations
or advisable in connection with the marketing of Debt Securities of such
series. (Section 2.1 and 2.2) To the extent not described herein, principal
and interest, if any, will be payable, and the Debt Securities of a particular
series will be transferable, in the manner described in the Prospectus
Supplement relating to such series. "Principal" when used herein includes,
when appropriate, the premium, if any, on the Debt Securities.
Each series of Debt Securities will constitute unsecured and
unsubordinated indebtedness of the Company and will rank on a parity with the
Company's other unsecured and unsubordinated indebtedness. Unless otherwise
described in a Prospectus Supplement, there are no covenants or "event risk"
provisions contained in the Debt Indenture that may afford holders of Debt
Securities protection in the event of a highly leveraged transaction involving
the Company.
Debt Securities of any series may be issued as registered Debt Securities
or bearer Debt Securities or both as specified in the terms of the series.
Additionally, Debt Securities of any series may be represented by a single
global note registered in the name of a depository's nominee and, if so
represented, beneficial interests in such
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global note will be shown on, and transfers thereof will be effected only
through, records maintained by a designated depository and its participants.
Unless otherwise indicated in the Prospectus Supplement, Debt Securities will be
issued in the denomination of $1,000 and integral multiples thereof and bearer
Debt Securities will not be offered, sold, resold or delivered to U.S. persons
in connection with their original issuance. Debt Securities of any series may
be denominated in and payments of principal and interest may be made in United
States dollars or any other currency, including composite currencies such as the
European Currency Unit. For purposes of this Prospectus, "U.S. person" means a
citizen or resident of the United States, any corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or any estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
To the extent set forth in a Prospectus Supplement, except in special
circumstances set forth in the Debt Indenture, interest on bearer Debt
Securities will be payable only against presentation and surrender of the
coupons for the interest installments evidenced thereby as they mature at a
paying agency of the Company located outside of the United States and its
possessions. (Section 2.5(c)) The Company will maintain such an agency for a
period of two years after the principal of such bearer Debt Securities has
become due and payable. During any period thereafter for which it is necessary
in order to conform to United States tax laws or regulations, the Company will
maintain a paying agent outside of the United States and its possessions to
which the bearer Debt Securities and coupons related thereto may be presented
for payment and will provide the necessary funds therefor to such paying agent
upon reasonable notice. (Section 2.4)
Bearer Debt Securities and the coupons related thereto will be
transferable by delivery. (Section 2.8(f))
If appropriate, United States federal income tax consequences applicable
to a series of Debt Securities will be described in the Prospectus Supplement
relating thereto.
BOOK-ENTRY REGISTRATION
If a Prospectus Supplement so indicates, the Debt Securities will be
represented by one or more certificates (the "Global Securities"). The Global
Securities representing Debt Securities will be deposited with, or on behalf
of, The Depository Trust Company ("DTC") or other successor depository
appointed by the Company (DTC or such other depository is herein referred to as
the "Depository") and registered in the name of the Depository or its nominee.
Debt Securities represented by a Global Security will not be issuable in
definitive form.
DTC currently limits the maximum denomination of any single Global
Security to $200,000,000. Therefore, for purposes hereof, "Global Security"
refers to the Global Security or Global Securities representing the entire
issue of Debt Securities of a particular series.
DTC has advised the Company and any underwriters, dealers or agents named
in a Prospectus Supplement as follows: DTC is a limited-purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participants ("DTC Participants") and to facilitate the
clearance and settlement of securities transactions between DTC Participants
through electronic book-entry changes in accounts of DTC Participants, thereby
eliminating the need for physical movement of securities certificates. DTC
Participants include securities brokers and dealers, banks, trust companies and
clearing corporations. Indirect access to the DTC book-entry system is also
available to others, such as banks, brokers, dealers and trust companies, that
clear through or maintain a custodial relationship with a DTC Participant,
either directly or indirectly ("Indirect Participants").
Upon the issuance by the Company of Debt Securities represented by a
Global Security, DTC will credit, on its book-entry registration and transfer
system, the respective principal amounts of the Debt Securities represented by
such Global Security to the accounts of DTC Participants. The accounts to be
credited shall be designated by the underwriters, dealers or agents. Ownership
of beneficial interests in the Global Security will be limited to DTC
15
<PAGE> 17
Participants and Indirect Participants. Ownership of beneficial interests in
Debt Securities represented by the Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
DTC (with respect to interests of DTC Participants), or by DTC Participants or
Indirect Participants (with respect to persons other than DTC Participants).
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in the Global
Security.
So long as the Depository for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depository or its nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Debt Indenture.
Except as provided below, owners of beneficial interests in Debt Securities
represented by the Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in definitive
form and will not be considered the owners or holders thereof under the Debt
Indenture.
Payments of principal of and interest, if any, on the Debt Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by the Company through the Debt Trustee under the Debt Indenture
or a paying agent (the "Paying Agent"), which may also be the Debt Trustee
under the Debt Indenture, to DTC or its nominee, as the case may be, as the
registered owner of the Global Security. Neither the Company, the Debt
Trustee, nor the Paying Agent will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of the Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company has been advised that DTC, upon receipt of any payment of
principal or interest in respect of a Global Security, will credit immediately
the accounts of DTC Participants with payment in amounts proportionate to their
respective holdings in principal amount of beneficial interest in such Global
Security as shown on the records of DTC. The Company expects that payments by
DTC Participants to owners of beneficial interests in a Global Security will be
governed by standing customer instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name" and will be the responsibility of such DTC
Participants.
If the Depository with respect to a Global Security is at any time
unwilling or unable to continue as Depository and a successor Depository is not
appointed by the Company within 90 days, the Company will issue certificated
notes in exchange for the Debt Securities represented by such Global Security.
The information contained in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Company believes to
be reliable but the Company takes no responsibility for the accuracy thereof.
SAME-DAY SETTLEMENT
If a Prospectus Supplement so indicates, settlement for the Debt
Securities will be made by the underwriters, dealers or agents in immediately
available funds and all payments of principal and interest on the Debt
Securities will be made by the Company in immediately available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearinghouse or next-day funds. In contrast, the Debt
Securities subject to settlement in immediately available funds will trade in
the Depository's Same-Day Funds Settlement System until maturity, and secondary
market trading activity in such Debt Securities will therefore be required by
the Depository to settle in immediately available funds. No assurance can be
given as to the effect, if any, of settlement in immediately available funds on
trading activity in the Debt Securities.
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<PAGE> 18
EXCHANGE OF DEBT SECURITIES
Registered Debt Securities may be exchanged, subject to certain specified
restrictions, for an equal aggregate principal amount of registered Debt
Securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the registered Debt
Securities at an agency of the Company maintained for such purpose and upon
fulfillment of all other requirements of such agent. (Section 2.8(a))
To the extent permitted by the terms of a series of Debt Securities
authorized to be issued in registered form and bearer form, bearer Debt
Securities may be exchanged for an equal aggregate principal amount of
registered or bearer Debt Securities of the same series and date of maturity in
such authorized denominations as may be requested upon surrender of the bearer
Debt Securities with all unpaid coupons relating thereto at an agency of the
Company maintained for such purpose and upon fulfillment of all other
requirements of such agent. (Section 2.8(b)) As of the date of this
Prospectus, temporary United States Treasury regulations essentially prohibit
exchanges of registered Debt Securities for bearer Debt Securities and, unless
such regulations are modified, the terms of a series of Debt Securities will
not permit registered Debt Securities to be exchanged for bearer Debt
Securities.
AMENDMENT AND WAIVER
Subject to certain exceptions, the Debt Indenture and the Debt Securities
may be amended or supplemented by the Company and the Debt Trustee with the
written consent of the holders of a majority in principal amount of the
outstanding Debt Securities of each series affected by the amendment or
supplement (with each series voting as a class), or compliance with any
provision may be waived with the consent of the holders of a majority in
principal amount of the outstanding Debt Securities of each series affected by
such waiver (with each series voting as a class). However, without the consent
of each Securityholder affected, an amendment or waiver may not (i) reduce the
amount of Debt Securities whose holders must consent to an amendment or waiver,
(ii) change the rate of or change the time for payment of interest on any Debt
Security; (iii) change the principal of or change the Stated Maturity of any
Debt Security; (iv) reduce any premium payable upon redemption of any Debt
Security; (v) waive a default in the payment of the principal of or interest on
any Debt Security; (vi) make any Debt Security payable in money other than that
stated in the Debt Security; or (vii) impair the right to institute suit for
the enforcement of any payment on or with respect to any Debt Security.
(Section 9.02) The Debt Indenture may be amended or supplemented without the
consent of any Securityholder (i) to cure any ambiguity, defect or
inconsistency in the Debt Indenture or in the Debt Securities of any series;
(ii) to provide for the assumption of all the obligations of the Company under
the Debt Securities and any coupons appertaining thereto and under the Debt
Indenture by any corporation in connection with a merger, consolidation, or
transfer or lease of the Company's property and assets substantially as an
entirety, as provided for in the Debt Indenture; (iii) to secure the Debt
Securities; (iv) to provide for uncertificated Debt Securities in addition to
or in place of certificated Debt Securities; (v) to make any change that does
not adversely affect the rights of any Securityholder; (vi) to provide for the
issuance of and establish the form and terms and conditions of a series of Debt
Securities or to establish the form of any certifications required to be
furnished pursuant to the terms of the Debt Indenture or any series of Debt
Securities; or (vii) to add to rights of Securityholders. (Section 9.1)
SUCCESSOR ENTITY
The Company may consolidate with, or merge into, or be merged into, or
transfer or lease its property and assets substantially as an entirety to,
another U.S. corporation which assumes all the obligations of the Company under
the Debt Securities and any coupons appertaining thereto and under the Debt
Indenture if, after giving effect thereto, no default under the Debt Indenture
shall have occurred and be continuing. Thereafter, except in the case of a
lease, all such obligations of the Company shall terminate. (Section 5.1 and
Section 5.2)
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<PAGE> 19
DEFEASANCE, SATISFACTION AND DISCHARGE OF THE DEBT SECURITIES PRIOR TO MATURITY
Defeasance. Unless provided for otherwise in a Prospectus Supplement, if
the Company shall deposit with the Debt Trustee, in trust, at or before
maturity, lawful money or direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by the United
States of America in such amounts and maturing at such times that the proceeds
of such obligations to be received upon the respective maturities and interest
payment dates of such obligations will provide funds sufficient, in the opinion
of a nationally recognized firm of independent public accountants chosen by the
Company, to pay when due the principal of and interest on the Debt Securities
to maturity (such money or direct obligations of, or obligations guaranteed by,
the United States of America, initially deposited or equivalent cash or
securities subsequently exchanged therefor, to be held as security for the
payment of such principal and interest), then the Company may omit to comply
with certain of the terms of the Debt Indenture as they relate to the Debt
Securities, and the Event of Default described in clause (iv) under the caption
"Description of Debt Securities--Events of Default," and such other
restrictive covenants or Events of Default as may be set forth in the
Prospectus Supplement. Defeasance of the Debt Securities would be subject to
the satisfaction of certain conditions, including, among others, (i) the
absence of an Event of Default at the date of the deposit, (ii) the perfection
of the holders' interest in such deposit and (iii) that such deposit would not
result in a breach of a material instrument by which the Company is bound.
(Section 8.2)
Satisfaction and Discharge. Upon the deposit of money or securities
contemplated above and the satisfaction of certain conditions, the Company may
omit to comply with its obligations duly and punctually to pay the principal of
and interest on the Debt Securities, or with any Events of Default with respect
thereto, and thereafter the holders of Debt Securities shall be entitled only
to payment out of the money or securities deposited with the Debt Trustee.
Such conditions may include, among others, (i) except in certain limited
circumstances involving a deposit made within one year of maturity, (A) the
absence of an Event of Default at the date of deposit or on the 91st day
thereafter, and (B) the delivery to the Debt Trustee by the Company of an
opinion of nationally recognized tax counsel to the effect that holders of Debt
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge and will be subject to
Federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and discharge had not
occurred, and (ii) the receipt by the Company of an opinion of counsel to the
effect that such satisfaction and discharge will not result in a violation of
the rules of any nationally recognized exchange on which the Debt Securities
are listed. (Section 8.1)
EVENTS OF DEFAULT
The following events are defined in the Debt Indenture as "Events of
Default" with respect to a series of Debt Securities: (i) default in the
payment of interest on any Debt Security of such series for 30 days; (ii)
default in the payment of the principal of any Debt Security of such series;
(iii) default in the payment of any sinking fund installment required to be
made by the Company with respect to any series of Debt Securities; (iv) failure
by the Company for 90 days after notice to it to comply with any of its other
agreements in the Debt Securities of such series, in the Debt Indenture or in
any supplemental indenture under which the Debt Securities of that series may
have been issued; and (v) certain events of bankruptcy or insolvency. (Section
6.1) If an Event of Default occurs with respect to the Debt Securities of any
series and is continuing, the Debt Trustee or the holders of at least 25% in
principal amount of all of the outstanding Debt Securities of that series may
declare the principal (or, if the Debt Securities of that series are original
issue discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) of, and any accrued interest on, all the
Debt Securities of that series to be due and payable. Upon such declaration,
such principal (or, in the case of original issue discount Debt Securities,
such specified amount) and all accrued interest thereon shall be due and
payable immediately. (Section 6.2)
Securityholders may not enforce the Debt Indenture or the Debt Securities,
except as provided in the Debt Indenture. (Section 6.6) The Debt Trustee may
require indemnity satisfactory to it before it enforces the Debt Indenture or
the Debt Securities. (Section 7.1(f)) Subject to certain limitations, holders
of a majority in principal
18
<PAGE> 20
amount of the Debt Securities of each series affected (with each series
voting as a class) may direct the Debt Trustee in its exercise of any trust
power. (Section 6.5) The Debt Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of principal or interest)
if it determines in good faith that withholding notice is in their interests.
(Section 7.5) The Company is not required under the Debt Indenture to furnish
any periodic evidence as to the absence of default or as to compliance with the
terms of the Debt Indenture.
CONCERNING THE DEBT TRUSTEE
The Company may maintain banking relationships in the ordinary course of
business with the Debt Trustee.
PLAN OF DISTRIBUTION
The Company may sell the Securities in or outside the United States
through underwriters or dealers, directly to one or more purchasers, or through
agents. The Prospectus Supplement with respect to the Securities will set
forth the terms of the offering of the Securities, including the name or names
of any underwriters, dealers, or agents, the purchase price of the Securities
and the proceeds to the Company from such sale, any delayed delivery
arrangements, any underwriting discounts and other items constituting
underwriters' compensation, the initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers, and any securities
exchanges on which the Securities may be listed.
If underwriters are used in the sale of the Securities, the Securities may
be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of
sale. The Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of Securities will be named in
the Prospectus Supplement relating to such offering, and if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth
on the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters or
agents to purchase the Securities will be subject to conditions precedent and
the underwriters will be obligated to purchase all the Securities if any are
purchased. The initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
If dealers are utilized in the sale of Securities with respect to which
this Prospectus is delivered, the Company will sell such Securities to the
dealers as principals. The dealers may then resell such Securities to the
public at varying prices to be determined by such dealers at the time of
resale. The names of the dealers and the terms of the transaction will be set
forth in the Prospectus Supplement relating thereto.
Securities may be sold directly by the Company or through agents
designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any agent
involved in the offer or sale or the Securities with respect to which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
In connection with the sale of the Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Securities from
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters, agents, and dealers participating in the
distribution of the 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 the Securities by them may be deemed to be underwriting discounts
or commissions under the Securities Act.
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<PAGE> 21
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters, or dealers to solicit offers from certain types of
institutions to purchase Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers, and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments that such agents, dealers, or underwriters may be
required to make with respect thereto. Agents, dealers, and underwriters may
be customers of, engage in transactions with, or perform services for the
Company in the ordinary course of business.
The Preferred Stock, the Depositary Shares, the Common Stock Warrants and
the Debt Securities may or may not be listed on a national securities exchange.
The Common Stock currently trades on the NYSE, and any Common Stock offered
hereby will be listed on the NYSE, subject to an official notice of issuance.
No assurances can be given that there will be a market for the Securities.
LEGAL MATTERS
Certain legal matters concerning the validity of the Securities will be
passed upon for the Company by Neal, Gerber & Eisenberg, Chicago, Illinois.
Marshall E. Eisenberg, a partner of Neal, Gerber & Eisenberg, is the Secretary
of the Company.
EXPERTS
The consolidated financial statements and schedule of the Company as of
December 31, 1996 and 1995 and for the three years in the period ended December
31, 1996 have been incorporated by reference herein from the Company's Annual
Report on Form 10-K for the year ended December 31, 1996, and the combined
statement of revenues and certain expenses of the Lansing Mall, the Westwood
Mall and the Lakeview Mall for the year ended December 31, 1995 has been
incorporated by reference herein from the Company's Current Report on Form
8-K/A, as amended, dated February 18, 1997 in reliance upon the reports of
Coopers & Lybrand L.L.P., independent accountants, and upon the authority of
that firm as experts in accounting and auditing.
The statement of revenues and certain expenses of Park Mall for the year
ended December 31, 1995 has been incorporated by reference herein from the
Company's Current Report on Form 8-K/A, as amended, dated February 18, 1997 in
reliance upon the report of Addison, Roberts & Ludwig, P.C., independent
auditors, and upon the authority of that firm as experts in accounting and
auditing.
The statement of revenues and certain expenses of Market Place Shopping
Center for the year ended December 31, 1996 has been incorporated by reference
herein from the Company's Current Report on Form 8-K/A dated August 28, 1997 in
reliance upon the report of Shepard Schwartz & Harris LLP, independent
accountants, and upon the authority of that firm as experts in accounting and
auditing.
The statement of revenues and certain expenses of Southlake Mall for the
year ended December 31, 1996 has been incorporated by reference herein from the
Company's Current Report on Form 8-K/A dated August 28, 1997 in reliance upon
the report of KPMG Peat Marwick LLP, independent accountants, and upon the
authority of that firm as experts in accounting and auditing.
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<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are as
follows:
<TABLE>
<S> <C>
SEC registration fee.......................................... $303,031
Printing and engraving expenses............................... $115,000*
Legal fees and disbursements.................................. $150,000*
Accounting fees and disbursements............................. $ 20,000*
Transfer Agent's and Depositary's fees and disbursements...... $ 10,000*
Blue Sky fees and expenses.................................... $ 10,000*
Miscellaneous................................................. $ 25,000*
---------
Total...................................................... $633,031*
=========
</TABLE>
- ---------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. In its Certificate of
Incorporation, the Company has adopted (a) the provisions of Section 102(b)(7)
of the Delaware General Corporation Law ("DGCL"), which enables a corporation
in its certificate of incorporation or an amendment thereto to eliminate or
limit the personal liability of a director for monetary damages for breach of
the director's fiduciary duty, except (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the DGCL (providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) for any transaction from which a director
derived an improper personal benefit and (b) the provisions of Section 145 of
the DGCL, which provide that a corporation may indemnify any persons, including
officers and directors, who are, or are threatened to be made, parties to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation), by reason of the fact that such person was an
officer, director, employee or agent of the corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such officer, director, employee or agent acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the corporation's best interest and, with respect to criminal proceedings, had
no reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify officers or directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to
be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against expenses (including attorneys' fees)
that such officer or director actually and reasonably incurred.
The Company has entered into indemnification agreements with each of its
officers and directors. The indemnification agreements, among other things,
require the indemnification of the Company's officers and directors to the
fullest extent permitted by law, and require that the Company advance to the
officers and directors all related
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<PAGE> 23
expenses, subject to reimbursement if it is subsequenty determined that
indemnification is not permitted. Such indemnification agreements also provide
for the indemnification and advance of all expenses incurred by officers and
directors seeking to enforce their rights under the indemnification agreements,
and require the Company to cover officers and directors under the Company's
directors' and officers' liability insurance. Although the indemnification
agreements offer substantially the same scope of coverage afforded by provisions
in the Certificate and the Bylaws, such agreements provide greater assurance to
directors and officers that indemnification will be available, because, as a
contract, it cannot be modified unilaterally in the future by the Board of
Directors or by the stockholders to eliminate the rights they provide.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement (for Common Stock).*
1.2 Form of Underwriting Agreement (for Preferred Stock).*
1.3 Form of Underwriting Agreement (for Depositary Shares).*
1.4 Form of Underwriting Agreement (for Common Stock Warrants).*
1.5 Form of Underwriting Agreement (for Debt Securities).*
4.1 Specimen certificate representing Common Stock (incorporated by
reference to the Company's Registration Statement on Form S-11
(File No. 33-56640), filed on April 6, 1993).
4.2 Specimen certificate representing Common Stock Warrants.*
4.3 Specimen certificate representing Preferred Stock.*
4.4 Form of Common Stock Warrant Agreement.*
4.5 Form of Deposit Agreement.*
4.6 Form of Depositary Receipt.*
4.7 Form of Indenture.
5.1 Opinion of Neal, Gerber & Eisenberg.
12.1 Statement Regarding Computation of Consolidated Ratios of
Earnings to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Addison, Roberts & Ludwig, P.C.
23.3 Consent of Shepard Schwartz & Harris LLP.
23.4 Consent of KPMG Peat Marwick LLP.
23.5 Consent of Neal, Gerber & Eisenberg (included in its opinion
filed as Exhibit 5.1).
</TABLE>
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<PAGE> 24
<TABLE>
<S> <C>
24.1 Powers of Attorney (included on signature page).
25.1 Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939.*
</TABLE>
* To be filed by post-effective amendment or by a current report on Form
8-K pursuant to the Securities Exchange Act of 1934, as appropriate.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
provided, however, that paragraphs (i) and (ii) 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 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 insurance payments and the
payment by the registrant of expenses
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incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon 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, 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.
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<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on October 6, 1997.
GENERAL GROWTH PROPERTIES, INC.
(Registrant)
By: /s/ MATTHEW BUCKSBAUM
---------------------
Matthew Bucksbaum
Chairman of the Board and Chief Executive
Officer
We, the undersigned officers and directors of General Growth Properties,
Inc., hereby severally constitute Matthew Bucksbaum, Robert Michaels and
Bernard Freibaum, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, any and all amendments, including
post-effective amendments, to this registration statement, and to sign a new
registration statement pursuant to Rule 462(b) of the Securities Act of 1933,
and generally to do all such things in our name and behalf in such capacities
to enable General Growth Properties, Inc. to comply with the applicable
provisions of the Securities Act of 1933 and all requirements of the Securities
and Exchange Commission, and we hereby ratify and confirm our signatures as
they may be signed by our said attorneys, or any of them, to any and all such
amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on October 6, 1997, by the
following persons in the capacities indicated:
Signature Title
--------- -----
/s/ MATTHEW BUCKSBAUM Chairman of the Board, Chief Executive Officer
--------------------- and Director (Principal Executive Officer)
Matthew Bucksbaum
/s/ ROBERT MICHAELS President and Director
---------------------
Robert Michaels
/s/ JOHN BUCKSBAUM Executive Vice President and Director
---------------------
John Bucksbaum
/s/ BERNARD FREIBAUM Executive Vice President and Chief Financial Officer
--------------------- (Principal Financial and Accounting Officer)
Bernard Freibaum
II-5
<PAGE> 27
Director
---------------------
Anthony Downs
/s/ MORRIS MARK Director
---------------------
Morris Mark
/s/ BETH STEWART Director
---------------------
Beth Stewart
/s/ A. LORNE WEIL Director
---------------------
A. Lorne Weil
II-6
<PAGE> 28
EXHIBIT INDEX
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement (for Common Stock).*
1.2 Form of Underwriting Agreement (for Preferred Stock).*
1.3 Form of Underwriting Agreement (for Depositary Shares).*
1.4 Form of Underwriting Agreement (for Common Stock Warrants).*
1.5 Form of Underwriting Agreement (for Debt Securities).*
4.1 Specimen certificate representing Common Stock (incorporated by
reference to the Company's Registration Statement on Form S-11 (File
No. 33-56640), filed on April 6, 1993).
4.2 Specimen certificate representing Common Stock Warrants.*
4.3 Specimen certificate representing Preferred Stock.*
4.4 Form of Common Stock Warrant Agreement.*
4.5 Form of Deposit Agreement.*
4.6 Form of Depositary Receipt.*
4.7 Form of Indenture.
5.1 Opinion of Neal, Gerber & Eisenberg.
12.1 Statement Regarding Computation of Consolidated Ratios of Earnings
to Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Addison, Roberts & Ludwig, P.C.
23.3 Consent of Shepard Schwartz & Harris LLP.
23.4 Consent of KPMG Peat Marwick LLP.
23.5 Consent of Neal, Gerber & Eisenberg (included in its opinion filed
as Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
25.1 Form T-1, Statement of Eligibility under the Trust Indenture Act of
1939.*
</TABLE>
* To be filed by post-effective amendment or by a current report on Form
8-K pursuant to the Securities Exchange Act of 1934, as appropriate.
II-7
<PAGE> 1
EXHIBIT 4.7
===============================================================================
GENERAL GROWTH PROPERTIES, INC.
TO
[___________________________]
Trustee
_______________________
INDENTURE
Dated as of _____________, ____
_______________________
PROVIDING FOR ISSUANCE OF DEBT
SECURITIES IN SERIES
===============================================================================
<PAGE> 2
GENERAL GROWTH PROPERTIES, INC.
RECONCILIATION AND TIE BETWEEN INDENTURE DATED AS OF ______________, ____
AND THE TRUST INDENTURE ACT OF 1939. THIS RECONCILIATION SECTION DOES NOT
CONSTITUTE PART OF THE INDENTURE.
<TABLE>
<CAPTION>
TRUST INDENTURE ACT INDENTURE
OF 1939 SECTION SECTION
------------------- ---------
<S> <C>
310(a)(1).................................................... 7.10
(a)(2).................................................... 7.10
(a)(3) ............................................Inapplicable
(a)(4) ............................................Inapplicable
(b) .................................................7.08; 7.10
(c) ...............................................Inapplicable
311(a) ...................................................... 7.11
(b) ...................................................... 7.11
(c) ...............................................Inapplicable
312(a) ...................................................... 2.07
(b) ......................................................10.03
(c) ......................................................10.03
313(a) ...................................................... 7.06
(b)(1) ............................................Inapplicable
(b)(2) ..............................................4.03; 7.06
(c) ..........................................4.03; 7.06; 10.02
(d) ...................................................... 7.06
314(a) ................................................4.03; 10.02
(b) ...............................................Inapplicable
(c)(1) ...................................................10.04
(c)(2) ...................................................10.04
(c)(3) ............................................Inapplicable
(d) ...............................................Inapplicable
(e) ......................................................10.05
(f) ...............................................Inapplicable
315(a) ....................................................7.01(b)
(b) ................................................7.05; 10.02
(c) ....................................................7.01(a)
(d) ....................................................7.01(c)
(e) ...................................................... 6.11
316(a) (last sentence) ...................................... 2.11
(a)(1)(A) ................................................ 6.05
(a)(1)(B) ................................................ 6.04
(a)(2) ............................................Inapplicable
(b) ...................................................... 6.07
317(a)(1) ................................................... 6.08
(a)(2) ................................................... 6.09
(b) ...................................................... 2.06
318(a) ......................................................10.01
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
ARTICLE I
DEFINITIONS, INCORPORATION BY REFERENCE
AND RULES OF CONSTRUCTION
<S> <C> <C>
1.1. Definitions.................................................... 1
1.2. Other Definitions.............................................. 6
1.3. Incorporation by Reference of Trust Indenture Act.............. 7
1.4. Rules of Construction.......................................... 7
ARTICLE II
THE SECURITIES
2.1. Issuable in Series; Series Issuable in Tranches................ 8
2.2. Establishment of Terms and Form of Series of Securities........ 8
2.3. Execution, Authentication and Delivery......................... 10
2.4. Registrar and Paying Agent..................................... 11
2.5. Currency and Manner of Payments in Respect of Securities....... 11
2.6. Paying Agent to Hold Money in Trust............................ 15
2.7. Securityholder Lists; Ownership of Securities.................. 15
2.8. Transfer and Exchange.......................................... 16
2.9. Replacement Securities......................................... 16
2.10. Outstanding Securities......................................... 17
2.11. Securities Held by the Company or an Affiliate................. 18
2.12. Temporary Securities........................................... 18
2.13. Cancellation................................................... 18
2.14. Defaulted Interest ............................................ 19
2.15. Securities Issuable in the Form of a Global Security........... 19
2.16. Unregistered Securities Represented by Global Security......... 20
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUNDS
3.1. Notice to Trustee ............................................. 22
3.2. Selection of Securities to be Redeemed......................... 22
3.3. Notice of Redemption........................................... 22
3.4. Effect of Notice of Redemption................................. 23
3.5. Deposit of Redemption Price ................................... 23
</TABLE>
-i-
<PAGE> 4
TABLE OF CONTENTS
-----------------
(CONTINUED)
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C> <C>
3.6. Securities Redeemed in Part ................................... 23
3.7. Securities Acquired by the Company............................. 23
3.8. Mandatory and Optional Sinking Funds........................... 24
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
4.1. Payment of Securities.......................................... 25
4.2. Reports by the Company ........................................ 26
4.3. Statement of Officers as to Default ........................... 26
4.4. Filing with Listing Agent ..................................... 26
ARTICLE V
SUCCESSOR CORPORATION
5.1. When Company May Merge, etc. .................................. 26
5.2. Successor Corporation Substituted.............................. 27
ARTICLE VI
DEFAULTS AND REMEDIES
6.1. Events of Default ............................................. 27
6.2. Acceleration .................................................. 28
6.3. Other Remedies Available to Trustee............................ 28
6.4. Waiver of Existing Defaults.................................... 28
6.5. Control by Majority............................................ 29
6.6. Limitation on Suits by Securityholders......................... 29
6.7. Rights of Holders to Receive Payment........................... 29
6.8. Collection Suits by Trustee ................................... 29
6.9. Trustee May File Proofs of Claim............................... 30
6.10. Priorities .................................................... 30
6.11. Undertaking for Costs.......................................... 30
</TABLE>
-ii-
<PAGE> 5
TABLE OF CONTENTS
-----------------
(CONTINUED)
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
ARTICLE VII
TRUSTEE
<S> <C> <C>
7.1. Duties of Trustee.............................................. 30
7.2. Rights of Trustee ............................................. 31
7.3. Individual Rights of Trustee .................................. 31
7.4. Trustee's Disclaimer .......................................... 31
7.5. Notice of Defaults ............................................ 32
7.6. Reports by Trustee to Holders ................................. 32
7.7. Compensation and Indemnity .................................... 32
7.8. Replacement of Trustee ........................................ 33
7.9. Successor Trustee, Agents by Merger, etc. ..................... 34
7.10. Eligibility; Disqualification ................................. 34
7.11. Preferential Collection of Claims Against Company.............. 34
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
8.1. Satisfaction and Discharge of Securities of any Series......... 35
8.2. Defeasance of Securities of any Series ........................ 36
8.3. Application of Trust Funds; Indemnification.................... 37
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1. Without Consent of Holders .................................... 37
9.2. With Consent of Holders ....................................... 38
9.3. Compliance with Trust Indenture Act............................ 39
9.4. Revocation and Effect of Consents.............................. 39
9.5. Notation on or Exchange of Securities.......................... 39
ARTICLE X
MISCELLANEOUS
10.1. Trust Indenture Act Controls................................... 39
10.2. Notices ....................................................... 39
</TABLE>
-iii-
<PAGE> 6
TABLE OF CONTENTS
-----------------
(CONTINUED)
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C> <C>
10.3. Communication by Holders with Other Holders................... 40
10.4. Certificate and Opinion as to Conditions Precedent............ 40
10.5. Statements Required in Certificate or Opinion ................ 41
10.6. Rules by Trustee and Agents................................... 41
10.7. Payments on Business Day...................................... 41
10.8. Governing Law ................................................ 41
10.9. No Adverse Interpretation of Other Agreements................. 41
10.10. No Recourse Against Others ................................... 41
10.11. Acts of Successor Corporation................................. 41
10.12. Execution in Counterparts..................................... 42
</TABLE>
-iv-
<PAGE> 7
THIS INDENTURE is dated as of _____________, _____ between GENERAL GROWTH
PROPERTIES, INC., a Delaware corporation (hereinafter sometimes referred to as
the "Company"), and [______________________________], a [_____________], as
trustee (hereinafter sometimes referred to as the "Trustee") sets forth certain
of its provisions in full and incorporates others by reference to specified
portions of the Trust Indenture Act of 1939, as amended, as in effect on the
date of this Indenture. The provisions as are set forth in full, the
provisions as are incorporated by reference and the provisions as are set forth
in all supplements hereto shall constitute a single instrument.
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
"securities" as herein provided; and
WHEREAS, all things necessary to make this Indenture a valid and binding
agreement of the Company, in accordance with its terms, have been done;
NOW THEREFORE: For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually covenanted and agreed
as follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS, INCORPORATION BY REFERENCE
AND RULES OF CONSTRUCTION
SECTION 1.1. Definitions.
The terms defined in this Section 1.1. (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.1.
Affiliate: The term "Affiliate" means any Person directly or
indirectly controlling or controlled by, or under
direct or indirect common control with, the
Company.
Agent: The term "Agent" means any Paying Agent or
Registrar.
Authenticating Agent: The term "Authenticating Agent" means any person
or persons authorized by the Trustee to act on
behalf of the Trustee to authenticate one or more
Series of Securities.
Authorized Newspaper: The term "Authorized Newspaper" means a newspaper
of general circulation, in the official language of
the country of publication or in the English
language, customarily published on each business
day. Whenever successive weekly publications in
an Authorized Newspaper are required hereunder
they may be made (unless otherwise expressly
provided herein) on the same or different days of
the week and in the same or different Authorized
Newspapers.
Board of Directors: The term "Board of Directors" means the Board of
Directors of the Company or any duly authorized
committee thereof.
Board Resolution: The term "Board Resolution" means a copy of a
resolution of the Board of Directors, certified by
the Assistant Secretary of the Company to have
been adopted by the Board of Directors and to be
in full force and effect on the date of the
certificate, and delivered to the Trustee.
<PAGE> 8
Business Day: The term "Business Day" means, except as may
otherwise be provided in the form of Securities of
any particular Series, with respect to any Place of
Payment, any day, other than a Saturday or Sunday,
that is not a legal holiday, or a day on which
banking institutions are authorized or required by
law or regulation to close in that Place of
Payment, and with respect to Securities denominated
in a Foreign Currency, the capital city of the
country of such Foreign Currency, and with respect
to Securities denominated in ECU, Brussels,
Belgium.
Capital Stock: The term "Capital Stock" means any and all shares
(however designated) of corporate stock now or
hereafter outstanding.
CEDEL: The term "CEDEL" means Centrale de Livraisons de
Valeurs Mobilieres SA.
Company: The term "Company" means the party named as such
in this Indenture until a successor replaces it
pursuant to the applicable provisions hereof and
thereafter means the successor.
Company Notice: The term "Company Notice" means the confirmation
of the Company, transmitted by telex, telecopy or
in writing to the Trustee of the terms of the
issuance of any Securities issuable in Tranches.
Company Order or
Company Request: The term "Company Order" or "Company Request"
means an order or request signed by two Officers or
by any Officer and an Assistant Treasurer or an
Assistant Secretary of the Company.
Default: The term "Default" means any event which is, or
after notice or passage of time would be, an
Event of Default.
Depositary: The term "Depositary" means, with respect to
Securities of any Series offered for sale in the
United States and for which the Company shall
determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New
York, New York, another clearing agency or any
successor registered under the Securities Exchange
Act of 1934, as amended, or other applicable
statute or regulation, and with respect to
Securities of any Series which are offered for sale
solely outside of the United States,
[____________________________], [______________]
office as common depositary for Euro-clear and
CEDEL or any successor thereto, which in each case
shall be designated by the Company pursuant to
either Section 2.2 or 2.15.
Dollar: The term "Dollar" means the coin or currency of
the United States of America which as of the time
of payment is legal tender for the payment of
public and private debts.
ECU: The term "ECU" means the European Currency Unit
as defined and revised from time to time by the
Council of the European Communities.
Euro-clear: The term "Euro-clear" means Morgan Guaranty Trust
Company of New York, Brussels office, as operator
of the Euro-clear System.
2
<PAGE> 9
European Communities: The term "European Communities" means the
European Economic Community, the European Coal and
Steel Community and the European Atomic Energy
Community.
Exchange Rate The term "Exchange Rate Officer's Certificate"
Officer's Certificate" means a telex or a certificate setting forth the
applicable Official ECU Exchange Rate and the
Dollar or Foreign Currency amounts payable on the
basis of such Official ECU Exchange Rate in respect
of the Principal of and interest on Registered
Securities, sent (in the case of a telex) or signed
(in the case of a certificate) by the treasurer or
any assistant treasurer of the Issuer, and
delivered to the Trustee.
Foreign Currency: The term "Foreign Currency" means a currency
issued by the government of any country other than
the United States of America.
GAAP: The term "GAAP" means, with respect to any
computation required or permitted hereunder,
generally accepted accounting principles in the
United States on the date of such computation.
Global Security: The term "Global Security" means, with respect
to any Series of Securities, a Security executed by
the Company and authenticated and delivered by the
Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with
this Indenture and pursuant to a Company Order,
which (i) shall be registered in the name of the
Depositary or its nominee and (ii) shall represent,
and shall be denominated in an amount equal to the
aggregate Principal amount of, all of the
Outstanding Securities of such Series or, pursuant
to a Company Order, all of the Outstanding
Securities of such Series not issued in definitive
form.
Holder or Securityholder: The term "Holder" or "Securityholder" means a
bearer of an Unregistered Security or of a coupon
appertaining thereto, or a person in whose name a
Registered Security is registered on the
Registrar's books.
Indenture: The term "Indenture" means this Indenture as
amended or supplemented from time to time and shall
include the forms and terms of particular Series of
Securities established as contemplated hereunder.
Investment: The term "Investment" means all loans, advances,
purchases of Capital Stock, capital contributions
and transfers of assets, and all sales and other
dispositions of assets for consideration consisting
of evidences of indebtedness, Capital Stock or
other securities of the purchaser.
Officer: The term "Officer" means the President, any Vice-
President, the Treasurer, the Secretary or the
Controller of the Company.
Officers' Certificate: The term "Officers' Certificate" means a
certificate signed by two Officers or by any
Officer and an an Assistant Secretary of the
Company.
Official ECU Exchange Rate: The term "Official ECU Exchange Rate" applicable
to any currency with respect to any payment to be
made hereunder means the exchange rate between the
ECU and such currency reported by the Commission of
the European Communities
3
<PAGE> 10
(currently based on the rates in effect at 2:30
p.m., Brussels time, on the relevant exchange
markets) or, if such exchange rate ceases to be so
reported, then such exchange rate shall be
determined by the Trustee using, in its sole
discretion and without liability on its part,
quotations from one or more major banks in New York
City or such other quotations as the Trustee shall
deem appropriate, on the applicable record date.
Opinion of Counsel: The term "Opinion of Counsel" means a written
opinion of legal counsel who is acceptable to the
Company and the Trustee. The counsel may be an
employee of or counsel to the Company.
Original Issue Discount
Security: The term "Original Issue Discount Security" mean
any Security which provides for an amount less
than the stated Principal amount thereof to be due
and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.2.
Person: The term "Person" means any individual,
corporation, partnership, joint venture,
association, joint-stock company, trust,
unincorporated organization or government, or any
agency or political subdivision thereof.
Place of Payment: The term "Place of Payment," when used with
respect to the Securities of any Series, means
the Principal office of the Trustee in Chicago
and the office of any Paying Agent, unless the
Company shall have otherwise instructed the
Trustee in writing.
Principal: The term "Principal" of a Security means the
principal amount of the security plus, when
appropriate, the premium, if any, on the security.
Principal office of
the Trustee: The term "Principal office of the Trustee," or
other similar term, shall mean the principal
office of the Trustee at which at any particular
time its corporate trust business shall be
administered.
Redemption Date: The term "Redemption Date," when used with
respect to any Security to be redeemed, means the
date fixed for such redemption by or pursuant
to this Indenture.
Redemption Price: The term "Redemption Price," when used with
respect to any Security to be redeemed, means the
price at which it is to be redeemed pursuant to
this Indenture.
Registered Security: The term "Registered Security" means any Security
issued hereunder and registered as to Principal
and interest by the Registrar.
Related Parties: The term "Related Parties" means "related
parties" as defined in Rule 1.02 (t) of
Regulation S-X of the SEC as in effect on the
date hereof.
Responsible Officer: The term "Responsible Officer", when used with
respect to the Trustee, shall mean the chairman
or any vice-chairman of the board of directors or
trustees, the chairman or any vice-chairman of
the executive committee of the board of directors
or trustees, the president, any vice president,
the treasurer, the
4
<PAGE> 11
secretary, any trust officer, any second or
assistant vice-president or any other officer or
assistant officer of the Trustee customarily
performing functions similar to those performed by
the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter
is referred because of his knowledge of and
familiarity with a particular subject.
SEC:
The term "SEC" means the Securities and Exchange
Commission.
Security: The term "Security" means any debenture, note or
other obligation of the Company issued,
authenticated and delivered under this Indenture.
Series or Series
of Securities: The term "Series" or "Series of Securities" means
a series of Securities. Except in Sections 2.1,
2.10 and 2.11 and Articles Six, Seven, Nine and
Ten, the terms "Series" or "Series of Securities"
shall also mean a Tranche in the event that the
applicable Series may be issued in separate
Tranches.
Stated Maturity: The term "Stated Maturity", when used with
respect to any Security or any installment of
Principal thereof or interest thereon, means the
date specified in such Security as the fixed date
on which the Principal of such Security or such
installment of Principal or interest is due and
payable.
Subsidiary: The term "Subsidiary" shall mean any corporation
of which the Company, or the Company and one or
more Subsidiaries, or any one or more
Subsidiaries, directly or indirectly own voting
securities entitling the holders thereof to elect
a majority of the directors, either at all times
or so long as there is no default or contingency
which permits the holders of any other class or
classes of securities to vote for the election of
one or more directors.
TIA: The term "TIA" means the Trust Indenture Act of
1939, as amended, as in effect on the date of
this Indenture.
Tranche: The term "Tranche" means all Securities of the
same Series which have the same issue date,
Stated Maturity, interest rate or method of
determining interest, and, in the case of
Original Issue Discount Securities, which have
the same issue price.
Trustee: The term "Trustee" means the party named as such
in this Indenture until a successor replaces it
pursuant to the applicable provisions hereof and
thereafter means the successor, and if, at any
time, there is more than one Trustee, "Trustee"
as used with respect to the Securities of any
Series, including all Tranches thereof, shall
mean the Trustee with respect to that Series,
including all Tranches thereof.
U.S. Government Obligations: The term "U.S. Government Obligations" means
securities which are (i) direct obligations of
the United States of America for the payment of
which its full faith and credit is pledged, or
(ii) obligations of a Person controlled or
supervised by and acting as an agency or
instrumentality of the United States of America
the payment of which is unconditionally
guaranteed as a full faith and credit obligation
by the United States of America, which in either
case are not callable or redeemable at the option
of the issuer thereof. U.S. Government
Obligations shall also include a depositary
receipt issued by a bank or trust
5
<PAGE> 12
company as custodian with respect to any such U.S.
Government Obligation or a specific payment of
interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of
the holder of a depositary receipt, provided, however,
that (except as required by law) such custodian is not
authorized to make any deduction from the amount
payable to the holder of such depositary receipt from
any amount received by the custodian in respect of
the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S.
Government Obligation evidenced by such depositary
receipt.
United States: The term "United States" means the United States of
America (including the States and the District of
Columbia), its territories, its possessions and any
other areas subject to its jurisdiction.
U.S. Person: The term "U.S. Person" means a citizen or resident of
the United States, any corporation, partnership or
other entity created or organized in or under the
laws of the United States or any political
subdivision thereof, or any estate or trust the
income of which is subject to United States federal
income taxation regardless of its source.
Unregistered Security: The term "Unregistered Security" means any Security
issued hereunder which is not a Registered Security.
Wholly-Owned Subsidiary: The term "Wholly-Owned Subsidiary" shall mean a
Subsidiary of which all of the stock (other than
directors' qualifying shares) is at the time,
directly or indirectly, owned by the Company or by
one or more Wholly-Owned Subsidiaries of the Company
or by the Company and one or more Wholly-Owned
Subsidiaries.
Yield to Maturity: The term "Yield to Maturity" means the yield to
maturity, calculated by the Company at the time of
issuance of a Series of Securities or, if applicable,
at the most recent determination of interest on such
Series in accordance with accepted financial
practice.
SECTION 1.2. Other Definitions.
<TABLE>
<CAPTION>
TERM SECTION
- ---- -------
<S> <C>
"Account Holder"................................... 2.16
"Bankruptcy Law"................................... 6.1
"Component Currency"............................... 2.5
"Conversion Date".................................. 2.5
"Custodian"........................................ 6.1
"Definitive Security".............................. 2.16
"Dollar Equivalent of the ECU"..................... 2.5
"Dollar Equivalent of the Foreign Currency"........ 2.5
"Event of Default"................................. 6.1
"Final Certificate"................................ 2.16
</TABLE>
6
<PAGE> 13
<TABLE>
<S> <C>
"Legal Holiday".................................... 10.7
"Market Exchange Rate"............................. 2.5
"Outstanding"...................................... 2.10
"Paying Agent"..................................... 2.4
"Permanent Global Security"........................ 2.16
"Registrar"........................................ 2.4
"Specified Amount"................................. 2.5
"Temporary Global Security"........................ 2.16
"Valuation Date"................................... 2.5
</TABLE>
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture which are defined in the TIA,
defined by SEC rule under the TIA or defined by TIA reference to the Securities
Act of 1933, as amended, shall (except as herein otherwise expressly provided
or unless the context otherwise requires) have the meanings assigned to such
terms in said TIA and in said Securities Act as in force at the date of this
Indenture as originally executed.
SECTION 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the
plural include the singular.
7
<PAGE> 14
ARTICLE II
THE SECURITIES
SECTION 2.1. Issuable in Series; Series Issuable in Tranches.
Subject to Section 2.9, the aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more Series. There may be Registered
Securities and Unregistered Securities within a Series and the Securities may
be subject to such restrictions, and contain such legends, as required by law
or as the Company deems necessary or appropriate. Except as provided in the
foregoing sentence, and except as to Series issuable in Tranches, all
Securities of a Series shall be identical in all respects except that
Securities of a Series with serial maturities may differ with respect to
maturity date, interest rate, redemption price and denomination. Securities of
different Series may differ in any respect; provided that all Series of
Securities shall be equally and ratably entitled to the benefits of this
Indenture.
Each Series may be issued in one or more Tranches. Except as provided in
the foregoing paragraph, all Securities of a Tranche shall have the same issue
date, Stated Maturity, interest rate or method of determining interest, and, in
the case of Original Issue Discount Securities, the same issue price.
SECTION 2.2. Establishment of Terms and Form of Series of Securities.
(a) At or prior to the issuance of any Series (including any Tranche) of
Securities, the following shall be established at the Company's discretion
either by or pursuant to a Board Resolution or by one or more indentures
supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of any other
Series and from any other securities issued by the Company);
(2) any limit upon the aggregate principal amount of the Securities
of the Series (or any limit upon the total aggregate principal amount of
more than one specified Series) which may be authenticated and delivered
under this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the Series pursuant to
Section 2.8, 2.9, 2.12, 3.6 or 9.5);
(3) the date or dates on which the Principal of the Securities of the
Series is payable;
(4) the rate or rates, which may be fixed or variable, at which the
Securities of the Series shall bear interest, if any, or the method of
calculating such rate or rates of interest, the date or dates from which
such interest shall accrue, the dates on which such interest shall be
payable and, with respect to Registered Securities, the record date for
the interest payable on any interest payment date;
(5) the place or places where the Principal of and interest, if any,
and additional amounts, if any, on Securities of the Series shall be
payable (if other than Place of Payment);
(6) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series may be
redeemed, in whole or in part, if at all;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of
a Holder thereof and the period or periods within which, the price or
prices at which, and the terms and conditions upon which, Securities of
the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
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(8) if in other than denominations of $1,000 and any integral multiple
thereof, the denominations, which may be in Dollars, any Foreign Currency
or ECU, in which Securities of the Series shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.2 or provable in bankruptcy pursuant to Section 6.3;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest coupons),
or both, and any restrictions applicable to the offering, sale or
delivery of Securities and whether, and the terms upon which,
Unregistered Securities of a Series may be exchanged for Registered
Securities of the same Series and vice versa;
(11) whether and under what circumstances Securities of the Series
shall be convertible into, or exchangeable for, Securities of any other
Series or any other securities of the Company or any Affiliate of the
Company;
(12) whether Securities of the Series are issuable as, or exchangeable
for, one or more Global Securities and, in such case, whether interests
in such Global Security or Global Securities shall be exchangeable for
definitive Securities, and the identity of the Depositary with respect to
such Series;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a person who
is not a U.S. person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(14) the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series), including such
legends as required by law or as the Company deems necessary or
appropriate, the form of any coupons or Temporary Global Security which
may be issued and the forms of any certificates which may be required
hereunder or which the Company may require in connection with the
offering, sale, delivery or exchange of Unregistered Securities;
(15) the monies or currency units in which payments of interest or
Principal are payable with respect to the Securities;
(16) whether Securities of the Series are issuable in Tranches;
(17) whether the principal amount of the Securities of the Series
payable at maturity is to be determined by the relationship between a
denominated currency and another currency; and
(18) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities of
that Series.
(b) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee prior to the issuance of such
Series together with (1) the form or forms of Securities which have been
approved attached thereto, or (2) if such Board Resolution authorizes a specific
Officer or Officers to approve the terms and form or forms of the Securities, a
certificate of such Officer or Officers approving the terms and form or forms of
Securities with such form or forms of Securities attached thereto.
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SECTION 2.3. Execution, Authentication and Delivery.
(a) Securities shall be executed on behalf of the Company by its
President or a Vice-President, and by its Treasurer or an Assistant Treasurer or
its Secretary or an Assistant Secretary. Signatures shall be manual or
facsimile. The Company's seal shall be reproduced on the Securities and may, but
need not, be attested. The coupons of Unregistered Securities shall bear the
facsimile signature of the Treasurer or an Assistant Treasurer of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary whose
signature is on a Security or coupon no longer holds that office at the time
the Security is authenticated, the Security or coupon shall be valid and
binding nevertheless.
(c) A Security shall not be valid until authenticated by the manual
signature of the Trustee or an Authenticating Agent and no coupon shall be valid
until the Security to which it appertains has been so authenticated. Such
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. Each Unregistered Security shall be dated as provided in
connection with the establishment of the Series thereof or, if no such date is
so specified, the date of its original issuance and each Registered Security
shall be dated the date of its authentication.
(d) The Trustee shall at any time, and from time to time, authenticate
and deliver Securities of any Series executed and delivered by the Company for
original issue, upon receipt by the Trustee of (i) a Company Order for the
authentication and delivery of such Securities, (ii) if the terms and form or
forms of the Securities of such Series have been established by or pursuant to a
Board Resolution as permitted by Section 2.2, a copy of such Board Resolution
and any certificate that may be required pursuant to Section 2.2(b) and (iii) an
Opinion of Counsel stating:
(1) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 2.2, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 2.2, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles;
provided, however, that in the case of any Series issuable in Tranches, if the
Trustee has previously received the documents referred to in Section 2.3(d)
(i), (ii) and (iii) with respect to any Tranche of such Series, the Trustee
shall authenticate and deliver Securities of such Series executed and delivered
by the Company for original issue upon receipt by the Trustee of the applicable
Company Notice.
Notwithstanding the foregoing, until the Company has delivered an
Officers' Certificate to the Trustee and the Registrar stating that, as a
result of the action described, the Company would not suffer adverse
consequences under the provisions of United States law or regulations in effect
at the time of the delivery of Unregistered Securities, (i) delivery of
Unregistered Securities will be made only outside the United States and (ii)
Unregistered Securities will be released in definitive form, whether in the
form of a Global Security or otherwise, to the person
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entitled to physical delivery thereof only upon presentation of a certificate
in the form prescribed by the Company in such Officers' Certificate.
(e) The aggregate Principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum Principal
amount for such Series set forth in the Board Resolution (or certificate of an
Officer or Officers) or supplemental indenture pursuant to Section 2.2.
(f) At any time the Trustee may appoint an Authenticating Agent or
Agents with respect to one or more Series of Securities which Authenticating
Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such Series, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time to time
(unless such Authenticating Agent shall otherwise agree) reasonable
compensation for its services under this Section.
SECTION 2.4. Registrar and Paying Agent.
The Company may maintain in the Borough of Manhattan, The City of New
York, State of New York, an office or agency where, unless otherwise restricted
by the provisions of Section 2.15, Registered Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where (subject to Sections 2.5(c) and 2.8(b)) Securities may be presented for
payment or, in the case of Unregistered Securities, for exchange ("Paying
Agent"). With respect to any Series of Securities issued in whole or in part
as Unregistered Securities, the Company shall maintain one or more Paying
Agents located outside the United States and shall maintain such Paying Agents
for a period of two years after the Principal of such Unregistered Securities
has become due and payable. During any period thereafter for which it is
necessary in order to conform to United States tax law or regulations, the
Company shall maintain a Paying Agent outside the United States to which the
Unregistered Securities or coupons appertaining thereto may be presented for
payment and will provide the necessary funds therefor to such Paying Agent upon
reasonable notice. The Registrar shall keep a register with respect to each
Series of Securities issued in whole or in part as Registered Securities and to
their transfer and exchange. The Company may appoint one or more co-Registrars
and one or more additional Paying Agents for each Series of Securities and the
Company may terminate the appointment of any co-Registrar or Paying Agent at
any time upon written notice. The term "Registrar" includes any co-Registrar.
The term "Paying Agent" includes any additional Paying Agent. The Company
shall notify the Trustee of the name and address of any Agent not a party to
this Indenture. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
SECTION 2.5. Currency and Manner of Payments in Respect of Securities.
(a) With respect to Securities denominated in Dollars or Foreign
Currency and with respect to Registered Securities denominated in ECU with
respect to which the Holders of such Securities have not made the election
provided for in paragraph (b) below, the following payment provisions shall
apply:
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(1) Except as provided in subparagraph (a) (2) below, in paragraphs
(e) and (j) below, in the applicable Company Notice, if any, or in the
form or forms of any Series of Security, payment of the Principal of any
Security will be made at the Place of Payment by delivery of a check in
the currency in which the Security is denominated on the payment date
against surrender of such Security, and any interest on any Security
which is a Registered Security will be paid at the Place of Payment by
mailing a check in the currency in which the Securities were issued to the
Person entitled thereto at the address of such Person appearing on the
Security register. Unless otherwise provided in the Board Resolution
establishing a Series or in the applicable Company Notice, if any,
interest on any Security which is an Unregistered Security will be paid in
the currency in which the Securities were issued in accordance with the
provisions of subparagraph (c) below.
(2) Payment of the Principal of and interest on such Security may
also, subject to applicable laws and regulations, be made at such other
place or places as may be designated by the Company by any appropriate
method.
(b) With respect to Registered Securities denominated in ECU, the
following payment provisions shall apply, except as otherwise provided in
paragraphs (e) and (f) below:
(1) The Board of Directors may provide that with respect to any
Series of such Securities that Holders shall have the option to receive
payments of Principal of and interest on such Security in any of the
currencies which may be designated for such election in such Security by
delivering to the Trustee and the Company a written election, to be in
form and substance satisfactory to the Trustee and the Company, not later
than the close of business on the record date immediately preceding the
applicable payment date. Such election will remain in effect for such
Holder until changed by the Holder by written notice to the Trustee (but
any such change must be made not later than the close of business on the
record date immediately preceding the next payment date to be effective
for the payment to be made on such payment date and no such change may be
made with respect to payments to be made on any Security with respect to
which notice of redemption has been given by the Company pursuant to
Article Three). Any Holder of any such Security who shall not have
delivered any such election to the Trustee not later than the close of
business on the applicable record date will be paid the amount due on the
applicable payment date in ECU as provided in paragraph (a) of this
Section 2.5. Payment of Principal shall be made on the payment date
against surrender of such Securities. Payment of Principal and interest
shall be made at the Place of Payment by mailing at such location a check
in the applicable currency to the Person entitled thereto at the address
of such Person appearing on the Security register.
(2) Payment of the Principal of and interest on such Security may
also, subject to applicable laws and regulations, be made at such other
place or places as may be designated by the Company.
(c) To the extent provided in the Securities of a Series, (i) interest, if
any, on Unregistered Securities shall be paid only against presentation and
surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) original issue discount (as defined in Section
1273 of the Internal Revenue Code of 1986 as it may be amended from time to
time), if any, on Unregistered Securities shall be paid only against
presentation and surrender of such Securities, in either case at the office of
a Paying Agent located outside of the United States, unless the Company shall
have otherwise instructed the Trustee in writing and only in the currency in
which the Security is denominated (except as provided in paragraph (e) below).
Principal of Unregistered Securities shall be paid only against presentation
and surrender thereof as provided in the Securities of a Series and only in the
currency in which the Security is denominated (except as provided in paragraph
(e) below, the Board Resolution establishing such Series, or the applicable
Company Notice, if any). If at the time a payment of Principal or interest, if
any, or original issue discount, if any, on an Unregistered Security or coupon
shall become due, the payment of the full amount so payable at the office or
offices of all the Paying Agents is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions on the
payment of such amount in Dollars or Foreign Currency, then the Company may
instruct the Trustee to make such payments at the office
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of a Paying Agent located in the United States, provided that provision for
such payment in the United States would not cause such Unregistered Security to
be treated as a "registration-required obligation" under United States tax law
and regulations.
(d) Not later than the fourth Business Day after the record date for each
payment date, the Trustee will deliver to the Company a written notice
specifying the aggregate amounts of Principal of and interest on the Securities
to be made on such payment date, specifying the amounts so payable in respect
of the Registered and the Unregistered Securities and the currencies or
currency units in which such payments are to be made. If the Board of
Directors has provided for the election referred to in paragraph (b) above and
if at least one Holder has made such election, then not later than the eighth
Business Day following each record date the Company will deliver to the Trustee
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. The Dollar or Foreign
Currency amount receivable by Holders of Registered Securities denominated in
ECU who have elected payment in such currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the applicable
Official ECU Exchange Rate set forth in the applicable Exchange Rate Officer's
Certificate.
(e) If the Foreign Currency in which any payments of Principal or
interest are to be made ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if the ECU
ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, then with respect to each date for the payment of Principal of and
interest on the applicable Securities occurring after the last date on which the
Foreign Currency or ECU was so used (the "Conversion Date"), the Dollar shall be
the currency of payment for use on each such payment date. The Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any Paying Agent to
the Holders of such Securities with respect to such payment date shall be the
Dollar Equivalent of the Foreign Currency or, in the case of ECU, the Dollar
Equivalent of the ECU as determined by the Trustee as of the record date (the
"Valuation Date") in the manner provided in paragraphs (g) or (h) below.
(f) If the Holder of a Registered Security with respect to which payments
of Principal or interest are to be made in ECU elects payment in a specified
Foreign Currency as provided for by paragraph (b) and such Foreign Currency
ceases to be used both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of or
within the international banking community, such Holder shall receive payment
in ECU, and if ECU ceases to be used both within the European Monetary System
and for the settlement of transactions by public institutions of or within the
European Communities, such Holder shall receive payment in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Trustee as of each Valuation Date and shall be obtained by converting the
specified Foreign Currency into Dollars at the Market Exchange Rate on the
Valuation Date.
(h) The "Dollar Equivalent of the ECU" shall be determined by the Trustee
as of each Valuation Date and shall be the sum obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate on the Valuation Date for such
Component Currency.
(i) For purposes of this Section 2.5 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units or fractions thereof which such Component Currency represented in the ECU
on the Conversion Date. If after the Conversion Date the official
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unit of any Component Currency is altered by way of combination or subdivision,
the Specified Amount of such Component Currency shall be divided or multiplied
in the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement, shall be equal to the
Specified Amount of such former Component Currency divided by the number of
currencies into which such Component Currency was divided, and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar buying
rate for that currency for cable transfers quoted in New York City on the
Valuation Date as quoted by the Federal Reserve Bank of New York. If such
rates are not available for any reason with respect to one or more currencies
for which an Exchange Rate is required, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City or in the country of issue of the
currency in question, or such other quotations as the Trustee shall deem
appropriate. Unless otherwise specified by the Trustee, if there is more than
one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities.
All decisions and determinations of the Trustee regarding the Dollar
Equivalent of the Foreign Currency, the Dollar Equivalent of the ECU and the
Market Exchange Rate shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and irrevocably binding upon
the Company and all Holders of the Securities. In the event that the Foreign
Currency ceases to be used both by the government of the country which issued
such currency and for the settlement of transactions by public institutions of
or within the international banking community, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 10.2 to
the Holders) specifying the Conversion Date. In the event the ECU ceases to be
used both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 10.2 to the Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the
event of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning thereof, will
similarly give notice to the Trustee (and the Trustee will promptly thereafter
give notice in the manner provided in Section 10.2 to the Holders).
The Trustee shall be fully justified and protected in relying on and
acting upon the information so received by it from the Company and shall not
otherwise have any duty or obligation to determine such information
independently.
(j) Principal and interest payable on a Security represented by an
interest in a Temporary Global Security pursuant to Section 2.16 will not be
paid until the Holder thereof exchanges the appropriate portion of such
Temporary Global Security for an interest in the Permanent Global Security
except as provided in the next paragraph.
Interest, if any, payable on a Security represented by a Temporary Global
Security in respect of an interest payment date occurring prior to the Exchange
Date will be paid to Euro-clear and CEDEL, as the case may be, with respect to
that portion of such Temporary Global Security held for its account; provided,
however, that no interest
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will be paid to Euro-clear and CEDEL, as the case may be, until delivery by it
to the Trustee of a certificate in form and substance acceptable to the
Company, dated no earlier than such interest payment date. Such a certificate of
Euro-clear or CEDEL, as the case may be, shall be based on certificates of their
Account Holders in form and substance acceptable to the Company, and dated no
earlier than 5 days prior to such interest payment date. The delivery to the
Trustee by Euro-clear or CEDEL of any such certificate may be relied upon by the
Company and the Trustee as conclusive evidence that a corresponding certificate
or certificates has or have been delivered to Euro-clear or CEDEL, as the case
may be, pursuant to the terms of this Indenture. Each of Euro-clear or CEDEL
will in such circumstances credit the interest received by it in respect of such
Security represented by such Temporary Global Security to the accounts of or for
the beneficial owners thereof.
The Permanent Global Securities will provide that interest, if any,
payable in respect of any interest payment date will be paid to each of
Euro-clear and CEDEL with respect to that portion of such Permanent Global
Security held for its account. Each of Euro-clear and CEDEL will in such
circumstances credit the interest received by it in respect of such Permanent
Global Security to the accounts of or for the beneficial owners thereof.
Interest, if any, will be payable in respect of Definitive Securities upon
the presentation and surrender of the appropriate coupons appertaining thereto.
(k) Notwithstanding anything contained herein to the contrary, any payment
of principal of or interest on any Security may be made in the manner specified
on the form of such Security.
SECTION 2.6. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any or all Series of Securities, or the Trustee, all money
held by the Paying Agent for the payment of principal of or interest on such
Series of Securities, and that the Paying Agent will notify the Trustee of any
default by the Company in the making of any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. If the Company or a subsidiary thereof acts as Paying
Agent, it shall segregate the money held by it for the payment of principal or
interest on any Series of Securities and hold such money as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee. Upon so doing the Paying Agent shall have no further
liability for the money so paid.
SECTION 2.7. Securityholder Lists; Ownership of Securities.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of each Series of Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee semiannually on or before the last day of
June and December in each year, and at such other times as the Trustee may
request in writing, a list, in such form and as of such date as the Trustee may
reasonably require, containing all the information in the possession or control
of the Registrar, the Company or any of its Paying Agents other than the
Trustee as to the names and addresses of Holders of each such Series of
Securities. If there are Unregistered Securities of any Series outstanding,
even if the Trustee is the Registrar, the Company shall furnish to the Trustee
such a list containing such information with respect to Holders of such
Unregistered Securities only.
(b) Ownership of Registered Securities of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or
by a certificate or affidavit executed by the person holding such Unregistered
Securities or by a depositary with whom such Unregistered Securities were
deposited, if the certificate or affidavit is satisfactory to the Trustee. The
Company, the Trustee and any agent of the Company may treat the bearer of any
Unregistered Security or coupon and the person in whose name a Registered
Security is registered as the absolute owner thereof for all purposes.
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SECTION 2.8. Transfer and Exchange.
(a) Where Registered Securities of a Series are presented to the Registrar
with a request to register their transfer or to exchange them for an equal
principal amount of Registered Securities of the same Series and date of
maturity of other authorized denominations, the Registrar shall, unless
otherwise restricted by the provisions of Section 2.15, register the transfer
or make the exchange if its customary requirements for such transactions are
met.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same Series and date of maturity in any
authorized denominations upon delivery to the Registrar (or a Paying Agent, if
the exchange is for Unregistered Securities) of the Unregistered Security with
all unmatured coupons and all matured coupons in default appertaining thereto
and if all other requirements of the Registrar (or such Paying Agent) and such
Securities for such exchange are met, and (ii) Registered Securities may be
exchanged for an equal principal amount of Unregistered Securities of the same
Series and date of maturity in any authorized denominations (except that any
coupons appertaining to such Unregistered Securities which have matured and have
been paid shall be detached) upon delivery to the Registrar of the Registered
Securities and if all other requirements of the Registrar (or such Paying Agent)
and such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered Securities for Unregistered Securities will
be subject to the satisfaction of the provisions of United States laws and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the
Company has notified the Trustee and the Registrar that, as a result of such
exchange, the Company would not suffer adverse consequences under such law or
regulations.
(c) To permit registrations of transfers and exchanges, the Trustee shall,
unless otherwise restricted by the provisions of Section 2.15, authenticate
Securities upon surrender of Securities for registration of transfer or for
exchange as provided in this Section. The Company will make any charge for any
registration of transfer or exchange but may require the payment by the party
requesting such registration of transfer exchange of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith, but not
for any exchange pursuant to Section 2.12, 3.6 or 9.5.
(d) Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities of any Series for the period of
15 days immediately preceding the selection of any such Securities to be
redeemed and ending at the close of business on the first publication of the
relevant notice of redemption, or (ii) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a
whole or the portion being redeemed of any such Securities selected, called or
being called for redemption in part.
(e) Notwithstanding the foregoing, no Securities of one Tranche may be
transferred or exchanged for Securities of any other Tranche.
(f) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
SECTION 2.9. Replacement Securities.
(a) If a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall issue and
the Trustee shall authenticate and deliver in exchange therefor a replacement
Registered Security, if such surrendered security was a Registered Security, or
a replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the surrendered Security, if such surrendered Security was an
Unregistered Security, of the same Series and date of maturity, if the Trustee's
requirements are met.
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(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Registered
Security, if such Holder's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim pertains to an Unregistered Security,
of the same Series and date of maturity, if the Trustee's requirements are met;
provided, however, that the Holder shall furnish to the Company and to the
Trustee evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof, and that the Trustee or the Company may
require any such Holder to provide to the Trustee or the Company security
or indemnity sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, any Agent or any Authenticating Agent from any
loss which any of them may suffer if a Security is replaced. The Company and
the Trustee may charge the party requesting a replacement Security for its
expenses in replacing a Security.
(c) In case any Security which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Security, pay or authorize the payment of such Security
(without surrender thereof except in the case of a mutilated Security) if the
applicant for such payment shall furnish to the Company such security or
indemnity as it may require to save it harmless and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company of the destruction,
loss or theft of such Security and of the ownership thereof.
(d) Every substituted Security issued pursuant to the provisions of this
Section 2.9 by virtue of the fact that any Security is mutilated, destroyed,
lost or stolen shall, with respect to such Security, constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall at any time be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued under this Indenture. All Securities
shall be held and owned upon the express condition that (to the extent lawful)
the foregoing provisions shall be exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies, notwithstanding any law or statute now
existing or hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without their
surrender.
(e) Notwithstanding the foregoing, a Security of one Tranche may not be
replaced with a Security of any other Tranche.
SECTION 2.10. Outstanding Securities.
(a) Securities outstanding at any time are all Securities authenticated
and delivered by the Trustee in accordance with the provisions of this
Indenture, except:
(i) Those cancelled by the Trustee and those delivered to it for
cancellation;
(ii) Securities which have been paid pursuant to Section 2.9 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, unless proof satisfactory to the Trustee
is presented that any such Securities are held by bona fide Holders in due
course; and
(iii) Securities or portions thereof for whose payment, redemption or
repayment at the option of the Holder money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (as defined in
Section 2.4) (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities or portions
thereof are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made.
(b) A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
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(c) In determining whether the Holders of the requisite principal amount
of outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.2 or
6.3 and the principal amount of any Securities denominated in a Foreign
Currency or ECU that shall be deemed to be outstanding for such purposes shall
be determined by converting the Specified Foreign Currency or the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate as
of the date of such determination.
SECTION 2.11. Securities Held by the Company or an Affiliate.
In determining whether the Holders of the requisite principal amount of
Securities of any Series have concurred in any direction, waiver or consent,
Securities of such Series owned by the Company or an Affiliate shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series which the Trustee knows are so owned shall be so
disregarded.
SECTION 2.12. Temporary Securities.
(a) Until definitive Registered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Registered Securities of such Series. Temporary
Registered Securities of any Series shall be substantially in the form of
definitive Registered Securities of such Series but may have variations that
the Company considers appropriate for temporary Securities. Every temporary
Registered Security shall be executed by the Company and authenticated by the
Trustee, and registered by the Registrar, upon the same conditions, and with
like effect, as a definitive Registered Security. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Registered Securities of the same Series and date of maturity in exchange for
temporary Registered Securities.
(b) Until definitive Unregistered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall
authenticate one or more temporary Unregistered Securities, which may have
coupons attached or which may be in the form of a single temporary global
Unregistered Security of that Series without coupons. The temporary
Unregistered Security or Securities of any Series shall be substantially in the
form approved by or pursuant to a Board Resolution or one or more Indentures
supplemental hereto and shall be delivered to one of the Paying Agents located
outside the United States or to such other person or persons as the Company
shall direct against such certification as the Company may from time to time
prescribe by or pursuant to a Board Resolution. The temporary Unregistered
Security or Securities of a Series shall be executed by the Company and
authenticated by the Trustee upon the same conditions, and with like effect, as
a definitive Unregistered Security of such Series, except as provided herein or
therein. A temporary Unregistered Security or Securities shall be exchangeable
for definitive Unregistered Securities (which may be Global Securities), at the
time and on the conditions, if any, specified in the temporary Security.
Upon any exchange of a part of a temporary Unregistered Security of a
Series for definitive Unregistered Securities of such Series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of definitive Unregistered Securities of such Series
so exchanged and endorsed.
SECTION 2.13. Cancellation.
The Company at any time may deliver Securities and coupons to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities and coupons surrendered to them, for registration of
transfer, for exchange or payment or for credit against any payment in respect
of a sinking or
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analogous fund. The Trustee shall cancel all Securities and coupons
surrendered for registration of transfer, or for exchange, payment or
cancellation and may dispose of cancelled Securities and coupons as the Company
directs; provided, however, that any Unregistered Securities of a Series
delivered to the Trustee for exchange prior to maturity shall be retained by the
Trustee for reissue as provided herein or in the Securities of such Series. The
Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.
SECTION 2.14 Defaulted Interest.
If the Company defaults on a payment of interest on a Series of
Securities, it shall pay the defaulted interest as provided in such Securities
or in any lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed and acceptable to
the Trustee. With respect to any Registered Securities, the Trustee may pay
defaulted interest, plus any interest payable on the defaulted interest, to the
Holders of such Registered Securities on a subsequent special record date. The
Company shall fix the record date and the payment date. At least 15 days
before the record date, the Company shall mail to such Holders a notice that
states the record date, the payment date and the amount of interest to be paid.
SECTION 2.15. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 2.2 that the
Securities of a particular Series are to be issued as one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with Section 2.3 and the Company Order delivered to the Trustee thereunder,
authenticate and deliver one or more Global Securities which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such Series, (ii)
shall be registered in the name of the Depositary for such Global Security or
its nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise provided in Section
2.15 of the Indenture, this Security may be transferred, in whole but not in
part, only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary."
(b) Notwithstanding any other provision of this Section 2.15 or of Section
2.4, unless and until it is exchanged in whole or in part for Securities in
definitive form, the Global Security of a Series may be transferred, in whole
but not in part and in the manner provided in Section 2.4, to another nominee
of the Depositary for such Series, or to a successor Depositary for such Series
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary for a Series of Securities notifies the
Company that it is unwilling or unable to continue as Depositary for such
Series or if at any time the Depositary for such Series shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation and a successor Depositary
for such Series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case
may be, this Section 2.15 shall no longer be applicable to the Security of such
Series and the Company will execute, and the Trustee will authenticate and
deliver, Securities of such Series in definitive registered form without
coupons, or in definitive bearer form with coupons, as applicable, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such Series in exchange for such
Global Security. In addition, the Company may at any time determine that some
or all of the Securities of any Series shall no longer be represented by a
Global Security. In such event, the Company will execute and the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver Securities of such Series in definitive
form, in authorized denominations, to (i) the Person specified by such
Depositary equal to and in exchange for such Person's beneficial interest in
the Global Security and (ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of
definitive Securities delivered to Holders thereof, or interests in applicable
portions thereof. Upon the exchange of the Global Security for all such
Securities in definitive form, in authorized
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denominations, the surrendered Global Security shall be cancelled by the
Trustee. Such Securities in definitive registered form issued in exchange for
the Global Security or portion thereof pursuant to this Section 2.15(c) shall be
issued in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose name such Securities are so registered. Securities in definitive
bearer form shall be issued in exchange for the Global Security or portion
thereof in the manner provided for the issuance of Unregistered Securities in
Section 2.12(b) above.
SECTION 2.16. Unregistered Securities Represented by Global Security.
(a) Unless otherwise specified by the applicable Company Order, the
Securities of any Series issued as Unregistered Securities will initially be
represented by one or more temporary global Securities, without interest coupons
(each, a "Temporary Global Security"). Upon receipt of a Company Order with
respect to a Series of Securities, the Trustee, in accordance with such Company
Order, shall (1) insert on the face of the Temporary Global Security for such
Series (a) the principal amount, (b) the issue date, (c) the maturity date, (d)
the interest rate or the method of determining such rate, and (e) any other
terms required by the form of the Security of such Series to be inserted, as
specified in the Company Order, (2) manually authenticate such Temporary Global
Security and (3) deliver such Temporary Global Security to the Depositary
designated by the Company pursuant to either Sections 2.2 or 2.15.
(b) On or after the date which is 45 days after the issue date of a
Temporary Global Security (the "Exchange Date"), the Securities represented by
such Temporary Global Security may be exchanged for Securities to be represented
thereafter by a single permanent global Security, without interest coupons (a
"Permanent Global Security"), provided, however, that no Security represented by
a Temporary Global Security shall be exchanged for a Security represented by a
Permanent Global Security unless the Trustee shall have received a certificate
(a "Final Certificate"), in form and substance reasonably satisfactory to the
Company, signed by Euro-clear or CEDEL, as the case may be, in respect of such
Security. On or after the Exchange Date and upon receipt of the Final
Certificate in respect of a Security, dated no earlier than such Exchange Date,
the Trustee shall (1) endorse the Temporary Global Security to reflect the
reduction of its principal amount by the aggregate principal amount of such
Security, (2) insert on the face of the Permanent Global Security for such
Series (a) the principal amount, (b) the issue date, (c) the maturity date, (d)
the interest rate or method of determining such rate, and (e) any other terms
required by the form of the Security of such Series to be inserted, as set forth
on the face of the Temporary Global Security for such Series, (3) manually
authenticate such Permanent Global Security and (4) deliver such Permanent
Global Security to the Depositary to be held outside the United States for the
accounts of Euro-clear and CEDEL, for credit to the respective accounts at
Euro-clear and CEDEL designated by or on behalf of the beneficial owner of such
Security. Final Certificates of Euro-clear or CEDEL, as the case may be, shall
be based on certificates of the account holders listed in the records of
Euro-clear or CEDEL, as the case may be, as being entitled to all or any portion
of the applicable Temporary Global Security (as to each, its "Account Holder").
An Account Holder of Euro-clear or CEDEL, as the case may be, desiring to effect
the exchange of an interest in a Temporary Global Security for an interest in a
Permanent Global Security shall instruct Euro-clear or CEDEL, as the case may
be, to request such exchange on its behalf and shall deliver to Euro-clear or
CEDEL, as the case may be, a certificate in form and substance reasonably
satisfactory to Euro-clear or CEDEL, as applicable, and dated no earlier than 10
days prior to the Exchange Date. Until so exchanged, Temporary Global Securities
shall in all respects be entitled to the same benefits under this Indenture as
Permanent Global Securities of the same Series authenticated and delivered
hereunder, except as to payment of interest, if any.
(c) The delivery to the Trustee by Euro-clear or CEDEL of any Final
Certificate referred to above may be relied upon by the Company and the Trustee
as conclusive evidence that a corresponding certificate or certificates has or
have been delivered to Euro-clear or to CEDEL, as the case may be, pursuant to
the terms of this Indenture.
At any time, upon 30 days' notice to the Trustee by Euro-clear or CEDEL,
as the case may be, acting at the request of or on behalf of the beneficial
owner, a Security represented by a Permanent Global Security may
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be exchanged for a definitive Security or Securities (each a "Definitive
Security"). On the thirtieth day following receipt by the Trustee of such
notice with respect to a Security, or, if such day is not a Business Day, the
next succeeding Business Day, the Trustee shall (1) endorse the applicable
Permanent Global Security to reflect the reduction of its principal amount by
the aggregate principal amount of such Security, (2) cause the terms of such
Security and coupons, if any, to be entered on a Definitive Security, (3)
manually authenticate such Definitive Security, and (4) deliver such Definitive
Security outside the United States to Euro-clear or CEDEL, as the case may be,
for or on behalf of the beneficial owner thereof.
(e) Any exchange of a portion of a Temporary Global Security for a
portion of a Permanent Global Security or of a portion of a Permanent Global
Security for a Definitive Security with coupons, if any, shall be made at the
Company's expense and without any charge therefor to the Holder or beneficial
owner of such Security; provided, however, that a person accepting the delivery
of Definitive Securities with coupons, if any, must bear the risk and cost of
insurance, postage, transportation and the like in the event that such person
does not receive such Definitive Securities with coupons, if any, in person at
the London office of the Trustee, if any, or at the London office of any Paying
Agent. Until so exchanged, Temporary Global Securities and Permanent Global
Securities shall in all respects be entitled to the same benefits under this
Indenture as Definitive Securities of the same Series authenticated and
delivered hereunder.
(f) The provisions of this Section are subject to any restrictions or
limitations on the issuance and delivery of Securities of any Series that may
be established pursuant to Section 2.2 (including any provision that Securities
of such Series initially issued in the form of a Temporary Global Security to
be delivered outside the United States and the procedures pursuant to which a
Permanent Global Security or Definitive Securities of such Series would be
issued in exchange for a Temporary Global Security.)
(g) If the form or terms of the Securities of a Series have been
established in or pursuant to one or more Board Resolutions as permitted by
Section 2.2, in authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating:
(i) if the form of such Securities and coupons, if any, appertaining
thereto has been established by or pursuant to a Board Resolution as
permitted by Section 2.2, that such form has been established in
conformity with the provisions of this Indenture;
(ii) if the terms of such Securities and coupons, if any,
appertaining thereto have been established by or pursuant to a Board
Resolution as permitted by Section 2.2, that such terms have been
established in conformity with the provisions of this Indenture; and
(iii) that such Securities and coupons, if any, appertaining
thereto, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture shall affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or any part thereof, or may
covenant to redeem and pay the Series of Securities or any part thereof, before
maturity at such time and on such terms as provided for in such Securities. If
a Series of Securities is redeemable and the Company wants or is obligated to
redeem all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee of the redemption date and the
principal amount of the Series of Securities to be redeemed. The Company shall
give such notice at least 60 days before the redemption date (or such shorter
notice as may be acceptable to the Trustee).
SECTION 3.2. Selection of Securities to be Redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee, not more than 60 days prior to the redemption date, shall select the
Securities of the Series to be redeemed in such manner as the Trustee shall
deem fair and appropriate. The Trustee shall make the selection from
Securities of the Series that are outstanding and that have not previously been
called for redemption. Securities of the Series and portions of them selected
by the Trustee shall be in amounts of $1,000 or integral multiples of $1,000
or, with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.2 (a) (8), in amounts equal to the minimum principal
denomination for each such Series and integral multiples thereof. Provisions
of this Indenture that apply to Securities of a Series called for redemption
also apply to portions of Securities of that Series called for redemption. The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
SECTION 3.3. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each Holder
of Registered Securities that are to be redeemed.
(b) If Unregistered Securities are to be redeemed, the Company shall cause
notice of redemption to be published in an Authorized Newspaper in each of The
City of New York, London and, if such Securities to be redeemed are listed on
The Luxembourg Stock Exchange, Luxembourg once in each of four successive
calendar weeks, the first publication to be not less than 30 nor more than 60
days before the redemption date.
(c) All notices shall identify the Series of Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a Series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
shall state the portion of the principal amount thereof to be redeemed
and shall state that on and after the date fixed for redemption, upon
presentation and surrender of such Security, a new Security or Securities
in principal amount equal to the unredeemed portion thereof will be
issued;
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(5) the name and address of the Paying Agent;
(6) that Securities of the Series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to
the Paying Agent to collect the redemption price;
(7) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date;
(8) whether such redemption is pursuant to the mandatory or optional
sinking fund, or both; and
(9) the CUSIP Number, if applicable.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. In any case, failure duly to
give notice by mail, or any defect in the notice, to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security.
SECTION 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published, Securities of a Series
called for redemption become due and payable on the redemption date, and unless
the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date, interest on the Securities
or portions of the Securities so called for redemption shall cease to accrue on
and after said date. Upon surrender to the Paying Agent of such Securities
together with all unmatured coupons, if any, appertaining thereto, such
Securities shall be paid at the redemption price plus interest accrued to the
redemption date, but installments of interest due on or prior to the redemption
date will be payable, in the case of Unregistered Securities, to the bearers of
the coupons for such interest upon surrender thereof, and, in the case of
Registered Securities, to the Holders of such Securities of record at the close
of business on the relevant record dates.
SECTION 3.5. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with, or at
the direction of, the Trustee money sufficient to pay the redemption price of
and (unless the redemption date shall be an interest payment date) interest
accrued to the redemption date on all Securities to be redeemed on that date,
in the currencies or currency units in which such redemption price shall be
payable.
SECTION 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder of the Security a new
Security or Securities of the same Series, in the same form and the same
maturity in authorized denominations equal in aggregate Principal amount to the
unredeemed portion of the Security surrendered.
SECTION 3.7. Securities Acquired by the Company.
If the Company shall acquire any of the Securities or coupons, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness or rights represented by such Securities or coupons unless and
until the same are delivered or surrendered to the Trustee for cancellation.
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SECTION 3.8. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms
of any Series of Securities is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of any Series of Securities is herein referred to as an "optional sinking
fund payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.13, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such Series (not previously so credited) redeemed by
the Company through any optional redemption provision contained in the terms of
such Series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any Series, the Company will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such Series, (b) stating that none of the Securities of such
Series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such Series have
occurred (which have not been waived or cured) and are continuing, (d) stating
whether or not the Company intends to exercise its right to make an optional
sinking fund payment with respect to such Series and, if so, specifying the
amount of such optional sinking fund payment which the Company intends to pay
on or before the next succeeding sinking fund payment date and (e) specifying
such sinking fund payment date. Any Securities of such Series to be credited
and required to be delivered to the Trustee in order for the Company to be
entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.13 to the Trustee with such written statement (or reasonably promptly
thereafter if acceptable to the Trustee). Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payment or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Company, on or before any such sixtieth day, to deliver
such written statement and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date,
the irrevocable election of the Company (i) that the mandatory sinking fund
payment for such Series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such Series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such Series as provided
in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Company shall so request) with respect to the
Securities of any particular Series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
Series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Company makes no such request then it shall be carried over until a sum in
excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 3.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such Series to absorb said cash, as
nearly as may be possible, and shall (if requested in writing by the Company)
inform the Company of the serial numbers of the Securities of such Series (or
portions thereof) so selected. Securities of any Series which are (a) owned by
the Company or an entity known by the Trustee to be directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company, as shown by the Security register, and not known to the Trustee to have
been pledged or hypothecated by the Company or any such entity
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or (b) identified in an Officers' Certificate at least 60 days prior to the
sinking fund payment date as being beneficially owned by, and not pledged or
hypothecated by, the Company or an entity directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company shall
be excluded from Securities of such Series eligible for selection for
redemption. The Trustee, in the name and at the expense of the Company (or the
Company, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such Series to be given in substantially the
manner provided in Section 3.3 (and with the effect provided in Section 3.4) for
the redemption of Securities of such Series in part at the option of the
Company. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such Series shall be added to the next cash
sinking fund payment for such Series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular
Series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such Series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the Principal of, and interest on, the Securities of such Series at
maturity.
At least one Business Day before each sinking fund payment date, the
Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
Series with sinking fund moneys or mail any notice of redemption of Securities
for such Series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such Series at the time when any such Default or Event of Default
shall occur, and any moneys thereafter paid into such sinking fund, shall,
during the continuance of such Default or Event of Default, be deemed to have
been collected under Article Six and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided
in Section 6.4 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Securities.
The Company shall pay or cause to be paid the Principal of and interest on
the Securities on the dates and in the manner provided herein and in the
Securities. An installment of Principal or interest shall be considered paid
on the date it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay the installment.
The Company shall pay interest on overdue Principal of a Security of any
Series at the rate of interest (or Yield to Maturity in the case of Original
Issue Discount Securities) borne by the Securities of that Series, and, to the
extent lawful, it shall pay interest on overdue installments of interest at the
same rate.
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SECTION 4.2. Reports by the Company.
The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Company may be required to file with the SEC pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the SEC,
in accordance with rules and regulations prescribed from time to time by the
SEC, such of the supplementary and periodic information, documents and reports
which may be required pursuant to section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the SEC, in accordance with the rules and
regulations prescribed from time to time by the SEC, such additional
information, documents, and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations; and
(c) to transmit by mail to all Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in subsection (c) of Section 7.6, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 4.2 as may be required by rules and
regulations prescribed from time to time by the SEC.
SECTION 4.3. Statement of Officers as to Default.
The Company will deliver to the Trustee, on or before a date not more than
four months after the end of each of its fiscal years ending after the date
hereof during which any Securities are outstanding, an Officers' Certificate
stating that neither of the signers thereof has any knowledge after due
investigation of the existence of any Event of Default, or any event which
could with the passage of time or notice mature into an Event of Default, by
the Company under this Indenture or stating that they have knowledge of the
existence of such an event of which the signers have knowledge and the nature
thereof.
SECTION 4.4. Filing with Listing Agent.
If Unregistered Securities of any series are Outstanding, to file with the
listing agent of the Company with respect to such series such documents and
reports of the Company as may be required from time to time by the rules and
regulations of any stock exchange on which such Unregistered Securities are
listed.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. When Company May Merge, etc.
The Company may not consolidate with, or merge into, or be merged into, or
transfer or lease its properties and assets substantially as an entirety to,
any Person unless such Person is a corporation organized under the laws of the
United States, any State thereof or the District of Columbia, such Person
assumes by supplemental indenture all the obligations of the Company under the
Securities and any coupons appertaining thereto and under this Indenture, after
giving effect thereto, no Default or Event of Default shall have occurred and
be continuing and
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the Company shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or
conveyance, transfer or lease, as the case may be, and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 5.2. Successor Corporation Substituted.
Upon any consolidation by the Company with, or merger by the Company into,
any other corporation, or any conveyance, transfer or lease to, any Person by
the Company in accordance with Section 5.1. the successor corporation 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 this Indenture
with the same effect as if such successor corporation had been named as the
Company in this Indenture, and thereafter, except in the case of a conveyance
by lease, the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default.
An "Event of Default" occurs with respect to the Securities of any Series
if:
(1) the Company defaults in the payment of interest on any Security
of that Series when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Company defaults in the payment of the Principal of any
Security of that Series when the same becomes due and payable at
maturity, upon redemption or otherwise;
(3) the Company defaults in the payment of any sinking fund
installment as and when the same becomes due and payable by the terms of
the Series of Securities;
(4) the Company fails to comply with any of its other agreements in
the Securities of that Series, in this Indenture or in any supplemental
indenture under which the Securities of that Series may have been issued
and the Default continues for the period and after the notice specified
below;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
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(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of all the outstanding
Securities of that Series notify the Company (and the Trustee in the case of
notification by such Holders) in writing of the Default and the Company does
not cure the Default within 90 days after receipt of the notice. The notice
must specify the Default, demand that it be remedied and state that the notice
is a "Notice of Default".
SECTION 6.2. Acceleration.
If an Event of Default occurs with respect to the Securities of any
Series and is continuing, the Trustee, by notice to the Company, or the Holders
of at least 25% in principal amount of all of the outstanding Securities of that
Series, by notice to the Company and to the Trustee, may declare the Principal
(or, if the 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, and any accrued interest on, all the Securities of that Series to
be due and payable. Upon such declaration, such Principal (or, in the case of
Original Issue Discount Securities, such specified amount) and any accrued
interest shall be due and payable immediately. The Holders of a majority in
principal amount of all of the Securities of that Series, by notice to the
Trustee, may rescind such a declaration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of Principal or interest
that has become due solely because of the acceleration. In case the Trustee
shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such waiver or
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the Trustee
and the Holders of the Securities shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Holders of the Securities shall continue as
though no such proceedings had been taken.
SECTION 6.3. Other Remedies Available to Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect payment of Principal or interest on the
Securities of the Series that is in default or to enforce the performance of
any provision of the Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4. Waiver of Existing Defaults.
The Holders of a majority in principal amount of any Series of Securities
by notice to the Trustee may waive an existing Default with respect to that
Series and its consequences except a Default in the payment of the Principal of
or interest on any Security.
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SECTION 6.5. Control by Majority.
The Holders of a majority in principal amount of the Securities of each
Series affected (with each such Series voting as a class) may 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 it with respect to the
Securities of that Series. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, if the Trustee in good
faith shall determine that the action or proceedings so directed may involve
the Trustee in personal liability or that is unduly prejudicial to the rights
of the Securityholders of that Series, it being understood that (subject to
Section 7.1) the Trustee shall have no duty to ascertain whether or not such
actions or forebearances are unduly prejudicial to such Securityholders.
SECTION 6.6. Limitation on Suits by Securityholders.
A Securityholder may pursue a remedy with respect to this Indenture or the
Securities of any Series only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to Securities of that Series;
(2) the Holders of at least 25% in principal amount of the
Securities of that Series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be,
or which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority in
principal amount of the Securities of that Series do not give the Trustee
a direction inconsistent with the request.
A Securityholder of any Series may not use this Indenture to prejudice the
rights of another Securityholder of that Series or any other Series or to
obtain a preference or priority over another Securityholder of that Series or
any other Series.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of Principal and interest on the
Security, on or after the respective due dates expressed in the Security, and
the right of any Holder of a coupon to receive payment of interest due as
provided in such coupon, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.8. Collection Suits by Trustee.
If an Event of Default specified in Section 6.1 (1) or (2) occurs and
continues for the period, if any, specified therein, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of such Principal and interest then remaining unpaid.
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SECTION 6.9. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and
the Securityholders allowed in any judicial proceedings relating to the
Company, its creditors or its property.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Holders of Securities in respect of which or for the
benefit of which such money has been collected for amounts due and unpaid
on such Securities for Principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for Principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date (with respect to Registered Securities)
and payment date for any such payment to Holders of Securities.
SECTION 7.1 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Company, a suit by the Trustee, a
suit by a Holder for the enforcement of the payment of the Principal of, or
interest on and any additional amounts on any Security, or a suit by a Holder
or Holders of more than 10% in Principal amount of the Securities of any
Series.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights and powers under this Indenture and use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine
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the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.
(f) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
SECTION 7.2. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written advice of counsel, a
certificate of an Officer or Officers delivered pursuant to Section 2.2(b), an
Officers' Certificate or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities. It shall not be accountable for the Company's use
of the proceeds from the Securities or for monies paid over to the Company
pursuant to the Indenture, and it shall not be responsible for any statement in
the Securities other than its certificate of authentication.
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SECTION 7.5. Notice of Defaults.
If a Default occurs and is continuing with respect to the Securities of
any Series and if it is known to the Trustee, the Trustee shall mail to each
Holder of a Security of that Series entitled to receive reports pursuant to
Section 4.2(c) (and, if Unregistered Securities of that Series are outstanding,
shall cause to be published at least once in an Authorized Newspaper in each of
The City of New York, London and, if Securities of that Series are listed on
The Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment of Principal,
interest or additional amounts on the Securities of any Series, or in the
payment of any sinking fund installment, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding such notice is in the interests of Securityholders of that
Series.
SECTION 7.6. Reports by Trustee to Holders.
(a) On or before the first anniversary date of the first issue of a
Series of Securities and thereafter at intervals of not more than 12 months,
the Trustee shall, if required by Section 313(a) of the TIA, mail to each
Securityholder of that Series entitled to receive reports pursuant to Section
4.2(c) a brief report dated as of such date that complies with TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b).
(b) The Trustee shall transmit to Securityholders of each Series, as
hereinafter provided, and to the Company a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section 7.6 (or if no such report has yet been so
transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of such Series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate ten percent or
less of the principal amount at Stated Maturity of Securities of such Series
outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) Reports to Securityholders pursuant to this Section 7.6 shall be
transmitted by mail:
(1) to all Holders of Registered Securities of each Series, as the
names and addresses of such Holders appear upon the register for each
Series of Securities;
(2) to such Holders of Unregistered Securities as have, within two
years preceding such transmission, filed their names and addresses with
the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection (b) of this
Section 7.6, to each Holder whose name and address is preserved at the
time by the Trustee, as provided in Section 2.7(a).
(4) At the time that it mails such a report to Securityholders of any
Series, the Trustee shall file a copy of that report with the SEC and
with each stock exchange on which the Securities of that Series are
listed. The Company shall provide written notice to the Trustee when the
Securities of any Series are listed on any stock exchange.
SECTION 7.7. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this
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Indenture. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss, liability or
expense incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or willful
misconduct.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any Series
on all money or property held or collected by the Trustee, except that held in
trust to pay Principal and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of any Series
by so notifying the Company. The Holders of a majority in principal amount of
the Securities of any Series may remove the Trustee with respect to that
Series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such Series with the Company's consent. The Company may remove
the Trustee with respect to Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company shall promptly appoint a successor Trustee for such Series.
(d) If a successor Trustee with respect to the Securities of any Series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such Series.
(e) If the Trustee with respect to the Securities of any Series fails to
comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of such Trustee
and the appointment of a successor Trustee.
(f) Upon the execution of the supplemental indenture referred to in
Section 7.8 (h), the resignation or removal of the retiring Trustee for any
Series of Securities shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the retiring Trustee with respect to
all Series of Securities for which the
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successor Trustee is to be acting as Trustee under this Indenture. The
retiring Trustee shall promptly transfer all property held by it as Trustee
with respect to such Series of Securities to the successor Trustee subject to
the lien provided for in Section 7.7. The Company shall give notice of each
appointment of a successor Trustee for any Series of Securities by mailing
written notice of such event by first-class mail to the Holders of Registered
Securities of such Series entitled to receive reports pursuant to Section
4.2(c) and, if any Unregistered Securities are outstanding, by publishing
notice of such event once in an Authorized Newspaper in each of The City of New
York, London, and, if Securities of that Series are listed on The Luxembourg
Stock Exchange, Luxembourg.
(g) All provisions of this Section 7.8 except subparagraphs (b) (1), (e)
and (h) and the words "subject to the lien provided for in Section 7.7" in
subparagraph (f) shall apply also to any Paying Agent located outside the U.S.
and its possessions and required by Section 2.4.
(h) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more Series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver a supplemental
indenture wherein such successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, such successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those Series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those Series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
administered by any other such Trustee.
(i) No successor Trustee shall accept appointment as provided in this
Section 7.8 unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under the provisions of Section 7.10.
SECTION 7.9. Successor Trustee, Agents by Merger, etc.
If the Trustee or any Agent consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business assets to,
another corporation, the successor corporation, without any further act, shall
be the successor Trustee or Agent, as the case may be.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee with respect to each Series of
Securities who satisfies the requirements of TIA Section 310 (a) (1). The
Trustee shall always have a combined capital and surplus of at least
$10,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to and shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of
TIA Section 310 (b) (9), except that in determining whether the Trustee has a
conflicting interest, as defined in TIA Section 310 (b) (1), there shall be
excluded all indentures of the Company now or hereafter existing which may be
excluded under the proviso of TIA Section 310(b) (1).
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to and shall comply with TIA Section 311 (a),
excluding any creditor relationship listed in TIA Section 311 (b). A Trustee
who has resigned or been removed shall be subject to TIA Section 311 (a) to
the extent indicated.
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<PAGE> 41
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.1. Satisfaction and Discharge of Securities of any Series.
Unless provided otherwise in the Board Resolution establishing the Series
of Securities, or in any indenture supplemental hereto, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of a Series, the provisions of this Indenture (except as to (x) the
rights of Holders of Securities of such Series to receive, from the money and
U.S. Government Obligations deposited with the Trustee pursuant to this Article
Eight or the interest and Principal received by the Trustee in respect of such
U.S. Government Obligations, payment of the Principal of and any installment of
Principal of or interest on such Securities on the Stated Maturities thereof or
upon the Redemption Dates for Securities required to be redeemed pursuant to
any mandatory sinking fund or analogous provisions relating to Securities of
that Series or pursuant to any call for redemption relating to Securities of
that Series, and (y) all rights and obligations of the Company and the Trustee
with respect to such Securities under Sections 2.4, 2.5, 2.6, 2.7, 2.8, 2.9,
4.1, 6.5, 6.7, 6.11, 7.7, 7.8, 8.3 and Article Five, so long as the Securities
of such Series remain Outstanding and, thereafter, only the Company's and the
Trustee's rights and obligations under Sections 2.6, 7.7 and 8.3) as it relates
to such Securities shall no longer be in effect, and the Trustee, at the
expense of the Company, shall, upon Company Request, execute proper instruments
acknowledging the same if either:
(a)(1) all Securities of such Series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.9
and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company) have
been delivered to the Trustee for cancellation;
(2) the Company has paid or caused to be paid all other sums payable
under this Indenture in respect of the Securities of such Series; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction of the entire
indebtedness on all Securities of any such Series and the discharge of
the Indenture as it relates to such Securities have been complied with;
or
(b)(1) all Securities of such Series not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or (iii)
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company;
(2) the condition described in paragraph (1) of Section 8.2 has been
satisfied;
(3) the conditions described in paragraphs (a) (2) and (a) (3) of
this Section 8.1 have been satisfied; and
(4) the Company has received an Opinion of Counsel to the effect that
the satisfaction and discharge contemplated by this Section 8.1 will not
violate the then applicable rules of, or any related undertaking of the
Company to, any national securities exchange on which Securities of that
Series are listed; or
(c) (1) the conditions referred to or described in paragraphs (b)
(2), (b)(3) and (b)(4) of this Section 8.1 have been satisfied;
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<PAGE> 42
(2) no Event of Default or event which with notice or lapse of time
would become an Event of Default shall have occurred and be continuing on
the date of the deposit referred to in paragraph (1) of Section 8.2 or on
the 91st day after the date of such deposit; provided, however, that
should that condition fail to be satisfied on or before such 91st day,
the Trustee shall promptly, upon satisfactory receipt of evidence of such
failure, return such deposit to the Company; and
(3) the Company has delivered to the Trustee an Opinion of Counsel
of a nationally-recognized independent tax counsel to the effect that
Holders of the Securities of such Series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit and
the satisfaction, discharge and defeasance contemplated by this paragraph
(c) of this Section 8.1 and will be subject to Federal income tax on the
same amounts and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred.
SECTION 8.2. Defeasance of Securities of any Series.
Unless provided otherwise in the Board Resolution
establishing the Series of Securities, or in any indenture
supplemental hereto, the Company may omit to comply with paragraph
4 of Section 6.01 of this Indenture shall not apply, as all of
such provisions relate to Securities of any Series, so long as the
Securities of such Series remain Outstanding and, thereafter, all
provisions of this Indenture in respect of such Securities shall
no longer be in effect except the Company's and the Trustee's
rights and obligations under Sections 2.06, 7.07 and 8.03, and the
Trustee at the expense of the Company shall, upon Company Request,
execute proper instruments acknowledging the same if:
(1) the Company has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose (A)
money in an amount, or (B) U.S. Government Obligations which
through the payment of interest and Principal in respect
thereof in accordance with their terms will provide on or
before the due date of any payment in respect of such Series
of Securities money in an amount, or (C) a combination
thereof, sufficient, after payment, based on then applicable
law, of all Federal, state and local taxes in respect
thereof payable by the Trustee, in the opinion of a
nationally-recognized firm of independent public accountants
selected by the Company expressed in a written certification
thereof delivered to the Trustee, to pay and discharge (i)
the Principal of and each installment of Principal of and
interest on the Outstanding Securities of that Series on the
Stated Maturity of such Principal or installment of
Principal or interest and (ii) any mandatory sinking fund
payments or analogous payments or payments pursuant to any
call for redemption applicable to Securities of such Series
on the day on which such payments are due and payable in
accordance with the terms of the Indenture and of such
Securities;
(2) no Event of Default or event which with notice or
lapse of time would become an Event of Default shall have occurred
and be continuing on the date of such deposit;
(3) the interest of the Holders in such deposit shall
have been duly perfected under the applicable provisions of
the Uniform Commercial Code;
(4) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the
Company is a party or by which it is bound; and
36
<PAGE> 43
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the defeasance contemplated by this Section have
been complied with.
SECTION 8.3. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of paragraph (c) of this Section, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 8.1 or 8.2 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee, shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the Principal and interest for
whose payment such money and U.S. Government Obligations have been deposited
with or received by the Trustees as contemplated by Section 8.1 or 8.2.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 8.1 or 8.2 or the interest and
Principal received in respect of such obligations, other than any such tax, fee
or other charge payable by or on behalf of Holders. The Company shall be
entitled to prompt notice of an assessment or the commencement of any
proceeding for which indemnification may be sought hereunder.
(c) The Trustee shall deliver or pay to the Company from time to time upon
Company Request any U.S. Government Obligations or money held by it as provided
in Section 8.1 or 8.2 which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such
obligations or money were deposited or received. The Trustee shall also
deliver or pay to the Company from time to time upon Company Request any U.S.
Government Obligations or money held by it as provided in Section 8.1 or 8.2,
in exchange for other U.S. Government Obligations or money, upon the following
conditions:
(1) such exchange shall occur simultaneously;
(2) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the exchange contemplated by paragraph
(c) of this Section have been complied with; and
(3) in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, immediately after such exchange the U.S. Government
Obligations or money then held by the Trustee as provided in Section 8.1
or 8.2 shall be in such amount as then would have been required to be
deposited in order to comply with Section 8.2(1) hereof.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Without Consent of Holders.
The Company and the Trustee may enter into one or more supplemental
indentures without consent of any Securityholder for any of the following
purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities of any Series;
37
<PAGE> 44
(2) to comply with Article 5;
(3) to secure the Securities;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(5) to make any change that does not adversely affect the rights of
any Securityholder;
(6) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as provided in Section 2.2, to
establish the form of any certifications required to be furnished
pursuant to the term of this Indenture or any Series of Securities, to
add to the rights of the Holders of any Series of Securities, or to
surrender any right or power conferred on the Company;
(7) to add to the rights of the Holders of any series of Securities;
or
(8) to provide for the appointment of a successor Trustee.
SECTION 9.2. With Consent of Holders.
(a) With the written consent of the Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company and
the Trustee may enter into a supplemental indenture to add any provisions to or
to change or eliminate any provisions of this Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by Section 9.1,
the rights of the Securityholders of each such Series. The Holders of a
majority in principal amount of the outstanding Securities of each Series
affected by such waiver (with each Series voting as a class), by notice to the
Trustee, may waive compliance by the Company with any provision of this
Indenture, any supplemental indenture or the Securities of any such Series
except a Default in the payment of the Principal of or interest on any
Security. However, without the consent of each Securityholder affected, an
amendment or waiver may not:
(1)reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on
any Security;
(3) change the Principal of or change the Stated Maturity of any
Security;
(4) reduce any premium payable upon the redemption of any Security;
(5) waive a Default in the payment of the Principal of or interest on
any Security;
(6) make any Security payable in money other than that stated in the
Security; or
(7) make any change in Section 6.4, 6.7 or 9.2(a) (third sentence).
(b) It is not necessary under this Section 9.2 for the Securityholders to
consent to the particular form of any proposed supplemental indenture, but it
is sufficient if they consent to the substance thereof.
(c) Upon the request of the Company, accompanied by a copy of a
resolution of the Board of Directors certified by the Secretary or an Assistant
Secretary of the Company authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
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<PAGE> 45
(d) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.2, the
Company shall transmit by mail a notice, setting forth in general terms the
substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities
as are entitled to receive reports pursuant to Section 4.2(c). Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
(e) Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Nine, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Securityholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.3. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.4. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every
Securityholder of each Series affected by such amendment or waiver.
SECTION 9.5. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall
authenticate new Securities of that Series that reflect the amendment or
waiver.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with a
provision which is required to be included in this Indenture by the TIA, the
required provision shall control. If any provision of this Indenture modifies
or excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 10.2 Notices.
(a) Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person or mailed by first-
class mail:
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<PAGE> 46
if to the Company to:
General Growth Properties, Inc.
55 West Monroe Street - Suite 3100
Chicago, Illinois 60603
Attn:
_________________________________
if to the Trustee to:
[______________________________]
[______________________________]
[______________________________]
[______________________________]
(b) The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Holders of Securities entitled to
receive reports pursuant to Section 4.2(c) shall be mailed by first class mail
to the addresses for Holders of Registered Securities shown on the register
kept by the Registrar and to addresses filed with the Trustee for other Holders.
Failure to so mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders of
Securities of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
(e) If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and to each Agent at the same time.
(f) If it shall be impractical in the opinion of the Trustee or the
Company to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
SECTION 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or of all Series with respect
to their rights under this Indenture or under the Securities of that Series or
of all Series. The Company, the Trustee, the Registrar and everyone else shall
have the protection of TIA Section 312(c).
SECTION 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
under this Indenture any action under any provisions of this Indenture, the
Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions have been complied with.
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<PAGE> 47
SECTION 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders of one or more Series. The Paying Agent or Registrar may make
reasonable rules and set reasonable requirements for its functions.
SECTION 10.7. Payments on Business Day.
If a payment date is not a Business Day, payment may be made at such place
on the next succeeding Business Day with the same force and effect as if made
on such payment date, and no interest shall accrue for the intervening period.
SECTION 10.8. Governing Law.
The laws of the State of Illinois shall govern this Indenture, the
Securities and any coupons appertaining thereto.
SECTION 10.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or an Affiliate. No such indenture, loan or debt
agreement may be used to interpret this Indenture.
SECTION 10.10. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligation of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligation or its creation. Each Securityholder by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
SECTION 10.11. Acts of Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
41
<PAGE> 48
SECTION 10.12. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
GENERAL GROWTH PROPERTIES, INC.
By:
----------------------------
Name:
Title:
(Seal)
Attest:
By:
----------------------------,
Name:
Title:
------------------------------,
Trustee
By:
------------------------------
Name:
Title:
(Seal)
Attest:
By:
------------------------------
Name:
Title:
42
<PAGE> 49
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
On the _____ day of ________________, in the year ____, before me
personally came ________________, to me known, who, being by me duly sworn, did
depose and say that ___ resides _____________________; that ___ is the
___________________ of GENERAL GROWTH PROPERTIES, INC., one of the corporations
described in and which executed the above instrument; that ___ knows the
corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that ___ signed ____ name thereto
by like authority.
[NOTARIAL SEAL]
_________________________
My Commission Expires: ______, _____
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
On the _____ day of January, in the year 1997, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that ___ resides _____________________; that ___ is the __________ of
[________________________________], as Trustee, one of the corporations
described in and which executed the above instrument; that ___ knows the
corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that ___ signed ____ name thereto
by like authority.
[NOTARIAL SEAL]
_________________________
My Commission Expires: ______, _____
43
<PAGE> 1
Exhibit 5.1
October 6, 1997
General Growth Properties, Inc
55 West Monroe Street - Suite 3100
Chicago, Illinois 60603
Re: General Growth Properties, Inc.
Registration Statement on Form S-3
Gentlemen:
As corporate counsel to General Growth Properties, Inc., a Delaware
corporation (the "Corporation"), we have assisted in the preparation and filing
with the Securities and Exchange Commission of a Registration Statement on Form
S-3 (the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Act"), relating to the offer and sale from time to time pursuant
to Rule 415 under the Act of one or more of the following securities for an
aggregate initial offering price not to exceed $1,000,000,000: (i) shares of
the Corporation's preferred stock, par value $100 per share (the "Preferred
Stock"), (ii) depositary shares representing entitlement to all rights and
preferences of a fraction of a share of Preferred Stock of a specified series
("Depositary Shares"), (c) shares of the Corporation's common stock, $.10 par
value (the "Common Stock"), (d) warrants to purchase shares of Common Stock
(the "Common Stock Warrants"), and (e) debt securities of the Corporation (the
"Debt Securities," and collectively with the Preferred Stock, the Depositary
Shares, the Common Stock and the Common Stock Warrants, the "Securities").
As such counsel, we have examined those agreements, certificates of public
officials, officers of the Corporation and other persons, records, documents
and matters of law that we have deemed relevant and necessary as a basis for
the opinions hereinafter expressed.
Based upon and subject to the foregoing and subject further to the
assumptions, exceptions and qualifications hereinafter stated, we are of the
opinion that:
1. With respect to shares of Preferred Stock, when both (A) the Board of
Directors of the Corporation or, to the extent permitted by Section 141(c) of
the General Corporation Law of the State of Delaware, a duly constituted and
acting committee thereof (such Board of Directors or committee being
hereinafter referred to as the "Board") has taken all necessary corporate
action to approve the issuance and terms of the Preferred Stock, the terms of
the offering thereof and related matters and, including the adoption of a
Certificate of Designation
<PAGE> 2
General Growth Properties, Inc.
October 6, 1997
Page 2
relating to such Preferred Stock (the "Certificate"), and the filing of the
Certificate with the Secretary of State of the State of Delaware and, (B)
certificates representing the shares of Preferred Stock have been duly
executed, countersigned, registered and delivered in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration therefor (not less than the par
value of the Preferred Stock) provided for therein, then the shares of
Preferred Stock will be legally issued, fully paid and nonassessable.
2. With respect to shares of Common Stock, when both (A) the Board has
taken all necessary corporate action to approve the issuance of the shares of
Common Stock, the terms of the offering thereof and related matters, and (B)
certificates representing the shares of Common Stock have been duly executed,
countersigned, registered and delivered either (i) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration therefor (not less than the par
value of the Common Stock) provided for therein or (ii) upon conversion or
exercise of any Warrant in accordance with the terms of the applicable Warrant
Agreement as approved by the Board, including, without limitation, payment of
the consideration specified in such Warrant Agreement (not less than the par
value of the Common Stock), or upon conversion of any convertible Preferred
Stock in accordance with the terms of the applicable Certificate as approved by
the Board for the consideration approved by the Board (not less than the par
value of the Common Stock), then the shares of Common Stock will be legally
issued, fully paid and nonassessable.
3. With respect to Depositary Shares, when (A) the Board has taken all
necessary corporate action to approve the issuance and terms of the Depositary
Shares, the terms of the offering thereof, and related matters, including the
adoption of a Certificate relating to the Preferred Stock underlying such
Depositary Shares and the filing of the Certificate with the Secretary of State
the State of Delaware, (B) the Depositary Agreement or Agreements relating to
the Depositary Shares and the related Depositary Receipts have been duly
authorized and validly executed and delivered by the Corporation and the
Depositary appointed by the Corporation, (C) the shares of Preferred Stock
underlying such Depositary Shares have been deposited with a bank or trust
company (which meets the requirements for the Depositary set forth in the
Registration Statement) under the applicable Depositary Agreements, and (D) the
Depositary Receipts representing the Depositary Shares have been duly executed,
countersigned, registered and delivered in accordance with the appropriate
Depositary Agreement and the applicable definitive purchase, underwriting or
similar agreement approved by the Board upon payment of the consideration
therefor provided for therein, the Depositary Shares will be legally issued.
4. With respect to the Warrants, when (A) the Board has taken all
necessary corporate action to approve the creation of and the issuance and
terms of the Warrants, the terms of the offering thereof, and related matters,
(B) the Warrant Agreement or Agreements relating
<PAGE> 3
General Growth Properties, Inc.
October 6, 1997
Page 3
to the Warrants have been duly authorized and validly executed and delivered by
the Corporation and the Warrant Agent appointed by the Corporation, and (C) the
Warrants or certificates representing the Warrants have been duly executed,
countersigned, registered and delivered in accordance with the appropriate
Warrant Agreement or Agreements and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment of the
consideration therefor provided for therein, the Warrants will be legally
issued.
5. With respect to the Debt Securities, when (A) the Board has taken all
necessary corporate action to approve the specific terms and provisions of each
series of Debt Securities, the terms of the offering thereof, and related
matters, (B) the Indenture, including supplements thereto, relating to the Debt
Securities has been duly authorized and validly executed and delivered by the
Corporation and the Trustee appointed by the Corporation, (C) the Debt
Securities are duly executed, authenticated, issued and delivered upon receipt
of payment therefor in accordance with the terms of the Indenture and in
accordance with the applicable definitive purchase, underwriting or similar
agreement approved by the Board, then the Debt Securities will be legally
issued and will constitute valid and binding obligations of the Corporation
entitled to the benefits of the Indenture, except as enforceability may be
limited by (a) applicable bankruptcy, insolvency, moratorium, reorganization or
other similar laws relating to or affecting enforcement of creditors' rights
generally and (b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or equity).
The opinions expressed above are subject in all respects to the following
assumptions, exceptions and qualifications.
a. We have assumed that (i) all information contained in all
documents reviewed by this firm is true and correct, (ii) all
signatures on all documents reviewed by this firm are genuine, (iii)
all documents submitted to this firm as originals are true and
complete, (iv) all documents submitted to this firm as copies are
true and complete copies of the originals thereof, (v) each natural
person signing any document reviewed by this firm had the legal
capacity to do so, and (vi) each person signing in a representative
capacity any document reviewed by this firm had authority to sign in
such capacity.
b. We have assumed that (i) the Registration Statement and any
amendments thereto (including post-effective amendments) will have
become effective under the Act and comply with all applicable laws;
(ii) the Registration Statement will be effective and will comply
with all applicable laws at the time the Securities are offered or
issued as contemplated by the Registration Statement (if such
offering or issuance requires the delivery of a prospectus under the
Act or pursuant to any other law); (iii) a Prospectus Supplement
will have been prepared and filed with the Securities and Exchange
Commission describing the Securities offered thereby
<PAGE> 4
General Growth Properties, Inc.
October 6, 1997
Page 4
and will comply with all applicable laws; (iv) all Securities
will be issued and sold in compliance with applicable federal and
state securities laws and in the manner stated in the Registration
Statement and the appropriate Prospectus Supplement; (v) a
definitive purchase, underwriting or similar agreement with respect
to any Securities offered or issued will have been duly authorized
and validly executed and delivered by the Corporation and the other
parties thereto; and (vi) any shares of Common Stock issuable upon
conversion or exercise of any Warrant or upon conversion of any
convertible Preferred Stock being offered or issued will be duly
authorized, created and reserved for issuance upon such exercise or
conversion.
c. We express no opinion as to the requirements of or compliance
with federal or state securities laws or regulations.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Registration Statement. In giving this consent, we do
not admit that our firm is, or the members thereof are in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
This opinion may not, without our prior written consent, be used or relied
upon by any person other than the addressee.
We note that Marshall Eisenberg, a partner of our firm, is the Secretary
of the Corporation and that certain partners of, and lawyers associated with,
our firm and members of their families, currently own shares of the
Corporation's Common Stock. No knowledge is to be imputed to this firm by
virtue of Mr. Eisenberg's position as Secretary of the Corporation.
Very truly yours,
/s/ Neal, Gerber & Eisenberg
<PAGE> 1
Exhibit 12.1
GENERAL GROWTH PROPERTIES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
-------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
AVAILABLE EARNINGS:
Net income (loss) $59,742 $43,054 $14,165 $12,610 $2,728
Adjustments:
Minority interest 34,580 25,856 9,518 9,823 -
Equity in net
(income) loss
of unconsolidated
affiliates (17,589) (9,274) (6,096) - 620
Distribution from
unconsolidated
affiliate(s) 35,322 23,462 14,600 - -
Interest expense(1) 71,266 49,099 45,847 42,136 50,439
-------- -------- ------- ------- -------
Available Earnings $183,321 $132,197 $78,034 $64,569 $53,787
======== ======== ======= ======= =======
FIXED CHARGES(2):
Interest expense(1) $71,266 $49,099 $45,847 $42,136 $50,439
Capitalized interest 5,947 5,409 913 107 1,625
-------- -------- ------- ------- -------
Fixed Charges $77,213 $54,508 $46,760 $42,243 $52,064
======== ======== ======= ======= =======
RATIO OF EARNINGS TO
FIXED CHARGES 2.37 2.43 1.67 1.53 1.03
======== ======== ======= ======= =======
</TABLE>
(1)Interest expense includes amortization of debt expense.
(2)Rental expense is not calculated because annual rental expense of the
company is insignificant.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
General Growth Properties, Inc. on Form S-3 of our reports dated February 11,
1997, on our audits of the consolidated financial statements and financial
statement schedule of General Growth Properties, Inc. as of December 31, 1996
and 1995, and for the three years in the period ended December 31, 1996
included in Annual Report on Form 10-K for the fiscal year ended December 31,
1996, and of our report dated January 10, 1997 on our audit of the combined
statement of revenues and certain expenses of the Lansing Mall, the Westwood
Mall and the Lakeview Mall for the year ended December 31, 1995 which report is
included in Form 8-K/A, as amended, of General Growth Properties, Inc. dated
February 18, 1997. We also consent to the reference to our firm under the
caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Chicago, Illinois
October 6, 1997
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in the Registration Statement of
General Growth Properties, Inc. on Form S-3 of our report dated July 19, 1996
on our audit of the Statement of Revenues and Certain Expenses of Park Mall for
the year ended December 31, 1995, which report is included in the Current
Report on Form 8-K/A dated February 18, 1997. We also consent to all
references to our firm included in or made a part of this Registration
Statement.
/s/ ADDISON, ROBERTS & LUDWIG, P.C.
Tucson, Arizona
October 6, 1997
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in the Registration Statement of
General Growth Properties, Inc. on Form S-3 of our report dated February 19,
1997 on our audit of the Statement of Revenues and Certain Expenses of Market
Place Shopping Center for the year ended December 31, 1996, which report is
included in the Current Report on Form 8-K/A dated August 28, 1997. We also
consent to all references to our firm included in or made a part of this
Registration Statement.
/s/ SHEPARD SCHWARTZ & HARRIS LLP
Chicago, Illinois
October 6, 1997
<PAGE> 1
Exhibit 23.4
The Board of Directors
General Growth Properties, Inc.:
We consent to the incorporation by reference in the Registration Statement,
related to the registration of securities with an aggregate initial offering
price not to exceed $1,000,000,000, on Form S-3 of General Growth Properties of
our report dated March 12, 1997, with respect to the Statement of Revenues and
Certain Expenses of Southlake Mall for the year ended December 31, 1996, which
report appears in the Current Report on Form 8-K/A of General Growth
Properties, Inc. dated August 28, 1997. We also consent to the reference to
our firm under the caption "Experts."
/s/ KPMG PEAT MARWICK LLP
Atlanta, Georgia
October 6, 1997
