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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE , 1997
REGISTRATION NO.: 333-26967
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CROWN AMERICAN REALTY TRUST
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 25-1713733
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or organization)
</TABLE>
PASQUERILLA PLAZA
JOHNSTOWN, PA 15901
(814) 536-4441
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JOHN M. KRIAK
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
PASQUERILLA PLAZA
JOHNSTOWN, PA 15901
(814) 536-4441
(Name, address, including zip code, and telephone number,
including area code of agent for service of process)
COPIES TO:
DAVID L. DENINNO, ESQ.
REED SMITH SHAW & MCCLAY
435 SIXTH AVENUE
PITTSBURGH, PA 15219
(412) 288-3214
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS DETERMINED BY
MARKET CONDITIONS.
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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 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, please 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. [ ]
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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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 WITHOUT THE DELIVERY OF A FINAL PROSPECTUS
SUPPLEMENT AND PROSPECTUS. 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.
PRELIMINARY PROSPECTUS DATED JUNE 12, 1997
SUBJECT TO COMPLETION
$300,000,000
CROWN AMERICAN REALTY TRUST
COMMON SHARES, COMMON SHARE WARRANTS, PREFERRED SHARES AND DEBT SECURITIES
Crown American Realty Trust ("Crown") may from time to time offer in one or
more series (i) common shares of beneficial interest, par value $.01 per share
(the "Common Shares"), (ii) Common Share warrants (the "Common Share Warrants"),
(iii) preferred shares of beneficial interest, par value $.01 per share (the
"Preferred Shares"), or (iv) debt securities (the "Debt Securities"), with an
aggregate public offering price of up to $300,000,000 in amounts, at prices and
on terms to be determined at the time of any such offering. Crown may offer the
Common Shares, Common Share Warrants, Preferred Shares and Debt Securities
(collectively, the "Securities") from time to time, separately or together, in
separate series, in amounts, at prices and on terms to be set forth in
supplements to this Prospectus (each a "Prospectus Supplement").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and
will include, where applicable: (i) in the case of Common Shares, the specific
number of shares and issuance price per share; (ii) in the case of Common Share
Warrants, the duration, offering price, exercise price and detachability; (iii)
in the case of Preferred Shares, the specific number of shares, designation, any
dividend, liquidation, redemption, conversion, voting and other rights, and
issuance price per share; and (iv) in the case of Debt Securities, the specific
title, aggregate principal amount, form (which may be registered or bearer, or
certificated or global), authorized denominations, maturity, rate (or manner of
calculation thereof) and time of payment of interest, terms for redemption at
the option of Crown or repayment at the option of the holder, terms for any
sinking fund payments, terms for conversion into Common Shares, Preferred Shares
or Debt Securities of another series, and any initial public offering price. In
addition, such specific terms may include limitations on direct or beneficial
ownership and restrictions on transfer of the Securities, in each case as may be
appropriate to preserve the status of Crown as a real estate investment trust
for federal income tax purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain federal income tax considerations relating to, and any
listing on a securities exchange of, the Securities covered by such Prospectus
Supplement.
The Securities may be offered directly, through agents designated from time
to time by Crown, or to or through underwriters or dealers. If any agents or
underwriters are involved in the sale of any of the Securities, their names, and
any applicable purchase price, fee, commission or discount arrangement between
or among them, will be set forth, or will be calculable from the information set
forth, in the applicable Prospectus Supplement. See "Plan of Distribution." No
Securities may be sold without delivery of the applicable Prospectus Supplement
describing the method and terms of the offering of such series of Securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement. Any statement contained in this
Prospectus will be deemed to be modified or superseded by any inconsistent
statement contained in an accompanying Prospectus Supplement.
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THE DATE OF THIS PROSPECTUS IS JUNE , 1997
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AVAILABLE INFORMATION
Crown 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 filed by Crown can be inspected and copied at
the public reference facilities of the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Midwest Regional Office, Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511; Northeast Regional Office, 7
World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material may be obtained from the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains a website at http://www.sec.gov
containing reports, prospectuses and information statements and other
information regarding registrants, including Crown, that file electronically.
Similar materials and other information concerning Crown also are available for
inspection at The New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
Crown has filed with the Commission a Registration Statement on Form S-3
(together with all amendments, exhibits and schedules, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Securities. The Prospectus and any accompanying Prospectus
Supplement do not contain all of the information included in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information with respect to Crown and
the Securities, reference is hereby made to the Registration Statement,
including the exhibits and schedules thereto. Statements contained in this
Prospectus and any accompanying Prospectus Supplement concerning the provisions
or contents of any contract, agreement or any other document referred to herein
are not necessarily complete. With respect to each such contract, agreement or
document filed as an exhibit to the Registration Statement, reference is made to
such exhibit for a more complete description of the matters involved, and each
such statement shall be deemed qualified in its entirety by such reference to
the copy of the applicable document filed with the Commission. The Registration
Statement may be inspected without charge at the Commission's principal office
at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and copies of
it or any part thereof may be obtained from such office, upon payment of the
fees prescribed by the Commission. The Registration Statement also may be
retrieved from the Commission's website.
This Prospectus, including the documents incorporated herein by reference,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the "Securities Act"). Also, documents
subsequently filed by Crown with the Securities and Exchange Commission and
incorporated herein by reference will contain forward-looking statements. Actual
results could differ materially from those projected in the forward-looking
statements as a result of any risk factors set forth in the Prospectus
Supplement and the matters set forth or incorporated in this Prospectus
generally. Crown cautions the reader, however, that any such list of factors may
not be exhaustive, particularly with respect to the future filings. Prospective
investors should carefully consider, among other factors, any risk factors
described in the Prospectus Supplement and the matters described below before
purchasing Shares.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have previously been filed by Crown with the
Commission are incorporated herein by reference:
(1) Crown's Annual Report on Form 10-K for the year ended December 31,
1996;
(2) Crown's Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1997;
(3) Crown's Proxy Statement with respect to its Annual Meeting of
Shareholders held on April 30, 1997.
All documents filed by Crown pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities made hereby shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained herein, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Prospectus
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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.
Crown will provide without charge to each person, including any beneficial
owner, to whom a copy of this Prospectus is delivered, on the written request of
any such person, a copy of any or all of the documents incorporated herein by
reference, except the exhibits to such documents (unless such exhibits are
specifically incorporated by reference in such documents). Requests for such
copies should be directed to Crown, Attention: Sharon Callihan, Investor
Relations, Crown American Realty Trust, Pasquerilla Plaza, Johnstown,
Pennsylvania 15901; telephone number 1-800-860-2011.
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CROWN
Crown American Realty Trust ("Crown") was formed on May 14, 1993 as a
Maryland real estate investment trust to acquire and operate substantially all
of the enclosed shopping mall properties and two office buildings (the
"Properties") owned by Crown American Associates ("Crown Associates"), formerly
Crown American Corporation. Crown Associates is a wholly-owned subsidiary of
Crown Holding Company ("Crown Holding"), which is owned by Frank J. Pasquerilla
and members of his immediate family. Crown Associates, which was founded in
1950, was engaged principally in the development, acquisition, ownership and
management of enclosed shopping malls and, to a lesser extent, strip shopping
centers, hotels and office buildings. Crown raised approximately $405 million in
equity through an initial public offering of approximately 25.5 million shares,
which occurred on August 17, 1993, and used the proceeds to purchase an initial
78% (74.6% as of May 31, 1997) general partnership interest in Crown American
Properties, L.P. (the "Operating Partnership"), a partnership which was formed
just prior to consummation of the initial public offering to own and operate the
Properties. The proceeds were used by the Operating Partnership to retire debt
related to the Properties.
Simultaneously with the initial public offering, Crown Associates and an
affiliate transferred the Properties and the management operations into either
Crown, the Operating Partnership, or Crown American Financing Partnership (the
"Financing Partnership"), a partnership which is 99.5% owned by the Operating
Partnership and 0.5% owned by Crown.
The limited partnership interest in the Operating Partnership and the 1.6
million shares in Crown received for two malls transferred in 1993 are currently
held by Crown Investments Trust ("Crown Investments"), by Crown American
Investment Company (a subsidiary of Crown Investments), and by members of the
Pasquerilla family.
Simultaneously with the above transactions, the Financing Partnership
borrowed $300 million of mortgage debt ( the "Mortgage Loans") secured by its 15
enclosed shopping malls. The $300 million of mortgage debt together with the
proceeds of the initial public offering were used to retire existing debt
contributed with the Properties.
Crown is a fully-integrated real estate company primarily engaged in the
ownership, operation, management, leasing, acquisition, development,
redevelopment, expansion, renovation and financing of enclosed shopping malls.
Crown's revenues are primarily derived under real estate leases with national,
regional and local department store and other retailing companies. The
Properties currently consist of 25 enclosed shopping malls, including a 50%
partnership interest in Palmer Park Mall (the "Malls"). Each Mall is an enclosed
shopping mall. All of the Malls have department stores as anchor tenants (the
"Anchors"). All of the malls have numerous diversified retail store tenants (the
"Mall Stores") which are located along enclosed malls connecting the Anchors.
Additional freestanding retail stores (the "Freestanding Stores") are located
along the perimeter of the parking areas at 17 of the Malls.
The total gross leasable area ("GLA") of the 25 Malls is approximately 14.3
million square feet, including Anchors, Mall Stores and Freestanding Stores. As
used herein, GLA of a Mall includes the GLA attributable to all Anchors,
including seven anchor locations owned by their occupants or other entities.
Anchors, Mall Stores and Freestanding Stores account for approximately 58%, 37%,
and 5%, respectively, of the total GLA of the Malls. Excluding Freestanding
Stores, the Malls range in size from approximately 300,000 to 830,000 square
feet of GLA with an average size of approximately 540,000 square feet of GLA.
Each Mall has ample surface parking with 19 of the Malls having parking ratios
above 5.0 per 1,000 square feet of GLA.
The Malls are generally located in middle markets where there are
relatively few other enclosed shopping malls. Crown's management believes that
the Malls have strong competitive positions because 21 are the largest, of which
13 are the only, enclosed regional shopping malls in their respective trade
areas. One of Crown's principal business strategies is the ongoing expansion and
renovation of its shopping malls to maintain and improve their competitive
position and market share.
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Crown also owns (i) an office building in Johnstown, Pennsylvania with
approximately 102,500 gross leasable square feet, which serves as Crown's
headquarters and is leased to Crown American's hotel division and to third
parties ("Pasquerilla Plaza") and (ii) a ground leasehold interest in one parcel
of land within a shopping center owned by a third party that is improved with a
building consisting of approximately 107,000 square feet of GLA subleased to an
anchor department store (the "Anchor Pad").
As the owner of real estate, Crown is subject to risks arising in
connection with the underlying real estate, including defaults under or
non-renewal of tenant leases, tenant bankruptcies, competition, inability to
rent unleased space, failure to generate sufficient income to meet operating
expenses, as well as debt service, capital expenditures and tenant improvements,
environmental matters, financing availability and changes in real estate and
zoning laws. The success of Crown also depends upon certain key personnel,
Crown's ability to maintain its qualification as a real estate investment trust
for federal income tax purposes (a "REIT"), compliance with the terms and
conditions of the Mortgage Loans and other debt instruments, and trends in the
national and local economy, including income tax laws, governmental regulations
and legislation, and population trends.
USE OF PROCEEDS
Unless otherwise indicated in the Prospectus Supplement accompanying this
Prospectus, Crown intends to use the net proceeds from the sale of the
Securities solely for investment purposes in the Operating Partnership. The
Board of Trustees may direct the use of such net proceeds for general corporate
purposes, which may include, among other things, the acquisition, development
and renovation of enclosed shopping malls as suitable opportunities arise, the
expansion and improvement of its existing Properties and the repayment of
outstanding indebtedness. Pending such uses, the net proceeds from the sale of
Securities may be invested in short-term investments.
RATIO OF EARNINGS TO FIXED CHARGES
Crown and its predecessor (prior to Crown's formation in 1993) historically
have generated positive cash flows from operating activities. However, after
deductions for real estate depreciation and amortization, the computation of the
ratios of earnings to fixed charges results in a deficiency in certain periods.
For the years ended December 31, 1994 and 1996, Crown's ratios of earnings to
fixed charges were 1.40 and 1.11 respectively. For the year ended December 31,
1995 and the quarter ended March 31, 1997 earnings were inadequate to cover
fixed charges by approximately $29.25 million and $2.34 million, respectively.
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges (excluding capitalized interest) to income (loss) before
extraordinary income and minority interest. Fixed charges consist of interest
costs, whether expensed or capitalized, and amortization of deferred debt
issuance costs.
DESCRIPTION OF SHARES
The following summary of the terms of the shares of Crown does not purport
to be complete and is subject to and qualified in its entirety by reference to
Title 8 of the Corporations and Associations Article of the Annotated Code of
Maryland ("Title 8") and to Crown's Second Amended and Restated Declaration of
Trust, dated August 6, 1993 ("Declaration of Trust") and bylaws. See "Available
Information".
GENERAL
Crown's Declaration of Trust authorizes Crown to issue up to 250,000,000
shares of beneficial interest, consisting of 120,000,000 Common Shares of
Beneficial Interest, 5,000,000 Preferred Shares of Beneficial Interest, par
value $.01 per share ("Preferred Shares") and 125,000,000 Excess Shares of
Beneficial Interest ("Excess Shares"). As of May 31, 1997, 27,688,511 Common
Shares of Beneficial Interest were issued and outstanding.
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The Declaration of Trust also provides that, subject to the provisions of
any class or series of the shares of beneficial interest of Crown then
outstanding and to mandatory provisions of law, the shareholders of Crown shall
be entitled to vote only on the following matters: (a) election or removal of
trustees of Crown (the "Trustees"); (b) amendment of the Declaration of Trust;
(c) termination of the existence of Crown; (d) reorganization of Crown; (e)
merger, consolidation or share exchange of Crown or the sale or disposition of
substantially all Crown's assets; and (f) termination of Crown's status as a
real estate investment trust for federal tax purposes. Except with respect to
the foregoing matters, no action taken by the shareholders of Crown at any
meeting shall in any way bind the Trustees.
Both Maryland statutory law governing real estate investment trusts
organized under the laws of that state and the Declaration of Trust provide that
no shareholder of Crown will be personally liable for any obligation of Crown.
The Declaration of Trust provides that Crown shall indemnify each shareholder
against any claim or liability to which the shareholder may become subject by
reason of his being or having been a shareholder, and that Crown shall reimburse
each shareholder for reasonable expenses incurred by him in connection with any
such claim or liability. Crown carries public liability insurance which it
considers adequate. Accordingly, any risk of personal liability to shareholders
should be limited to situations in which the law of another jurisdiction would
not respect Maryland's limitation on shareholder liability and then only to the
extent that Crown's assets plus its insurance coverage would be insufficient to
satisfy the claims against Crown and its shareholders.
COMMON SHARES OF BENEFICIAL INTEREST
The following description of the Common Shares sets forth certain general
terms and provisions of the Common Shares to which any Prospectus Supplement may
relate, including a Prospectus Supplement providing that Common Shares will be
issuable upon conversion of Debt Securities or Preferred Shares of Crown. The
statements below describing the Common Shares are in all respects subject to and
qualified in their entirety by reference to the applicable provisions of the
Declaration of Trust.
Each outstanding Common Share entitles the holder to one vote on all
matters submitted to a vote of shareholders, including the election of Trustees.
There is no cumulative voting in the election of Trustees, which means that the
holders of a majority of the outstanding Common Shares can elect all of the
Trustees then standing for election. Holders of Shares are entitled to such
distributions as may be declared from time to time by the Trustees in cash or
other assets of Crown, in securities of Crown or from any other legally
available source as the Trustees shall in their discretion determine.
Holders of the Common Shares have no conversion, redemption or preemptive
rights to subscribe to any securities of Crown. All outstanding Shares are fully
paid and nonassessable by Crown. In the event of any liquidation, dissolution or
winding-up of the affairs of Crown, holders of Common Shares will be entitled to
share ratably in the assets of Crown remaining after provision for payment of
liabilities to creditors and preferential rights of the Preferred Shares.
The Common Shares shall have equal dividend, distribution, liquidation and
other rights, and shall have no preference, appraisal, or exchange rights.
COMMON SHARE WARRANTS
Crown may issue Common Share Warrants for the purchase of Common Shares.
Common Share Warrants may be issued independently or together with any other
Securities offered pursuant to any Prospectus Supplement and may be attached to
or separate from such Securities. Each series of Common Share Warrants will be
issued under a separate warrant agreement (each, a "Warrant Agreement") to be
entered into between Crown and the warrant recipient or, if the recipients are
numerous, a warrant agent identified in the applicable Prospectus Supplement
(the "Warrant Agent"). The Warrant Agent, if engaged, will act solely as an
agent of Crown in connection with the Common Share Warrants of such series and
will not assume any obligations or relationship of agency or trust for or with
any holders or beneficial owners of Common Share Warrants. Further terms of the
Common Share Warrants and the applicable Warrant Agreements will be set forth in
the Prospectus Supplement.
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The applicable Prospectus Supplement will describe the terms of any Common
Share Warrants in respect of which this Prospectus is being delivered,
including, where applicable, the following: (1) the title of such Common Share
Warrants; (2) the aggregate number of such Common Share Warrants; (3) the price
or prices at which such Common Share Warrants will be issued; (4) the
designation, number and terms of the shares of Common Shares purchasable upon
exercise of such Common Share Warrants; (5) the designation and terms of the
other Securities with which such Common Share Warrants are issued and the number
of such Common Share Warrants issued with such offered Securities; (6) the date,
if any, on and after which such Common Share Warrants and the related Common
Stock will be separately transferable; (7) the price at which each Common Share
purchasable upon exercise of such Common Share Warrants may be purchased; (8)
the date on which the right to exercise such Common Share Warrants shall
commence and the date on which such right shall expire; (9) the minimum or
maximum amount of such Common Share Warrants which may be exercised at any one
time; (10) information with respect to book-entry procedures, if any; (11) a
discussion of certain federal income tax considerations relevant to a holder of
such Common Share Warrants; and (12) any other terms of such Common Share
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Common Share Warrants.
Reference is made to the section above entitled "Common Shares of
Beneficial Interest" for a general description of the Common Shares to be
acquired upon the exercise of the Common Share Warrants.
PREFERRED SHARES
The Preferred Shares authorized by the Declaration of Trust may be issued
from time to time in one or more series in such amounts and with such
designations, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms or
conditions of redemption as may be fixed by the Trustees. The following
description of the Preferred Shares sets forth certain anticipated general terms
and provisions of the Preferred Shares to which any Prospectus Supplement may
relate. Certain other terms of any class or series of Preferred Shares (which
terms may be different than those stated below) will be described in the
Prospectus Supplement to which such class or series relates. The statements
below describing the Preferred Shares are in all respects subject to and
qualified in their entirety by reference to the applicable provisions of the
Prospectus Supplement and Declaration of Trust (including any amendment
describing the designations, rights, and preferences of each class or series of
Preferred Shares) and bylaws.
Classification or Reclassification of Preferred Shares
The Declaration of Trust authorizes the Trustees to classify or reclassify
any unissued Preferred Shares by setting or changing the designations,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to distributions, qualifications or terms or conditions of
redemption of such Preferred Shares.
Rank
Unless otherwise specified in the Prospectus Supplement, the Preferred
Shares will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of Crown, rank (i) senior to all classes or series of
Common Shares of Crown, and to all equity and debt securities which are
specifically designated as ranking junior to such Preferred Shares with respect
to dividend rights or rights upon liquidation, dissolution or winding up of
Crown; (ii) on a parity with all equity and debt securities issued by Crown the
terms of which specifically provide that such equity and debt securities rank on
a parity with the Preferred Shares with respect to dividend rights or rights
upon liquidation, dissolution or winding up of Crown; and (iii) junior to all
equity and debt securities issued by Crown the terms of which specifically
provide that such equity and debt securities rank senior to the Preferred Shares
with respect to dividend rights or rights upon liquidation, dissolution or
winding up of Crown.
Dividends
Holders of shares of the Preferred Shares of each class or series shall be
entitled to receive, when, as and if declared by the Board of Trustees (as
defined below) of Crown, out of assets of Crown legally available for
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payment, cash dividends (or dividends in kind or in other property if expressly
permitted and described in the applicable Prospectus Supplement) at such rates
and on such dates as will be set forth in the applicable Prospectus Supplement.
Each such dividend shall be payable to holders of record as they appear on the
shares of beneficial interest transfer books of Crown on such record dates as
shall be fixed by the Board of Trustees of Crown.
Dividends on any class or series of the Preferred Shares may be cumulative
or non-cumulative, as provided in the applicable Prospectus Supplement.
Dividends, if cumulative, will be cumulative from and after the date set forth
in the Prospectus Supplement. If the Board of Trustees of Crown fails to declare
a dividend payable on a dividend payment date on any class or series of the
Preferred Shares for which dividends are noncumulative, then the holders of such
class or series of the Preferred Shares will have no right to receive a dividend
in respect of the dividend period ending on such dividend payment date, and
Crown will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such class or series are declared payable on any
future dividend payment date.
Unless otherwise specified in the applicable Prospectus Supplement, if any
shares of the Preferred Shares of any class or series are outstanding, no full
dividends shall be declared or paid or set apart for payment on the Preferred
Shares of Crown of any other class or series ranking, as to dividends, on a
parity with or junior to the Preferred Shares of such class or series for any
period unless full dividends (which include all unpaid dividends in the case of
cumulative dividend Preferred Shares) have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for such payment on the Preferred Shares of such class or series.
When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the shares of Preferred Shares of any class or
series and the shares of any other class or series of Preferred Shares ranking
on a parity as to dividends with the Preferred Shares of such class or series,
all dividends declared upon shares of Preferred Shares of such class or series
and any other class or series of Preferred Shares ranking on a parity as to
dividends with such Preferred Shares shall be declared pro rata among the
holders of such class or series. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on
Preferred Shares of such class or series which may be in arrears.
Until required dividends are paid, no dividends (other than in Common
Shares or other capital shares ranking junior to the Preferred Shares of such
class or series as to dividends and upon liquidation) shall be declared or paid
or set aside for payment, nor shall any other distribution be declared or made
upon the Common Shares or any other capital shares of Crown ranking junior to or
on a parity with the Preferred Shares of such class or series as to dividends or
upon liquidation, nor shall any Common Shares or any other capital shares of
Crown ranking junior to or on a parity with the Preferred Shares of such class
or series as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such shares) by Crown
(except by conversion into or exchange for other capital shares of Crown ranking
junior to the Preferred Shares of such class or series as to dividends and upon
liquidation).
Any dividend payment made on shares of a class or series of Preferred
Shares shall first be credited against the earliest accrued but unpaid dividend
due with respect to shares of Preferred Shares of such class or series which
remains payable.
Redemption
If so provided in the applicable Prospectus Supplement, the Preferred
Shares will be subject to mandatory redemption or redemption at the option of
Crown, as a whole or in part, in each case upon the terms, at the times and at
the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a class or series of Preferred Shares
that is subject to mandatory redemption will specify the number of shares of
such Preferred Shares that shall be redeemed by Crown in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon (which
shall not, if such Preferred Shares
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do not have a cumulative dividend, include any accumulation in respect of unpaid
dividends for prior dividend periods) to the date of redemption. The redemption
price may be payable in cash or other property, as specified in the Prospectus
Supplement. If the redemption price for Preferred Shares of any class or series
is payable only from the net proceeds of the issuance of capital shares of
Crown, the terms of such Preferred Shares may provide that, if no such capital
shares shall have been issued or to the extent the net proceeds from any
issuance are insufficient to pay in full the aggregate redemption price then
due, such Preferred Shares shall automatically and mandatorily be converted into
shares of the applicable capital shares of Crown pursuant to conversion
provisions specified in the applicable Prospectus Supplement.
So long as any dividends on shares of any class or series of the Preferred
Shares of Crown ranking on a parity as to dividends and distributions of assets
with such class or series of the Preferred Shares are in arrears, no shares of
any such class or series of the Preferred Shares of Crown will be redeemed
(whether by mandatory or optional redemption) unless all such shares are
simultaneously redeemed, and Crown will not purchase or otherwise acquire any
such shares. However, the foregoing will not prevent the purchase or acquisition
of such shares of Preferred Shares to preserve the status of Crown as a REIT or
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding shares of Preferred Shares of such class or series and, unless
the full cumulative dividends on all outstanding shares of any cumulative
Preferred Shares of such class or series and any other shares of Crown ranking
on a parity with such class or series as to dividends and upon liquidation shall
have been paid or contemporaneously are declared and paid for all past dividend
periods, Crown shall not purchase or otherwise acquire directly or indirectly
any shares of Preferred Shares of such class or series (except by conversion
into or exchange for shares of Crown ranking junior to the Preferred Shares of
such class or series as to dividends and upon liquidation). In addition, the
foregoing will not prevent the purchase or acquisition of such shares of
Preferred Shares to preserve the status of Crown as a REIT or pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of Preferred Shares of such class or series.
If fewer than all of the outstanding shares of Preferred Shares of any
class or series are to be redeemed, the number of shares to be redeemed will be
determined by Crown and such shares may be redeemed pro rata from the holders of
record of such shares in proportion to the number of such shares held by such
holders (with adjustments to avoid redemption of fractional shares) or any other
equitable method determined by Crown.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of a share of Preferred
Shares of any class or series to be redeemed at the address shown on the share
transfer books of Crown. If notice of redemption of any Preferred Shares has
been given and if the funds necessary for such redemption have been set aside by
Crown in trust for the benefit of the holders of Preferred Shares so called for
redemption, then from and after the redemption date dividends will cease to
accrue on such Preferred Shares, such Preferred Shares shall no longer be deemed
outstanding and all rights of the holders of such Preferred Shares will
terminate, except the right to receive the redemption price.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of Crown, then, before any distribution or payment shall be made to
the holders of Common Shares, or any other class or series of capital shares of
Crown ranking junior to the Preferred Shares in the distribution of assets upon
any liquidation, dissolution or winding up of Crown, the holders of each class
or series of Preferred Shares shall be entitled to receive out of assets of
Crown legally available for distribution to shareholders liquidating
distributions in the amount of the liquidation preference per share (set forth
in the applicable Prospectus Supplement), plus an amount equal to all dividends
accrued and unpaid thereon (which shall not include any accumulation in respect
of unpaid dividends for prior dividend periods if such Preferred Shares do not
have a cumulative dividend). After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of shares of Preferred
Shares will have no right or claim to any of the remaining assets of Crown. In
the event that, upon any such voluntary or involuntary liquidation, dissolution
or winding up, the legally available assets of Crown are insufficient to pay the
amount of the liquidating distributions on all outstanding Preferred Shares and
the corresponding amounts payable on all shares of other classes or series of
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capital shares of Crown ranking on a parity with the Preferred Shares in the
distribution of assets upon liquidation, dissolution or winding up, then the
holders of the Preferred Shares and all other such classes or series of capital
shares shall share ratably in any such distribution of assets in proportion to
the full liquidating distributions to which they would otherwise be respectively
entitled.
If liquidating distributions shall have been made in full to all holders of
shares of Preferred Shares, the remaining assets of Crown shall be distributed
among the holders of any other classes or series of capital shares ranking
junior to the Preferred Shares upon liquidation, dissolution or winding up,
according to their respective rights and preferences and in each case according
to their respective number of shares.
Voting Rights
Holders of the Preferred Shares will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Any class or series of Preferred Shares may provide that, so long as any
shares of such class or series of Preferred Shares remain outstanding, the
holders of such class or series may vote as a separate class on certain
specified matters, which may include changes in Crown's capitalization,
amendments to the Declaration of Trust, and mergers and dispositions.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such class or series of Preferred Shares
shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been irrevocably deposited in trust to effect such
redemption.
The provisions of a class or series of Preferred Shares may provide for
additional rights, remedies, and privileges if dividends on such class or series
are in arrears for specified periods, which rights and privileges will be
described in the applicable Prospectus Supplement.
Under Maryland law, notwithstanding anything to the contrary set forth
above, holders of each class or series of Preferred Shares will be entitled to
vote upon a proposed amendment to the Declaration of Trust, whether or not
entitled to vote thereon by the Declaration of Trust, if the amendment would
alter the contract rights, as set forth in the Declaration of Trust, of their
shares.
Conversion Rights
The terms and conditions, if any, upon which shares of any class or series
of Preferred Shares are convertible into Common Shares will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include the
number of Common Shares into which the Preferred Shares are 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 Shares or Crown, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of such
Preferred Shares.
Restrictions On Ownership
The Preferred Shares will be subject to certain restrictions on ownership
as described in the applicable Prospectus Supplement.
EXCESS SHARES
The Declaration of Trust provides that no holder may own, or be deemed to
own under the applicable attribution rules of the Internal Revenue Code of 1986,
as amended (the "Code"), shares in excess of the Ownership Limits and that no
purported transfer of shares of beneficial interest may be given effect if it
results in ownership of all of the outstanding shares of beneficial interest by
fewer than 100 persons (the "Ownership Restrictions"). In the event of a
purported transfer or other event that would, if effective, result in the
ownership of shares of beneficial interest in violation of the Ownership
Restrictions, such transfer would be deemed void ab initio and such shares would
automatically be exchanged for Excess Shares authorized by the
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Declaration of Trust, according to rules set forth in the Declaration of Trust,
to the extent necessary to ensure that the purported transfer or other event
does not result in the ownership of shares of beneficial interest in violation
of the Ownership Restrictions.
Holders of Excess Shares are not entitled to voting rights (except to the
extent required by law), dividends or distributions. If, after the purported
transfer or other event resulting in an exchange of shares of beneficial
interest for Excess Shares and prior to the discovery by Crown of such exchange,
dividends or distributions are paid with respect to the shares of beneficial
interest that were exchanged for Excess Shares, then such dividends or
distributions are to be repaid to Crown upon demand. While outstanding, Excess
Shares will be held in trust by Crown for the benefit of the ultimate transferee
of an interest in such trust, as described below. While Excess Shares are held
in trust, an interest in that trust may be transferred by the purported
transferee or other purported holder with respect to such Excess Shares only to
a person whose ownership of the shares of beneficial interest will not violate
the Ownership Restrictions, at which time the Excess Shares will be
automatically exchanged for shares of beneficial interest of the same type and
class as the shares of beneficial interest for which the Excess Shares were
originally exchanged. The Declaration of Trust contains provisions that are
designed to ensure that the purported transferee or other purported holder of
the Excess Shares may not receive in return for such a transfer an amount that
reflects any appreciation in the shares of beneficial interest for which such
Excess Shares were exchanged during the period that such Excess Shares were
outstanding. Any amount received by a purported transferee or other purported
holder in excess of the amount permitted to be received must be turned over to
Crown.
The Declaration of Trust provides that Crown, by notice to the holder
thereof, may purchase any or all Excess Shares that have been automatically
exchanged for outstanding Common Shares or Preferred Shares as a result of any
transfer or other event. The price at which Crown may purchase such Excess
Shares shall be equal to the lesser of (i) in the case of Excess Shares
resulting from a purported transfer for value, the price per share in the
purported transfer that caused the automatic exchange for such Excess Shares or,
in the case of Excess Shares resulting from some other event, the market price
of such Shares or Preferred Shares on the date of the automatic exchange for
Excess Shares, or (ii) the market price of such Shares or Preferred Shares on
the date that Crown accepts such Excess Shares. Any dividend or distribution
paid to a proposed transferee on Excess Shares prior to the discovery by Crown
that such shares of beneficial interest have been transferred in violation of
the provisions of the Declaration of Trust shall be repaid to Crown upon demand.
If the foregoing restrictions are determined to be void or invalid by virtue of
any legal decision, statute, rule or regulation, then the intended transferee or
holder of any Excess Shares may be deemed, at the option of Crown, to have acted
as an agent on behalf of Crown in acquiring or holding such Excess Shares and to
hold such Excess Shares on behalf of Crown.
RESTRICTIONS ON TRANSFER
For Crown to qualify as a real estate investment trust under the Code, not
more than 50% of the value of the outstanding shares of beneficial interest may
be owned, directly or indirectly, by five or fewer individuals (as defined in
the Code to include certain entities) during the last half of a taxable year the
"closely held rule"), the shares of beneficial interest 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, certain
percentages of Crown's gross income must be derived from particular activities,
and Crown must satisfy certain asset ownership tests. See "Certain Federal
Income Tax Considerations to Crown of its REIT Election--Taxation of a REIT" and
"--Requirements for Qualification".
The Declaration of Trust contains a number of provisions which restrict the
ownership and transfer of shares of beneficial interest and which are designed
to safeguard Crown against an inadvertent loss of real estate investment trust
status. In order to help prevent owning shares of beneficial interest of Crown
from being held by five or fewer individuals after the offerings, the
Declaration of Trust contains Ownership Restrictions that restrict, with certain
exceptions, common shareholders from owning, under the applicable attribution
rules of the Code, more than 7.5% of the outstanding Common Shares and preferred
shareholders from owning more than 9.8% of the outstanding Preferred Shares.
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The trustees of Crown may waive the Ownership Restrictions if evidence
satisfactory to the trustees and Crown's tax counsel is presented showing that
such waiver will not jeopardize Crown's status as a real estate investment trust
under the Code. As a condition of such waiver, the trustees of Crown may require
that an intended transferee give written notice to Crown, furnish such opinions
of counsel, affidavits, undertakings, agreements and information as may be
required by the trustees and/or an undertaking from the applicant with respect
to preserving the real estate investment trust status of Crown Any transfer of
shares or any security convertible into shares that would (i) create a direct or
indirect ownership of shares in excess of the Ownership Limit, (ii) result in
the shares being owned by fewer than 100 persons or (iii) result in Crown being
"closely held" within the meaning of Section 856(h) of the Code, will be void
with respect to the intended transferee and will result in Excess Shares as
described above.
The Ownership Restrictions will not be automatically removed even if the
real estate investment trust 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 Restrictions would require an amendment to the
Declaration of Trust. Amendments to the Declaration of Trust require the
affirmative vote of holders owning a majority of the shares then outstanding and
entitled to vote thereon, except as expressly provided in the Declaration of
Trust. In addition to preserving Crown's status as a real estate investment
trust, the Ownership Restrictions may have the effect of precluding an
acquisition of control of Crown without the approval of the Board of Trustees.
All certificates representing shares of beneficial interest will bear a
legend referring to the restrictions described above.
All persons who own, directly or by virtue of the applicable attribution
provisions of the Code, more than 7.5% of the value of any class of outstanding
shares of beneficial interest must file an affidavit with Crown containing the
information specified in the Declaration of Trust by January 1 of each year. In
addition, each shareholder shall upon demand be required to disclose to Crown in
writing such information with respect to the direct, indirect and constructive
ownership of shares of beneficial interest as the Board of Trustees deems
necessary to comply with the provisions of the Code applicable to a real estate
investment trust, to comply with the requirements of any taxing authority or
governmental agency or to determine any such compliance.
DESCRIPTION OF DEBT SECURITIES
Crown may issue Debt Securities under one or more trust indentures (each an
"Indenture") to be executed by Crown and one or more trustees (each an
"Indenture Trustee") meeting the requirements of a trustee under the Trust
Indenture Act of 1939, as amended (the "TIA"). The Indentures will be qualified
under the TIA.
The following description sets forth certain anticipated general terms and
provisions of the Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Debt Securities offered by any Prospectus Supplement
(which terms may be different than those stated below) and the extent, if any,
to which such general provisions may apply to the Debt Securities so offered
will be described in the Prospectus Supplement relating to such Debt Securities.
Accordingly, for a description of the terms of a particular issue of Debt
Securities, reference must be made to both the Prospectus Supplement relating
thereto and the following description. Forms of the Senior Indenture (as defined
herein) and the Subordinated Indenture (as defined herein) have been filed as
exhibits to the Registration Statement of which this Prospectus is a part.
General
The Debt Securities will be direct obligations of Crown and may be either
senior Debt Securities ("Senior Securities") or subordinated Debt Securities
("Subordinated Securities"). The indebtedness represented by Subordinated
Securities will be subordinated in right of payment to the prior payment in full
of the Senior Debt (as defined in the applicable Indenture) of Crown. Senior
Securities and Subordinated Securities will be issued pursuant to separate
indentures (respectively, a "Senior Indenture" and a "Subordinated Indenture"),
in each case between Crown and an Indenture Trustee.
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Except as set forth in the applicable Indenture and described in a
Prospectus Supplement relating thereto, the Debt Securities may be issued
without limit as to aggregate principal amount, in one or more series, secured
or unsecured, in each case as established from time to time in or pursuant to
authority granted by a resolution of the Board of Trustees of Crown or as
established in the applicable Indenture. All Debt Securities of one series need
not be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series.
The Prospectus Supplement relating to any series of Debt Securities being
offered will contain the specific terms thereof, including, without limitation:
(1) the title of such Debt Securities and whether such Debt Securities
are Senior Securities or Subordinated Securities;
(2) the aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of
acceleration of the maturity thereof, or (if applicable) the portion of the
principal amount of such Debt Securities which is convertible into Common
Shares or Preferred Shares, or the method by which any such portion shall
be determined;
(4) if convertible, any applicable limitations on the ownership or
transferability of the Common Shares or Preferred Shares into which such
Debt Securities are convertible;
(5) the date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be payable;
(6) the rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which such Debt
Securities will bear interest, if any;
(7) the date or dates, or the method for determining such date or
dates, from which any interest will accrue, the interest payment dates on
which any such interest will be payable, the regular record dates for such
interest payment dates, or the method by which any such date shall be
determined, the person to whom such interest shall be payable, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(8) the place or places where the principal of (and premium, if any)
and interest, if any, on such Debt Securities will be payable, such Debt
Securities may be surrendered for conversion or registration of transfer or
exchange and notices or demands to or upon Crown in respect of such Debt
Securities and the applicable Indenture may be served;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Debt Securities may be
redeemed, as a whole or in part, at the option of Crown, if Crown is to
have such an option;
(10) the obligation, if any, of Crown to redeem, repay or purchase
such Debt Securities pursuant to any sinking fund or analogous provision 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 such
Debt Securities will be redeemed, repaid or purchased, as a whole or in
part, pursuant to such obligation;
(11) if other than U.S. dollars, the currency or currencies in which
such Debt Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite currency
or currencies, and the terms and conditions relating thereto;
(12) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which
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index, formula or method may, but need not be, based on a currency,
currencies, currency unit or units or composite currency or currencies) and
the manner in which such amounts shall be determined;
(13) any additions to, modifications of or deletions from the terms of
such Debt Securities with respect to the Events of Default or covenants set
forth in the applicable Indenture;
(14) any provisions for collateral security for repayment of such Debt
Securities;
(15) whether such Debt Securities will be issued in certificated
and/or book-entry form;
(16) whether such Debt Securities will be in registered or bearer form
and, if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form the denominations
thereof and terms and conditions relating thereto;
(17) the applicability, if any, of defeasance and covenant defeasance
provisions of the applicable Indenture;
(18) the terms, if any, upon which such Debt Securities may be
convertible into Common Shares or Preferred Shares of Crown and the terms
and conditions upon which such conversion will be effected, including,
without limitation, the initial conversion price or rate and the conversion
period;
(19) whether and under what circumstances Crown will pay additional
amounts as contemplated in the Indenture on such Debt Securities in respect
of any tax, assessment or governmental charge and, if so, whether Crown
will have the option to redeem such Debt Securities in lieu of making such
payment; and
(20) any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Special federal income tax, accounting
and other considerations applicable to Original Issue Discount Securities will
be described in the applicable Prospectus Supplement.
Except as set forth in the applicable Indenture, the applicable Indenture
will not contain any provisions that would limit the ability of Crown to incur
indebtedness or that would afford holders of Debt Securities protection in the
event of a highly leveraged or similar transaction involving Crown or in the
event of a change of control. Restrictions on ownership and transfers of Crown's
Common Shares and Preferred Shares are designed to preserve its status as a REIT
and, therefore, may act to prevent or hinder a change of control. Reference is
made to the applicable Prospectus Supplement for information with respect to any
deletions from, modifications of or additions to the Events of Default or
covenants of Crown that are described below, including any addition of a
covenant or other provision providing event risk or similar protection.
Merger, Consolidation Or Sale
It is expected that each Indenture will provide that Crown may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into, any other corporation, provided that (a) either Crown shall
be the continuing corporation, or the successor corporation (if other than
Crown) formed by or resulting from any such consolidation or merger or which
shall have received the transfer of such assets shall expressly assume payment
of the principal of (and premium, if any), and interest on, all of the
applicable Debt Securities and the due and punctual performance and observance
of all of the covenants and conditions contained in the applicable Indenture;
(b) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of Crown or any subsidiary as a result
thereof as having been incurred by Crown or such subsidiary at the time of such
transaction, no Event of Default under the applicable Indenture, and no event
which, after notice or the lapse of time, or both, would become such an Event of
Default, shall have occurred and be continuing; and (c) an officer's certificate
and legal opinion covering such conditions shall be delivered to the Trustee.
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Covenants
Each Indenture will contain covenants requiring Crown to take certain
actions and prohibiting Crown from taking certain actions. The covenants with
respect to any series of Debt Securities will be described in the Prospectus
Supplement relating thereto.
Events Of Default, Notice And Waiver
Each Indenture will describe specific "Events of Defaults" with respect to
any series of Debt Securities issued thereunder. Such "Events of Defaults" are
likely to include (with grace and cure periods): (i) default in the payment of
any installment of interest on any Debt Security of such series; (ii) default in
the payment of principal of (or premium, if any, on) any Debt Security of such
series at its maturity; (iii) default in making any required sinking fund
payment for any Debt Security of such series; (iv) default in the performance or
breach of any other covenant or warranty of Crown contained in the applicable
Indenture (other than a covenant added to the Indenture solely for the benefit
of a series of Debt Securities issued thereunder other than such series),
continued for a specified period of days after written notice as provided in the
applicable Indenture; (v) default in the payment of specified amounts of
indebtedness of Crown or any mortgage, indenture or other instrument under which
such indebtedness is issued or by which such indebtedness is secured, such
default having occurred after the expiration of any applicable grace period and
having resulted in the acceleration of the maturity of such indebtedness, but
only if such indebtedness is not discharged or such acceleration is not
rescinded or annulled and (vi) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or Trustee of
Crown or any subsidiary or either of its property.
If an Event of Default under any Indenture with respect to Debt Securities
of any series at the time outstanding occurs and is continuing, then in every
such case the applicable Indenture Trustee or the holders of not less than 25%
of the principal amount of the outstanding Debt Securities of that series will
have the right to declare the principal amount (or, if the Debt Securities of
that series are Original Issue Discount Securities, such portion of the
principal amounts may be specified in the terms thereof) of all the Debt
Securities of that series to be due and payable immediately by written notice
thereof to Crown (and to the applicable Indenture Trustee if given by the
holders). However, at any time after such a declaration of acceleration with
respect to Debt Securities of such series (or of all Debt Securities then
outstanding under any Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
applicable Indenture Trustee, the holders of not less than a majority in
principal amount of outstanding Debt Securities of such series (or of all Debt
Securities then outstanding under the applicable Indenture, as the case may be)
may rescind and annul such declaration and its consequences if (a) the REIT
shall have deposited with the applicable Indenture Trustee all required payments
of the principal of (and premium, if any) and interest on the Debt Securities of
such series (or of all Debt Securities then outstanding under the applicable
Indenture, as the case may be), plus certain fees, expenses, disbursements and
advances of the applicable Indenture Trustee and (b) all events of default,
other than the non-payment of accelerated principal (or specified portion
thereof), with respect to Debt Securities of such series (or of all Debt
Securities then outstanding under the applicable Indenture, as the case may be)
have been cured or waived as provided in such Indenture. Each Indenture also
will provide that the holders of not less than a majority in principal amount of
the outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may waive any
past default with respect to such series and its consequences, except a default
(x) in the payment of the principal of (or premium, if any) or interest on any
Debt Security of such series or (y) in respect of a covenant or provision
contained in the applicable Indenture that cannot be modified or amended without
the consent of the holder of each outstanding Debt Security affected thereby.
Each Indenture Trustee will be required to give notice to the holders of
Debt Securities within 90 days of a default under the applicable Indenture
unless such default shall have been cured or waived; provided, however, that
such Indenture Trustee may withhold notice to the holders of any series of Debt
Securities of any default with respect to such series (except a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or in the payment of any sinking fund installment in
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respect of any Debt Security of such series) if specified responsible officers
of such Indenture Trustee consider such withholding to be in the interest of
such holders.
Each Indenture will provide that no holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the case of failure of
the applicable Indenture Trustee, for 60 days, to act after it has received a
written request to institute proceedings in respect of a Event of Default from
the holders of not less than 25% in principal amount of the outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it. This provision will not prevent, however, any holder of Debt
Securities from instituting suit for the enforcement of payment of the principal
of (and premium, if any) and interest on such Debt Securities at the respective
due dates thereof.
Subject to provisions in each Indenture relating to its duties in case of
default, no Indenture Trustee will be under any obligation to exercise any of
its rights or powers under an Indenture at the request or direction of any
holders of any series of Debt Securities then outstanding under such Indenture,
unless such holders shall have offered to the Indenture Trustee thereunder
reasonable security or indemnity. The holders of not less than a majority in
principal amount of the outstanding Debt Securities of any series (or of all
Debt Securities then outstanding under an Indenture, as the case may be) shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the applicable Indenture Trustee, or of exercising
any trust or power conferred upon such Indenture Trustee. However, an Indenture
Trustee may refuse to follow any direction which is in conflict with any law or
the applicable Indenture, which may involve such Indenture Trustee in personal
liability or which may be unduly prejudicial to the holders of Debt Securities
of such series not joining therein.
Within 120 days after the close of each fiscal year, Crown will be required
to deliver to each Indenture Trustee a certificate, signed by one of several
specified officers, stating whether or not such officer has knowledge of any
default under the applicable Indenture and, if so, specifying each such default
and the nature and status thereof.
Modification Of The Indentures
It is anticipated that modifications and amendments of an Indenture may be
made by Crown and the Indenture Trustee, with the consent of the holders of not
less than a majority in aggregate principal amount of each series of the
outstanding Debt Securities issued under the Indenture which are affected by the
modification or amendment, provided that no such modification or amendment may,
without a consent of each holder of such Debt Securities affected thereby: (1)
change the stated maturity date of the principal of (or premium, if any) or any
installment of interest, if any, on any such Debt Security; (2) reduce the
principal amount of (or premium, if any) or the interest, if any, on any such
Debt Security or the principal amount due upon acceleration of an Original Issue
Discount Security; (3) change the place or currency of payment of principal of
(or premium, if any) or interest, if any, on any such Debt Security; (4) impair
the right to institute suit for the enforcement of any such payment on or with
respect to any such Debt Security; (5) reduce the above-stated percentage of
holders of Debt Securities necessary to modify or amend the Indenture; or (6)
modify the foregoing requirements or reduce the percentage of outstanding Debt
Securities necessary to waive compliance with certain provisions of the
Indenture or for waiver of certain defaults. A record date may be set for any
act of the holders with respect to consenting to any amendment.
The holders of not less than a majority in principal amount of outstanding
Debt Securities of each series affected thereby will have the right to waive
compliance by Crown with certain covenants in such Indenture.
Each Indenture will contain provisions for convening meetings of the
holders of Debt Securities of a series to take permitted action.
Redemption Of Securities
Each Indenture will provide that the Debt Securities may be redeemed at any
time at the option of Crown, in whole or in part, for certain reasons intended
to protect Crown's status as a REIT. Debt Securities
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may also be subject to optional or mandatory redemption on terms and conditions
described in the applicable Prospectus Supplement.
From and after notice has been given as provided in the applicable
Indenture, if funds for the redemption of any Debt Securities called for
redemption shall have been made available on such redemption date, such Debt
Securities will cease to bear interest on the date fixed for such redemption
specified in such notice, and the only right of the holders of the Debt
Securities will be to receive payment of the Redemption Price.
Conversion Of Securities
The terms and conditions, if any, upon which the Debt Securities are
convertible into Common Shares or Preferred Shares will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into Common Shares or Preferred
Shares, the conversion price (or manner of calculation thereof), the conversion
period, provisions as to whether conversion will be at the option of the holders
or Crown, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities and any restrictions on conversion, including restrictions directed
at maintaining Crown's REIT status.
Subordination
Upon any distribution to creditors of Crown in a liquidation, dissolution
or reorganization, the payment of the principal of and interest on any
Subordinated Securities will be subordinated to the extent provided in the
applicable Indenture in right of payment to the prior payment in full of all
Senior Securities. No payment of principal or interest will be permitted to be
made on Subordinated Securities at any time if a default in Senior Securities
exists that permits the holders of such Senior Securities to accelerate their
maturity and the default is the subject of judicial proceedings or Crown
receives notice of the default. After all Senior Securities are paid in full and
until the Subordinated Securities are paid in full, holders of Subordinated
Securities will be subrogated to the right of holders of Senior Securities to
the extent that distributions otherwise payable to holders of Subordinated
Securities have been applied to the payment of Senior Securities. By reason of
such subordination, in the event of a distribution of assets upon insolvency,
certain general creditors of Crown may recover more, ratably, than holders of
Subordinated Securities. If this Prospectus is being delivered in connection
with a series of Subordinated Securities, the accompanying Prospectus Supplement
or the information incorporated herein by reference will contain the approximate
amount of Senior Securities outstanding as of the end of Crown's most recent
fiscal quarter.
CERTAIN PROVISIONS OF MARYLAND LAW AND
CROWN'S DECLARATION OF TRUST AND BYLAWS
The following paragraphs summarize certain provisions of Maryland law and
Crown's Declaration of Trust and bylaws. The summary does not purport to be
complete and is subject to and qualified in its entirety by reference to
Maryland law and to Crown's Declaration of Trust and bylaws.
GENERAL
As a Maryland real estate investment trust, Crown is governed by Title 8 of
the Corporations and Associations Article of the Annotated Code of Maryland
("Title 8") and certain other provisions of the Annotated Code of Maryland. The
following discussion summarizes certain provisions of Maryland law and Crown's
Declaration of Trust and bylaws. This discussion does not purport to be complete
and is subject to and qualified in its entirety by reference to Title 8 and also
to the Declaration of Trust and bylaws of Crown. Copies of these documents have
been filed as exhibits to the Registration Statement of which this Prospectus is
a part.
Certain provisions of the Declaration of Trust and the bylaws described in
this Section could make more difficult the acquisition of Crown by means of a
tender offer, a proxy contest or otherwise. These provisions are expected to
discourage certain types of coercive takeover practices and inadequate takeover
bids and to
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encourage persons seeking to acquire control of Crown to negotiate first with
the Board of Trustees as defined below. Crown believes that the benefits of
these provisions outweigh the potential disadvantages of discouraging such
proposals because, among other things, negotiation of such proposals might
result in an improvement of their terms.
STAGGERED BOARD OF TRUSTEES
Crown's Declaration of Trust and bylaws provide that the board of Trustees
will be divided into three classes of Trustees, each class constituting
approximately one-third of the total number of Trustees and with the classes
serving staggered three-year terms (the "Board of Trustees"). The classification
of Trustees will have the effect of making it more difficult for shareholders to
change the composition of the Board of Trustees. Crown believes, however, that
the longer time required to elect a majority of a classified Board of Trustees
will help to ensure continuity and stability of Crown's management and policies.
The classification provisions could also have the effect of discouraging a
third party from accumulating large blocks of Crown's shares of beneficial
interest or attempting to obtain control of Crown, even though such an attempt
might be beneficial to Crown and its shareholders. Accordingly, shareholders
could be deprived of certain opportunities to sell their Shares at a higher
price than might otherwise be the case.
NUMBER OF TRUSTEES; REMOVAL; FILLING VACANCIES
Crown's Declaration of Trust provides that, subject to any rights of
holders of Preferred Shares to elect additional Trustees under specified
circumstances, the number of Trustees of the Declaration of Trust will be fixed
by the Board of Trustees, but must consist of not less than three nor more than
15 Trustees. In addition, subject to any rights of holders of Preferred Shares,
and unless the Board of Trustees otherwise determines, any vacancy (including a
vacancy created by an increase in the number of Trustees) will be filled, at any
regular meeting or at any special meeting of the Trustees called for that
purpose, by the affirmative vote of a majority of the remaining Trustees, though
less than a quorum. Accordingly, the Board of Trustees could temporarily prevent
any shareholder from enlarging the Board of Trustees and filling the new
Trusteeships with such shareholder's own nominees.
Crown's Declaration of Trust provides, consistent with Title 8, that,
subject to the right of the holders of Preferred Shares to elect additional
Trustees under specified circumstances, Trustees may be removed only upon the
affirmative vote of holders of at least 66 2/3% of the voting power of all the
then outstanding shares entitled to vote generally in the election of Trustees,
voting together as a single class.
MEETINGS OF SHAREHOLDERS
An annual meeting of the shareholders for the Election of Trustees and the
transaction of any business within the powers of Crown will be held during the
second quarter of each calendar year at the time set by the Trustees.
Subject to the rights of the holders of any series of Preferred Shares to
elect additional Trustees under specified circumstances, special meetings of the
shareholders may be called only by the chairman of the Board of Trustees or by a
resolution adopted by a majority of the Trustees, assuming no vacancies.
All meetings of shareholders shall be held at the principal office of Crown
or at such other place within the United States as shall be stated in the notice
of the meeting.
NO SHAREHOLDER ACTION BY WRITTEN CONSENT; SPECIAL MEETINGS
Crown's Declaration of Trust and the bylaws provide that, subject to the
rights of any holders of Preferred Shares to elect additional Trustees under
specified circumstances, shareholder action can be taken only at an annual or
special meeting of shareholders. They also prohibit shareholder action by
written consent in lieu of a meeting, calling a special meeting or requiring
that the Board of Trustees call a special meeting of shareholders. These
provisions may have the effect of delaying consideration of a shareholder
proposal until the next annual meeting.
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ADVANCE NOTICE PROVISIONS FOR SHAREHOLDER NOMINATIONS AND SHAREHOLDER PROPOSALS
The Bylaws establish an advance notice procedure for shareholders to make
nominations of candidates for election as Trustees or to bring other business
before an annual meeting of shareholders of Crown (the "Shareholder Notice
Procedure").
The Shareholder Notice Procedure provides that (i) only persons who are
nominated by, or at the direction of, the Board of Trustees, or by a shareholder
who has given timely written notice containing specified information to the
Secretary of Crown prior to the meeting at which Trustees are to be elected,
will be eligible for election as Trustees of Crown and (ii) at an annual meeting
only such business may be conducted as has been brought before the meeting by,
or at the direction of, the chairman or the Board of Trustees or by a
shareholder who has given timely written notice to the Secretary of Crown of
such shareholder's intention to bring such business before such meeting. In
general, for notice of shareholder nominations or business to be made at an
annual meeting to be timely, such notice must be received by Crown not less than
60 days nor more than 90 days prior to the first anniversary of the previous
year's annual meeting.
The purpose of requiring shareholders to give Crown advance notice of
nominations and other business is to afford the Board of Trustees a meaningful
opportunity to consider the qualifications of the proposed nominees or the
advisability of the other proposed business and, to the extent deemed necessary
or desirable by the Board of Trustees, to inform shareholders and make
recommendations about such qualifications or business, as well as to provide a
more orderly procedure for conducting meetings of shareholders. Although the
Bylaws do not give the Board of Trustees any power to disapprove shareholder
nominations for the election of Trustees or proposals for action, they may have
the effect of precluding a contest for the election of Trustees or the
consideration of shareholder proposals if the proper procedures are not
followed, and of discouraging or deterring a third party from conducting a
solicitation of proxies to elect its own slate of Trustees or to approve its own
proposal, without regard to whether consideration of such nominees or proposals
might be harmful or beneficial to Crown and its shareholders.
RELEVANT FACTORS TO BE CONSIDERED BY THE BOARD OF TRUSTEES
The Declaration of Trust provides that in determining what is in the best
interest of Crown, a Trustee of Crown shall consider the interests of the
shareholders of Crown and, in his or her discretion, may consider (a) the
interests of Crown's employees, suppliers, creditors and customers, (b) the
economy of the nation, (c) community and societal interests and (d) the
long-term as well as short-term interests of Crown and its shareholders,
including the possibility that these interests may be best served by the
continued independence of Crown. Pursuant to this provision, the Board of
Trustees may consider numerous judgmental or subjective factors affecting a
proposal, including certain nonfinancial matters, and on the basis of these
considerations may oppose a business combination or other transaction which, as
an exclusively financial matter, might be attractive to some, or a majority, of
Crown's shareholders.
RIGHTS TO PURCHASE SECURITIES AND OTHER PROPERTY
Crown's Declaration of Trust authorizes the Board of Trustees to create and
issue rights entitling the holders thereof to purchase from Crown shares of
beneficial interest or other securities or property. The times at which and
terms upon which such rights are to be issued would be determined by the Board
of Trustees and set forth in the contracts or instruments that evidence such
rights. This provision is intended to confirm the Board of Trustees' authority
to issue share purchase rights, which may have terms that could impede a merger,
tender offer or other takeover attempt, or other rights to purchase shares or
securities of Crown or any other corporation.
SPECIAL STATUTORY REQUIREMENTS FOR CERTAIN TRANSACTIONS
Business Combination Statute. The MGCL establishes special requirements
with respect to "business combinations" between Maryland corporations and
"interested shareholders" unless exemptions are applicable. Among other things,
the law prohibits for a period of five years a merger or other specified
transactions between a company and an interested shareholder and requires a
super-majority vote for such transactions
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after the end of such five-year period. This statute is applicable to a Maryland
real estate investment trust formed under Title 8.
"Interested shareholders" are all persons owning beneficially, directly or
indirectly, 10% or more of the outstanding voting shares of a Maryland
corporation or real estate investment trust. "Business combinations" include any
merger or similar transaction subject to a statutory vote and additional
transactions involving transfers of assets or securities in specified amounts to
interested shareholders or their affiliates. Unless an exemption is available,
transactions of these types may not be consummated between a Maryland
corporation or real estate investment trust and an interested shareholder or its
affiliates for a period of five years after the date on which the shareholder
first became an interested shareholder and thereafter may not be consummated
unless recommended by the board of directors of the Maryland corporation or real
estate investment trust and approved by the affirmative vote of at least 80% of
the votes entitled to be cast by all holders of outstanding shares of voting
shares and 66 2/3% of the votes entitled to be cast by all holders of
outstanding shares of voting shares other than the interested shareholder. A
business combination with an interested shareholder which is approved by the
board of directors of a Maryland corporation or real estate investment trust at
any time before an interested shareholder first becomes an interested
shareholder is not subject to the 5-year moratorium or special voting
requirements. An amendment to a Maryland corporation charter (or real estate
investment trust declaration of trust) electing not to be subject to the
foregoing requirements must be approved by the affirmative vote of at least 80%
of the votes entitled to be cast by all holders of outstanding shares of voting
shares and 66 2/3% of the votes entitled to be cast by holders of outstanding
shares of voting shares who are not interested shareholders. Any such amendment
is not effective until 18 months after the vote of shareholders and does not
apply to any business combination of a corporation or real estate investment
trust with a shareholder who was an interested shareholder on the date of the
shareholder vote. Crown's Board of Trustees has adopted a resolution exempting
all business combinations between Crown and any existing or future interested
shareholders (or their affiliates) from the provisions of the Business
Combination statute to the fullest extent permitted under Maryland Law.
Control Share Acquisition Statute. The Maryland General Corporation law
imposes limitations on the voting rights of shares acquired in a "control share
acquisition." This statute is applicable to a Maryland real estate investment
trust formed under Title 8. The Maryland statute defines a "control share
acquisition" at the 20%, 33-1/3% and 50% acquisition levels, and requires a
two-thirds shareholder vote (excluding shares owned by the acquiring person and
certain members of management) to accord voting rights to shares acquired in a
control share acquisition. The statute also requires Maryland corporations or
real estate investment trusts to hold a special meeting at the request of an
actual or proposed control share acquiror generally within 50 days after a
request is made with the submission of an "acquiring person statement," but only
if the acquiring person (a) posts a bond for the cost of the meeting and (b)
submits a definitive financing agreement to the extent that financing is not
provided by the acquiring person. In addition, unless the charter or by-laws
provide otherwise, the statute gives the Maryland corporation, within certain
time limitations, various redemption rights if there is a shareholder vote on
the issue and the grant of voting rights is not approved, or if an "acquiring
person statement is not delivered to the target within 10 days following a
control share acquisition. Moreover, unless the charter, declaration of trust or
bylaws provide otherwise, the statute provides that if, before a control share
acquisition occurs, voting rights are accorded to control shares which results
in the acquiring person having majority voting power, then minority shareholders
have appraisal rights. An acquisition of shares may be exempted from the control
share statute provided that a charter, declaration of trust or bylaw provision
is adopted for such purpose prior to the control share acquisition. Crown's
Bylaws exempt all shares of beneficial interest in Crown from this statute to
the fullest extent allowed under Maryland law.
Reference is made to the full text of the foregoing statutes for their
entire terms, and the partial summary contained in this Prospectus is not
intended to be complete.
AMENDMENT OF DECLARATION OF TRUST
Under Title 8 and the Declaration of Trust, the Trustees, by a two-thirds
vote, may at any time amend Crown's Declaration of Trust from time to time to
enable Crown to qualify as a real estate investment trust
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under the Code or as a real estate investment trust under Title 8, without the
approval of the shareholders. Other amendments require the vote of a majority of
the outstanding shares.
TERMINATION OF CROWN AND REAL ESTATE INVESTMENT TRUST STATUS
Crown's Declaration of Trust permits the termination of the Trust by the
affirmative vote of the holders of not less than a majority of the outstanding
shares at a meeting of shareholders called for that purpose. In addition, the
Declaration of Trust permits the Trustees, with the approval of a majority of
Crown's shareholders, to terminate the status of the Trust as a real estate
investment trust under the Code at any time.
LIMITATION OF LIABILITY
Pursuant to Title 8 and the Declaration of Trust, the liability of Trustees
and officers of Crown to Crown or to any shareholder of Crown for money damages
has been eliminated except (a) for actual receipt of an improper personal
benefit in money, property or services and (b) for active and deliberate
dishonesty established by a final judgment as being material to the cause of
action.
INDEMNIFICATION
Crown's bylaws require it to indemnify any Trustee, officer or shareholder
(a) against reasonable expenses incurred by him in the successful defense (on
the merits or otherwise) of any proceeding to which he is made a party by reason
of such status or (b) against any claim or liability to which he may become
subject by reason of such status unless it is established that (i) the act or
omission giving rise to the claim was committed in bad faith or was the result
of active and deliberate dishonesty, (ii) he actually received an improper
personal benefit in money, property or services or (iii) in the case of a
criminal proceeding, he had reasonable cause to believe that his act or omission
was unlawful. Crown is also required by its bylaws to pay or reimburse, in
advance of a final disposition, reasonable expenses of a Trustee, officer or
shareholder made a party to a proceeding by reason of his or her status as such
upon receipt of a written affirmation by the Trustee or officer of his or her
good faith belief that he or she has met the applicable standard for
indemnification under the bylaws and a written undertaking to repay such
expenses if it shall ultimately be determined that the applicable standard was
not met.
In addition, Crown has entered into indemnification agreements with each of
Crown's officers and Trustees. The indemnification agreements require, among
other things, that Crown indemnify its officers and Trustees to the fullest
extent permitted by law, and advance to the officers and Trustees all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. Crown must also indemnify and advance all
expenses incurred by officers and Trustees seeking to enforce their rights under
the indemnification agreements, and cover officers and Trustees under Crown's
Trustees and officers' liability insurance. Although the form of indemnification
agreement offers substantially the same scope of coverage afforded by provisions
in the Declaration of Trust, it provides greater assurance to Trustees and
officers that indemnification will be available, because, as a contract, it
cannot be modified unilaterally in the future by the Board of Trustees or by the
shareholders to eliminate the rights it provides.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to Trustees and officers of Crown, Crown has been
advised that, although the validity and scope of the governing statute has not
been tested in court, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In addition, indemnification may be limited by state securities
laws.
INSPECTION OF BOOKS AND RECORDS
Under Title 8 any shareholder may inspect and copy the bylaws of Crown,
minutes of proceedings of shareholders and annual statements of affairs of
Crown. In addition, any shareholder of record who owns at least five percent of
the outstanding shares of any class of beneficial interest for at least six
months will be entitled to inspect and copy Crown's books of account and share
ledger and to require Crown to prepare and
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deliver a verified list of the name and address of, and the number of shares
owned by, each shareholder of Crown.
RESTRICTIONS ON INVESTMENT AND USE
Under Title 8, a Maryland real estate investment trust must hold at least
75% of the value of its assets in real estate assets, mortgages or mortgage
related securities, government securities, cash and cash items (including
receivables) and may not use or apply land for farming, agriculture,
horticulture or similar purposes.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
TO CROWN OF ITS REIT ELECTION
The following summary of certain federal income tax considerations to Crown
is based on current law, is for general information only, and is not tax advice.
The tax treatment of a holder of any of the Securities will vary depending upon
the terms of the specific securities acquired by such holder, as well as his or
her particular situation, and this discussion does not attempt to address any
aspects of federal income taxation relating to holders of Securities. Certain
federal income tax considerations relevant to holders of the Securities will be
provided in the applicable Prospectus Supplement relating thereto.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT THE APPLICABLE PROSPECTUS
SUPPLEMENT, AS WELL AS HIS OR HER OWN TAX ADVISOR REGARDING THE SPECIFIC TAX
CONSEQUENCES TO HIM OR HER OF THE PURCHASE, OWNERSHIP AND SALE OF THE OFFERED
SECURITIES, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX
CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP AND SALE AND OF POTENTIAL CHANGES IN
APPLICABLE TAX LAWS.
TAXATION OF A REIT
Crown has elected to be taxed as a REIT under Sections 856 through 860 of
the Code, commencing with its taxable year ending December 31, 1993. Crown
believes that it has been organized and has operated in such a manner as to
qualify for taxation as a REIT under the Code commencing with such taxable year,
and Crown intends to continue to operate in such a manner, but no assurance can
be given that it has operated or will continue to operate in such a manner so as
to qualify or remain qualified.
These sections of the Code dealing with REITs and their shareholders are
highly technical and complex. The following sets forth the material aspects of
the sections that govern the federal income tax treatment of a REIT. This
summary is qualified in its entirety by the applicable Code provisions, rules
and regulations promulgated thereunder, and administrative and judicial
interpretations thereof. No ruling will be sought from the Internal Revenue
Service with respect to any matter described herein.
In the opinion of Reed Smith Shaw & McClay, counsel to Crown, Crown has
been organized in conformity with the requirements for qualification as a REIT,
and its method of operation should enable it to meet the requirements for
continued qualification and taxation as a REIT under the Code. It must be
emphasized that this opinion is based on various factual assumptions relating to
the organization and operation of Crown, the Operating Partnership and the lower
tier partnerships and is conditioned upon certain representations made by Crown
as to factual matters. In addition, this opinion is based upon the factual
representations of Crown concerning its business and properties as set forth in
this Prospectus and will assume that the actions described in this Prospectus
have been completed as described. Moreover, such qualification and taxation as a
REIT depends upon Crown's ability to meet, through actual annual operating
results, distribution levels and diversity of share ownership, the various
qualification tests imposed under the Code discussed below, the results of which
will not be reviewed by such counsel to Crown. Accordingly, no assurance can be
given that the actual results of Crown's operation for any particular taxable
year will satisfy such requirements. Further, the anticipated income tax
treatment described in this Prospectus may be changed, perhaps retroactively, by
legislative or administrative action at any time.
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If Crown continues to qualify for taxation as a REIT, it generally will not
be subject to federal corporate income taxes on its net income that is currently
distributed to shareholders. This treatment substantially eliminates the "double
taxation" (at the corporate and shareholder levels) that generally results from
investment in a corporation. However, Crown will be subject to federal income
tax as follows: First, Crown will be taxed at regular corporate rates on any
undistributed taxable income, including undistributed net capital gains. Second,
under certain circumstances, Crown may be subject to the "alternative minimum
tax" on its items of tax preference. Third, if Crown has (i) net income from the
sale or other disposition of "foreclosure property" which is held primarily for
sale to customers in the ordinary course of business or (ii) other nonqualifying
income from foreclosure property, it will be subject to tax at the highest
corporate rate on such income. Fourth, if Crown has net income from prohibited
transactions (which are, in general, certain sales or other dispositions of
property held primarily for sale to customers in the ordinary course of business
other than foreclosure property), such income will be subject to a 100% tax.
Fifth, if Crown should fail to satisfy the 75% gross income test or the 95%
gross income test (as discussed below), but has nonetheless maintained its
qualification as a REIT because certain other requirements have been met, it
will be subject to a 100% tax on an amount equal to (a) the gross income
attributable to the greater of the amount by which Crown fails the 75% or 95%
test multiplied by (b) a fraction intended to reflect Crown's profitability.
Sixth, if Crown should fail to distribute during each calendar year at least the
sum of (i) 85% of its ordinary income for such year, (ii) 95% of its REIT
capital gain net income for such year, and (iii) any undistributed taxable
income from prior periods, Crown would be subject to a 4% excise tax on the
excess of such required distribution over the amounts actually distributed.
Seventh, with respect to an asset (a "Built-In Gain Asset") acquired by Crown
from a corporation which is or has been a C corporation (i.e., generally a
corporation subject to full corporate-level tax) in certain transactions in
which the basis of the Built-In Gain Asset in the hands of Crown is determined
by reference to the basis of the asset in the hands of the C corporation, if
Crown recognizes gain on the disposition of such asset during the ten-year
period (the "Recognition Period") beginning on the date on which such asset was
acquired by Crown, then, to the extent of the Built-In Gain (i.e., the excess of
(a) the fair market value of such asset over (b) Crown's adjusted basis in such
asset, determined as of the beginning of the Recognition Period), such gain will
be subject to tax at the highest regular corporate tax pursuant to Internal
Revenue Service ("IRS") regulations that have not yet been promulgated. The
results described above with respect to the recognition of Built-In Gain assume
that Crown will make an election pursuant to IRS Notice 88-19.
REQUIREMENTS FOR QUALIFICATION
The Code defines a REIT as a corporation, trust or association (1) which is
managed by one or more Trustees or directors; (2) the beneficial ownership of
which is evidenced by transferable shares, or by transferable certificates of
beneficial interest; (3) which would be taxable as a domestic corporation, but
for Sections 856 through 859 of the Code; (4) which is neither a financial
institution nor an insurance company subject to certain provisions of the Code;
(5) the beneficial ownership of which is held by 100 or more persons; (6) during
the last half of each taxable year not more than 50% in value of the outstanding
shares of which is owned, directly or constructively, by five or fewer
individuals (as defined in the Code to include certain entities); and (7) which
meets certain other tests, described below, regarding the nature of its income,
assets and distributions. The Code provides that conditions (1) to (4),
inclusive, must be met during the entire taxable year and that condition (5)
must be met during at least 335 days of a taxable year of twelve months, or
during a proportionate part of a taxable year of less than twelve months.
The Declaration of Trust provides for restrictions regarding transfer of
its shares, in order to assist Crown in continuing to satisfy the share
ownership requirements described in (5) and (6) above. Such transfer
restrictions are described in "Description of Shares"--"Restrictions on
Transfer."
Crown does not intend to have any subsidiaries that are not "qualified REIT
subsidiaries." Code Section 856 (i) provides that a corporation which is a
"qualified real estate investment trust subsidiary" shall not be treated as a
separate corporation, and all assets, liabilities, and items of income,
deduction, and credit of a "qualified real estate investment trust subsidiary"
shall be treated as assets, liabilities, and such items (as the case may be) of
the real estate investment trust. Thus, in applying the requirements described
herein, Crown's
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"qualified real estate investment trust subsidiaries" will be ignored, and all
assets, liabilities, and items of income, deduction, and credit of such
subsidiaries will be treated as assets, liabilities and items of Crown.
In the case of a REIT which is a partner in a partnership, IRS regulations
provide that Crown will be deemed to own its proportionate share (corresponding
to its capital interest in such partnership) of the assets of the partnership
and will be deemed to be entitled to the income of the partnership attributable
to such share. In addition, the character of the assets and gross income of the
partnership shall retain the same character in the hands of Crown for purposes
of Section 856 of the Code, including satisfying the gross income tests and the
asset tests. Thus, Crown's proportionate share of the assets, liabilities and
items of income of the Operating Partnership and the Financing Partnership are
treated as assets, liabilities and items of income of Crown for purposes of
applying the requirements described herein. A summary of the rules governing the
Federal income taxation of partnerships and their partners is provided below in
"Tax Aspects of the Operating Partnership." Crown has direct control of the
Operating Partnership and has and will continue to operate it consistent with
the requirements for qualification as a REIT.
In order to maintain qualification as a REIT, Crown annually must satisfy
three gross income requirements. First, at least 75% of Crown's gross income
(excluding gross income from prohibited transactions) for each taxable year must
be derived directly or indirectly from investments relating to real property or
mortgages on real property (including "rents from real property" and, in certain
circumstances, interest) or from certain types of temporary investments. Second,
at least 95% of Crown's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived from such real property
investments, dividends, interest and gain from the sale or disposition of shares
or securities (or from any combination of the foregoing). Third, gain from the
sale or other disposition of shares or securities held for less than one year,
gain from prohibited transactions and gain on the sale or other disposition of
real property held for less than four years (apart from involuntary conversions
and sales of foreclosure property) must represent less than 30% of Crown's gross
income (including gross income from prohibited transactions) for each taxable
year.
Rents received by Crown will qualify as "rents from real property" in
satisfying the gross income requirements for a REIT described above only if
several conditions are met. First, the amount of rent must not be based in whole
or in part on the income or profits of any person. However, an amount received
or accrued generally will not be excluded from the term "rents from real
property" solely by reason of being based on a fixed percentage or percentages
of receipts or sales. Second, the Code provides that rents received from a
tenant will not qualify as "rents from real property" in satisfying the gross
income tests if Crown, or an actual or constructive owner of 10% or more of
Crown, actually or constructively owns 10% or more of such tenant (a "Related
Party Tenant"). Third, if rent attributable to personal property, leased in
connection with a lease of real property, is greater than 15% of the total rent
received under the lease, then the portion of rent attributable to such personal
property will not qualify as "rents from real property." Finally, for rents
received to qualify as "rents from real property," Crown generally must not
operate or manage the property or furnish or render services to the tenants of
such property, other than through an independent contractor from whom Crown
derives no revenue. Crown may, however, directly perform certain services that
are "usually or customarily rendered" in connection with the rental of space for
occupancy only and are not otherwise considered "rendered to the occupant" of
the property. Crown has not and will not (i) charge rent for any property that
is based in whole or in part on the income or profits of any person (except by
reason of being based on a percentage of receipts or sales, as described above
or unless the Board of Trustees determines in its discretion that the rent
received on such property is not material and will not jeopardize Crown's status
as a REIT), (ii) rent any property to a Related Party Tenant (unless the Board
of Trustees determines in its discretion that the rent received from such
Related Party Tenant is not material and will not jeopardize Crown's status as a
REIT) or (iii) directly perform services considered to be rendered to the
occupant of property.
The Operating Partnership provides certain services with respect to Crown's
properties that may not satisfy the "independent contractor" requirements
described above. Crown has obtained a ruling from the IRS that the provision of
such services will not cause the rents received with respect to Crown's
properties to fail to qualify as "rents from real property."
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The term "interest" generally does not include any amount received or
accrued (directly or indirectly) if the determination of such amount depends in
whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term "interest"
solely by reason of being based on a fixed percentage or percentages of receipts
or sales.
Any gross income derived from a prohibited transaction is taken into
account in applying the 30% income test necessary to qualify as a REIT (and the
net income from the transaction is subject to a 100% tax). The term "prohibited
transaction" generally includes a sale or other disposition of property (other
than foreclosure property) that is held primarily for sale to customers in the
ordinary course of a trade or business. The Operating Partnership and Crown
believe that no asset owned by the Operating Partnership, Financing Partnership
or Crown is held for sale to customers and that the sale of any such property
and associated property will not be in the ordinary course of business of the
Operating Partnership, Financing Partnership or Crown. Whether property is held
"primarily for sale to customers in the ordinary course of a trade or business"
depends, however, on the facts and circumstances in effect from time to time,
including those related to a particular property. Complete assurance cannot be
given, however, that Crown can comply with the safe-harbor provisions of the
Code or avoid owning property that may be characterized as property held
"primarily for sale to customers in the ordinary course of business" with the
result that Crown may be subject to the 100% tax described above on income or
gain, if any, from such sales.
If Crown fails to satisfy one or both of the 75% or 95% gross income tests
for any taxable year, it may nevertheless qualify as a REIT for such year if it
is entitled to relief under certain provisions of the Code. These relief
provisions will be generally available if Crown's failure to meet such tests was
due to reasonable cause and not due to willful neglect, Crown attaches a
schedule of the sources of its income to its federal income tax return, and any
incorrect information on the schedule was not due to fraud with intent to evade
tax. It is not possible, however, to state whether in all circumstances Crown
would be entitled to the benefit of these relief provisions. As discussed above
in "Taxation of a REIT," even if these relief provisions apply, a tax would be
imposed with respect to the excess of 75% or 95% of Crown's gross income over
Crown's qualifying income in the relevant category, whichever is greater.
Crown, at the close of each quarter of its taxable year, must also satisfy
three tests relating to the nature of its assets. First, at least 75% of the
value of Crown's total assets (including its allocable share of the assets held
by the Operating Partnership) must be represented by real estate assets
(including (i) its allocable share of real estate assets held by partnerships in
which Crown owns an interest and (ii) shares or debt instruments held for not
more than one year purchased with the proceeds of a share offering or long-term
(at least five years) debt offering of Crown), cash, cash items and government
securities. Second, not more than 25% of Crown's total assets may be represented
by securities other than those in the 75% asset class. Third, of the investments
included in the 25% asset class, the value of any one issuer's securities owned
by Crown may not exceed 5% of the value of Crown's total assets and Crown may
not own more than 10% of any one issuer's outstanding voting securities.
As set forth above, the ownership of more than 10% of the voting securities
of any one issuer by a real estate investment trust is prohibited by the asset
tests. However, if Crown's subsidiaries are "qualified real estate investment
trust subsidiaries" as defined in the Code, such subsidiaries will not be
treated as separate corporations for federal income tax purposes. Thus, Crown's
ownership of the shares of a "qualified real estate investment trust subsidiary"
will not cause Crown to fail the asset tests.
Crown, in order to qualify as a REIT, is required to distribute dividends
(other than capital gain dividends) to its shareholders in an amount at least
equal to (A) the sum of (i) 95% of Crown's "REIT taxable income" (computed
without regard to the dividends paid deduction and Crown's net capital gain) and
(ii) 95% of the net income (after tax), if any, from foreclosure property, minus
(B) the sum of certain items of noncash income. In addition, if Crown disposes
of any Built-In Gain Asset during its Recognition Period, Crown will be
required, pursuant to IRS regulations which have not yet been promulgated, to
distribute at least 95% of the Built-In Gain (after tax), if any, recognized on
the disposition of such asset. Such distributions must be paid in the taxable
year to which they relate, or in the following taxable year if declared before
Crown timely files its tax return for such year and if paid on or before the
first regular dividend payment
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after such declaration. To the extent that Crown does not distribute all of its
net capital gain or distributes at least 95%, but less than 100%, of its "REIT
taxable income," as adjusted, it will be subject to tax thereon at regular
ordinary and capital gain corporate tax rates. Crown believes it has made and
intends to make timely distributions sufficient to satisfy these annual
distribution requirements.
It is possible that, from time to time, Crown may experience timing
differences between (i) the actual receipt of income and actual payment of
deductible expenses and (ii) the inclusion of that income and deduction of such
expenses in arriving at Crown taxable income. Further, it is possible that, from
time to time, Crown may be allocated a share of net capital gain attributable to
the sale of depreciated property which exceeds its allocable share of cash
attributable to that sale. As such, Crown may have less cash available for
distribution than is necessary to meet its annual 95% distribution requirement
or to avoid tax with respect to capital gain or the excise tax imposed on
certain undistributed income. To meet the 95% distribution requirement necessary
to qualify as a real estate investment trust or to avoid tax with respect to
capital gain or the excise tax imposed on certain undistributed income, Crown
may find it appropriate to arrange for short-term (or possibly long-term)
borrowings or to pay distributions in the form of taxable share dividends. Any
such borrowings for the purpose of making distributions to shareholders are
required to be arranged through the Operating Partnership.
Under certain circumstances, Crown may be able to rectify a failure to meet
the distribution requirement for a year by paying "deficiency dividends" to
shareholders in a later year, which may be included in Crown's deduction for
dividends paid for the earlier year. Thus, Crown may be able to avoid being
taxed on amounts distributed as deficiency dividends; however, Crown will be
required to pay interest based upon the amount of any deduction taken for
deficiency dividends.
Crown's taxable income (before the dividends paid deduction), however, for
the years ended December 31, 1996, 1995 and 1994 was approximately $1.9 million,
$2.8 million and $7.4 million, respectively. These amounts differ significantly
from net income (loss) as reported in Crown's consolidated financial statements
for the same periods.
Pursuant to applicable Treasury Regulations, in order to be able to elect
to be taxed as a real estate investment trust, Crown must maintain certain
records and request certain information from its shareholders designed to
disclose the actual ownership of its shares. Crown intends to comply with such
requirements.
FAILURE TO QUALIFY
If Crown fails to qualify for taxation as a REIT in any taxable year, and
the relief provisions do not apply, Crown will be subject to tax (including any
applicable alternative minimum tax) on its taxable income at regular corporate
rates. Distributions to shareholders in any year in which Crown fails to qualify
will not be deductible by Crown nor will they be required to be made. As a
result, Crown's failure to qualify as a REIT would reduce the cash available for
distribution by Crown to its shareholders. In addition, if Crown fails to
qualify as a REIT, all distributions to shareholders will be taxable as ordinary
income, to the extent of Crown's current and accumulated earnings and profits,
and, subject to certain limitations of the Code, corporate distributees may be
eligible for the dividends received deduction. Unless entitled to relief under
specific statutory provisions, Crown will also be disqualified from taxation as
a REIT for the four taxable years following the year during which qualification
was lost. It is not possible to state whether in all circumstances Crown would
be entitled to such statutory relief.
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
As long as Crown qualifies as a real estate investment trust, distributions
made to Crown's taxable U.S. shareholders out of current or accumulated earnings
and profits (and not designated as capital gain dividends) will be taken into
account by such U.S. shareholders as ordinary income and will not be eligible
for the dividends received deduction for corporations. Distributions that are
designated as capital gain dividends will be taxed as long-term capital gains
(to the extent they do not exceed Crown's actual net capital gain for the
taxable year) without regard to the period for which the shareholder has held
its shares. However, corporate shareholders may be required to treat up to 20%
of certain capital gain dividends as ordinary income.
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Distributions in excess of current and accumulated earnings and profits will not
be currently taxable to a shareholder to the extent that they do not exceed the
adjusted basis of the shareholder's shares, but rather will reduce the adjusted
basis of such shares. To the extent that distributions in excess of current and
accumulated earnings and profits exceed the adjusted basis of a shareholders
shares, such distributions will be included in income as long-term capital gain
(or short-term capital gain if the shares have been held for one year or less)
assuming the shares are a capital asset in the hands of the shareholder. In
addition, any distribution declared by Crown in October, November or December of
any year payable to a shareholder of record on a specified date in any such
month shall be treated as both paid by Crown and received by the shareholder on
December 31 of such year, provided that the distribution is actually paid by
Crown during January of the following calendar year. Shareholders may not
include in their individual income tax returns any net operating losses or
capital losses of Crown.
In general, any loss upon a sale or exchange of shares by a shareholder who
has held such shares for six months or less (after applying certain holding
period rules), will be treated as a long-term capital loss to the extent of
distributions from Crown required to be treated by such shareholder as long-term
capital gain.
BACKUP WITHHOLDING
Crown will report to its U.S. shareholders and the IRS the amount of
distributions paid during each calendar year, and the amount of tax withheld, if
any. Under the backup withholding rules, a shareholder may be subject to backup
withholding at the rate of 31% with respect to distributions paid unless such
holder (a) is a corporation or comes within certain other exempt categories and,
when required, demonstrates this fact, or (b) provides a taxpayer identification
number, certifies as to no loss of exemption from backup withholding, and
otherwise complies with applicable requirements of the backup withholding rules.
A shareholder that does not provide Crown with his correct taxpayer
identification number may also be subject to penalties imposed by the IRS. Any
amount paid as backup withholding will be creditable against the shareholder's
income tax liability. In addition, Crown may be required to withhold a portion
of capital gain distributions to any shareholders who fail to certify their
nonforeign status to Crown. See "Taxation of Foreign Shareholders."
TAXATION OF TAX-EXEMPT SHAREHOLDERS
In general, a shareholder that is a tax-exempt entity not subject to tax on
its investment income will not be subject to tax on distributions from Crown. In
Revenue Ruling 66-106, 1966-1 C.B. 151, the IRS ruled that amounts distributed
as dividends by a REIT do not constitute "unrelated business taxable income" as
defined in the Code ("UBTI") when received by a qualified plan. Based on that
ruling, regardless whether Crown incurs indebtedness in connection with the
acquisition of properties, distributions paid by Crown to a shareholder that is
a tax-exempt entity will not be treated as UBTI, provided that (i) the
tax-exempt entity has not financed the acquisition of its shares with
"acquisition indebtedness" within the meaning of the Code and the shares
otherwise are not used in an unrelated trade or business of the tax-exempt
entity and (ii) Crown is not a pension-held REIT. This applies to a shareholder
that is an organization that qualifies under Code Section 401(a), an IRA or any
other tax-exempt organization that would compute UBTI, if any, in accordance
with Code Section 512(a)(1). However, if Crown is a pension-held REIT and a
qualified plan owns more than 10 percent of Crown, such shareholder will be
required to recognize as UBTI that percentage of the dividends that it receives
from Crown as is equal to the percentage of Crown's gross income that would be
UBTI to Crown if Crown were a tax-exempt entity required to recognize UBTI. A
REIT is a pension-held REIT if at least one qualified trust holds more than 25
percent of the value of Crown's shares or one or more qualified trusts, each of
whom own more than 10 percent of Crown's shares, hold more than 50 percent of
the value of Crown's shares. A tax-exempt shareholder also should be aware that
Congress currently is examining the taxation of investment income received by
tax-exempt entities including the treatment of income received by such entities
from REITs and other pass-through entities and is considering whether to treat
income derived from a REIT as UBTI to the extent that Crown has incurred debt to
acquire its assets. The Congressional committee conducting this examination has
not yet concluded its study. Crown does not anticipate being a pension-held
REIT.
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For social clubs, voluntary employee benefit associations, supplemental
unemployment benefit trusts and qualified group legal services plans exempt from
Federal income taxation under Code Sections 501(c)(7), (c)(9), (c)(17) and
(c)(20), respectively, income from an investment in Crown will constitute UBTI
unless the organization is able to deduct amounts set aside or placed in reserve
for certain purposes so as to offset the UBTI generated by its investment in
Crown. Such prospective shareholders should consult their own tax advisors
concerning these "set aside" and reserve requirements.
TAXATION OF FOREIGN SHAREHOLDERS
The rules governing United States federal income taxation of nonresident
alien individuals, foreign corporations, foreign partnerships and other foreign
shareholders (collectively, "Non-U.S. Shareholders") are complex and no attempt
will be made herein to provide more than a summary of such rules. Prospective
Non-U.S. Shareholders should consult with their own tax advisors to determine
the impact of federal, state and local income tax laws with regard to an
investment in shares, including any reporting requirements.
Distributions that are not attributable to gain from sales or exchanges by
Crown of United States real property interests and not designated by Crown as
capital gains dividends will be treated as dividends of ordinary income to the
extent that they are made out of current or accumulated earnings and profits of
Crown. Such distributions will ordinarily be subject to a withholding tax equal
to 30% of the gross amount of the distribution unless an applicable tax treaty
reduces or eliminates that tax. However, if income from the investment in the
shares is treated as effectively connected with the Non-U.S. Shareholder's
conduct of a United States trade or business, the Non-U.S. Shareholder generally
will be subject to a tax at graduated rates, in the same manner as U.S.
shareholders are taxed with respect to such distributions (and may also be
subject to the 30% branch profits tax in the case of a shareholder that is a
foreign corporation). Crown expects to withhold United States income tax at the
rate of 30% on the gross amount of any such distributions made to a Non-U.S.
Shareholder unless (i) a lower treaty rate applies or (ii) the Non-U.S.
Shareholder files an IRS Form 4224 with Crown claiming that the distribution is
effectively connected income. Distributions in excess of current and accumulated
earnings and profits of Crown will not be taxable to a shareholder to the extent
that such distributions do not exceed the adjusted basis of the shareholders
shares, but rather will reduce the adjusted basis of such shares. To the extent
that distributions in excess of current accumulated earnings and profits exceed
the adjusted basis of a Non-U.S. Shareholder's shares, such distributions will
give rise to tax liability if the Non-U.S. Shareholder would otherwise be
subject to tax on any gain from the sale or disposition of his shares in Crown,
as described below. If it cannot be determined at the time a distribution is
made whether or not such distribution will be in excess of current and
accumulated earnings and profit, the distributions will be subject to
withholding at the same rate as dividends. However, amounts thus withheld are
refundable if it is subsequently determined that such distribution was, in fact,
in excess of current and accumulated earnings and profits of Crown.
For any year in which Crown qualifies as a real estate investment trust,
distributions that are attributable to gain from sales or exchanges by Crown of
United States real property interests will be taxed to a Non-U.S. Shareholder
under the provisions of the Foreign Investment in Real Property Tax Act of 1980
("FIRPTA"). Under FIRPTA, distributions attributable to gain from sales of
United States real property interests are taxed to a Non-U.S. Shareholder as if
such gain were effectively connected with a United States business. Non-U.S.
Shareholders would thus be taxed at the normal capital gain rates applicable to
U.S. shareholders (subject to applicable alternative minimum tax and a special
alternative minimum tax in the case of nonresident alien individuals). Also,
distributions subject to FIRPTA may be subject to a 30% branch profits tax in
the hands of a foreign corporate shareholder not entitled to treaty exemption.
Crown is required by applicable Treasury Regulations to withhold 35% of any
distribution that could be designated by Crown as a capital gains dividend. This
amount is creditable against the Non-U.S. Shareholder FIRPTA tax liability. If
Crown designates prior distributions as capital gains dividends, then subsequent
distributions up to the amount of such prior distributions will be treated as
capital gains dividends for purposes of withholding.
Gain recognized by a Non-U.S. Shareholder upon a sale of shares generally
will not be taxed under FIRPTA if Crown is a "domestically controlled real
estate investment trust," defined generally as a real estate investment trust in
which at all times during a specified testing period less than 50% in value of
the shares were
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held directly or indirectly by foreign persons. It is currently anticipated that
Crown will be a "domestically controlled real estate investment trust," and
therefore the sale of shares will not be subject to taxation under FIRPTA.
However, gain not subject to FIRPTA will be taxable to a Non-U.S. Shareholder if
(i) investment in the shares is effectively connected with the Non-U.S.
Shareholder's United States trade or business, in which case the Non-U.S.
Shareholder will be subject to the same treatment as U.S. shareholders with
respect to such gain, or (ii) the Non-U.S. Shareholder is a nonresident alien
individual who was present in the United States for 183 days or more during the
taxable year and has a "tax home" in the United States, in which case the
nonresident alien individual will be subject to a 30% tax on the individual's
capital gains. If the gain on the sale of shares were to be subject to taxation
under FIRPTA, the Non-U.S. Shareholder will be subject to the same treatment as
U.S. shareholders with respect to such gain (subject to applicable alternative
minimum tax and a special alternative minimum tax in the case of nonresident
alien individuals).
If the proceeds of a disposition of Shares are paid by or through a United
States office of a broker, the payment is subject to information reporting and
to backup withholding unless the disposing non-U.S. shareholder certifies as to
his name, address and non-United States status or otherwise establishes an
exemption. Generally, United States information reporting and backup withholding
will not apply to a payment of disposition proceeds if the payment is made
outside the United States through a non-United States office of a non-United
States broker. United States information reporting requirements (but not backup
withholding) will apply, however, to a payment of disposition proceeds outside
the United States if (i) the payment is made through an office outside the
United States of a broker that is either (a) a United States person, (b) a
foreign person that derives 50% or more of its gross income for certain periods
from the conduct of a trade or business in the United States or (c) a
"controlled foreign corporation" for United States federal income tax purposes,
and (ii) the broker fails to initiate documentary evidence that the shareholder
is a non-U.S. shareholder and that certain conditions are met or that the
non-U.S. shareholder otherwise is entitled to an exemption.
OTHER TAX CONSEQUENCES
Crown and its shareholders may be subject to state or local taxation in
various state or local jurisdictions, including those in which it or they
transact business or reside. The state and local tax treatment of Crown and its
shareholders may not conform to the federal income tax consequences discussed
above. Consequently, prospective shareholders should consult their own tax
advisors regarding the effect of state and local tax laws on an investment in
Crown.
TAX ASPECTS OF THE OPERATING PARTNERSHIP
The following discussion summarizes certain federal income tax
considerations applicable solely to Crown's investment in the Operating
Partnership and represents the view of Reed Smith Shaw & McClay. The discussion
does not cover state or local tax laws or any federal tax laws other than income
tax laws.
Classification as a Partnership
Crown is entitled to include in its income its distributive share of the
Operating Partnership's income and to deduct its distributive share of the
Operating Partnership's losses only if the Operating Partnership is classified
for federal income tax purposes as a partnership rather than as an association
taxable as a corporation.
For taxable periods prior to January 1, 1997, an organization formed as a
partnership was treated as a partnership rather than as a corporation for
federal income tax purposes only if it possessed no more than two of the four
corporate characteristics that the Treasury Regulations used to distinguish a
partnership from a corporation. These four characteristics were continuity of
life, centralization of management, limited liability, and free transferability
of interests. Although neither the Operating Partnership nor the Financing
Partnership requested a ruling from the IRS that they would be classified as
partnerships for Federal income tax purposes, rather than as associations
taxable as corporations, at the time of their organization, the partnerships
received an opinion of counsel that based on the provisions of the respective
partnership agreements of the Operating
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Partnership and the Financing Partnership, and certain factual assumptions and
representations as to each of them, the Operating Partnership and the Financing
Partnership would be treated as partnerships for federal income tax purposes and
not as associations taxable as corporations. Effective January 1, 1997, newly
promulgated Treasury Regulations (the "Regulations") eliminated the four-factor
test described above and, instead, permit partnerships and other non-corporate
entities to be taxed as partnerships for federal income tax purposes without
regard to the number of corporate characteristics possessed by such entity.
Under those Regulations, both the Operating Partnership and the Financing
Partnership will be classified as partnerships for federal income tax purposes
unless an affirmative election is made by the entity to be taxed as a
corporation. Crown has represented that no such election has been made, or is
anticipated to be made, on behalf of the Operating Partnership or the Financing
Partnership. Under a special transitional rule in the Regulations, the IRS will
not challenge the classification of an existing entity such as the Operating
Partnership or the Financing Partnership for periods prior to January 1, 1997
if: (i) the entity has a "reasonable basis" for its classification; (ii) the
entity and each of its members recognized the federal income tax consequences of
any change in classification of the entity made within the 60 months prior to
January 1, 1997; and (iii) neither the entity nor any of its members had been
notified in writing on or before May 8, 1996 that its classification was under
examination by the IRS. Neither the Operating Partnership nor the Financing
Partnership changed their classification within the 60-month period preceding
May 8, 1996, nor was either of them notified that its classification as a
partnership for federal income tax purposes was under examination by the IRS.
Therefore, in reliance upon the assumption that the Operating Partnership and
the Financing Partnership were properly classified as partnerships, the
classification of the Operating Partnership and the Financing Partnership should
not be subject to challenge for any period prior to January 1, 1997.
If for any reason the Operating Partnership or the Financing Partnership
was taxable as a corporation rather than as a partnership for federal income tax
purposes, Crown would not be able to satisfy the income and asset requirements
for real estate investment trust status. In addition, any change in the status
of the Operating Partnership or the Financing Partnership for tax purposes might
be treated as a taxable event, in which case Crown might incur a tax liability
without any related cash distribution. Further, items of income and deduction of
the Operating Partnership or the Financing Partnership would not pass through to
its partners, and its partners would be treated as shareholders for tax
purposes. The Operating Partnership or the Financing Partnership would be
required to pay income tax at corporate tax rates on its net income, and
distributions to its partners would constitute dividends that would not be
deductible in computing the Operating Partnership's taxable income.
Income Taxation of the Operating Partnership and Its Partners:
Partners, Not the Operating Partnership, Subject to Tax. A partnership is
not a taxable entity for federal income tax purposes. Rather, Crown will be
required to take into account its allocable share of the Operating Partnership's
income, gains, losses, deductions, and credits for any taxable year of the
Operating Partnership ending within or with the taxable year of Crown, without
regard to whether Crown has received or will receive any distribution from the
Operating Partnership.
Operating Partnership Allocations. Although a partnership agreement will
generally determine the allocation of income and losses among partners, such
allocations will be disregarded for tax purposes under Section 704(b) of the
Code if they do not comply with the provisions of Section 704(b) of the Code and
the Treasury Regulations promulgated thereunder.
If an allocation is not recognized for federal income tax purposes, the
item subject to the allocation will be reallocated in accordance with the
partners' interests in the partnership, which will be determined by taking into
account all of the facts and circumstances relating to the economic arrangement
of the partners with respect to such item. The Operating Partnership's
allocations of taxable income and loss are intended to comply with the
requirements of Section 704(b) of the Code and the Treasury Regulations
promulgated thereunder.
Tax Allocations With Respect to Contributed Properties. Pursuant to Section
704(c) of the Code, income, gain, loss, and deduction attributable to
appreciated or depreciated property that is contributed to a
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partnership in exchange for an interest in the partnership must be allocated for
federal income tax purposes in a manner such that the contributor is charged
with, or benefits from, the unrealized gain or unrealized loss associated with
the property at the time of the contribution. The amount of such unrealized gain
or unrealized loss is generally equal to the difference between the fair market
value of the contributed property at the time of contribution and the adjusted
tax basis of such property at the time of contribution. The Partnership
Agreement requires allocations of income, gain, loss, and deduction attributable
to such contributed property to be made in a manner that is consistent with
Section 704(c) of the Code. The Treasury Department recently proposed
regulations (the "Section 704(c) Regulations") requiring partnerships to use a
"reasonable method" for allocating items affected by Section 704(c) of the Code
and outlining three reasonable allocation methods. The application of Section
704(c) to the Operating Partnership and the Financing Partnership is not
entirely clear and may be affected by Treasury Regulations which may be
promulgated in the future.
Basis in Operating Partnership Interest. Crown's adjusted tax basis in its
partnership interest in the Operating Partnership generally (i) will be equal to
the amount of cash and the basis of any other property contributed to the
Operating Partnership by Crown, (ii) will be increased by (a) its allocable
share of the Operating Partnership's income and (b) its allocable share of
indebtedness of the Operating Partnership and the Financing Partnership and
(iii) will be reduced, but not below zero, by Crown's allocable share of (a) the
Operating Partnership's loss and (b) the amount of cash distributed to Crown,
and by constructive distributions resulting from a reduction in Crown's share of
indebtedness of the Operating Partnership and the Financing Partnership.
If the allocation of Crown's distributive share of the Operating
Partnership's loss would reduce the adjusted tax basis of Crown's partnership
interest in the Operating Partnership below zero, the recognition of such loss
will be deferred until such time as the recognition of such loss would not
reduce Crown's adjusted tax basis below zero. To the extent that the Operating
Partnership's distributions, or any decrease in Crown's share of the nonrecourse
indebtedness of the Operating Partnership (such decrease being considered a
constructive cash distribution to the partners), would reduce Crown's adjusted
tax basis below zero, such distributions (including such constructive
distributions) constitute taxable income to Crown. Such distributions and
constructive distributions will normally be characterized as a capital gain, and
if Crown's partnership interest in the Operating Partnership has been held for
longer than the long-term capital gain holding period (currently one year), the
distributions and constructive distributions will constitute long-term capital
gains.
Depreciation Deductions Available to the Operating Partnership and the Financing
Partnership.
The Operating Partnership and the Financing Partnership were formed in 1993
principally by way of contributions of property interests. Crown, the Operating
Partnership and the Financing Partnership, as applicable, compute depreciation
for federal income tax purposes using the historic depreciation schedules
pursuant to which each Property (except for Oak Ridge Mall, Shenango Valley
Mall, Middletown Mall and Wyoming Valley Mall) was depreciated using various
methods of depreciation that were determined at the time each Property was
placed in service. With respect to Oak Ridge Mall and the Shenango Valley Mall,
the Operating Partnership computes depreciation for federal income tax purposes
using the alternative cost recovery system method based on useful lives of 40
years for buildings and improvements and 7 years for equipment and fixtures, and
for accounting purposes using the straight-line method based on useful lives of
40 years for buildings and improvements and 7 years for equipment and fixtures.
Section 704 (c) of the Code may affect allocations of depreciation and gain
or loss on all of the Properties contributed to the Operating Partnership or the
Financing Partnership.
Sale of the Operating Partnership's Property
Generally, any gain realized by the Operating Partnership or the Financing
Partnership on the sale of property held by the Operating Partnership or the
Financing Partnership for more than one year will be long-term capital gain,
except for any portion of such gain that is treated as depreciation or cost
recovery recapture. Any unrealized gain attributable to the excess of the fair
market value of the shopping center interests over their adjusted tax bases at
the time of contribution to the Operating Partnership ("Pre-Contribution Gain")
31
<PAGE> 33
must, when recognized by the Operating Partnership, be allocated to Crown
Investments under Section 704(c) of the Code and Treasury Regulations
promulgated thereunder. As noted above, in connection with the contribution of
the interests in the Properties with respect to which there is Pre-Contribution
Gain, the Operating Partnership will allocate to Crown depreciation which is
disproportionately greater than Crown's ownership in the Operating Partnership.
As a result of the foregoing, in the event of the disposition of any of
Crown's properties which have Pre-Contribution Gain, all income attributable to
such Pre-Contribution Gain will be allocated to Crown Investments, and Crown
will be allocated only its share of capital gains attributable to appreciation,
if any, occurring after the closing of the offerings and gain in an amount no
greater than the amount in which Crown has been allocated depreciation
deductions from the Operating Partnership disproportionately greater than
Crown's percentage interest in the Operating Partnership pursuant to Section
704(c) of the Code. The decision relating to the potential sale of any such
property will be made by the independent Trustees of Crown if the sale would
result in a disproportionately higher taxable income for Crown Investments than
for Crown (after taking into account Crown Investments' use of its then
available losses or loss carry forwards).
Crown's share of any gain realized on the sale of any property held by the
Operating Partnership, the Financing Partnership or Crown as inventory or other
property held primarily for sale to customers in the ordinary course of Crown's
Operating Partnership's or the Financing Partnership's trade or business will
however, be treated as income from a prohibited transaction that is subject to a
100% penalty tax. Such prohibited transaction income will also have an adverse
effect upon Crown's ability to satisfy the income tests for real estate
investment trust status. Under existing law, whether property is held as
inventory or primarily for sale to customers in the ordinary course of Crown's,
the Operating Partnership's or the Financing Partnership's trade or business is
a question of fact that depends on all the facts and circumstances with respect
to the particular transaction. Crown, the Operating Partnership and the
Financing Partnership intend to hold their properties for investment with a view
to long-term appreciation, to engage in the business of acquiring, developing,
owning, and operating their properties (and other shopping centers) and to make
such occasional sales of properties, including peripheral land, as are
consistent with the investment objectives of Crown, the Operating Partnership
and the Financing Partnership.
PLAN OF DISTRIBUTION
Crown may sell Securities through underwriters for public offer and sale by
them, and also may sell the Securities offered hereby to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
the Securities will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, at prices related to the prevailing market prices at the
time of sale or at negotiated prices. Crown also may, from time to time,
authorize underwriters acting as Crown's agents to offer and sell Securities
upon terms and conditions set forth in the applicable Prospectus Supplement. In
connection with the sale of the Securities, underwriters may be deemed to have
received compensation from Crown in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Securities
for whom they may act as agent. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Any underwriters or agents in connection with an offering of the
Securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
Prospectus Supplement. Underwriters, dealers and agents participating in the
distribution of the Securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters, dealers and agents may be
entitled, under agreements to be entered into with Crown, to indemnification
against and contribution toward certain civil liabilities, including liabilities
under the Securities Act.
32
<PAGE> 34
If so indicated in the applicable Prospectus Supplement, Crown will
authorize underwriters or other persons acting as Crown's agents to solicit
offers by certain institutions to purchase Securities from Crown at the public
offering price set forth in such Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on the date or dates
stated in such Prospectus Supplement. Each delayed delivery contract will be for
an amount not less than, and the aggregate principal amount of Securities sold
pursuant to delayed delivery contracts shall be not less nor more than, the
respective amounts stated in the applicable Prospectus Supplement. Institutions
with whom delayed delivery contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions but
will in all cases be subject to the approval of Crown. Delayed delivery
contracts will not be subject to any conditions except (i) the purchase by an
institution of the Securities covered by its delayed delivery contracts shall
not at the time of delivery be prohibited under the laws of any jurisdiction in
the United States to which such institution is subject, and (ii) if the
Securities are being sold to underwriters, Crown shall have sold to such
underwriters the total principal amount of the Securities less the principal
amount thereof covered by delayed delivery contracts.
EXPERTS
The consolidated financial statements and schedules of Crown American
Realty Trust incorporated by reference from the Annual Report on Form 10-K for
the year ended December 31, 1996, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports, with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in accounting and auditing, in giving said reports.
LEGAL MATTERS
Certain legal matters will be passed upon for Crown by Reed Smith Shaw &
McClay, Pittsburgh, Pennsylvania.
33
<PAGE> 35
======================================================
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER
TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY PERSON OR BY ANYONE IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................ 2
Incorporation of Certain Documents by
Reference.......................... 2
Crown................................ 4
Use of Proceeds...................... 5
Ratio of Earnings to Fixed Charges... 5
Description of Shares................ 5
Certain Provisions of Maryland Law
and Crown's Declaration of Trust
and Bylaws......................... 17
Certain Federal Income Tax
Considerations to Crown of its REIT
Election........................... 22
Plan of Distribution................. 32
Experts.............................. 33
Legal Matters........................ 33
</TABLE>
======================================================
======================================================
CROWN AMERICAN
REALTY TRUST
PROSPECTUS
JUNE , 1997
======================================================
<PAGE> 36
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an estimate of the amount of fees and expenses to be
incurred in connection with the issuance and distribution of the Securities
registered hereby:
<TABLE>
<S> <C>
SEC Registration Fee...................................................... $ 90,909
New York Stock Exchange Listing Fee....................................... 200,000
NASD Filing Fee........................................................... 12,000
Printing and Mailing Costs................................................ 75,000
Legal Fees and Expenses................................................... 100,000
Accounting Fees and Expenses.............................................. 50,000
Blue Sky Fees and Expenses (including Fees of Counsel).................... 15,000
Transfer Agent and Registrar Fees......................................... 15,000
Miscellaneous............................................................. 17,091
--------
Total..................................................................... $575,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Crown's Declaration of Trust provides that the liability of the Trustees
and officers of Crown for money damages shall be eliminated to the maximum
extent permitted by Maryland law. Under current Maryland law respecting real
estate investment trusts, the Trustees of Crown are liable to Crown or the
shareholders for acts or omissions that constitute bad faith, willful
misfeasance, gross negligence or reckless disregard of their duties. Maryland
law permits a real estate investment trust formed in Maryland to limit, by
provision in its declaration of trust, the liability of Trustees and officers so
that no Trustee or officer of Crown shall be liable to Crown or any shareholder
for money damages except for the liability of a Trustee or officer resulting
from (i) acts or omissions involving active and deliberate dishonesty
established by a final judgment or (ii) actual receipt of an improper benefit or
profit in money, property or services. Crown's Declaration of Trust has
incorporated these statutory provisions.
Crown's Declaration of Trust requires it to indemnify (a) any Trustee,
officer or shareholder who has been successful, on the merits or otherwise, in
the defense of a proceeding to which he was made a party by reason of his
service in that capacity, against reasonable expenses incurred by him in
connection with the proceeding and (b) any present or former Trustee or officer
against any claim or liability unless it is established that (i) his act or
omission was committed in bad faith or was the result of active and deliberate
dishonesty, (ii) he actually received an improper personal benefit in money,
property or services or (iii) in the case of a criminal proceeding, he had
reasonable cause to believe that his act or omission was unlawful. In addition,
Crown's bylaws require it to pay or reimburse, in advance of final disposition
of a proceeding, reasonable expenses incurred by a present or former Trustee or
officer made a party to a proceeding by reason of his or her status as a Trustee
or officer, provided that Crown shall have received (i) a written affirmation by
the Trustee or officer of his or her good faith belief that he has met the
standard of conduct necessary for indemnification by Crown as authorized by the
bylaws and (ii) a written undertaking by or on his behalf to repay the amount
paid or reimbursed by Crown if it shall ultimately be determined that the
standard of conduct was not met. Crown's bylaws also (i) permit Crown to provide
indemnification and advance of expenses to a present or former Trustee or
officer who served a predecessor of Crown in such capacity, and to any employee
or agent of Crown or a predecessor of Crown, (ii) provide that any
indemnification or payment or reimbursement of the expenses permitted by the
Bylaws shall be furnished in accordance with the procedures provided for
indemnification and payment or reimbursement of expenses under Section 2-418 of
the Maryland General Corporation Law ("MGCL") for directors of Maryland
corporations and permit Crown to provide such other and further indemnification
or payment or reimbursement of expenses as may be permitted by the MGCL for
directors of Maryland corporations. Insofar as indemnification for liabilities
II-1
<PAGE> 37
arising under the Securities Act of 1933 may be permitted to Trustees and
officers of Crown pursuant to the foregoing provisions or otherwise, Crown has
been advised that, although the validity and scope of the governing statute has
not been tested in court in the opinion of the SEC, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In addition, indemnification may be limited by state securities
laws.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
ITEM DESCRIPTION
----- ------------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement for Equity Securities (1)
1.2 Form of Underwriting Agreement for Debt Securities (1)
3.1 Declaration of Trust (3)
3.2 Bylaws (3)
4.1 Form of Indenture (2)
4.2 Form of Debt Security (2)
4.3 Form of Common Share Warrant Agreement (2)
4.4 Form of Articles Supplementary for the Preferred Shares (2)
4.5 Form of Preferred Share Certificate (2)
5 Opinion of Reed Smith Shaw & McClay as to validity of the Securities (2)
8 Opinion of Reed Smith Shaw & McClay regarding tax matters (2)
12 Computation of Crown's Ratio of Earnings to Fixed Charges and Preferred Shares
Dividend (4)
23.1 Consent of Reed Smith Shaw & McClay (included in Exhibit 5 above) (4)
23.2 Consent of Arthur Andersen LLP (2)
24 Powers of Attorney (2)
25 Statement of Eligibility of Trustee on Form T-1 (2)
</TABLE>
- ---------
(1) To be filed by amendment.
(2) Filed herewith.
(3) Filed as an Exhibit to Crown's Registration Statement on Form S-11,
effective as of August 9, 1993.
(4) Previously filed.
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 of 1933;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
II-2
<PAGE> 38
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the Securities offered
herein, and the offering of such Securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the Securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further undertakes that, for the purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the Securities offered herein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby further undertakes to file an application
for the purpose of determining the eligibility of the Trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the Securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Johnstown, Commonwealth
of Pennsylvania on June 12, 1997.
CROWN AMERICAN REALTY TRUST
By: /s/ FRANK J. PASQUERILLA
------------------------------------
Frank J. Pasquerilla
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------- -------------------------------------- --------------
<S> <C> <C>
/s/ FRANK J. PASQUERILLA Chairman of the Board of Trustees and June 12, 1997
- -------------------------------------- Chief Executive Officer
Frank J. Pasquerilla
/s/ MARK E. PASQUERILLA President and Trustee June 12, 1997
- --------------------------------------
Mark E. Pasquerilla
/s/ JOHN M. KRIAK Executive Vice President, Chief June 12, 1997
- -------------------------------------- Financial Officer (Principal Financial
John M. Kriak Officer) and Trustee
/s/ TERRY L. STEVENS Senior Vice President-Finance and June 12, 1997
- -------------------------------------- Chief Accounting Officer
Terry L. Stevens
Trustee June , 1997
- --------------------------------------
Clifford A. Barton
* Trustee June 12, 1997
- --------------------------------------
Donald F. Mazziotti
* Trustee June 12, 1997
- --------------------------------------
Margaret T. Monaco
Trustee June , 1997
- --------------------------------------
Zachary L. Solomon
</TABLE>
*By: /s/ JOHN M. KRIAK
----------------------------
John M. Kriak
Attorney-in-fact
II-4
<PAGE> 40
EXHIBITS INDEX
<TABLE>
<CAPTION>
ITEM DESCRIPTION
----- ------------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement for Equity Securities (1)
1.2 Form of Underwriting Agreement for Debt Securities (1)
3.1 Declaration of Trust (3)
3.2 Bylaws (3)
4.1 Form of Indenture (2)
4.2 Form of Debt Security (2)
4.3 Form of Common Share Warrant Agreement (2)
4.4 Form of Articles Supplementary for the Preferred Shares (2)
4.5 Form of Preferred Share Certificate (2)
5 Opinion of Reed Smith Shaw & McClay as to validity of the Securities (2)
8 Opinion of Reed Smith Shaw & McClay regarding tax matters (2)
12 Computation of Crown's Ratio of Earnings to Fixed Charges and Preferred Shares
Dividend (4)
23.1 Consent of Reed Smith Shaw & McClay (included in Exhibit 5 above) (4)
23.2 Consent of Arthur Andersen LLP (2)
24 Powers of Attorney (2)
25 Statement of Eligibility of Trustee on Form T-1 (2)
</TABLE>
<PAGE> 1
EXHIBIT 4.1
CROWN AMERICAN REALTY TRUST
as Issuer
TO
[NAME OF TRUSTEE],
as Trustee
__% [Convertible] [Redeemable] [Nonredeemable] [Subordinated] Securities
INDENTURE
Dated as of _________, __
<PAGE> 2
CROWN AMERICAN REALTY TRUST
Reconciliation and tie between Trust Indenture Act of 1939 (the "TIA"), as
amended by Crown Reform Act of 1990, and the Indenture, dated as of
_____________, 19__.
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
ss.310(a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.9
(b) 6.9
ss.311(a) 6.10
(b) 6.10
(c) Not Applicable
ss.312(a) 7.1, 7.2
(b) 7.2(b)
(c) 7.2(c)
ss.313(a) 7.3
(b) 7.3
(c) 7.3
(d) 7.3
ss.314(a) 7.4
(b) Not Applicable
(c)(1) 1.3
(c)(2) 1.3
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.3
(f) Not Applicable
ss.315(a) 6.1(b)
(b) 6.5
(c) 6.1(a)
(d) 6.1(c)
(e) 5.14
ss.316(a)(last sentence) 1.1 ("Outstanding")
(a)(1)(A) 5.2, 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) 1.5
ss.317(a)(1) 5.3
(a)(2) 5.4
(b) 10.3
ss.318(a) 1.8
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA, which provides
that the provisions of Sections 310 to and including 317 of the TIA are a part
of and govern every qualified Indenture, whether or not physically contained
therein.
<PAGE> 3
ARTICLE 1 - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............1
SECTION 1.1. Definitions...................................................1
SECTION 1.2. Incorporation by Reference to Trust Indenture Act.............7
SECTION 1.3. Compliance Certificates and Opinions..........................8
SECTION 1.4. Form of Documents Delivered to Trustee........................8
SECTION 1.5. Acts of Holders...............................................9
SECTION 1.6. Notices, Etc., to Trustee and Crown...........................9
SECTION 1.7. Notice to Holders; Waiver....................................10
SECTION 1.8. Conflict with Trust Indenture Act............................10
SECTION 1.9. Effect of Headings and Table of Contents.....................10
SECTION 1.10. Successors and Assigns.......................................10
SECTION 1.11. Severability Clause..........................................10
SECTION 1.12. Benefits of Indenture........................................12
SECTION 1.13. Governing Law................................................12
SECTION 1.14. Legal Holidays...............................................12
SECTION 1.15. Shareholders, Employees, Officers and Trustees of
Crown Exempt from Individual Liability.......................12
ARTICLE 2 - SECURITY FORMS....................................................12
SECTION 2.1. Forms Generally..............................................12
SECTION 2.2. Securities in Global Form....................................13
ARTICLE 3 - THE SECURITIES....................................................13
SECTION 3.1. Amount Unlimited; Issuable in Series.........................13
SECTION 3.2. Denominations................................................14
SECTION 3.3. Execution, Authentication, Delivery and Dating...............14
SECTION 3.4. Temporary Securities.........................................16
SECTION 3.5. Registration, Registration of Transfer and Exchange..........16
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.............17
SECTION 3.7. Payment of Interest; Interest Rights Preserved;
Paying Agent Definitions.....................................18
SECTION 3.8. Persons Deemed Owners........................................19
SECTION 3.9. Cancellation.................................................19
SECTION 3.10. Computation of Interest......................................20
ARTICLE 4 - SATISFACTION AND DISCHARGE........................................20
SECTION 4.1. Satisfaction, Discharge and Defeasance of
the Securities of Indenture..................................20
SECTION 4.2. Application of Trust Money...................................21
SECTION 4.3. Paying Agent to Repay Monies Held............................21
SECTION 4.4. Return of Unclaimed Monies...................................21
SECTION 4.5. Reinstatement................................................21
ARTICLE 5 - DEFAULTS AND REMEDIES.............................................22
SECTION 5.1. Events of Default............................................22
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment...........23
SECTION 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee...................................24
SECTION 5.4. Trustee May File Proofs of Claim.............................25
SECTION 5.5. Trustee May Enforce Claims Without
Possession of Securities.....................................25
SECTION 5.6. Application of Money Collected...............................25
SECTION 5.7. Limitations on Suits.........................................26
SECTION 5.8. Unconditional Right of Holders to
Receive Principal, Premium, if any, and Interest.............26
SECTION 5.9. Restoration of Rights and Remedies...........................27
SECTION 5.10. Rights and Remedies Cumulative...............................27
SECTION 5.11. Delay or Omission Not Waiver.................................27
SECTION 5.12. Control by Holders...........................................27
SECTION 5.13. Waiver of Past Defaults......................................28
SECTION 5.14. Undertaking for Costs........................................28
SECTION 5.15. Waiver of Stay or Extension Laws.............................28
ARTICLE 6 - THE TRUSTEE.......................................................28
SECTION 6.1. Certain Duties and Responsibilities of the Trustee...........28
SECTION 6.2. Certain Rights of Trustee....................................29
SECTION 6.3. Individual Rights of Trustee.................................30
SECTION 6.4. Trustee's Disclaimer.........................................30
-i-
<PAGE> 4
SECTION 6.5. Notice of Defaults...........................................30
SECTION 6.6. Compensation and Indemnity...................................30
SECTION 6.7. Replacement of Trustee.......................................31
SECTION 6.8. Successor Trustee by Merger, Etc.............................32
SECTION 6.9. Eligibility; Disqualification................................32
SECTION 6.10. Preferential Collection of Claims Against Trust..............32
SECTION 6.11. Appointment of Authenticating Agent..........................32
ARTICLE 7 - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................33
SECTION 7.1. Crown to Furnish Trustee Names and Addresses of Holders......33
SECTION 7.2. Preservation of Information; Communications to Holders.......33
SECTION 7.3. Reports by Trustee to Holders................................34
SECTION 7.4. Reports by Crown.............................................34
ARTICLE 8 - SUCCESSOR CORPORATION OR TRUST....................................35
SECTION 8.1. When Crown May Merge, Etc....................................35
SECTION 8.2. Successor Corporation or Trust Substituted...................35
ARTICLE 9 - SUPPLEMENTAL INDENTURES...........................................35
SECTION 9.1. Supplemental Indentures Without Consent of Holders...........35
SECTION 9.2. Supplemental Indentures with Consent of Holders..............36
SECTION 9.3. Compliance with Trust Indenture Act..........................37
SECTION 9.4. Revocation and Effect of Consents............................37
SECTION 9.5. Notation On or Exchange of Securities........................37
SECTION 9.6. Effect of Supplemental Indentures............................37
SECTION 9.7. Reference in Securities to Supplemental Indentures...........38
ARTICLE 10 - COVENANTS........................................................38
SECTION 10.1. Payment of Principal, Premium and Interest..................38
SECTION 10.2. Maintenance of Office or Agency.............................38
SECTION 10.3. Money for Securities Payments to Be Held in Trust...........38
SECTION 10.4. Crown Existence.............................................39
SECTION 10.5. Maintenance of Properties...................................39
SECTION 10.6. Insurance...................................................39
SECTION 10.7. SEC Reports.................................................39
SECTION 10.8. Compliance Certificates.....................................40
SECTION 10.9. Limitation on Dividends and Other Distributions.............40
SECTION 10.10. Payment of Taxes and Other Claims...........................40
SECTION 10.11. Defeasance of Certain Obligations...........................40
ARTICLE 11 - REDEMPTION OF SECURITIES.........................................41
SECTION 11.1. Applicability of Article....................................41
SECTION 11.2. Election to Redeem; Notice to Trustee.......................41
SECTION 11.3. Selection by Trustee of Securities to Be Redeemed...........41
SECTION 11.4. Notice of Redemption........................................42
SECTION 11.5. Deposit of Redemption Price.................................43
SECTION 11.6. Securities Payable on Redemption Date.......................43
SECTION 11.7. Securities Redeemed in Part.................................43
ARTICLE 12 - SINKING FUNDS....................................................43
SECTION 12.1. Applicability of Article....................................43
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.......44
SECTION 12.3. Redemption of Securities for Sinking Fund...................44
ARTICLE 13 - REPAYMENT AT THE OPTION OF HOLDERS...............................44
SECTION 13.1. Applicability of Article....................................44
ARTICLE 14 - MEETINGS OF HOLDERS..............................................44
SECTION 14.1. Purposes of Holders' Meetings...............................44
SECTION 14.2. Call of Meetings by Trustee.................................45
SECTION 14.3. Call of Meetings by Crown or Holders........................45
SECTION 14.4. Qualifications for Voting...................................45
SECTION 14.5. Regulations.................................................45
SECTION 14.6. Voting......................................................46
SECTION 14.7. Rights of Trustee or Holders Not Delayed....................46
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ARTICLE 15 - SUBORDINATION; SENIORITY.........................................46
SECTION 15.1. Securities Subordinated to Senior Indebtedness..............46
SECTION 15.2. Crown Not to Make Payments with Respect to
Securities in Certain Circumstances.........................47
SECTION 15.3. Subrogation of Securities...................................48
SECTION 15.4. Authorization by Holders of Securities......................49
SECTION 15.5. Notices of Trustee..........................................49
SECTION 15.6. Trustee's Relation to Senior Indebtedness...................50
SECTION 15.7. No Impairment of Subordination..............................50
SECTION 15.8. Article 15 Not To Prevent Events of Default.................50
SECTION 15.9. Paying Agents Other Than the Trustee........................50
ARTICLE 16 - CONVERSION OF SECURITIES.........................................50
SECTION 16.1. Right of Conversion; Conversion Price.......................50
SECTION 16.2. Issuance of Shares on Conversion............................51
SECTION 16.3. No Adjustment for Interest or Dividends.....................51
SECTION 16.4. Adjustment of Conversion Price..............................52
SECTION 16.5. Notice of Adjustment of Conversion Price....................54
SECTION 16.6. Notice of Certain Crown Action..............................54
SECTION 16.7. Taxes on Conversions........................................55
SECTION 16.8. Fractional Shares...........................................55
SECTION 16.9. Cancellation of Converted Securities........................55
SECTION 16.10. Provisions in Case of Consolidation,
Merger or Sale of Assets....................................55
SECTION 16.11. Disclaimer by Trustee of Responsibility
for Certain Matters.........................................56
SECTION 16.12. Covenant to Reserve Shares..................................56
EXHIBIT A - FORM OF SECURITY
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INDENTURE, dated as of _________________, by and between CROWN AMERICAN REALTY
TRUST, a Maryland real estate investment trust ("Crown"), having its principal
office at Pasquerilla Plaza, Johnstown, Pennsylvania 15901 and _____________
(the "Trustee").
RECITALS OF CROWN
Crown has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its [convertible] [redeemable]
[nonredeemable] [subordinated] securities (hereinafter being collectively
referred to as the "Securities") evidencing its [convertible] [redeemable]
[nonredeemable] [subordinated] unsecured indebtedness, unlimited as to
principal amount, to bear interest at the rates, to mature at such times[, to
be convertible into the capital shares of Crown], and to have such other
provisions, as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended (the "TIA"), that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary to make this Indenture a valid agreement
of Crown, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchases of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE 1 - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article 1 have the meanings
assigned them in this Article, and include the plural as well as the singular;
(2) whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this
Indenture. All terms used herein which are defined in the TIA, either directly
or by reference therein, have the meaning assigned to them therein;
(3) all accounting terms, not otherwise defined herein, have
the meanings assigned them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not any
particular Article, Section or other subdivision.
"Act," when used herein with respect to any Holder, has the
meaning set forth in Section 1.5.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct to cause the direction of the management
or policies of such Person, whether through the ownership of voting securities
or by agreement or otherwise.
"Agent" means any Authenticating Agent, Security Registrar,
Paying Agent, Conversion Agent, co-registrar or agent for service of notices
and demands.
"Authenticating Agent" means any Person or Persons authorized
from time to time by the Trustee pursuant to Section 6.11 to act on behalf of
the Trustee to authenticate Securities of one or more series.
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"Bankruptcy Law" means Title 11 of the U.S. Code or any
similar Federal or State law for the relief of debtors.
"Board of Trustees" means the Board of Trustees of Crown or
any Committee thereof.
"Board Resolution" means a resolution certified by the
Secretary or an Assistant Secretary of Crown to have been duly adopted by the
Board of Trustees and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of
Payment or any other particular location referred to in this Indenture or the
Securities of any series, means, unless specified with respect to such
Securities pursuant to Section 3.1, any day, other than Saturday or Sunday,
that is neither a legal holiday, nor a day on which banking institutions in
that Place of Payment or particular location are authorized or required by law,
regulation or executive order to close.
"Capital Shares" means any and all shares or other
equivalents (however designated) of capital shares, including Common Shares and
Preferred Shares issued or authorized for issuance, in series or otherwise, all
in accordance with the Declaration of Trust.
"Closing Price" means with respect to the per share price of
Common Shares or Preferred Shares, as the case may be, on any Trading Day, (i)
the last reported sales price regular way or, in case no such reported sale
takes place on such Trading Day, the average of the reported closing bid and
asked prices regular way, in either case on the New York Stock Exchange, or
(ii) if not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which such shares are listed or
admitted to trading, or (iii) if such shares are not listed or admitted to
trading on any national securities exchange, the average of the closing bid and
asked prices as furnished by any New York Stock Exchange member firm selected
from time to time by Crown for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations issued thereunder, as from time to time in
effect.
"Common Shares" of Crown means every share of each class
(however designated) of the Capital Shares that is not a Preferred Share of
Crown issued or authorized for issuance in accordance with the Declaration of
Trust.
"Crown Request" or "Crown Order" means a written request or
order signed in the name of Crown by an Officer and delivered to the Trustee.
"Conversion Agent" means any Person authorized by Crown to
act as a conversion agent pursuant to this Indenture for purposes of Article
16.
"Conversion Price" has the meaning set forth in Section 16.1.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office on the date of execution of this Indenture is
located at ____________ ________________.
"Custodian" means any receiver, trustee, liquidator or
similar official under any Bankruptcy Law.
"Declaration of Trust" means the Second Amended and Restated
Declaration of Trust of Crown, dated August 6, 1993.
"Defaulted Interest" has the meaning specified in Section
3.7.
"Depositary" means with respect to the Securities of any
series issuable or issued in the form of one or more Global Securities, the
Person designated as the "Depositary" by Crown pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this
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Indenture, and thereafter the "Depositary" shall mean or include each Person who
is then a Depositary hereunder, and if at any time there is more than one such
Person, the "Depositary" as used with respect to the Securities of any series
shall mean the Depositary with respect to the Securities of that series. Each
Depositary must, at the time of its designation and at all times while it serves
as a Depositary, be a clearing agency registered under the Exchange Act, and any
other applicable statute or regulation.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time there shall be legal
tender for the payment of public and private debts.
"Events of Default" has the meaning set forth in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as from time to
time in effect.
"GAAP" means generally accepted accounting principles, as in
effect from time to time, as used in the United States.
"Global Security" means a Security evidencing all or a part
of a series of Securities, issued to and registered in the name of the
Depositary for such series, or its nominee, in accordance with Section 3.3, and
bearing the legend prescribed in Section 2.2.
"Holder" means, in the case of a registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a bearer Security, if any, the bearer thereof, and, when used with
respect to any coupon, if any, shall mean the bearer thereof.
"Indebtedness," as applied to any Person, means, without
duplication (i) all indebtedness for borrowed money whether or not evidenced by
bonds, notes, debentures or a similar instrument, (ii) that portion of
obligations with respect to leases that is properly classified as a liability
on a balance sheet in accordance with GAAP, (iii) notes payable and drafts
accepted representing extensions of credit, (iv) any balance owed for all or
any part of the deferred purchase price of property or services, which purchase
price is due more than six months from the date of incurrence of the obligation
in respect thereof (except any such balance that constitutes (x) a trade
payable or an accrued liability arising in the ordinary course of business or
(y) a trade draft or note payable issued in the ordinary course of business in
connection with the purchase of goods or services), if and to the extent such
debt would appear as a liability upon a balance sheet of such Person prepared
in accordance with GAAP, (v) all indebtedness for letters of credit or bankers
acceptances issued for the account of such Person or performance, surety or
similar bonds, (vi) all indebtedness under interest rate swaps, caps or similar
agreements and foreign exchange contracts, currency swaps or similar
agreements, (vii) any liability of others of the kind described in the
preceding clauses (i) through (vi), which such Person has guaranteed or which
is otherwise its legal liability, and (viii) any and all deferrals, renewals,
extensions and refunding of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding clauses (i) through
(vi); provided, however, that, in computing the "Indebtedness" of any Person,
there shall be excluded any particular indebtedness if, upon or prior to the
maturity thereof and at the time of determination of such indebtedness, there
shall have been deposited with a depositary in trust money (or evidences of
indebtedness if permitted by the instrument creating such indebtedness) in the
necessary amount to pay, redeem or satisfy such indebtedness as it becomes due,
and the amount so deposited shall not be included in any computation of the
assets of such Person.
"Indenture" means the instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.1; provided, however, that if at any time more than
one Person is acting as Trustee under this Indenture due to the appointment of
one or more separate Trustees for any one or more separate series of Securities
pursuant to Section 6.7,
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<PAGE> 9
"Indenture" shall mean, with respect to such series of Securities for which any
such Person is Trustee, this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions of Article 9 and shall
include the terms, as contemplated by Section 3.1, of the particular series of
Securities for which such Person is Trustee, exclusive, however, of any
provisions or terms which relate solely to any other series of Securities for
which such Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one
or more indentures supplemental hereto executed and delivered after such Person
had become such Trustee, but to which such Person, as such Trustee, was not a
party.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable, as therein or herein defined, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of Crown.
"Officers' Certificate" means a certificate signed by two
Officers and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from Reed Smith
Shaw & McClay or any other legal counsel who is reasonably acceptable to the
Trustee. The counsel may be an employee of or counsel to Crown or the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding," when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than Crown) in trust or set aside and segregated in trust by Crown
(if Crown shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities 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;
(iii) Securities, with respect to which Crown effected
defeasance pursuant to or in accordance with this Indenture if the terms of
such Securities provided for defeasance pursuant to Section 3.1;
(iv) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of Crown; and
[(v) Securities converted into Common Shares or Preferred
Shares pursuant to or in accordance with this Indenture if the terms of such
Securities provided for convertibility pursuant to Section 3.1; provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent
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or waiver hereunder or are present at a meeting of Holders for quorum purposes,
and for the purpose of making the calculations required by TIA Section 313, (i)
the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 5.2, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the Dollar equivalent, determined as of the date of original issuance of such
Security in the manner provided as contemplated by Section 3.1, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, and (iii) Securities
owned by Crown or any other obligor upon the Securities or any Affiliate of
Crown or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities owned as provided in clause (iii) above which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not Crown or any other
obligor upon the Securities or any Affiliate of Crown or of such other obligor.]
"Ownership Limit" as to any Holder or other Person means, on
any date of determination, the number of shares of any or all classes or series
of Capital Shares with an aggregate value equal to 9.8% of the aggregate value
of all outstanding Capital Shares of Crown determined in accordance with the
principles (including, without limitation, the authority of the Board of
Trustees) set forth in the Declaration of Trust.
"Paying Agent" means any Person authorized by Crown to pay
the principal of (and premium, if any), or interest on, any Securities on
behalf of Crown.
"Payment or Distribution" has the meaning set forth in
Section 15.1.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of (and
premium, if any) and interest on the Securities of that series are payable as
specified as contemplated by Sections 3.1 and 10.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same indebtedness as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Preferred Shares" means, with respect to Crown, Capital
Shares issued by Crown in accordance with the Declaration of Trust that is
entitled to a preference or priority over any other Capital Shares issued by
Crown upon any distribution of Crown's assets, whether by dividends or upon any
voluntary or involuntary liquidation, dissolution or winding up to any other
share of such or any class of the Capital Shares.
"Principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on the Security.
["Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.]
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["Redemption Price," when used with respect to the Securities
of any series to be redeemed means the price fixed for such redemption pursuant
to this Indenture as specified in such Security.]
"Regular Record Date," for the interest payable on any
Interest Payment Date on the Securities of or within any series, means the date
specified for that purpose as contemplated by Section 3.1, whether or not a
Business Day.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or vice-chairman of the board of trustees, the chairman or
vice-chairman of the executive committee of the board of trustees, the
president, any vice president (whether designated by a number or a word or
words added before and after the title "vice president"), the secretary, any
assistant secretary, the clerk, any assistant clerk, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
officers designated hereinabove and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular
subject.
"Rule 13e-3 Transaction" has the meaning set forth in
Section 16.6(2).
"SEC" means the Securities and Exchange Commission, as from
time to time constituted, or, if at any time after execution of this instrument
the SEC is not existing and performing the duties now assigned to it under the
TIA, then the body performing such duties on such date.
"Security" has the meaning set forth in the first recital of
this Indenture and, more particularly, means any Security authenticated and
delivered under this Indenture; provided, however, that, if at any time there
is more than one Person acting as Trustee under this Indenture, "Securities"
with respect to this Indenture as to which such Person is Trustee will have the
meaning stated in the first recital of hereof and, more particularly, will mean
Securities authenticated and delivered hereunder, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
["Senior Indebtedness" means the principal of and interest
on, or substantially similar payments to be made by Crown in respect of, the
following, whether outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) Indebtedness of Crown for money
borrowed or represented by purchase-money obligations, (b) indebtedness of
Crown evidenced by notes, debentures, or bonds, or other securities issued
under the provisions of an indenture, fiscal agency agreement or other
instrument, (c) obligations of Crown as lessee under leases of property either
made as part of any sale and lease-back transaction to which Crown is a party
or otherwise, (d) indebtedness of partnerships and joint ventures which is
included in Crown's consolidated financial statements, (e) indebtedness,
obligations and liabilities of others in respect of which Crown is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser of otherwise or which Crown has agreed to purchase or otherwise
acquire, and (f) any binding commitment of Crown to fund any real estate
investment or to fund any investment in any entity making such real estate
investment; but excluding, however, (1) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the Securities, or ranks pari passu with
the Securities, (2) any such indebtedness, obligation or liability which is
subordinated to indebtedness of Crown to substantially the same extent as or to
a greater extent than the Securities are subordinated and (3) the Securities.
As used in the preceding sentence the term "purchase-money obligations" shall
mean indebtedness or obligations evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security interest but
excluding indebtedness or obligations for which recourse is limited to the
property
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<PAGE> 12
purchased) issued or assumed as all or a part of the consideration for the
acquisition of property, whether by purchase, merger, consolidation or
otherwise, but shall not include any trade accounts payable. A distribution may
consist of cash, securities or other property.]
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by Crown pursuant to Section 3.7.
"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 or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
["Subordinated Indebtedness" means the principal, premium, if
any, and interest on any Indebtedness of Crown which by its terms is expressly
subordinated in right of payment to the Senior Indebtedness.]
"Subsidiary" means, with respect to any Person, any
corporation or other business entity of which securities representing more than
50% of the combined voting power of the total voting shares (or in the case of
an association or other business entity which is not a corporation, more than
50% of the equity interest) is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof. When used herein without reference to any
Person, Subsidiary means a Subsidiary of Crown. For the purposes of this
definition, "voting shares" means shares which ordinarily have voting power for
the election of trustees, whether at all times or only so long as no senior
class of shares has such voting power by reason of any contingency.
"Trading Day" means each day on which the securities exchange
or other market which is used to determine the Closing Price is open for
trading or operation.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this indenture was
executed, except as provided in Section 9.3.
"Trust Officer," when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of trustees, the chairman or any
vice-chairman of the executive committee of the board of trustees, the chairman
of Crown committee, the president, any vice-president, the secretary, any
assistant secretary, the clerk, any assistant clerk, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer of the Trustee to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series, and if at any time there is more than one such
Person, the "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to that series.
"United States" means the United States of America.
"U.S. Government Obligations" means direct, noncallable
obligations of, or noncallable obligations guaranteed by, the United States for
the timely payment of which obligation or guarantee the full faith and credit of
the United States is pledged.
SECTION 1.2. Incorporation by Reference to Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means Crown or any
other obligor on the indenture securities.
All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rules
have the meanings assigned to them therein.
SECTION 1.3. Compliance Certificates and Opinions.
Upon any application or request by Crown to the Trustee to
take any action under any provision of this Indenture, Crown shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than certificates
provided pursuant to the last paragraph of Section 3.3) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
such individual has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.4. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Officer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such Officer's certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers, stating that the information with
respect to such factual matters is in the possession of Crown, unless such
counsel knows, or in the
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exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series,
as the case may be, may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agents
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to Crown.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
Crown, if made in the manner provided in this Section 1.5. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 14.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such individual the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) Crown may, in the circumstances permitted by the TIA or
by this Indenture, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by Crown prior to the first
solicitation of a Holder of Securities of such series made by any person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be, except otherwise expressly provided herein. With regard to any record
date for action to be taken by the Holders of one or more series of Securities,
only the Holders of Securities of such series on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the relevant
action.
(d) The ownership of Securities shall be proved by the
Security Register; as to any matter relating to beneficial ownership interests
in any Global Security, the appropriate Depositary's records shall be
dispositive for purposes of this Indenture.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or Crown in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 1.6. Notices, Etc., to Trustee and Crown.
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Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by Crown shall be sufficient
for every purpose hereunder if made, given or furnished or filed in writing to
or with the Trustee at its ________________________, Attention: ____________,
(2) Crown by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to Crown addressed to it at
the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by Crown, Attention:_________________________ , or
(3) either the Trustee or Crown, by the other party, shall be
sufficient for every purpose hereunder if given by facsimile transmission,
receipt confirmed by telephone followed by an original copy delivered by
guaranteed overnight courier; if to the Trustee at facsimile number (___)
___-____; and if to Crown at facsimile number (814)____ -______ .
SECTION 1.7. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid, to
each Holder affected by such event, at such Holder's address as it appears in
the Security Register, not later than the latest date, if any, and not earlier
than the earliest date, if any, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Indenture by any of the provisions of the TIA, such 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 to be excluded, as the case
may be.
SECTION 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by Crown shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.11. Severability Clause.
In case any provision in this Indenture or in the Securities
of any series shall be invalid, illegal or unenforceable, the validity,
legality and
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enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities of any series,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.13. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania;
provided, however, that, solely as to the standards of performance by the
Trustee of its obligations hereunder to the extent the Federal laws of the
United States are not applicable, the laws in the State in which the principal
corporate trust office of the Trustee is located shall govern.
SECTION 1.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of the Securities of any series or the last date on which a
Holder has the right to convert or exchange the Securities of any series shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities of such series, other than a
provision of the Securities of any series that specifically states that it
shall apply in lieu of this Section 1.14) payment of interest or principal (and
premium, if any) or conversion or exchange of such Security need not be made at
such Place of Payment on such date, but (except as otherwise provided in a
Board Resolution, Officers' Certificate or supplemental indenture with respect
to Securities of any series) may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, or on such last day
for conversion or exchange, as the case may be; provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
SECTION 1.15. Shareholders, Employees, Officers and Trustees of Crown Exempt
from Individual Liability.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in the Securities of any series, or
because of any Indebtedness evidenced thereby, shall be had against any past,
present or future shareholder, employee, officer or trustee, as such, of Crown
or of any successor, either directly or through Crown or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issuance of
the Securities.
ARTICLE 2 - SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series shall either be (i)
substantially in the form of Exhibit A hereto or (ii) in such form (not
inconsistent with this Indenture) as shall be established from time to time by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of Crown
and delivered to the Trustee at or prior to the delivery of a Crown Order
contemplated by Section 3.3 for the authentication and
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delivery of such Securities. The Trustee's certificates of authentication shall
be substantially in the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By
--------------------
Authorized Signature
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or mechanically reproduced on safety paper,
or may be produced in any other manner, all as determined by the Officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.2. Securities in Global Form.
If Securities of or within a series shall be issuable in the
form of one or more Global Securities, then notwithstanding clause (10) of
Section 3.1 and the provisions of Section 3.2, any such Global Security or
Global Securities may provide that it or they shall represent the aggregate
amount of all Outstanding Securities of such series (or such lesser amount as
is permitted by the terms thereof) from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities represented
thereby may from time to time be increased or reduced from time to time to
reflect exchanges. Any endorsement of any Global Security to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner or by such Person or Persons as shall be specified
therein or in a Crown Order to be delivered pursuant to Section 3.3 or 3.4 with
respect thereto and the records of the registrar for such Global Securities
shall be conclusive evidence of the aggregate principal amount outstanding of
any Global Security. Subject to the provisions of Section 3.3 and, if
applicable, Section 3.4, the Trustee shall deliver and redeliver any Global
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Crown Order.
Unless otherwise specified as contemplated by Section 3.1,
payment of principal of and premium, if any, and interest on any Global
Security in permanent global form shall be made to the registered Holder
thereof.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Global Security within the
meaning set forth in the Indenture hereinafter
referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This
Security is exchangeable for Securities registered
in the name of a person other than the Depositary or
its nominee only in the limited circumstances
described in the Indenture, and may not be
transferred except as a whole by the Depositary to a
nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the
Depositary or its nominee to a successor Depositary
or its nominee."
ARTICLE 3 - THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series.
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
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
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(1) the title of such Securities (which shall distinguish
the Securities of the series from all other series of Securities);
(2) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any) and
interest on the Securities of the series shall be payable (if other than
Dollars) and the manner of determining the equivalent thereof in Dollars for
purposes of the definition of "Outstanding" pursuant to Section 1.1;
(3) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 3.4, 3.5, 3.6, 9.3 or 11.7 and except from any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(4) if the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method, the manner in which such
amounts shall be determined;
(5) the date or dates, or the method for determining such
date or dates, on which the principal of the Securities of the series will be
payable;
(6) the rate or rates, or the method by which such rate or
rates shall be determined, at which the Securities of the series will bear
interest, if any, and the date or dates from which such interest will accrue or
the method by which such date or dates will be determined, the Interest Payment
Dates on which such interest will be payable and the Regular Record Date, if
any, for the interest payable on any Security on any Interest Payment Date, or
the method by which such date will be determined, and the basis upon which
interest will be calculated if other than that of a 360-day year of twelve
30-day months;
(7) the place or places where the principal of (and premium,
if any) and interest, if any, on the Securities of the series will be payable,
where such Securities may be surrendered for conversion or registration of
transfer or exchange and where notices or demands to or upon Crown in respect
of such Securities and this Indenture may be served;
(8) the period or periods within which, the price or prices
at which, the currency or currencies, currency unit or units or composite
currency or currencies in which other terms and conditions upon which the
Securities of the series may, pursuant to any optional or mandatory redemption
provisions, be redeemed, in whole or in part, at the option of Crown, if Crown
is to have the option;
(9) the obligation, if any, of Crown to redeem, repay or
purchase the Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which, the
currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which such Securities
of the series will be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(10) whether the Securities of the series will be in
registered or bearer form and, if in registered form, the denominations thereof
if other than $1,000 and any integral multiple thereof and, if in bearer form,
the denominations thereof and terms and conditions relating thereto;
(11) whether the Securities of the series shall be issued in
the form of one or more Global Securities and in such case, (a) if registered
Securities of the series are to be issuable as a Global Security, the
Depositary for such Global Security or Securities, which Depositary shall be a
clearing agency registered under the Exchange Act and (b) the circumstances
under which any such Global Security may be exchanged for Securities registered
in the name of, and any transfer
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of such Global Security may be registered to, a Person other than such
Depositary or its nominee, if other than as set forth in Section 3.5;
(12) whether the principal of (and premium, if any), or
interest, if any, on the Securities of the series are to be payable, at the
election of Crown or a Holder thereof, in a currency or currencies, currency
unit or units or composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or periods
within which, an the terms and conditions upon which, such election may be
made, and the time and manner of, and identity of the exchange rate between the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable;
(13) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(14) any deletions from, modifications of, or additions to,
the Events of Default or covenants of Crown with respect to the Securities of
such series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(15) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(16) the applicability, if any, of the defeasance and
covenant defeasance provisions described herein or set forth in any applicable
supplement hereto, or any modification hereof or thereof;
(17) the circumstances, if any, under which Crown will pay
any additional amounts on the Securities of the series in respect of any tax,
assessment or governmental charge and, if so, whether Crown will have the
option to redeem such Securities in lieu of making such payment;
(18) if the Securities of the series are to be issued at an
original issue discount, the amount of principal, if any, payable upon
acceleration of such Securities following an Event of Default; and
(19) any other terms of the Securities of the series not
inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially
identical (other than as to denomination) except as may otherwise be provided
in or pursuant to such Board Resolution and set forth in such Officers'
Certificate setting forth the terms of such series.
If any of the terms of a series of Securities are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
Crown and delivered to the Trustee at or prior to the delivery to the Trustee
of the Officers' Certificate setting forth the terms of such series.
SECTION 3.2. Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 3.1. In the absence of any such provisions with respect
to the Securities of any series, the Securities of each series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities, if issued, shall be signed by manual or
facsimile signature by the Chairman of the Board, the President, or any Vice
President of Crown and countersigned by the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of Crown. Crown's seal shall be
impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
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<PAGE> 20
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall nevertheless be valid.
A Security shall not be valid until the Trustee manually
signs the certificate of authentication thereon. Such signature shall be
conclusive evidence that such Security has been authenticated under this
Indenture. The Trustee shall authenticate Securities for original issue upon
written order or orders of Crown signed by two Officers thereof.
At any time and from time to time after the execution and
delivery of this Indenture, Crown may deliver Securities of any series executed
by Crown to the Trustee for authentication, together with a Crown Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with Crown Order shall authenticate and deliver such Securities. If the form or
terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Section 2.1 and 3.1, 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 (subject to Section 6.2) shall be fully protected in
relying upon, (a) an Opinion of Counsel stating:
(1) that the form of such Securities has been established
in conformity with the provisions of this Indenture;
(2) that the terms of such Securities 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 Crown in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of Crown, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles;
and (b) an Officers' Certificate stating that all conditions precedent provided
for in this Indenture relating to the issuance of the Securities have been
complied with and that, to the knowledge of the signers of such certificate, no
Event of Default with respect to any of the Securities shall have occurred and
be continuing.
If all of the Securities of a series are not to be originally
issued at the same time, then the documents required to be delivered pursuant
to the fourth paragraph of this Section 3.3 must be delivered only once, prior
to the authentication and delivery of the first security of such series;
provided, however, that any subsequent request by Crown to the Trustee to
authenticate Securities of such series upon original issuance shall be deemed
to constitute a representation and warranty by Crown that, as of the date of
such request, the statements made in the Officers' Certificate delivered
pursuant to the fourth paragraph of this Section 3.3 shall be true and correct
as if made on such date.
If Crown shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then Crown shall execute and the Trustee shall, in accordance with
this Section 3.3 and Crown Order with respect to such series, authenticate and
deliver one or more Global Securities that shall be registered in the name of
the Depositary for such Global Security or Securities or the nominee of such
Depositary and shall be delivered by the Trustee to such Depositary or pursuant
to such Depositary's instruction.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed
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<PAGE> 21
by the Trustee by manual signature, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
Notwithstanding the foregoing, if any Security (including a
Global Security) shall have been authenticated and delivered hereunder but
never issued and sold by Crown, and Crown shall deliver such Security to the
Trustee for cancellation as provided in Section 3.9 together with a written
statement (which need not comply with Section 1.3 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by Crown, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any
series, Crown may execute, and upon Crown Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Except in the case of temporary Securities issued in global
form, which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, Crown will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of Crown in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series, Crown shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 3.5. Registration, Registration of Transfer and Exchange.
With respect to Securities issued in definitive registered
form, if any, Crown shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of Crown in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, Crown shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security
of any series at the office or agency in a Place of Payment for the series,
Crown shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denomination and of a like aggregate
principal amount.
Notwithstanding any other provision of this Section 3.5,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary, by a nominee of
such Depositary to such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
At the option of the Holder, Securities of any series (except
a Global Security) may be exchanged for other Securities of the same series, of
any authorized
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denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, Crown shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration or transfer or
exchange of Securities shall be the valid obligations of Crown, evidencing the
same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to Crown and the Security Registrar
duly executed by the Holder thereof or such Holder's attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but Crown may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.3 or 11.7 not involving any transfer.
Notwithstanding the foregoing and except as otherwise
specified or contemplated by Section 3.1, any Global Security shall be
exchangeable pursuant to this Section 3.5 or Sections 3.4 and 11.7 for
Securities registered in the name of any person other than the Depositary for
such Security or its nominee only if (i) such Depositary notifies Crown that it
is unwilling or unable to continue as Depositary for such Global Security or if
at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act; (ii) Crown executes and delivers to the Trustee a Crown Order
that such Global Security shall be so exchangeable and the transfer thereof so
registrable (which Crown Order will authorize and direct the Trustee to
authenticate and deliver upon such exchange Securities of such series in
definitive registered form, in authorized denominations, in the aggregate
principal amount equal to the principal amount or amounts of such Global
Security or Securities) or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities of such series. Upon the
occurrence in respect of any Global Security of any series of any one or more
of the conditions specified in clause (i), (ii) or (iii) of the preceding
sentence or such other conditions as may be specified pursuant to Section 3.1,
such Global Security may be exchanged for Securities registered in the names
of, and the transfer of such Global Security may be registered to, such persons
(including persons other than the Depositary with respect to such series and
its nominees) as such Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall direct. Such Securities shall be
delivered at the Corporate Trust Office to the persons in whose names such
Securities are so registered. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Global Security shall also
be a Global Security and shall bear the legend specified in Section 2.2 except
for any Security authenticated and delivered in exchange for, or upon
registration of transfer of, a Global Security pursuant to the preceding
sentence. Upon the exchange of a Global Security for Securities in definitive
registered form such Global Security shall be cancelled by the Trustee.
Crown shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.3 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee,
Crown shall execute and the Trustee shall authenticate and deliver in exchange
therefore a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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If there shall be delivered to Crown and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to Crown or the Trustee that such Security has been acquired by a bona
fide purchaser, Crown shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, Crown in its
discretion may, instead of issuing an new Security, pay such Security.
Upon the issuance of any new Securities under this Section
3.6, Crown may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of Crown, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7. Payment of Interest; Interest Rights Preserved; Paying Agent
Definitions.
Interest of any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein referred to as the "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by Crown, at its
election in each case, as provided in clause (1) or (2) below:
(1) Crown may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. Crown shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time Crown shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
(1) provided. Thereupon Crown shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
Crown shall promptly notify the Trustee of such Special Record Date and, in the
name and at the expense of Crown, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at such Holder's address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of
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such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2);
(2) Crown may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by Crown to the Trustee of the proposed payment pursuant to this clause
(2), such manner of payment shall be practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.7, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Crown shall maintain an office or agency where Securities may
be presented for payment. The Trustee is hereby appointed "Paying Agent." Crown
may appoint one or more additional Paying Agents. The term Paying Agent
includes any additional Paying Agent. Crown or any of its Subsidiaries may act
as Paying Agent.
Crown shall enter into an appropriate agency agreement with
any Paying Agent not a party to this Indenture that shall implement the
provisions of this Indenture that relate to such Paying Agent. Crown shall give
prompt written notice to the Trustee of the name and address of any such Paying
Agent and any change in the address of such Paying Agent.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Security whose Maturity is prior to such Interest Payment
Date), interest, the Stated Maturity of which is on such Interest Payment Date,
shall be payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for) shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence,
in the case of any Security which is converted, interest the Stated Maturity of
which is after the date of conversion of such Security shall not be payable.
SECTION 3.8. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, Crown, the Trustee and any agent of Crown or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and, subject to Section 3.7, interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither
Crown, the Trustee nor any agent of Crown or the Trustee shall be affected by
notice to the contrary. If such payments so made to any such Person, or upon
such Person's order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for monies payable upon
any such Security.
No Holder of any beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under this Indenture
with respect to such Global Security, and such Depositary shall be treated by
Crown, the Trustee, and any agent of Crown or the Trustee as the owner of such
Global Security for all purposes whatsoever. Neither Crown, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in any Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
SECTION 3.9. Cancellation.
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All Securities surrendered for payment, [redemption,]
[registration of transfer or exchange or conversion] or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
Crown may at any time deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which Crown has not issued and sold and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be destroyed by
the Trustee and a certificate of destruction provided to Crown, unless the
Trustee is otherwise directed by a Crown Order.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 4 - SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction, Discharge and Defeasance of the Securities of
Indenture.
This Indenture shall upon Crown Request cease to be of
further effect (except as to any surviving rights of [conversion,] exchange,
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of Crown, shall execute instruments in
form and substance satisfactory to the Trustee and Crown acknowledging
satisfaction and discharge of this Indenture, when:
(a) either:
(1) all Securities 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 3.6 and (ii) Securities for
whose payment money has therefore been deposited in trust or segregated and
held in trust by Crown and thereafter repaid to Crown or discharged from such
trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(2) all Securities not theretofore delivered to the Trustee
for cancellation (i) have become due and payable, (ii) will become due and
payable at their Stated Maturity within one year, [(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 Crown,] or (iv) are deemed paid and discharged pursuant to this
Section 4.1, and Crown, in the case of clauses (i), (ii), (iii) or (iv) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust, money, U.S. Government Obligations, or a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the entire indebtedness on all the Securities
of such series of Securities for principal (and premium, if any, or interest to
the Maturity thereof of such series of Securities as such principal, premium,
if any) and interest becomes due and payable in accordance with the terms of
this Indenture and the Securities;
(b) Crown has paid or caused to be paid all other sums
payable hereunder by Crown in connection with all of the Securities of any
series, including all fees and expenses of the Trustee; and
(c) Crown has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of the entire indebtedness on the Securities
and the discharge of this Indenture and the termination of Crown's obligations
hereunder have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of Crown to the Trustee under Section 6.6, the
obligations of Crown to any Authenticating Agent under Section 6.11 and, if
money shall have been deposited with the Trustee pursuant to subclause (ii) of
clause (1) of this Section 4.1, the
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obligations of the Trustee under Section 4.2 and the last paragraph of Section
10.3 shall survive.
SECTION 4.2. Application of Trust Money.
(a) Subject to the provisions of Section 4.1 and the last
paragraph of Section 10.3, all money and U.S. Government Obligations deposited
with the Trustee for the Securities of any series pursuant to Section 4.1, and
all money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee for the Securities of any series pursuant to Section
4.1, shall be held in trust and reinvested by the Trustee in U.S. Government
Obligations in accordance with Crown's written instructions and applied by the
Trustee in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any Paying Agent
(including Crown acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal of (and premium, if any) and
interest, if any, on the Securities of such series; but such money need not be
segregated from other funds except to the extent required by law.
(b) The Trustee shall deliver or pay to Crown from time to
time upon Crown's written request any U.S. Government Obligations, or money
held by it as provided in Section 4.1 which, in the written 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 U.S. Government Obligations, or money were deposited or
received.
SECTION 4.3. Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture with
respect to the Securities of any series, all monies then held by any Paying
Agent for the benefit of Securities of such series under the provisions of this
Indenture shall, upon written demand of Crown, be repaid to it or paid to the
Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION 4.4. Return of Unclaimed Monies.
Any monies deposited with or paid to the Trustee or any
Paying Agent for the Securities of any series, or then held by Crown in trust,
for the payment of any principal of (and premium, if any) and interest, if any,
on the Securities of any series and not applied but remaining unclaimed by the
Holders of the Securities of such series for three years after the date upon
which the principal of (and premium, if any) and interest, if any, on the
Securities of such series, as the case may be, shall have become due and
payable, shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to Crown by such
Trustee or any Paying Agent on written demand by Crown or (if then held by
Crown) shall be discharged from such trust; and the Holders of the Securities
of such series entitled to receive such payment shall thereafter look only to
Crown for the payment thereof; provided, however, that, before being required
to make any such repayment, such Trustee may, or shall at the written request
of Crown, at the expense of Crown, cause to be published once in an authorized
newspaper in the same city in which the place of payment with respect to the
Securities of such series shall be located and in an authorized newspaper in
the City of New York, or mail to each such Holder, a notice (in such form as
may be deemed appropriate by such Trustee) that said monies remain unclaimed
and that, after a date named therein, any unclaimed balance of said monies then
remaining will be returned to Crown.
SECTION 4.5. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations with respect to the Securities of any series in
accordance with Section 4.1 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, Crown's obligations
under this Indenture and the Securities of such series shall be revived and
reinstated as though no deposit
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had occurred pursuant to Section 4.1 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 4.4; provided, however, that if Crown has made any
payment of interest on or principal of any Securities of any series because of
the reinstatement of its obligations, Crown shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 5 - DEFAULTS AND REMEDIES
SECTION 5.1. Events of Default.
An "Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default 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) default in (a) the payment of the principal of (and
premium, if any, on) any Security of that series when the same becomes due and
payable at Maturity, or (b) the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series;
(3) default in the performance, or breach of any covenant or
warranty of Crown in this Indenture with respect to any Security of that series
(other than a covenant or warranty, a default in whose performance or whose
breach is elsewhere in this Section 5.1 specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail to Crown by the Trustee or to Crown
and by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder;
(4) default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by Crown (including obligations under leases
required to be capitalized on the balance sheet of the lessee under GAAP, but
not including any indebtedness or obligations for which recourse is limited to
such property purchased or so encumbered, as the case may be) or under any
mortgage, indenture or other instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness of Crown or any
Subsidiary, whether any such indebtedness now exists or shall hereafter be
created, if (a) either (i) such default results from the failure to pay any
such indebtedness at maturity or (ii) as a result of such default, the maturity
of such indebtedness has been accelerated prior to its expressed maturity,
provided that any such failure to pay shall not be cured and any such
acceleration shall not be rescinded or annulled or the accelerated amount paid
within ten days after notice to Crown of such failure to pay or acceleration,
or such indebtedness having been discharged and (b) the principal amount of
such indebtedness, together with the principal amount of any other such
indebtedness in default for failure to pay principal or interest thereon, or
the maturity of which has been so accelerated, aggregates $10,000,000 or more;
(5) Crown pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or
proceeding;
(B) consents to the entry of an order or of
relief against it in an involuntary case or proceeding;
(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;
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(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against Crown in an
involuntary case or proceeding;
(B) appoints a Custodian of Crown or
for all or substantially all of its property; or
(C) orders the liquidation of Crown; and
the order or decree remains in effect for 90
consecutive days (or any dismissal, stay, recision or
termination ceasing to remain in effect); or
(7) any other Event of Default provided with respect to
Securities of that series, provided, however, that a default under this Section
5.1 is not an Event of Default with respect to any series of Securities if a
specified event is either applicable to a particular series or it is
specifically deleted or modified in the supplemental indenture creating such
series of Securities or in the form of Security for such series.
Upon receipt by the Trustee of any Notice of Default pursuant
to this Section 5.1 with respect to Securities of a series all or part of which
is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join
in such Notice of Default, which record date shall be at the close of business
on the day the Trustee receives such Notice of Default. The Holders of such
series on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such Notice of Default, whether or not
such Holders remain Holders after such record date; provided that if Holders of
less than the requisite percentage in principal amount of the Outstanding
Securities of such series, or their proxies, shall have joined in such Notice
of Default prior to the day which is 90 days after such record date, such
Notice of Default shall automatically and without further action by any Holder
be cancelled and of no further effect. Nothing in this paragraph shall prevent
a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new Notice of Default identical to a Notice of Default which has been
cancelled pursuant to the proviso to the preceding sentence, in which event a
new record date shall be established pursuant to the provisions of this Section
5.1.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
described in Section 5.1(5) or 5.1(6)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series may declare the principal amount (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 all of the Securities of that series to be due and payable
immediately, by a notice in writing to Crown (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified
amount) and all accrued interest thereon, if any, shall become immediately due
and payable. In case an Event of Default described in Section 5.1(5) or 5.1(6)
shall occur, such amount shall be due and payable without any declaration of
acceleration or any act on the part of the Trustee or the Holders.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article 5 provided, the Holders of a majority in principal
amount of the Outstanding Securities of the series, by written notice to Crown
and the Trustee, may rescind and annul such declaration of acceleration and its
consequences if:
(1) Crown has paid or deposited with the Trustee a sum
sufficient to pay:
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(i) All overdue interest on all Securities
of that series;
(ii) the principal of (and premium, if any,
on) any Securities of that series which have become
due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed
therefor in such Securities;
(iii) to the extent that payment of such
interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such
Securities; and
(iv) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agent and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Trustee of any written notice declaring
such an acceleration, or rescission and annulment thereof, with respect to
Securities of a series all or part of which is represented by a Global
Security, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to join in such notice, which
record date shall be at the close of business on the day the Trustee receives
such notice. The Holders on such record date or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be
cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written notice
which has been cancelled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions
of this Section 5.2.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
Crown covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days; or
(2) default is made in the payment of the principal of (and
premium, if any, on) any Security at the Maturity thereof, Crown will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal of (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If Crown fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same
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against Crown or any other obligor upon such Securities and collect the monies
adjudged or decreed to be payable in the manner provided by law out of the
property of Crown or any other obligor upon such Securities wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to, or in case a Custodian or similar
official shall have been appointed for or taken possession of, Crown or any
other obligor upon the Securities or the property of Crown or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities of any series shall then be due and payable as therein
expressed by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on Crown for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise:
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities of any series and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding; and
(2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same; and any
Custodian or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holders
any plan or reorganization, arrangement, adjustment or composition affecting
the Securities of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding, except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities, and it shall not be necessary to make any
Holders of the Securities of any series parties to any such proceedings.
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
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Any money collected by the Trustee pursuant to this Article 5
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.6; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (or premium, if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (or premium, if any) and interest,
respectively.
SECTION 5.7. Limitations on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority in principal
amount of the Outstanding Securities of that series shall have given written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series; it
being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium, if
any, and Interest.
Notwithstanding any other provision in this Indenture but
subject to the provisions of Article 15, the Holder of any Security shall have
the right, which is absolute and unconditional and shall not be impaired
without the consent of such Holder, to
(1) receive payment of the principal (or premium, if any) and
(subject to Section 3.7) interest on such Security on the Stated Maturity or
Maturities expressed in such Security [(or, in the case of redemption, on the
Redemption Date)];
(2) convert such Security in accordance with Article 16, if
such Security is so convertible;
(3) exchange such Security in accordance with one or more
indentures supplemental hereto, if such Security is exchangeable; and
(4) institute suit for the enforcement of any such payment,
right to convert or right to exchange, as the case may be.
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SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, Crown, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article 5 or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule
of law or with this Indenture; and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing
the time, method or place of conducting any such proceeding or exercising any
such trust or power, with respect to Securities of a series all or part of
which is represented by a Global Security, a record date shall be established
for determining Holders of Outstanding Securities of such series entitled to
join in such notice, which record date shall be at the close of business on the
day the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided that if less than the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have joined in such notice prior to
the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new notice
identical to a notice which has been cancelled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.12.
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Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by Holders.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to
such series and its consequences except a default:
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series; or
(2) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Crown may, but shall not be obligated to, fix a record date
for the purpose of determining the persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders of securities of such series
on such record date, or their duly designated proxies, and only such persons,
shall be entitled to waive any default hereunder, whether or not such Holders
remain Holders after such record date; provided that unless such majority in
principal amount of the Outstanding Securities of any series shall have waived
such default prior to the date which is 90 days after such record date, any
such waiver previously given shall automatically and without further action by
any Holder of securities of such series be cancelled and of no further effect.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by such Holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 5.14 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the Stated Maturity or Maturities
expressed in such Security [(or, in the case of redemption, on or after the
Redemption Date)].
SECTION 5.15. Waiver of Stay or Extension Laws.
Crown covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and Crown (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE 6 - THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities of the Trustee.
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(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise its rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
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 others, and no implied covenants or
obligation 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. The Trustee,
however, shall examine the certificates and opinions
to determine whether or not they confirm 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 Section 6.1(b).
(2) The Trustee shall not be liable for any
error in judgment made in good faith by a Trust
Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee 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 5.12.
(4) No provision of this Indenture shall
require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to Sections 6.1(a), 6.1(b) and 6.1(c).
(e) Subject to Section 6.1(c), the Trustee may refuse to
perform any duty or exercise any right or power unless, subject to the
provisions of the TIA, it receives indemnity satisfactory to it against any
loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with Crown. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
SECTION 6.2. Certain Rights of Trustee.
Subject to the provisions of TIA Section 3.15(a) through
3.15(d):
(1) The Trustee may rely on and shall be protected in acting
or refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
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(2) Before the Trustee acts or, refrains from acting, it may
require an Officers' certificate or an Opinion of Counsel, or both, which shall
conform to Section 1.3. The Trustee shall, not be liable for any action it
takes or omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(4) 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.
(5) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by the Trustee hereunder in good faith and reliance thereon.
(6) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction.
SECTION 6.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of securities of any series and may otherwise deal
with Crown or its Affiliates with the same rights it would have if it were not
Trustee. Any agent may do the same with like rights. The Trustee, however, is
subject to Sections 6.10 and 6.11.
SECTION 6.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it shall not be
accountable for Crown's use of the proceeds from the Securities of any series,
and it shall not be responsible for any statement of Crown in the Indenture or
any statement in the Securities of any series other than its certificate of
authentication or in any document used in the sale of the Securities of any
series other than any statement in writing provided by the Trustee expressly
for use in such document.
SECTION 6.5. Notice of Defaults.
Within 90 days after the occurrence and continuance of a
default or an Event of Default with respect to the Securities of any series,
the Trustee shall transmit in the manner and to the extent provided in TIA
Section 3.13(c), notice of such default or Event of Default, hereunder known to
the Trustee, unless such default or Event of Default in the payment of
principal of (premium, if any) or interest on the Securities of such series, or
in the payment of any sinking fund installment with respect to the Securities
of such series, the Trustee shall be protected in withholding such notice if
and so long as Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interests of the Holders of such
Securities; provided further, however, that in the case of any default or Event
of Default of the character set forth in Section 5.1(3), no such notice to
Holders shall be given until at least 60 days after the occurrence thereof.
SECTION 6.6. Compensation and Indemnity.
Crown shall pay to the Trustee from time to time reasonable
compensation for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). Crown shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses may
include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
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Crown shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the acceptance
or administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the Securities or the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify Crown promptly of any claim asserted against the Trustee for which
it may seek indemnity and Crown may elect by written notice to the Trustee to
assume the defense of any such claim at Crown's expense with counsel reasonably
satisfactory to the Trustee.
Crown need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it through the Trustee's
negligence, bad faith or willful misconduct. Crown shall not be liable for any
settlement of any claim or action effected without Crown's consent.
SECTION 6.7. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of
any successor trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 6.7.
Any Trustee may resign with respect to any series of
Securities by so notifying Crown. The Holders of a majority in principal amount
of the Securities of any series then outstanding may remove any Trustee with
respect to such series of securities by so notifying such Trustee and may
appoint a successor Trustee with respect to such series of Securities with
Crown's written consent. Crown may remove any Trustee with respect to any
series of Securities (or, if clause (4) of this Section 6.7 applies, with
respect to all series) if:
(1) such Trustee fails to comply with
Section 6.9;
(2) such Trustee is adjudged a bankrupt or
an insolvent;
(3) a receiver or other public officer
takes charge of such Trustee or its property; or
(4) such Trustee otherwise becomes
incapable of acting with respect to any series of
Securities.
If any Trustee resigns or is removed with respect to any
series of Securities or if a vacancy exists in the office of Trustee with
respect to any series of Securities for any reason, Crown shall promptly
appoint a successor Trustee with respect to such series.
If a successor Trustee with respect to any series of
Securities does not take office within 45 days after the retiring Trustee with
respect to such series resigns or is removed, the retiring Trustee, Crown or
the Holders of a majority in principal amount of the Securities of such series
then outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If any Trustee fails to comply with Section 6.9, any Holder
may petition any court of competent jurisdiction for the removal of such
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment with respect to any series of Securities to the retiring Trustee
and to Crown. Immediately after that, the retiring Trustee shall, upon payment
of its charges, transfer all property held by it as Trustee with respect to
such series to the successor Trustee, the resignation or removal of the
retiring Trustee shall become effective with respect to such series, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to such series. Notwithstanding the
replacement of the Trustee with respect to any series of Securities pursuant to
this Section 6.7, Crown's obligations under Section 6.6 shall continue for the
benefit of the retiring Trustee with respect to expenses and liabilities
incurred by it and compensation earned by it prior to such
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replacement or otherwise with respect to the Securities of such series or the
Indenture. A successor Trustee with respect to any series of Securities shall
mail notice of its succession to each Holder of Securities of such series.
SECTION 6.8. Successor Trustee by Merger, Etc.
If any Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 6.9. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss.310(a)(1). Each Trustee shall have a combined capital
and surplus of at least $ as set forth in its most recent published annual
report of condition. Each Trustee shall comply with TIA ss.310(b), including
the optional provision permitted by the second sentence of TIA ss.310(b)(9).
Neither Crown nor any Person directly or indirectly controlling, controlled by,
or under common control with Crown shall serve as Trustee.
SECTION 6.10. Preferential Collection of Claims Against Trust.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
SECTION 6.11. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series issued
[upon exchange, registration of transfer or partial redemption thereof or]
pursuant to Section 3.6, 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. Whenever 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 Crown and shall at all times be a corporation organized and doing
business under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $__________ and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section 6.11, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.11, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.11.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section 6.11, without the execution or filing of
any paper of any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to Crown. The Trustee may at any time
terminate the agency of its respective Authenticating Agent by giving written
notice of resignation or upon such a termination, or in case at any time such
Authenticating
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Agent shall cease to be eligible in accordance with the provisions of the
Section 6.11, the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to Crown and shall mail written notice of such appointment
by first-class mail, postage prepaid, to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. 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 names as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.11.
Crown agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.11.
If an appointment with respect to one or more series is made
pursuant to this Section 6.11, the Securities of such series may have endorsed
thereon, in addition to each Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
[NAME OF TRUSTEE], As Trustee
By:____________________________________
As Authenticating Agent
By:____________________________________
Authorized Agent
ARTICLE 7 - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CROWN
SECTION 7.1. Crown to Furnish Trustee Names and Addresses of Holders.
Crown will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than ___________ and ________ in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the preceding _______ and ___________,
as the case may be, and
(2) at such other times as the Trustee may request in
writing, within 10 days after the receipt by Crown of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that so long as the Trustee is
acting as Securities Registrar, no such list need be furnished.
SECTION 7.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar, if so acting. The Trustee may destroy any list furnished to
it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Indenture or under the Securities and
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
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(1) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with Section 7.2(a); or
(2) inform such applicants as to the
approximate number of Holders whose names and
addresses appear in the information preserved at the
time by the Trustee in accordance with Section 7.2(a),
and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicant, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a) a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the SEC, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the SEC, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the SEC shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met,
and shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with Crown and the Trustee that neither Crown nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.2(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.2(b).
SECTION 7.3. Reports by Trustee to Holders.
Within 60 days after each ________ beginning with _______,
the Trustee, if required by the provisions of TIA ss.313(a), shall mail to each
Holder a brief report dated as of such _______, that complies with TIA
ss.313(a). The Trustee also shall comply with TIA ss.313(b) and ss.313(c).
A copy of each report at the time of its mailing to Holders
shall be mailed to Crown and filed with the SEC and each stock exchange on
which the Securities of any series are listed. Crown agrees to notify the
Trustee in writing whenever the Securities of any series become listed or
delisted on or from any stock exchange.
SECTION 7.4. Reports by Crown.
Crown will:
(1) file with the Trustee, within 15 days after Crown 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 Crown may be required to file with the SEC pursuant to Section
13 or Section 15(d) of the Exchange Act, or, if Crown is not required to file
information, documents or reports pursuant to either of such Sections, then it
shall 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 Exchange Act, in
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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;
(2) 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 Crown with the
conditions and covenants of this Indenture as may be required from time to time
by such rules and regulations;
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by Crown pursuant to paragraphs (1) and (2) of
this Section 7.4 as may be required by rules and regulations prescribed from
time to time by the SEC; and
(4) furnish to the Trustee the certificate required by
Section 10.8. For purposes of such certificate, compliance by Crown with all
conditions and covenants of this Indenture shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
ARTICLE 8 - SUCCESSOR CORPORATION OR TRUST
SECTION 8.1. When Crown May Merge, Etc.
Crown shall not consolidate with or merge into, or transfer
all or substantially all of its assets to, another Person in any transaction in
which Crown is not the continuing or surviving entity unless (i) the resulting,
surviving or transferee Person is a corporation or trust which assumes by
supplemental indenture all the obligations of Crown under the Securities of
each series and this Indenture; (ii) such corporation or trust is organized and
existing under the laws of the United States, a State thereof, or the District
of Columbia although it in turn may be owned by a foreign entity; (iii)
immediately after giving effect to such transaction no material default or
Event of Default shall have happened and be continuing, and the Officers'
Certificate referred to in the following clause reflects that such Officers are
not aware of any such material default or Event of Default that shall have
occurred and be continuing, and (iv) Crown shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with
this Indenture, and thereafter all obligations of Crown shall terminate.
SECTION 8.2. Successor Corporation or Trust Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of Crown in accordance with Section 8.1, the
successor corporation or trust formed by such consolidation or into which Crown
is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, Crown under this
Indenture with the same effect as if such successor corporation or trust has
been named as Crown herein.
ARTICLE 9 - SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Crown, when authorized by Board Resolution, and the Trustee
at any time and from time to time, may amend this Indenture or enter into one
or more indentures supplemental hereto, to be in a form satisfactory to the
Trustee without notice to or consent of any Holder for any of the following
purposes:
(1) to comply with Section 8.1; or
(2) to provide for uncertificated Securities of any
series in addition to or in place of certificated Securities; or
(3) to add to the covenants of Crown, for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series), or to
surrender any right or power herein conferred upon Crown; or
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(4) to add any Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become effective
only when there is no Security outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 3.1 and 3.2; or
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with any
provision of this Indenture, provided that such other provisions shall not
adversely affect the interests of the Holders of Securities of any series in
any material respect.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of each series at the
time outstanding affected by such supplemental indenture, Crown, when
authorized by Board Resolution, and the Trustee may amend this Indenture or
from time to time and at any time enter into an indenture or indenture
supplemental hereto (which shall conform to the provisions of the TIA as in
force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture, except as otherwise permitted
by Section 9.1, or of modifying in any manner the rights of the Holders of the
Securities of each such series. Subject to Section 9.4, without the consent of
each Holder of Securities of any series affected, however, an amendment,
supplement or waiver, including a waiver pursuant to Section 5.13, may not:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on, any
Security or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2 or the amount thereof provable in
bankruptcy pursuant to Section 5.4, or adversely affect any right of repayment
at the option of the Holder of any Security, or change any Place of Payment
where, or the currency or currencies, currency unit or units or composite
currency or currencies in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption at the option of the Holder, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 9.2, Section
5.8, or Section 5.13, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
Upon the request of Crown, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of Crown
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid, the
Trustee shall join with Crown in the execution of such supplemental indenture
unless such supplemental
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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.
It shall not be necessary for the consent of the Holders
under this Section 9.2 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by Crown and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, Crown shall
mail a notice, setting forth in general terms the substance of such
supplemental indenture, to all Holders of Securities of each series so affected
as the names and addresses of such Holders shall appear on the registry books.
Any failure of Crown so to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities of any series shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents.
Subject to this Indenture, each amendment, supplement or
waiver evidencing other action shall become effective in accordance with its
terms. Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Security of any series is a continuing consent by the
Holder even if notation of the consent is not made on any Security. Any such
Holder or subsequent Holder, however, may revoke the consent as to such
Holder's Security or portion of a Security, if the Trustee receives the notice
of revocation before the date the amendment, waiver or other action becomes
effective.
Crown may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies)
and only those Persons, shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date. No consent shall be
valid or effective for more than 90 days after such record date unless consent
from Holders of the principal amount of Securities of any series then
outstanding required hereunder for such amendment, supplement or waiver to be
effective shall have also been given and not revoked within such 90-day period.
After an amendment supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of the
clauses (1) through (3) of Section 9.2. In that case the amendment, supplement
or waiver shall only bind the Holders of a Security or portion of a Security of
the same series.
SECTION 9.5. Notation On or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security of any series, the Trustee may request the Holder of the Security of
such series to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the Holder.
Alternatively, if Crown or the Trustee so determine, Crown in exchange for the
Security of such series shall issue and the Trustee shall authenticate a new
Security of such series that reflects the changed terms the cost and expense of
which will be borne by Crown.
SECTION 9.6. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article 9, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of
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Securities of any applicable series theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 9.7. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article 9 may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If Crown
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Trustees, to any such supplemental
indenture may be prepared and executed by Crown and authenticated and delivered
by the Trustee in exchange for Securities outstanding of such series.
ARTICLE 10 - COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
Crown covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
Crown will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities may be
surrendered for conversion and where notices and demands to or for registration
of transfer or exchange and where notices and demands to or upon Crown in
respect of the Securities of that series and this Indenture may be served.
Crown will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time Crown shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and Crown hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Crown may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve Crown of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
Crown will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 10.3. Money for Securities Payments to Be Held in Trust.
If Crown shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever Crown shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) Crown will promptly notify the Trustee of its
action or failure so to act.
Crown will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which
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such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section 10.3, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by Crown (or any
other obligor upon the Securities of that series) in the making of any payment
of principal (and premium, if any) or interest on the Securities of that
series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
Crown may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Crown Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by Crown or such Paying Agent, such sums to be held by the Trustee upon
the same terms as those upon which such sums were held by Crown or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by Crown in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to Crown on Crown Request, or (if then held by Crown)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to Crown for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of Crown as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of Crown
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to Crown.
SECTION 10.4. Crown Existence.
Subject to Article 8, Crown will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
all material rights (as provided in the Declaration of Trust and under
applicable law) and material franchises; provided, however, that Crown shall
not be required to preserve any such right or franchise if Crown shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of Crown.
SECTION 10.5. Maintenance of Properties.
Crown will cause all of its properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
Crown may be reasonably necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 10.6. Insurance.
Crown will, and will cause each Subsidiary to, keep all of
its insurable properties insured against loss or damage at least equal to their
then full insurable value with insurers of recognized responsibility.
SECTION 10.7. SEC Reports.
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Crown shall file with the Trustee, promptly after it files
them with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which Crown is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Crown
shall also comply with the other provisions of TIA ss.314(a).
SECTION 10.8. Compliance Certificates.
Crown will deliver to the Trustee, within 120 days after the
end of each fiscal year of Crown (which as of the date hereof is November 30),
a written statement signed by an Officer, stating, as to each signer thereof,
that:
(1) a review of the activities of Crown during such year and
of performance under this Indenture has been made under such Officer's
supervision; and
(2) to each Officer's knowledge, based on such review, Crown
has kept, observed, performed and fulfilled in all material respects each and
every condition and covenant contained in this Indenture throughout such year,
or, if there has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to such Officer and the nature and
status thereof.
Crown will give the Trustee written notice of a change in the
fiscal year of Crown, within a reasonable time after such change is effected.
SECTION 10.9. Limitation on Dividends and Other Distributions.
Crown will not declare or pay any dividends or make any
distribution to holders of its Capital Shares (other than dividends or
distributions payable in Capital Shares of Crown), or purchase, redeem or
otherwise acquire or retire for value any of its Capital Shares or permit any
Subsidiary to purchase, redeem or otherwise acquire or retire for value any of
Crown's Capital Shares if at the time of any of the aforementioned actions an
Event of Default has occurred and is continuing or would exist immediately
after giving effect to such action.
Notwithstanding the foregoing, the provisions of this Section
10.9 will not prevent (i) the payment of any dividend within 60 days after the
date of declaration when the payment would have complied with the foregoing
provisions on the date of declaration; (ii) the retirement of any Capital
Shares by exchange for, or out of the proceeds of the substantially concurrent
sale (other than to a Subsidiary) of, other Capital Shares; or (iii) the
payment of any dividend or distribution or the purchase or redemption of any
Capital Shares to the extent deemed prudent by Crown to enable it to maintain
its status as a real estate investment trust under the Code.
SECTION 10.10. Payment of Taxes and Other Claims.
Crown will pay or discharge or cause to be paid or
discharged, within 30 days after Crown shall have received notice that the same
has become delinquent, (i) all material taxes, assessments and governmental
charges levied or imposed upon Crown or any Subsidiary or upon the income,
profits or property of Crown or any Subsidiary, and (ii) all material lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of Crown or any Subsidiary; provided, however, that
Crown shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 10.11. Defeasance of Certain Obligations.
Subject to Section 4.1, Crown may omit to comply with any
term, provision or condition set forth in Sections 10.5, 10.6, 10.8 or 10.10
and Section 5.1(4) shall not be deemed to be an Event of Default with respect
to any series of Securities, provided that the following conditions shall have
been satisfied:
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(1) Crown has deposited or caused to be deposited with the
Trustee (or another Trustee satisfying the requirements of Section 6.9),
irrevocably (irrespective of whether the conditions in subparagraphs (2), (3),
(4) and (5) below have been satisfied), as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such series of Securities, with reference to this Section 10.11, (i) money in
an amount, (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms,
without regard to any reinvestment thereof, will provide not later than the
close of business on the day prior to the date of any payment referred to in
this subparagraph (1) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the principal of (and premium, if any) and
each installment of interest of such Outstanding Securities on the Stated
Maturity of such principal or installment of interest on the day on which such
payments are due and payable in accordance with the terms of this Indenture and
of such Securities;
(2) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which Crown is a party or by which it is bound;
(3) no Event of Default or event which, after notice or lapse
of time or both, would become an Event of Default shall have occurred and be
continuing on the date of such deposit, and no Event of Default under Section
5.1(5) or 5.1(6) or event which, after notice or lapse of time or both, would
become an Event of Default under Section 5.1(5) or 5.1(6) shall have occurred
and be continuing on the 91st day after such date;
(4) Crown has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that Holders of such
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance of certain obligations 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; and
(5) Crown has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section
10.11 have been complied with.
[ARTICLE 11 - REDEMPTION OF SECURITIES]
SECTION 11.1. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article 11.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of Crown to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption of any Securities at
the election of Crown, Crown shall, at least 60 days (45 days in the case of
redemption of all the Securities of any series) prior to the Redemption Date
fixed by Crown (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, Crown
shall furnish the Trustee, at the time of the giving of notice of redemption to
the Trustee, with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 11.3. Selection by Trustee of Securities to Be Redeemed.
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If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series of a specified tenor are
to be redeemed), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption by
pro rata or by lot or such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the $1,000 or integral multiples thereof.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify Crown 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.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, or by guaranteed overnight courier, mailed not less than 30
days and not more than 60 days prior to the Redemption Date, to each Holder of
Securities to be so redeemed, at such Holder's address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date, plus accrued interest, if any,
or Defaulted Interest, if any;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any 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) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;
(5) the Conversion Price, if any, the date on which the right
to convert the principal of the Securities to be redeemed will terminate and
the place or places where such Securities may be surrendered for conversion, if
applicable;
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(7) the CUSIP number of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of Crown shall be given by Crown or, at Crown's request, by the
Trustee in the name and at the expense of Crown.
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SECTION 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, Crown shall deposit with
the Trustee or with a Paying Agent (or, if Crown is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on all the Securities
which are to be redeemed on that date.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.7) be paid to Crown upon Crown
Request or, if then held by Crown, shall be discharged from such trust.
SECTION 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless Crown shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by Crown at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.7. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with due endorsement by, or a
written instrument of transfer in form satisfactory to Crown and the Trustee
duly executed by, the Holder thereof or such Holder's attorney duly authorized
in writing), and Crown shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security
or Securities of the same series, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a Global
Security is so surrendered, Crown shall execute and the Trustee shall
authenticate and deliver to the Depositary, without service charge, a new
Global Security in a denomination equal to and in exchange for the unredeemed
portion of the principal of the Global Security so surrendered.
ARTICLE 12 - SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article 12 shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series 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 Securities of any series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
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SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
Crown (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (ii) may apply as a
credit Securities of a series which have been redeemed either at the election
of Crown pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date
for any series of Securities, Crown will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3. The Trustee shall
cause notice of the redemption thereof to be given in the name of and at the
expense of Crown in the manner provided in Section 11.4. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13 - REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.1. Applicability of Article.
Unless otherwise provided with respect to Securities of any
series in accordance with Section 3.1 hereof, Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with the terms of the Securities of such series.
The repayment of any principal amount of Securities pursuant to such option of
the Holder to require repayment of Securities before their Stated Maturity, for
purposes of Section 3.9, shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and
until Crown, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled. Notwithstanding anything to
the contrary contained in this Section 13.1, in connection with any repayment
of Securities Crown may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Holders of such Securities on or before the
close of business on the repayment date an amount no less than the repayment
price payable by Crown on repayment of such Securities, and the obligation of
Crown to pay the repayment price of such Securities shall be satisfied and
discharged to the extent such payment is so paid by such purchasers.
ARTICLE 14 - MEETINGS OF HOLDERS
SECTION 14.1. Purposes of Holders' Meetings.
A meeting of Holders of Securities of any series may be
called at any time and from time to time pursuant to the provisions of this
Article 14 for any of the following purposes:
(1) to give any notice to Crown or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Holders pursuant to any of the provisions of Article 5;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article 6;
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(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Article 9; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the
Securities of such series under any other provision of this Indenture or under
applicable law.
SECTION 14.2. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of
Securities of any series to take any action specified in Section 14.1, to be
held at such time and at such place as the Trustee shall determine. Notice of
every meeting of Holders of Securities in any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given to Holders of Securities of such series
in the manner provided in Section 1.6. Such notice shall be given not less than
20 nor more than 90 days prior the date fixed for such meeting. Any failure by
the Trustee to give such notice, or any defect therein, shall not affect or
impair the validity of any action taken at such meeting.
Any meeting of Holders of Securities of any series shall be
valid without notice if the Holders of all Outstanding Securities of such
series are present in person or by proxy or if notice is waived before or after
the meeting by all Holders of Outstanding Securities of such series who are not
present in person or by proxy, and if Crown and the Trustee are either present
by duly authorized representative or have, before or after the meeting, waived
notice.
SECTION 14.3. Call of Meetings by Crown or Holders.
In case at any time Crown, pursuant to a Board Resolution, or
the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
Holders of Securities of such series, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then Crown or such Holders may determine the time and
the place for such meeting and may call such meeting to take any action
authorized in Section 14.1, by giving notice thereof as provided in Section
14.2.
SECTION 14.4. Qualifications for Voting.
To be entitled to vote at any meetings of Holders of
Securities of any series a Person shall (i) be a Holder of one or more
Securities of such series or (ii) be a Person appointed by an instrument in
writing as proxy by a Holder of one or more Securities of such series. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the persons entitled to vote at such meetings and their
counsel and any representatives of the Trustee and its counsel and any
representatives of Crown and its counsel.
SECTION 14.5. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties if
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
Crown or by the Holders as provided in Section 14.3, in which case Crown, or
Holders calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by majority vote of the Holders of Outstanding
Securities and proxies.
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At any meeting each Holder of Outstanding Securities or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities
held or represented by such Holder; provided, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Outstanding
Securities held by such chairman or instruments in writing as aforesaid duly
designating such chairman as the person to vote on behalf of other Holders. At
any meeting of Holders duly called pursuant to the provisions of Section 14.2
or 14.3, the presence of persons holding or representing Securities in an
aggregate principal amount sufficient to take any action on any business for
the transaction of which such meeting was called shall constitute a quorum. Any
meeting of Holders duly called pursuant to the provisions of Section 14.2 or
14.3 may be adjourned from time to time by a majority of those present, whether
or not constituting a quorum, and the meeting may be held as so adjourned
without further notice.
SECTION 14.6. Voting.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities or of their representatives by proxy and the
principal amount of Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Holders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 14.2. The record shall show the principal amount of the Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to Crown and the other to
the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 14.7. Rights of Trustee or Holders Not Delayed.
Nothing in this Article 14 contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities.
[ARTICLE 15 - SUBORDINATION; SENIORITY]
SECTION 15.1. Securities Subordinated to Senior Indebtedness.
(a) Crown agrees, and each Holder of the Securities of any
series by such Holder's acceptance thereof likewise agrees, that the payment of
the principal of, premium, if any, and interest on the Securities of such
series (all of the foregoing, a "Payment or Distribution") is subordinated and
junior in right of payment, to the extent and in the manner provided in this
Article 15, to the prior payment in full in cash of all Senior Indebtedness
whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed. A Payment or Distribution shall include any asset of any kind or
character, and may consist of cash, securities or other property, by set-off or
otherwise, and shall include, without limitation, any purchase, redemption or
other acquisition of the Securities of the series or the making of any deposit
of funds or securities pursuant to this Indenture (including, without
limitation, any deposit pursuant to Article 4).
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(b) The Senior Indebtedness of Crown shall continue to be
Senior Indebtedness and entitled to the benefit of these subordination
provisions irrespective of any amendment, modification or waiver of any term of
any instrument relating to refinancing, extension or renewal of the Senior
Indebtedness.
(c) All the provisions of this Indenture and the Securities
of any series shall be subject to the provisions of this Article 15 so far as
they may be applicable thereto, except that nothing in this Article 15 shall
apply to claims for, or payments to, the Trustee under or pursuant to Section
6.6.
(d) No right of any holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time or in any way be
affected or impaired by any failure to act on the part of Crown, any Paying
Agent, the Holders of the Securities of any series, the Trustee or the holders
of the Senior Indebtedness, or by any noncompliance by Crown, any Paying Agent,
the Holders of the Securities of any series or the Trustee with any of the
terms, provisions and covenants of the Securities of this Indenture, regardless
of any knowledge thereof that any such holder of Senior Indebtedness may have
or be otherwise charged with.
(e) In the event that the Securities of any series are
declared due and payable before the maturity because of the occurrence of a
default hereunder, Crown will give prompt notice in writing of such happening
to the holders of Senior Indebtedness.
SECTION 15.2. Crown Not to Make Payments with Respect to Securities in Certain
Circumstances.
No Payment or Distribution shall be made by Crown, the
Trustee or the Paying Agent on account of principal of (or premium, if any) or
interest on the Securities of any series, whether upon Stated Maturity, upon
redemption or acceleration, or otherwise, or on account of the purchase or
other acquisition of Securities of such series, whether upon stated maturity,
upon redemption or acceleration, or otherwise, if there shall have occurred and
be continuing a default with respect to any Senior Indebtedness permitting the
acceleration thereof or with respect to the payment of any Senior Indebtedness
and (a) such default is the subject of a judicial proceeding or (b) notice of
such default in writing or by telegram has been given to Crown by any holder or
holders of any Senior Indebtedness, unless and until Crown shall have received
written notice from such holder or holders that such default or event of
default shall have been cured or waived or shall have ceased to exist.
Upon any acceleration of the principal of the Securities of
any series or any payment by Crown or distribution of assets of Crown of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution or winding up or liquidation or reorganization of Crown,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all Senior
Indebtedness shall first be paid in full in cash, or payment thereof provided
for to the satisfaction of the holders thereof, before any Payment or
Distribution is made on account of the redemption price or principal of (and
premium, if any) or interest on the Securities of such series; and (subject to
the power of a court of competent jurisdiction to make other equitable
provision, which shall have been determined by such court to give effect to the
rights conferred in this Article 15 upon the Senior Indebtedness and the
holders thereof with respect to the Securities of such series or the Holders
thereof or the Trustee, by a lawful plan of reorganization or readjustment
under applicable law) upon any such dissolution or winding up or liquidation or
reorganization, any Payment or Distribution by Crown or distribution of assets
of Crown of any kind or character, whether in cash, property or securities, to
which the Holders of the Securities of any series or the Trustee would be
entitled except for the provisions of this Article 15, shall be paid by Crown
or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such Payment or Distribution directly to the holders of Senior
Indebtedness of Crown or their representative or representatives, or to the
Trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, at their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in
full in cash, after giving effect to any concurrent payment or distribution to
or for the holders
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of Senior Indebtedness, before any Payment or Distribution is made to the
Holders of the Securities of such series or to the Trustee, except that the
Trustee will have a lien for the payment of its fees and expenses.
In the event that, notwithstanding the foregoing, any Payment
or Distribution by Crown of any kind or character, whether in cash, property or
securities, prohibited by the foregoing, shall be received by the Trustee or
the Holders of the Securities of any series before all Senior Indebtedness is
paid in full in cash, or provision is made for such payment to the satisfaction
of the holders thereof, and if such fact shall then have been or thereafter be
made known to a Trust Officer of the Trustee or, as the case may be, such
Holder, then and in such event such Payment or Distribution shall be paid over
or delivered to the holders of Senior Indebtedness or their representative or
representatives, or to the Trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash, after giving effect to any concurrent Payment or
Distribution to or for the holders of such Senior Indebtedness, and, until so
delivered, the same shall be held in trust by any Holder of a Security as the
property of the holders of Senior Indebtedness.
The consolidation of Crown with, or the merger of Crown into,
another Person or the liquidation or dissolution of Crown following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another trust or corporation upon the terms and conditions
provided in Article 8 shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 15.2 if such
other Person shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article 8. Nothing in this
Section shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 6.6.
The holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Holders of the Securities
of any series, without incurring responsibility to the Holders of the
Securities of such series and without impairing or releasing the obligations of
the Holders of the Securities of such series hereunder to the holders of Senior
Indebtedness; (i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend in any manner Senior Indebtedness or any instrument evidencing
the same or any agreement under which Senior Indebtedness is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of Senior Indebtedness; and/or (iv) exercise or
refrain from exercising any rights against Crown and any other Person.
SECTION 15.3. Subrogation of Securities.
Subject to the payment in full in cash of all amounts then
due (whether by acceleration of the maturity thereof or otherwise) on account
of all Senior Indebtedness at the time outstanding, the Holders of the
Securities of any series shall be subrogated to the rights of the holders of
Senior Indebtedness to receive Payment or Distributions of cash, property or
securities of Crown applicable to the Senior Indebtedness until the principal
of (and premium, if any) and interest on the Securities shall be paid in full;
and, for the purposes of such subrogation, no Payments or Distributions to the
holders of Senior Indebtedness to which the Holders of the Securities of any
series or the Trustee would be entitled except for the provisions of this
Article 15, and no payments over pursuant to the provisions of this Article 15
to the holders of Senior Indebtedness by Holders of the Securities of any
series or the Trustee, shall, as between Crown, Crown's creditors other than
holders of Senior Indebtedness, and the Holders of the Securities of such
series, be deemed to be a payment by Crown to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article 15 are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities of any series, on the one hand, and the holders of
Senior Indebtedness, on the other hand.
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Nothing contained in this Article 15 or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among Crown,
its creditors other than the holders of Senior Indebtedness, and the Holders of
the Securities of each series, the obligation of Crown, which is absolute and
unconditional, to pay to the Holders of the Securities of any series the
principal of (and premium, if any) and interest on the Securities of such
series as and when the same shall become due and payable in accordance wit
their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities of any series and creditors of Crown other than the
holder of Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security of any series from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 15 of the holders
of Senior Indebtedness in respect of cash, property or securities of Crown
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of Crown referred
to in this Article, the Trustee, subject to the provisions of Article 6, and
the Holders of the Securities of any series shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any
dissolution, winding up, liquidation or reorganization proceedings are pending,
or certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities of such series, for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of Crown, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 15.
SECTION 15.4. Authorization by Holders of Securities.
Each Holder of a Security of any series by acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate, as between the Holder of the
Security and the holders of Senior Indebtedness, the subordination provided in
this Article and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes including, without limitation, to execute, verify,
deliver and file any proofs of claim which any holder of Senior Indebtedness
may at any time require in order to prove and realize upon any rights of claims
pertaining to the Securities and to effectuate the full benefit of the
subordination contained herein. Upon failure of the Trustee so to do, any such
holder of Senior Indebtedness shall be deemed to be irrevocably appointed the
agent and attorney-in-fact of the Holder to execute, verify, deliver and file
any such proofs of claim.
SECTION 15.5. Notices of Trustee.
Crown shall give prompt written notice to the Trustee of any
fact known to it which would prohibit the making of any payment of monies to or
by the Trustee in respect of the Securities of any series pursuant to the
provisions of this Article 15. Notwithstanding the provisions of this Article
or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of monies to or by the Trustee in respect of the Securities of any
series pursuant to the provisions of this Article, unless and until a Trust
Officer of the Trustee shall have received at its Corporate Trust Office
written notice thereof from Crown or a holder or holders of Senior Indebtedness
or from any trustee or agent therefor; and prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Article 6, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if a Trust Officer of the Trustee shall not have received at least three
Business Days prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the payment
of the principal of (premium, if any) or interest on any Security of any
series) with respect to such monies the notice provided for in this Section
15.5, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have the full power and authority to receive such monies and to
apply the same to the purpose for which they were received and shall not be
affected by any notice to the contrary which may be received by it within three
Business Days prior to such date.
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The Trustee shall be entitled to rely conclusively on the
delivery to it of a written notice by a Person representing such Person to a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior Indebtedness or
a trustee or agent on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article 15, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
15, and if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 15.6. Trustee's Relation to Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article 15 in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in Article 6 or elsewhere in this Indenture
shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 15, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not
owe any fiduciary duty to the holders of Senior Indebtedness and shall not be
liable to any such holder if it shall mistakenly pay over or distribute to
Holders of the Securities of any series or Crown or any other Person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article 15 or otherwise.
SECTION 15.7. No Impairment of Subordination.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
Crown, the Trustee or the Holder of any of the Securities of any series or by
any act, or failure to act, in good faith, by any such holder of Senior
Indebtedness, or by any noncompliance by Crown, the Trustee or the Holder of
any of the Securities of any series with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
SECTION 15.8. Article 15 Not To Prevent Events of Default.
The failure to make a payment on account of principal of
(premium, if any) or interest on the Securities of any series by reason of any
provision in this Article 15 shall not be construed as preventing the
occurrence of an Event of Default with respect to such series under Section
5.1.
SECTION 15.9. Paying Agents Other Than the Trustee.
In any case at any time any Paying Agent other than the
Trustee shall have been appointed by Crown and be then acting hereunder, the
term "Trustee," as used in this Article 15 shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article 15 in addition to or in place
of the Trustee.
[ARTICLE 16 - CONVERSION OF SECURITIES]
SECTION 16.1. Right of Conversion; Conversion Price.
Subject to the provisions of any series of the Securities,
the Holder of any Security or Securities of a particular series shall have the
right, at such Holder's option, at any time after such date as
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determined by Board Resolution with respect to such series of Securities and
before the close of business on such date as determined by Board Resolution with
respect to such series of Securities (except that, with respect to any Security
or portion of a Security of such series which shall be called for redemption,
such right shall terminate at the close of business on the date fixed for
redemption of such Security or portion of a Security unless Crown shall default
in payment due upon redemption thereof) to convert, subject to the terms and
provisions of this Article 16, the principal of any Security or Securities of
such series or any portion thereof which is $1,000 principal amount or an
integral multiple thereof into Capital Shares, initially at the conversion price
per share specified in the Securities of such series; or, in case an adjustment
of such price has taken place pursuant to the provisions of Section 16.4, that
at the price as last adjusted (such price or adjusted price being referred to
herein as the "Conversion Price"), upon surrender of the Security or Securities,
the principal of which is so to be converted, accompanied by written notice of
conversion duly executed, to Crown, at any time during usual business hours at
the office or agency maintained by it for such purpose, and, if so required by
the Conversion Agent or Registrar, accompanied by a written instrument or
instruments of transfer in form satisfactory to the Conversion Agent or Security
Registrar duly executed by the Holder of such Holder's duly authorized
representative in writing. For convenience, the conversion of any portion of the
principal of any Security or Securities into Capital Shares is hereinafter
sometimes referred to as the conversion of such Security or Securities.
Notwithstanding the other provisions contained in this
Article 16, a Holder may not convert the Securities of any series and the
Securities of such securities held by such Holder shall not be convertible, if
as a result of such conversion such Holder or any other Person would, or in the
determination of the Board of Trustees, might then be deemed, directly or
indirectly, to have acquired or be holding Capital Shares in excess of such
Holder's or other Person's Ownership Limit.
SECTION 16.2. Issuance of Shares on Conversion.
As promptly as practicable after the surrender, as herein
provided, of any Security or Securities of any series for conversion, Crown
shall deliver or cause to be delivered at its said office or agency, to or upon
the written order of the Holder of the Security or Securities so surrendered,
certificates representing the number of fully paid and nonassessable Capital
Shares into which such Security or Securities may be converted in accordance
with the provisions of this Article 16. Such conversion shall be deemed to have
been made as of the close of business on the date that such Security or
Securities shall have been surrendered for conversion by delivery thereof with
a written notice of conversion duly executed, so that the rights of the Holder
of such Security or Securities as a Holder shall cease at such time and,
subject to the following provisions of this paragraph, the Person or Persons
entitled to receive the Capital Shares upon conversion of such Security or
Securities shall be treated for all purposes as having become the record holder
or holders of such Capital Shares at such time and such conversion shall be at
the Conversion Price in effect at such time; provided, however, that no such
surrender on any date when the share transfer books of Crown shall be closed
shall be effective to constitute the Person or Persons entitled to receive the
Capital Shares upon such conversion as the record holder or holders of such
Capital Shares on such date, but such surrender shall be effective to
constitute the Person or Persons entitled to receive such Capital Shares as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such share transfer books are open; such
conversion shall be at the Conversion Price in effect on the date that such
Security or Securities shall have been surrendered for conversion by delivery
thereof, as if the share transfer books of Crown had not been closed. Crown
shall give or cause to be given to the Trustee written notice whenever the
share transfer books of Crown shall be closed.
Upon Conversion of any Security of any series which is
converted in part only, Crown shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof in accordance with Section
3.3, at the expense of Crown, a new Security or Securities of such series of
authorized denominations in principal amount equal to the unconverted portion
of such Security.
SECTION 16.3. No Adjustment for Interest or Dividends.
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No payment or adjustment in respect of interest on the
Securities of any series or dividends on Capital Shares shall be made upon the
conversion of any Security or Securities; provided, however, that if a Security
or any series or any portion thereof shall be converted subsequent to any
Regular Record Date and on or prior to the next succeeding interest payment
date, the interest falling due on such interest payment date shall be payable
on such interest payment date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name such Security is registered at the close of business
on such Regular Record Date and Securities surrendered for conversion during
the period from the close of business on any Regular Record Date to the opening
of business on the corresponding Interest Payment Date must be accompanied by
payment of any amount equal to the interest payable on such interest payment
date.
SECTION 16.4. Adjustment of Conversion Price.
(1) In case Crown shall pay or make a dividend or other
distribution on any class of Capital Shares in Capital Shares, the Conversion
Price for any series of Securities in effect at the opening of business on the
day following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be reduced by multiplying
such Conversion Price by a fraction of which the numerator shall be the number
of shares of the appropriate class of Capital Shares outstanding at the close
of business on the date fixed for such determination and the denominator shall
be the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination.
(2) In case Crown shall issue rights or warrants to all or
substantially all holders of a class of Capital Shares entitling them to
subscribe for or purchase Capital Shares at a price per share (or having a
Conversion Price per share) less than the current market price per share
(determined as provided in paragraph (6) of this Section 16.4) of such class of
Capital Shares on the date fixed for the determination of shareholders entitled
to receive such rights or warrants, the Conversion Price for any series of
Securities in effect at the opening of business on the day following the date
fixed for such determination shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of such class of
Capital Shares outstanding at the close of business on the date fixed for such
determination plus the number of such class of Capital Shares which the
aggregate of the subscription price of the total number of such class of
Capital Shares so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of such class of
Capital Shares outstanding at the close of business on the date fixed for such
determination plus the number of such class of Capital Shares so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. In the event that all of such class of Capital Shares subject to
such rights or warrants have not been issued when such rights or warrants
expire, then the Conversion Price shall promptly be readjusted to the
Conversion Price which would then be in effect had the adjustment upon the
issuance of such rights or warrants been made on the basis of the actual number
of such class of Capital Shares issued upon the exercise of such rights or
warrants. Shares issued under Crown's Dividend Reinvestment Plan in effect on
the date of this Indenture, or under any successor plan which permits
shareholders to reinvest dividends and purchase [additional Capital Shares in
any fiscal quarter] at a discount of not in excess of 5% of the current market
price per share (as determined in said plan)], shall not be deemed to be issued
pursuant to rights or warrants for purposes of this paragraph (2). For the
purposes of this paragraph (2), the number of Capital Shares at any time
outstanding shall not include shares held in the treasury of Crown but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of Capital Shares. Crown will not issue any rights or warrants in
respect of such class of Capital Shares held in the treasury of Crown.
(3) In case the outstanding Capital Shares of such class
shall be subdivided into a greater number of shares, the Conversion Price in
effect at the
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opening of business on the day following the day upon which such subdivision
becomes effective for any series of Securities (that are convertible into such
classes of Capital Shares) shall be proportionately reduced, and, conversely, in
case outstanding shares of such class of Capital Shares shall each be combined
into a smaller number of shares, the Conversion price for any series of
Securities in effect at the opening of business on the day following the day
upon which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
(4) In case Crown shall, by dividend or otherwise, distribute
to all or substantially all holders of such class of Capital Shares evidences
of indebtedness or assets (including securities, but excluding (i) any rights
or warrants referred to in paragraph (2) of this Section 16.4, (ii) any cash
dividend or distribution not prohibited by Section 10.9 and (iii) any dividend
or distribution referred to in paragraph (1) of this Section), the Conversion
Price for any series of Securities that are convertible into such class of
Capital Shares shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the close of business on the day fixed for the determination of shareholders
entitled to receive such distribution by a fraction of which the numerator
shall be the current market price per share (determined as provided in
paragraph (6) of this Section 16.4) of such class of Capital Shares on the date
fixed for such determination less the then fair market value as determined by
the Board of Trustees (whose determination shall be conclusive and described in
a resolution of the Board of Trustees filed with the Trustee) of the portion of
the assets or evidences of indebtedness so distributed allocable to one share
of such class of Capital Shares and the denominator shall be such current
market price per share of the such class of Capital Shares, such adjustment to
become effective immediately prior to the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such distribution.
(5) In case of such class of Capital Shares shall be changed
into the same or a different number of shares of any class or classes of
shares, whether by capital reorganization, reclassification, or otherwise
(other than a subdivision or combination of shares or a share dividend
described in paragraph (1) or paragraph (3) of this Section 16.4, or a
consolidation, merger or sale of assets described in Section 16.10), then and
in each such event the Holders of Securities of any series that have the rights
to convert into such class shall have the right thereafter to convert such
Securities into the kind and amount of shares and other securities and property
receivable upon such reorganization, reclassification or other change, by
holders of the number of shares of such class of Capital Shares into which such
Securities might have been converted immediately prior to such reorganization,
reclassification or change.
(6) For the purpose of any computation under paragraphs (2)
and (4) of this Section 16.4, the current market price for a share of such
class of Capital Shares on any date shall be deemed to be the average of the
Closing Prices for a share of such class for the 15 consecutive Business Days
selected by Crown commencing not more than 30 and not less than 20 Business
Days before the date in question.
(7) No adjustment in the Conversion Price for the Securities
of any series shall be required unless such adjustment (plus any adjustments
not previously made by reason of this paragraph (7)) would require an increase
or decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this paragraph (7) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this paragraph (7) shall be made to the nearest cent.
(8) Crown may, but shall not be required to, make such
reductions in the Conversion Price for the Securities of any series, in
addition to those required by paragraphs (1), (2), (3), (4) and (5) of this
Section, as the Board of Trustees considers to be advisable in order to avoid
or diminish any income tax to any holders of such class of Capital Shares
resulting from any dividend or distribution of shares or issuance of rights or
warrants to purchase or subscribe for shares or from any
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event treated as such for income tax purposes or for any other reasons. The
Board of Trustees shall have the power to resolve any ambiguity or correct any
error in the adjustments made pursuant to this Section 16.4 and its actions in
so doing shall be final and conclusive.
SECTION 16.5. Notice of Adjustment of Conversion Price.
Whenever the Conversion Price for the Securities of any
series is adjusted as herein provided:
(a) Crown shall compute the adjusted Conversion Price in
accordance with Section 16.4 and shall prepare an Officers' Certificate setting
forth the adjusted Conversion Price and showing the facts upon which such
adjustment is based and the computation thereof, and such certificate shall
forthwith be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 3.5 and with the Trustee; and
(b) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall as soon as
practicable be mailed by Crown to all Holders of Securities of such series at
their last addresses as they shall appear in the Security Register.
(c) If the Conversion Price is adjusted and Crown fails to
file an Officers' Certificate with the Trustee as provided by Section 16.5(a)
and the Trustee is acting as the Conversion Agent, the Trustee shall be
entitled to rely conclusively on the Conversion Price set forth in the
Officers' Certificate most recently received by the Trustee (or as set forth in
this Indenture if the Conversion Price shall not have been adjusted).
SECTION 16.6. Notice of Certain Crown Action.
(1) In case:
(a) Crown shall authorize the granting to holders of
such class of Capital Shares into which a series of Securities is convertible of
rights or warrants entitling them to subscribe for or purchase any shares of
such class of Capital Shares of any class or of any other rights; or
(b) of any reclassification of the shares of such
class of Capital Shares of Crown into which a series of Securities is
convertible, or of any consolidation or merger to which Crown is a party and for
which approval of any shareholders of Crown is required, or of the sale or
transfer of all or substantially all of the assets of Crown; or
(c) of the voluntary or involuntary dissolution,
liquidation or winding up of Crown; then Crown shall cause to be filed at each
office or agency maintained for the purpose of conversion of Securities of any
series pursuant to Section 3.5 and shall cause to be mailed to all Holders of
Securities of such series at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case specified in clause
(a) or (b) above) prior to the applicable record date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights or warrants, or, if a record is not to be
taken the date as of which the Holders of Capital Shares of record to be
entitled to such dividend, distribution, rights or warrants are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
Capital Shares of record shall be entitled to exchange their Capital Shares for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Such notice shall also state whether such transaction will result in any
adjustment in the Conversion Price applicable to the Securities of such series
and, if so, shall state what the adjusted Conversion Price will be and when it
will become effective. Neither the failure to give the notice required by this
Section, nor any defect therein, to any particular Holder shall affect the
sufficiency of the notice or the legality or validity of any such dividend,
distribution, right, warrant, reclassification, consolidation, merger, sale,
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transfer, liquidation, dissolution or winding-up, or the vote on any notice
authorizing such with respect to the other Holders.
(2) In case Crown or any Affiliate of Crown shall propose to
engage in a "Rule 13e-3 Transaction" as defined in the SEC's Rule 13e-3
promulgated under the Exchange Act, Crown shall, no later than the date on
which any information with respect to such Rule 13e-3 Transaction is first
required to be given to the SEC or any Person pursuant to such Rule 13e-3,
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, a copy of all information required to be given to the
holders of Capital Stock pursuant to such Rule 13e-3. The information required
to be given under this paragraph shall be in addition to and not in lieu of any
other information required to be given by Crown pursuant to this Section 16.6
or any other provision of the Securities or this Indenture.
SECTION 16.7. Taxes on Conversions.
Crown will pay any and all stamp or similar taxes that may be
payable in respect of the issuance or delivery of Capital Shares on conversion
of Securities pursuant hereto. Crown shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the issuance
and delivery of Capital Shares in a name other than that of the Holder of the
Security or Securities to be converted, and no such issuance or delivery shall
be made unless and until the Person requesting such issuance has paid to Crown
the amount of any such tax, or has established to the satisfaction of Crown
that such tax has been paid.
SECTION 16.8. Fractional Shares.
No fractional shares or scrip representing fractional shares
shall be issued upon any conversion of Securities. If any such conversion would
otherwise require the issuance of a fractional share, an amount equal to such
fraction multiplied by the current market price per Capital Share (determined
as provided in paragraph (6) of Section 16.4) on the day of conversion shall be
paid to the Holder in cash by Crown.
SECTION 16.9. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to
the Trustee or the Conversion Agent to be cancelled by or at the direction of
the Trustee or the Conversion Agent, which shall dispose of the same as
provided in Section 3.9.
SECTION 16.10. Provisions in Case of Consolidation, Merger or Sale of Assets.
(1) In case of any consolidation of Crown with, or merger of
Crown into, any other corporation or trust, or in case of any merger of another
corporation or trust into Crown (other than a consolidation or merger which
does not result in any reclassification, conversion, exchange or cancellation
of outstanding Capital Shares of Crown), or in case of any sale or transfer of
all or substantially all of the assets of Crown, the corporation or trust
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security of any series
then outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 16.1 to convert such
Security only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of Capital Shares into which such Security might have been converted
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The provisions of this Section 16.10 shall similarly apply to
successive consolidations, mergers, sales or transfers.
(2) The Trustee shall not be under any responsibility to
determine the correctness of any provisions contained in any such supplemental
indenture relating either to the kind or amount of shares or securities or
property receivable
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by Holders upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, sale or conveyance or to any
adjustment to be made with respect thereto.
SECTION 16.11. Disclaimer by Trustee of Responsibility for Certain Matters.
The Trustee shall not at any time be under any duty or
responsibility to any Holder of Securities of any series to determine whether
any facts exist which may require any adjustment of the Conversion Price for
such series, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. The Trustee
shall not be accountable with respect to the validity, value, kind or amount of
any Capital Shares, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Security; and it makes no
representation with respect thereto. The Trustee shall not be responsible for
any failure of Crown to issue, transfer or deliver any Capital Shares or share
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or, subject to Article 6, to comply with any of
the covenants of Crown contained in this Article 16.
SECTION 16.12. Covenant to Reserve Shares.
Crown covenants that it will at all times reserve and keep
available, free from preemptive rights, out of its authorized Capital Shares,
solely for the purpose of issuance upon conversion of Securities as herein
provided, such number of shares of the appropriate class or classes or series
of Capital Shares as shall then be issuable upon the conversion of all
outstanding Securities. Crown covenants that all Capital Shares which shall be
so issuable shall be, when issued, duly and validly issued and fully paid and
non-assessable. For purposes of this Section 16.12, the number of shares of
such class of Capital Shares which shall be deliverable upon the conversion of
all outstanding Securities shall be computed as if at the time of computation
all outstanding Securities were held by a single holder.
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* * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * *
This Indenture may be executed in multiple counterparts, each
of which so executed shall be deemed to be an original, but both of such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective seals to be hereunder
affixed and attested, all as of the day and year first above written.
CROWN AMERICAN REALTY TRUST
Attest: By:______________________________
By:____________________________ Title:___________________________
Attest:
By:____________________________
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<PAGE> 63
STATE OF )
)SS.:
)
On the ________ day of ______________________, 1997, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is the _________________________ of CROWN AMERICAN REALTY TRUST,
one of the entities described in and which executed the foregoing instrument;
that he knows the seal of said entity; that the seal affixed to said instrument
is such entity's seal; that it was so affixed by authority of the Board of
Trustees of said entity, and that he signed his name thereto by like authority.
Notary Public
My Commission Expires:
STATE OF )
)SS.:
COUNTY OF )
On the ________ day of ______________________, 1997, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is the _________________________ of ________________________, one
of the entities described in and which executed the foregoing instrument; that
he knows the seal of said entity; that the seal affixed to said instrument is
such entity's seal; that it was so affixed by authority of the Board of
Trustees of said entity, and that he signed his name thereto by like authority.
Notary Public
My Commission Expires:
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<PAGE> 1
EXHIBIT 4.2
Form of [Convertible] [Redeemable] [Nonredeemable] [Subordinated] Security
If the Holder of this Note (as indicated below) is The
Depository Trust Company (the "Depository") or a nominee of the Depository,
this Note is a Global Security and the following two legends apply:
Unless this Note is presented by an authorized representative
of The Depository Trust Company [(55 Water Street, New York, New York)] to the
issuer or its agent for registration of transfer, exchange or payment, and such
Note issued is registered in the name of ______________________, or such other
name as requested by an authorized representative of the Depository, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL, since the registered owner hereof,______________________ , has an
interest herein.
Unless and until this certificate is exchanged in whole or in
part for Notes in certificated form, this certificate may not be transferred
except as a whole by the Depository to a nominee thereof or by a nominee
thereof to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor of the Depository or a nominee of
such successor.
<PAGE> 2
[FACE OF SECURITY]
CROWN AMERICAN REALTY TRUST
___% [Convertible] [Redeemable] [Nonredeemable] [Subordinated] Notes Due________
No. _________________ $__________________
CROWN AMERICAN REALTY TRUST, a Maryland a real estate
investment trust (herein referred to as "Crown," which term includes any
successor entity under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to _________________ or registered
assigns, the principal sum of _________________________ Dollars, on
____________ (the "Stated Maturity") [or date fixed for earlier redemption (the
"Redemption Date," and with respect to principal repayable on such date, the
"Maturity Date")], and to pay interest thereon from ________________ or the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ______________ and ________________ in each year
(each, an "Interest Payment Date"), commencing __________, at the rate of
_________% per annual, until the principal hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Holder in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be _______ or _____ (whether or not a Business Day), as
the case may be, next preceding such Interest payment Date [at the office or
agency of Crown maintained for such purpose; provided, however, that such
interest may be paid, at Crown's option, by mailing a check to such Holder at
its registered address or by transfer of fund to an account maintained by such
Holder within the United States]. Any such interest or so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee referred to on the reverse hereof, notice whereof shall be given to
Holders of Notes of this series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes of this series may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Stated Maturity
Date [or the principal of, premium, if any, and, if the Redemption Date is not
an Interest Payment Date, interest on this Note payable on the Redemption Date]
will be paid against presentation of this Note at the office or agency of Crown
maintained for that purpose in _______________, in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest payable on this Note on any Interest Payment Date
and on the [Stated] Maturity Date [or Redemption Date], as the case may be,
will include interest accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid or duly provided for
(or from and including ________________, if no interest has been paid on this
Note) to but excluding such Interest Payment Date or the [Stated] Maturity Date
[or Redemption Date], as the case may be. If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption
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<PAGE> 3
Date] falls on a day that is not a Business Day, as defined below, principal,
premium, if any and/or interest payable with respect to such Interest Payment
Date or [Stated] Maturity Date [or Redemption Date], as the case may be, will be
paid on the next succeeding Business Day with the same force and effect as if it
were paid on the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date or
[Stated] Maturity Date [or Redemption Date], as the case may be. "Business Day"
means any day, other than a Saturday or Sunday, on which banking institutions in
the City of New York are authorized or required by law, regulation or executive
order to be closed.
[If this Note is a Global Security, all payments of
principal, premium if any, any interest in respect of this Note will be made by
Crown in immediately available funds.]
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature of one of its authorized
signatories, this Note shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Crown has caused this instrument to be
duly executed under its facsimile seal.
Date:
CROWN AMERICAN REALTY TRUST
By:
Name: Title:
----------------------------
Attest:
- ---------------------
Secretary
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<PAGE> 4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
By:
- ------------------------
Authorized Officer
SEAL
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<PAGE> 5
[REVERSE OF SECURITY]
CROWN AMERICAN REALTY TRUST
__% [Convertible] [Redeemable] [Nonredeemable] [Subordinated] Notes Due_________
This Note is one of a duly authorized issue of [Convertible]
[Redeemable] [Nonredeemable] [Subordinated] Notes of Crown (herein called the
"Securities"), issued and to be issued in one or more series under an
Indenture, dated as of ____________, (herein called the "Indenture") between
Crown and __________________, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of which this Note is a part), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations or rights, duties and immunities thereunder of Crown, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is one of
the duly authorized series of Securities designated as "_______% [Convertible]
[Redeemable] [Nonredeemable] [Subordinated] Notes due ______________"
(collectively, the "Notes"), and the aggregate principal amount of the Notes to
be issued under such series is limited to $___________ (except for Notes
authenticated and delivered upon transfer of, or in exchange for, or in lieu of
other Notes). All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
1. Interest. Crown promises to pay interest on the principal
amount of this Security at the rate per annum shown above. Crown will pay
interest semiannually on _____________ and ___________ of each year beginning
_________ 19__. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
___________, ________; provided that, if there is no existing default in the
payment of interest, and if this Security is authenticated between a record
date referred to on the face hereof and the next succeeding interest payment
date, interest shall accrue from such interest payment date. Interest will be
computed on the basis of a 360 day year of twelve 30-day months.
2. Method of Payment. Crown will pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders of the Securities at the close of business on the _________ or
__________ next preceding the interest payment date. Holders must surrender
Securities to a Paying Agent to collect the principal payments. Crown will pay
principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. Crown,
however, may pay principal and interest by its check payable in such money. It
may mail an interest check to Holder's registered address.
3. Registrar and Agents. Initially, _____________ will act as
Security Registrar, Paying Agent, Conversion Agent and agent for service of
notices and demands. Crown may change any Security Registrar, co-registrar,
Paying Agent, Conversion Agent and agent for service of notices and demands
without notice. Crown or any of its Subsidiaries may act as Paying Agent or
Conversion Agent. The address of _____________________________
_________________________________, Attention: _______________________________.
4. Indenture; Limitations. Crown issued the Securities as a
series of its Securities under the Indenture. The terms of the Securities
include those
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<PAGE> 6
stated in the Indenture and those made part of the Indenture by reference to the
TIA as in effect on the date of the Indenture. The Securities are subject to all
such terms, and the Holders of the Securities are referred to the Indenture and
said TIA for a statement of them.
The Securities are general unsecured obligations of Crown
limited to $_________ principal amount. The Indenture imposes certain
limitations on the ability of Crown to, among other things, make payments in
respect of its Capital Shares, merge or consolidate with any other Person and
sell, lease, transfer or otherwise dispose of its properties or assets.
5. Optional Redemption by Crown. Crown may, at its option,
redeem the Securities, in whole or from time to time in part, on any date
subsequent to ______________, _________ at ___% of the principal amount
thereof, plus accrued interest to the Redemption Date; provided, however, that
Securities will be immediately redeemable by Crown to the extent deemed
sufficient by Crown to prevent the Holder of such Securities or any other
person having an interest therein in excess of the Ownership Limit.
6. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $_________ principal amount may be redeemed in part,
but only in whole multiples thereof. On and after the Redemption Date interest
ceases to accrue on Securities or portions of them called for redemption.
[7.] Conversion. A Holder of a Security may convert such
Security into _______ Shares at any time after _______, _______ and before the
close of business on ________. If the Security is called for redemption, the
Holder may convert it at any time before the close of business on the date
fixed for such redemption. The initial Conversion Price is $_____________ per
share, subject to adjustment in certain events (such conversion price, as
adjusted, the "Conversion Price"). To determine the number of shares issuable
upon conversion of a Security, divide the principal amount to be converted by
the Conversion Price in effect on the conversion date. Crown will deliver a
check for any fractional share.
To convert a Security, a Holder must (1) complete and sign
the conversion notice on the back of the Security, (2) surrender the Security
to the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Registrar or Conversion Agent and (4) pay any
transfer or similar tax if required. No payment or adjustment is to be made on
conversion for interest accrued hereon or for dividends on _______ Shares
issued on conversion; provided, however, that if a Security is surrendered for
conversion after the record date for a payment of interest and on or before the
interest payment date, then, notwithstanding such conversion, the interest
falling due to such interest payment date will be paid to the Person in whose
name the Security is registered at the close of business on such record date
and any Security surrendered for conversion during the period from the close of
business on any regular record payment date to the opening of business on the
corresponding interest payment date must be accompanied by payment of an amount
equal to the interest payable on such interest payment date. A Holder may
convert a portion of a Security if the portion is $1,000 principal amount or an
integral multiple thereof.
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<PAGE> 7
If Crown is a party to a consolidation or merger or a
transfer or lease of all or substantially all of its assets, the right to
convert a Security into _______ Shares may be changed into a right to convert
it into securities, cash or other assets of Crown or another Person.
Notwithstanding the foregoing, a Holder may not convert any
Security, and the Security shall not be convertible, if as a result of such
conversion the Holder or any other Person would, or, in the determination of
the Board of Trustees, might then be deemed, directly or indirectly, to have
acquired or be holding Capital Shares in excess of such Holder's or other
Person's Ownership Limit.
[8.] Subordination. This Security is subordinated and junior
in right of payment to all Senior Indebtedness of Crown. To the extent and in
the manner provided in the Indenture, Senior Indebtedness must be paid before
any payment may be made to any Holders of Securities. Any Holder by accepting
this Security agrees to the subordination and authorizes the Trustee to give it
effect.
In addition to all other rights of Senior Indebtedness
described in the Indenture, the Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of any
instrument relating to the Senior Indebtedness or extension or renewal of the
Senior Indebtedness.
[9.] Denominations, Transfer, Exchange. This Security is one
of a duly authorized issue of Securities of Crown designated as its ____%
[Convertible] [Redeemable] [Nonredeemable] [Subordinated] Notes due ________
[Series ________] limited in aggregate principal amount to $_______. The
Securities are in registered form without coupons in denominations of
$___________ principal amount and integral multiples thereof. A Holder may
register the transfer of or exchange Securities in accordance with the
Indenture. The Security Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Security Registrar
need not register the transfer of or exchange any Securities selected for
redemption or register the transfer of or exchange any Securities for a period
of 15 days before a selection of Securities to be redeemed.
[10.] Persons Deemed Owners. The registered Holder of
a Security may be treated as the owner of it for all purposes.
[11.] Unclaimed Money. If money for the payment of principal
or interest on any Securities remains unclaimed for two years, subject to
applicable law, the Trustee and the Paying Agent will pay the money back to
Crown at its request. After that, Holders may look only to Crown for payment.
[12.] Discharge Prior to Redemption or Maturity. The
Indenture will be discharged and cancelled except for certain sections thereof
upon payment of all the Securities, or upon the irrevocable deposit with the
Trustee of funds or U.S. Government Obligations maturing on or before such
payment date or Redemption Date, sufficient to pay principal, premium, if any,
and interest on such payment or redemption.
[13.] Supplemental Indenture. Subject to certain exceptions,
without notice to the Holders of the Securities, the Indenture may be amended
or supplemented with respect to the Securities with the consent of the Holders
of at least a majority
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<PAGE> 8
in principal amount of the Securities then outstanding and any existing default
or compliance with any provision may be waived with the consent of the Holders
of the majority in principal amount of the Securities then outstanding. Without
the consent of or notice to any Holder, Crown may supplement the Indenture, to
among other things, to cure any ambiguity, defect or inconsistency or make any
other change that does not adversely affect the rights or any Holder.
[14.] Successors. When a successor assumes all the
obligations of its predecessor under the Securities and the Indenture, the
predecessor will be released from those obligations.
[15.] Defaults and Remedies. If an Event of Default with
respect to these Securities, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of a majority in principal amount of
Securities may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it, subject to the
provisions of the TIA before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any
trust or power with respect to the Securities. The Trustee may withhold from
Holders of Securities notice of certain continuing defaults (except a default
in payment of principal or interest) if it determines that withholding notice
is in their interests. Crown is required to file periodic reports with the
Trustee as to the absence of any default or Event of Default.
[16.] Trustee Dealings with Crown. ______________, the
Trustee under the Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for Crown or its
Affiliates, and may otherwise deal with Crown or its Affiliates, as if it were
not Trustee.
[17.] No Recourse Against Others. No shareholder, trustee,
officer or incorporator, as such, past, present or future, of Crown or any
successor trust shall have any liability for any obligation of Crown under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations, or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
[18.] Authentication. This Security shall not be valid until
the Trustee or an authenticating agent appointed by the Trustee signs the
certificate of authentication on the other side of this Security.
[19.] Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by the entities), JT TEN (=Joint tenants with rights of
survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
Crown will furnish to any Holder upon written request and
without charge a copy of the Indenture and any supplemental indentures thereto.
It also will furnish the text of this Security in larger type. Requests may be
made to: Crown American Realty Trust, Pasquerilla Plaza, Johnstown,
Pennsylvania 15901, Attention:______________________ .
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<PAGE> 9
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the
form below and have your signature guaranteed:
For value received, I or we assign and transfer this Security
to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX IDENTIFICATION
NUMBER) (Print or type assignee's name, address and zip code)
and irrevocably appoint----------------------------------------------------agent
to transfer this Security on the books of Crown. The agent may substitute
another to act for him.
Date:
Your signature:
- -----------------------------
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee:
- -----------------------------
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<PAGE> 10
CONVERSION NOTICE
To convert this Security into __________ Shares of Crown,
check the box: [ ]
To convert only part of this Security, state the principal
amount to be converted (which must be a minimum of $_________ or any multiple
thereof): $__________
If you want the Security certificate, if any, made out in
another person's name, fill in the form below:
(INSERT OTHER PERSON'S SOCIAL SECURITY OR TAX IDENTIFICATION
NUMBER) (Print or type assignee's name, address and zip code)
Date:
Your signature:
- -----------------------------
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee By:
- -----------------------------
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<PAGE> 1
EXHIBIT 4.3
================================================================================
CROWN AMERICAN REALTY TRUST
AND
----------------
as Warrant Agent
------
Warrant Agreement
------
Dated as of__________ _ , 1997
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
PARTIES.................................................. 1
RECITALS................................................. 1
SECTION 1. Appointment of Warrant Agent............................. 1
SECTION 2. Warrant Certificates..................................... 1
SECTION 3. Execution and Countersignature
of Warrant Certificates................................. 1
SECTION 4. Registration; Transfers and Exchanges.................... 2
SECTION 5. Duration and Exercise of Warrants........................ 3
SECTION 6. Optional Reduction of Exercise Price..................... 4
SECTION 7. Payment of Taxes......................................... 5
SECTION 8. Adjustment of Exercise Price, Number
of Shares Purchasable and Number of Warrants............ 5
SECTION 9. Fractional Warrants and Fractional Shares................ 9
SECTION 10. Notices to Warrant Holders;
No Rights as Shareholders............................... 10
SECTION 11. Merger, Consolidation or Change of
Name of Warrant Agent................................... 12
SECTION 12. Warrant Agent............................................ 12
SECTION 13. Change of Warrant Agent.................................. 14
SECTION 14. Issuance of New Warrant Certificates..................... 15
SECTION 15. Notices to Company and Warrant Agent..................... 15
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 16. Supplements and Amendments............................... 16
SECTION 17. Successors............................................... 16
SECTION 18. Termination.............................................. 16
SECTION 19. Governing Law............................................ 16
SECTION 20. Benefits of This Agreement............................... 16
SECTION 21. Headings and Table of Contents........................... 17
SECTION 22. Counterparts............................................. 17
TESTIMONIUM ......................................................... 17
SIGNATURES AND SEALS................................................... 17
EXHIBIT A. Form of Warrant Certificate.............................. A-1
</TABLE>
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<PAGE> 4
WARRANT AGREEMENT, dated as of ________ __, 1997 (this
"Agreement"), between CROWN AMERICAN REALTY TRUST, a Maryland real estate
investment trust (the "Company"), and__________________________ , a
__________________ (herein, with any successor, called the "Warrant Agent").
WHEREAS,the Company proposes to issue and sell to underwriters
represented by _________________(the "Representative") ___ Common Share Warrants
(collectively the "Warrants") each entitling the holder to purchase one Common
Share, without par value, of the Company (the "Common Shares"; as used
hereinafter the term "Shares" refers to the Common Shares and of any shares of
the Company of any other class into which such Common Shares may hereafter be
changed); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance of certificates evidencing the Warrants (the
"Warrant Certificates") and other matters as provided herein.
In consideration of the premises and the mutual agreements
herein set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company appoints
the Warrant Agent to act as agent for the Company in accordance with the
provisions of this Agreement, and the Warrant Agent accepts such appointment.
SECTION 2. Warrant Certificates. The Warrant Certificates
(and the Form of Exercise and Assignment to be set forth on the reverse
thereof) shall be substantially in the form set forth in Exhibit A attached
hereto. The Warrant Certificates may contain such insertions, omissions,
substitutions and other variations as the Company and the Warrant Agent
determine and are permitted by this Agreement. The Warrant Certificates shall
be printed, lithographed or engraved and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any rule or
regulation of any share exchange or quotation system on which the Warrants may
be listed or included, as the case may be, or to conform to usage.
SECTION 3. Execution and Countersignature of Warrant
Certificates. The President of the Company shall execute the Warrant
Certificates on behalf of the Company, and the official seal of the Company
(which may be in facsimile form) shall be reproduced on the Warrant
Certificates and attested by the Secretary or an Assistant Secretary of the
Company. The signatures of the President and of the Secretary or an Assistant
Secretary on any Warrant Certificate may be manual or facsimile. Warrant
Certificates may bear the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company
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<PAGE> 5
notwithstanding that such individuals, or any of them, ceased to be such
officers prior to the countersignature and delivery of such Warrant Certificate
or were not such officers at the date of this Agreement.
An authorized officer of the Warrant Agent shall countersign
each Warrant Certificate by manual signature and no Warrant Certificate shall
be valid for any purpose unless so countersigned. The Warrant Agent is hereby
authorized to countersign Warrant Certificates for issuance pursuant to the
provisions of this Agreement.
The Warrant Agent shall date each Warrant Certificate the
date of its countersignature by the Warrant Agent.
SECTION 4. Registration; Transfers and Exchanges. The Company
shall maintain (i) a register for the registration of the Warrant Certificates
and of their transfer from time to time (the "Warrant Register") at the
principal corporate trust office of the Warrant Agent in ______________ and (ii)
an office or agency in ________________ (which shall be initially the office of
the Warrant Agent located at ___________________________________ --mailing
address: ___________________________ ) where Warrants may be surrendered for
exercise, transfer or denominational exchange.
The Company and the Warrant Agent may deem and treat the
registered holder of each Warrant Certificate as the absolute owner thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for the purpose of any exercise thereof, any distribution to the
holder thereof and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
Each Warrant Certificate shall be transferable, in whole or
in part (in whole Warrants), on the Warrant Register, upon surrender of the
Warrant Certificate at an office or agency maintained for such purpose by the
Company, duly endorsed by, or otherwise accompanied by a written assignment in
form satisfactory to the Company and the Warrant Agent duly executed by, the
registered holder thereof or his duly authorized attorney, with the signature
thereon guaranteed by a bank or trust company having an office or correspondent
in the United States or by a broker or dealer that is a member of a registered
securities exchange or the National Association of Securities Dealers, Inc.,
together with funds to pay any transfer, documentary, stamp or other taxes or
government charges payable in connection with such transfer and any other
amounts required pursuant to the Warrant Certificate. Upon such surrender and
payment, the Warrant Agent shall countersign and deliver a new Warrant
Certificate, in the name of the assignee and in a permissible denomination or
denominations (in whole Warrants) specified in such instrument of assignment.
If less than all of the Warrant Certificate is being transferred, the Warrant
Agent shall countersign and deliver a new Warrant Certificate or Certificates
for the portion of the Warrant Certificate not being transferred. The Warrant
Agent shall cancel the Warrant Certificate surrendered.
A Warrant Certificate may be divided or combined with other
Warrant Certificates of other denominations upon surrender thereof at an office
or agency maintained by
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<PAGE> 6
the Company for such purpose, together with a written notice specifying the
names and denominations (in whole Warrants) in which new Warrant Certificates
are to be issued, signed by the registered holder thereof or his duly authorized
attorney, together with the funds to pay any transfer, documentary, stamp, or
other taxes or government charges payable in connection with such transfer and
any other amounts required pursuant to the Warrant Certificate. Upon such
surrender and payment, a new Warrant Certificate or Certificates representing a
like aggregate number of Warrants shall be issued and delivered in accordance
with such notice. The Warrant Agent shall cancel the Warrant Certificate
surrendered.
If any Warrant Certificate at any time becomes mutilated,
lost, stolen or destroyed, the Company will issue, and the Warrant Agent will
countersign, in exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate, or in lieu of and in substitution for the
Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of
like tenor and representing an equivalent number of Warrants, but only upon
receipt of evidence satisfactory to the Company and the Warrant Agent of such
loss, theft or destruction of such Warrant Certificate and indemnity
satisfactory to each of them. Applicants for such substitute Warrant
Certificates must also comply with such other regulations and pay such other
charges as the Company or the Warrant Agent may prescribe.
The Company shall make no service or other charge in
connection with any transfer or exchange of Warrant Certificates, except for
any transfer, documentary, stamp, or other taxes or government charges payable
in connection therewith and any other amounts permitted hereby (including any
charges for the issuance of Warrant Certificates in exchange for or in lieu of
Warrant Certificates that become mutilated, destroyed, stolen or lost, as
provided above).
The Warrant Agent shall not countersign Warrant Certificates
in advance of requests for new Warrant Certificates. The Warrant Agent shall
hold any Warrant Certificates cancelled in accordance with the Warrant Agent's
standard procedures.
SECTION 5. Duration and Exercise of Warrants. The Warrants
shall expire at 5:00 p.m., prevailing local time in Pittsburgh, PA on _______
__, ____(the "Expiration Date"), and after such time unexercised Warrants will
be wholly void and of no value. Each Warrant may be exercised on any business
day on or prior to the Expiration Date.
Subject to the provisions of this Agreement, the holder of
each Warrant shall have the right to purchase from the Company (and the Company
shall as soon as practicable, subject to Section 8(g), issue and sell to such
holder) one fully paid and nonassessable Share at the exercise price (the
"Exercise Price") at the time in effect hereunder, upon surrender at an office
or agency maintained by the Company for such purpose of the Warrant Certificate
evidencing such Warrant, with the Form of Exercise on the reverse thereof
properly completed and executed by the holder or his duly authorized attorney
with the signature thereon guaranteed by a bank or trust company having an
office or correspondent in the United States or by a broker or dealer that is a
member of a registered securities exchange or the National Association of
Securities Dealers, Inc., and upon payment of the Exercise Price in lawful
money of the United States of America in
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<PAGE> 7
cash or by certified or cashier's check payable to the order of the Company. The
Exercise Price, as of the initial issuance of the Warrants, shall be $ per
Share. The Exercise Price, the number of Shares, and the kind of securities or
other property purchasable upon exercise of a Warrant shall be subject to
adjustment as provided in Section 8.
Subject to Section 7, (a) upon such surrender of a Warrant
Certificate and payment of the Exercise Price at the time in effect hereunder,
the Warrant Agent shall deliver the Warrant Certificate to the transfer agent
for the Shares, and said transfer agent shall cause to be issued and delivered
to or upon the written order of the registered holder of such Warrant
Certificate and in such name or names as such registered holder may designate,
a certificate for the Share or Shares issuable upon the exercise of the Warrant
or Warrants evidenced by such Warrant Certificate, and (b) such certificate
shall be deemed to have been issued and any person so designated to be named
therein shall be deemed to have become the holder of record of such Share or
Shares as of the date of the surrender of such Warrant Certificate and payment
of the Exercise Price.
The Warrants evidenced by a Warrant Certificate shall be
exercisable, at the election of the registered holder thereof, either as an
entirety or from time to time for part only (consisting of whole Warrants
evidenced by the Warrant Certificate). In the event that less than all of the
Warrants evidenced by a Warrant Certificate surrendered upon the exercise of
Warrants are exercised, the Warrant Agent and the Company shall cause a new
Warrant Certificate or Certificates to be issued for the remaining number of
Warrants evidenced by the Warrant Certificate so surrendered. The Warrant Agent
shall cancel all Warrant Certificates surrendered upon exercise of Warrants.
The Warrant Agent shall deposit to the account of the Company
all monies received by the Warrant Agent in payment of the Exercise Price of
any Warrant. The Warrant Agent shall account promptly to the Company with
respect to the exercise of Warrants.
SECTION 6. Optional Reduction of Exercise Price. The Company
shall have the right, at any time or from time to time, voluntarily to reduce
the then current Exercise Price to such amount (the "Reduced Exercise Price")
and for such period or periods of time not less than 20 days in length, which
may be through the close of business on the Expiration Date (the "Reduced
Exercise Price Period"), as may be deemed appropriate by the Board of Trustees
of the Company. Notice of any such Reduced Exercise Price and Reduced Exercise
Price Period shall be given to the registered holders of Warrants in the manner
provided in Section 10 and to the Warrant Agent in the manner provided in
Section 15. After the termination of the Reduced Exercise Price Period, the
Exercise Price shall be such Exercise Price as would have been in effect, as
adjusted pursuant to Section 8, had there been no reduction in the Exercise
Price pursuant to the provisions of this Section 6. Any adjustment in the
Exercise Price pursuant to Section 8 during the Reduced Exercise Price Period
shall not be made in the Reduced Exercise Price in the manner specified in
Section 8 except to the extent that such reduction in the Exercise Price
pursuant to Section 8 would result in an Exercise Price lower than the then
current Reduced Exercise Price. No reduction of the then current Exercise Price
pursuant to the provisions of this Section 6 shall be deemed for the purposes
of Section 8 hereof to require any adjustment in the
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<PAGE> 8
Exercise Price, the number of Shares purchasable upon the exercise of Warrants
or in the number of Warrants.
SECTION 7. Payment of Taxes. The Company shall pay
documentary stamp taxes, if any, imposed under the laws of the United States of
America attributable to the initial issuance of the Warrants, but it shall not
be required to pay any such taxes imposed on Warrant Certificates issued
pursuant to transfers or exchanges or under other circumstances covered in
Section 4.
The Company shall not be required to pay any tax or taxes or
government charge that may be payable in respect of any issuance of any
certificates for Shares purchased on exercise of a Warrant. The Company shall
not be required to, and the Warrant Agent (unless the Company otherwise directs
in writing) shall not, issue or deliver such certificates unless or until the
persons requesting the issuance thereof shall have paid to the Company the
amount of any such tax or government charge or shall have established to the
satisfaction of the Company that any such tax or government charge has been
paid.
SECTION 8. Adjustment of Exercise Price, Number of Shares
Purchasable and Number of Warrants. The Exercise Price and either the number of
Shares purchasable upon the exercise of each Warrant or the number of Warrants
outstanding are subject to adjustment from time to time as provided in this
Section 8.
(a) In case the Company shall at any time after the date of
this Agreement (i) declare a dividend on the Shares in Shares, (ii) subdivide
the outstanding Shares or (iii) combine the outstanding Shares into a smaller
number of Shares, the Exercise Price to be in effect after the time of the
record date for such dividend or of the effective date of such subdivision or
combination shall be determined by multiplying the Exercise Price in effect
immediately prior to such time by a fraction, the numerator of which shall be
the number of Shares outstanding immediately prior to such time and the
denominator of which shall be the number of Shares to be outstanding
immediately after giving effect to such dividend, subdivision or combination.
Such adjustment shall be made successively whenever any event listed above
shall occur.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of Shares entitling them to
subscribe for or purchase Shares (or securities convertible into Shares) at a
price per Share (or having a conversion price per Share, if a security
convertible into Shares) less than the current market price per Share (as
defined in subsection (d) of this Section 8) on such record date, the Exercise
Price to be in effect after such record date shall be determined by multiplying
the Exercise Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Shares outstanding on
such record date plus the number of Shares which the aggregate offering price
of the total number of Shares so to be offered (or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such current market price and the denominator of which shall be the number
of Shares outstanding on such record date plus the number of additional Shares
to be offered for subscription or purchase (or into which the convertible
securities so to be offered are
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<PAGE> 9
initially convertible). In case such subscription or purchase price may be paid
in consideration part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board of
Trustees of the Company. Shares owned by or held for the account of the Company
or any majority-owned subsidiary of the Company shall not be deemed outstanding
for the purpose of any such computation. Any such adjustments shall be made
successively whenever such a record date is fixed, and in the event that such
rights or warrants are not so issued, the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in effect if such record date had
not been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing Company but not including any merger or consolidation
covered by subsection (j) of this Section 8) of its shares (other than Shares),
evidences of its indebtedness, or assets (other than (i) dividends or
distributions in cash payable out of earnings or retained earnings, (ii)
dividends or distributions of evidences of indebtedness or assets or the
Company's shares other than Shares that are payable out of and do not exceed in
current market value the amount of earnings or retained earnings, and (iii)
dividends or distributions that are also available to holders of Warrants upon
the exercise of Warrants as though the Warrants had been exercised prior to
such record date) or subscription rights or warrants (excluding those referred
to in subsection (b) of this Section 8), the Exercise Price to be in effect
after such record date shall be determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the current market price per Share (as defined in subsection (d)
of this Section 8) on such record date, less the fair market value (as
determined in good faith by the Board of Trustees of the Company) of the
portion of such shares, evidences of indebtedness, assets, subscription rights
or warrants applicable to one Share, and the denominator of which shall be such
current market price per Share (as defined in subsection (d) of this Section
8). Any such adjustments shall be made successively whenever such a record date
is fixed, and in the event that such distribution is not so made, the Exercise
Price shall again be adjusted to be the Exercise Price which would then be in
effect if such record date had not been fixed.
(d) For the purpose of any computation under subsection (b)
or (c) of this Section 8, the current market price per Share on any record date
shall be deemed to be the average of the daily closing prices per Share for the
ten consecutive New York Stock Exchange trading days before such record date.
For the purpose of all relevant provisions of this Agreement, the closing price
for each day shall be the last sale price regular way or, in case no such sale
takes place on such day, the average of the closing bid and asked prices
regular way, in either case as reported for the New York Stock Exchange
Composite Transactions, or, if the Shares are not listed or admitted to trading
on any national securities exchange, the average of the highest reported bid
and lowest reported asked prices as furnished by the National Association of
Securities Dealers, Inc. (the "NASD") through the NASD's Automated Quotation
System ("NASDAQ") or a similar organization if NASDAQ is no longer reporting
such information. If on any such New York Stock Exchange trading day the Shares
are not quoted by any such organization, the fair market value of such Shares
on such day, as determined by the Board of Trustees of the Company, shall be
deemed to be the current market price.
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<PAGE> 10
(e) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
8 shall be made to the nearest cent or to the nearest one-hundredth of a Share
as the case may be.
(f) In the event that at any time, as a result of an
adjustment made pursuant to this Section 8, the holder of any Warrant
thereafter exercised shall become entitled to receive any shares of the Company
other than Common Shares, the Exercise Price and the number of such other
shares so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable, in the judgment of the Company, to the provisions with respect to
the Shares contained in this Section 8, and the provisions of this Section 8
and Sections 5, 6, 7 and 9 with respect to the Shares shall apply on like terms
to any such other shares.
(g) In any case in which this Section 8 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing of the Shares to the holder of any Warrant exercised on or
after such record date; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing, subject to
the following proviso, such holder's right to receive such additional Shares
upon the occurrence of the event requiring such adjustment, and, provided
further, to the extent such event does not occur, the adjustment made in
respect of such non-occurrence shall be retroactive to such record date and
affect all Warrants exercised between such record date and the date of such
non-occurrence.
(h) Upon each adjustment of the Exercise Price pursuant to
subsection (a) or (b) of this Section 8, each Warrant outstanding immediately
prior to such adjustment shall thereafter constitute the right to purchase, at
the adjusted Exercise Price per share, an adjusted number of Shares determined
(to the nearest hundredth) by multiplying the number of Shares purchasable upon
exercise of a Warrant immediately prior to such adjustment by a fraction, the
numerator of which shall be the Exercise Price in effect immediately prior to
such adjustment and the denominator of which shall be the Exercise Price in
effect immediately after such adjustment; provided, however, that the Company
may elect, in substitution for the adjustment in the number of Shares pursuant
to this subsection (h), to adjust the number of Warrants pursuant to subsection
(i) of this Section 8.
(i) In substitution for any adjustment in the number of
Shares purchasable upon the exercise of a Warrant as provided in subsection (h)
of this Section 8, the Company may elect to adjust the number of Warrants so
that each Warrant outstanding after such adjustment in number of Warrants shall
be exercisable for one Share. Each Warrant held of record immediately prior to
such adjustment of the number of Warrants shall become that number of Warrants
determined (to the nearest hundredth) by multiplying the number of Shares
purchasable
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<PAGE> 11
upon exercise of a Warrant immediately prior to such adjustment by a fraction,
the numerator of which shall be the Exercise Price in effect immediately prior
to such adjustment and the denominator of which shall be the Exercise Price in
effect immediately after such adjustment. The Company shall make a public
announcement (by news release and by notice to any share exchange or quotation
system on which the Warrants are then listed or included) and give notice to the
Warrant Agent of its election to adjust the number of Warrants, indicating the
record date for the adjustment and, if known at the time, the amount of the
adjustment to be made in the number of Warrants. This record date may be the
date on which the Exercise Price is adjusted or any day thereafter, but shall be
at least two days later than the date of the public announcement. Upon each
adjustment of the number of Warrants pursuant to this subsection (i), the
Company and the Warrant Agent shall, as promptly as practicable, cause to be
distributed to holders of record of Warrant Certificates on such record date
Warrant Certificates evidencing, subject to Section 9, the additional Warrants
to which such holders shall be entitled as a result of such adjustment or, at
the option of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Warrant Certificates held by such
holders prior to the date of adjustment, and, upon surrender thereof if required
by the Company, new Warrant Certificates evidencing all the Warrants to which
such holders shall be entitled after such adjustment. Warrant Certificates to be
so distributed may, at the option of the Company, bear the adjusted Exercise
Price and shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the public announcement.
(j) In case of any capital reorganization, recapitalization,
reclassification of outstanding Shares (other than a subdivision or combination
covered by subsection (a) of this Section 8), or merger or consolidation of the
Company with any other corporation (any of such events being hereinafter
referred to as a "Corporate Reorganization"), in which Shares outstanding
immediately prior to such Corporate Reorganization shall be converted into,
exchangeable for, or converted into the right to receive, any consideration
other than the same number of Shares so held immediately prior thereto, then,
as a condition to such Corporate Reorganization, each Warrant shall, after such
Corporate Reorganization, be exercisable at the then Exercise Price and upon
the other terms and conditions specified in this Agreement for the number of
shares or other securities or assets (which may be cash) to which a holder of
the number of Shares purchasable (at the time of such Corporate Reorganization)
upon the exercise of such Warrant would have been entitled (other than pursuant
to any applicable dissenters rights of appraisal) upon such Corporate
Reorganization; and, in any such case, the provisions set forth in this Section
8 with respect to the rights and interests thereafter of the holders of the
Warrants shall be appropriately adjusted so as to be applicable, as nearly as
may reasonably be, to any shares, other securities or assets thereafter
deliverable on the exercise of the Warrants. The Company shall not effect any
consolidation or merger unless, prior to or simultaneously with the
consummation thereof, the successor corporation (if other than the Company)
resulting from such consolidation or merger or other appropriate corporation or
entity (other than the Company) shall assume, by written instrument executed
and delivered to the Warrant Agent, the obligation to deliver to the holder of
each Warrant such shares, securities or assets (including cash) as, in
accordance with the foregoing provisions, such holders may be entitled to
receive and to assume the other obligations of the Company under this Warrant
Agreement. The Board of Trustees of the Company, acting in good faith, shall
determine the acceptability of any such instrument.
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<PAGE> 12
(k) Except as provided in this Section 8, no adjustment in
respect of any dividends on the Shares shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(l) Irrespective of any adjustments in the Exercise Price or
the number or kind of shares purchasable upon the exercise of the Warrants,
Warrant Certificates theretofore or thereafter issued may continue to express
the same Exercise Price per share and number and kind of shares as are stated
on the Warrant Certificates initially or previously issuable pursuant to this
Agreement.
(m) Anything in this Section 8 to the contrary
notwithstanding, the Company shall be entitled to (but is not required to) make
such reductions in the Exercise Price or increase in the number of Shares
purchasable upon the exercise of each Warrant, in addition to those adjustments
required by this Section 8, as it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the Shares, or any
issuance wholly for cash of any Shares at less than the current market price,
or any issuance wholly for cash of Shares or securities that by their terms are
convertible into or exchangeable for Shares, or any dividend, or any issuance
of rights, options or warrants referred to above in this Section 8, made by the
Company to its common shareholders shall not be taxable to them.
(n) Anything in this Section 8 to the contrary
notwithstanding, if the Company or any subsidiary of the Company grants options
or other rights to purchase Shares to any of its employees or directors, or if
such employees or directors otherwise receive Shares under any employee benefit
plan of, or compensation agreement or arrangement with, the Company or its
subsidiaries, or if the Company offers any dividend reinvestment plans, the
granting of such options or rights, the issuance of Shares on the exercise of
such options or other rights or pursuant to such plans, agreements or
arrangements, and subscriptions for purchases of Shares under any such dividend
reinvestment plan are not to be taken into consideration for adjustments under
this Section 8.
(o) Any determination that may be made by the Board of
Trustees of the Company under this Agreement may be made by a duly authorized
committee of the Board of Trustees.
SECTION 9. Fractional Warrants and Fractional Shares. (a) The
Company shall not issue fractions of Warrants to holders of Warrant
Certificates as a result of any adjustment in the number of Warrants pursuant
to subsection (i) of Section 8 or distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants, the Company shall
pay, at the time new Warrant Certificates are distributed to holders of
Warrants to reflect such adjustment in the number of Warrants, to the
registered holders of Warrant Certificates with regard to which such fractional
Warrants would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Warrant on the trading day
immediately prior to the date on which such fractional Warrant would have been
otherwise issuable.
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<PAGE> 13
The holders of Warrants, by their acceptance of the Warrant
Certificates, expressly waive their right to receive any fraction of a Warrant
or a Warrant Certificate representing a fraction of a Warrant upon the
adjustment thereof in accordance with subsection (i) of Section 8 or otherwise.
(b) For purposes of Section 9(a), the current market value of
a Warrant shall be the closing price of the Warrant for the trading day
immediately prior to the date on which such fractional Warrant would have been
otherwise issuable. The closing price for any day shall be the last sale price
regular way or, in case no such sale takes place on such day, the average of
the closing bid and asked prices regular way, in either case on the principal
national securities exchange on which the Warrants are listed or admitted to
trading, or, if the Warrants are not listed or admitted to trading on any
national securities exchange, the average of the highest reported bid and
lowest reported asked prices as furnished by the NASD through NASDAQ or a
similar organization if NASDAQ is no longer reporting such information. If on
any such date the Warrants are not quoted by any such organization, the fair
market value of the Warrants on such date, as determined in good faith by the
Board of Trustees of the Company, shall be deemed to be the current market
value.
(c) The Company will not issue fractions of Shares upon
exercise of the Warrants or distribute Share certificates that evidence
fractional Shares. In lieu of fractional Shares, the Company shall pay to the
registered holders of Warrant Certificates at the time such Warrants are
exercised an amount in cash equal to the same fraction of the closing price of
the Shares on the trading day immediately prior to the date of such exercise,
determined as provided in the second and third sentences of subsection (d) of
Section 8.
SECTION 10. Notices to Warrant Holders; No Rights as
Shareholders. (a) Upon any adjustment of the Exercise Price or the number of
Warrants outstanding pursuant to Section 8, the Company within 20 days
thereafter shall (i) cause to be filed with the Warrant Agent a certificate
signed by the President or a Vice President or the Treasurer of the Company, or
a certificate of a firm of independent public accountants of recognized
standing selected by the Board of Trustees of the Company (who may be the
regular auditors of the Company) setting forth the Exercise Price after such
adjustment and either the adjusted number of Shares (or fraction thereof)
purchasable upon exercise of a Warrant or the adjusted number of Warrants to be
outstanding and setting forth in reasonable detail the method of calculation
and the facts upon which the calculations are based, which certificate, if
rendered by independent public accountants, shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause notice of such
adjustment to be mailed by first-class mail, postage prepaid, to each
registered holder of a Warrant Certificate at his address appearing on the
Warrant Register. The Company may cause such notice to be mailed in advance of
any such adjustment and included as a part of any notice required to be mailed
under any other provision of this Section 10.
(b) Upon the fixing of a Reduced Exercise Price and Reduced
Exercise Price Period as provided in Section 6, the Company shall cause notice
of such Reduced Exercise Price and Reduced Exercise Price Period to be mailed
by first-class mail, postage prepaid, to each
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<PAGE> 14
registered holder of a Warrant Certificate at his address appearing on the
Warrant Register not more than 45 days and not less than 20 days prior to the
beginning of the Reduced Exercise Price Period.
(c) In case:
(i) the Company shall authorize the issuance to all
holders of Shares, of rights or warrants to subscribe for or
purchase Shares or of any other subscription rights or
warrants; or
(ii) the Company shall authorize the distribution to
all holders of its shares (other than Shares), evidences of
its indebtedness or assets (other than (i) dividends or
distributions in cash payable out of earnings or retained
earnings, (ii) dividends or distributions of evidences of
indebtedness or assets or the Company's shares other than
Shares that are payable out of and do not exceed in current
market value the amount of earnings or retained earnings, and
(iii) dividends or distributions that are also available to
holders of Warrants upon the exercise of Warrants as though
the Warrants had been exercised prior to such record date);
or
(iii) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(iv) the Company proposes to take any other action
(other than actions of the character described in subsection
(a) of Section 8) that would require an adjustment of the
Exercise Price pursuant to Section 8;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be mailed to each registered holder of a Warrant Certificate at his address
appearing on the Warrant Register, at least 14 days prior to the applicable
record date hereinafter specified, by first-class mail, postage prepaid, a
written notice stating (A) the date as of which the holders of record of Shares
to be entitled to receive any such rights, warrants or distribution are to be
determined, or (B) the date on which any such dissolution, liquidation or
winding up or other action is expected to become effective, and the date as of
which it is expected that holders of record of Shares shall be entitled to
exchange their Shares for securities or other property, if any, deliverable
upon such dissolution, liquidation, winding up or other action. The failure to
give any notice required by this Section 10(c) or any defect therein shall not
affect the legality of any such issuance, distribution, dissolution,
liquidation, winding up or other action, or the vote upon any action.
(d) Nothing contained in this Agreement or in any of the
Warrant Certificates shall be construed as conferring upon the holders thereof
the right to vote or receive dividends or to be deemed for any purpose the
holder of Shares or of any other securities of the Company that may at any time
be issuable on the exercise of the Warrant Certificates, nor shall anything
contained herein or in the Warrant Certificates be construed to confer upon a
holder thereof, as such, any of the rights of a shareholder of the Company or
any right to vote on any matter
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<PAGE> 15
submitted to shareholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issue of shares,
reclassification of shares, change of par value, consolidation, merger,
conveyance, or, without limitation, otherwise) or to receive notice of meetings,
or to receive dividends or subscription rights or otherwise, until the Warrant
or Warrants evidenced by such Warrant Certificates shall have been exercised as
provided herein.
SECTION 11. Merger, Consolidation or Change of Name of
Warrant Agent. Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall
be a party, or any corporation succeeding to the corporate trust business of
the Warrant Agent, shall be the successor to the Warrant Agent hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Warrant Agent under the provisions of Section 13. In
case at the time any such successor to the Warrant Agent succeeds to the agency
created by this Agreement, any of the Warrant Certificates have been
countersigned but not delivered, such successor to the Warrant Agent may adopt
the countersignature of the original Warrant Agent; and, in case at that time
any of the Warrant Certificates shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrant Certificates either
in the name of the predecessor Warrant Agent or in the name of the successor
Warrant Agent; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent is changed,
and any of the Warrant Certificates have not been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name, and in all such cases such Warrant Certificates shall have
the full force provided in the Warrant Certificates and in this Agreement.
SECTION 12. Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed on it by this Agreement, upon the following
terms and conditions, by all of which the Company and the holders of Warrants,
by their acceptance thereof, shall be bound:
(a) Compensation and Indemnification. The Company
agrees promptly to pay the Warrant Agent the compensation to
be agreed upon with the Company for all services rendered by
the Warrant Agent and to reimburse it for reasonable
out-of-pocket expenses, including reasonable legal fees,
incurred by the Warrant Agent in connection with the services
rendered hereunder by it. The Company agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss
or liability incurred without negligence or bad faith on the
part of the Warrant Agent arising out of or in connection
with its acting as the Warrant Agent hereunder, as well as
the reasonable costs and expenses of defending against any
such claim of liability.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates the
Warrant Agent is acting solely as
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<PAGE> 16
agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners
or holders of the Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it (who may be counsel to the
Company) and the written opinion of such counsel shall be
protection in respect of any action taken or omitted to be
taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel. The Warrant
Agent agrees promptly to provide a copy of such opinion to
the Company.
(d) Documents. Except as otherwise expressly
provided herein, the Warrant Agent shall be protected and
shall incur no liability for or in respect of any action
taken or thing suffered by it in reliance upon any Warrant
Certificate or notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been passed or
signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
affiliates, officers, directors and employees, may become the
owner of, or acquire any interest in, any Warrant
Certificate, with the same rights that it or they would have
if it were not the Warrant Agent hereunder. It or they may
engage or be interested in any financial or other transaction
with the Company and may act in any other capacity for the
Company, provided acting as such is acceptable to the
Company, as freely as if it were not Warrant Agent hereunder.
(f) No Responsibility for Representations. The
Warrant Agent shall not be responsible for any of the
recitals or representations contained in any of the Warrant
Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by
the Company.
(g) Limited Obligations. The Warrant Agent shall be
obligated to perform such duties and only such duties as are
herein or in the Warrant Certificates specifically set forth.
However, the Warrant Agent shall also be obligated to the
Company to conduct its operations in acting as Warrant Agent
in accordance with sound business practices. The Warrant
Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is
not reasonably assured to it, provided that prior to failing
to take such action it notifies the Company.
(h) No Responsibility for Adjustments. The Warrant
Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to
make or cause to be made any adjustment of the Exercise
Price, the number of the Shares or other securities or
property deliverable as provided in this Agreement, or the
number of Warrants, or to determine whether any facts exist
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<PAGE> 17
that may require any of such adjustments, or with respect to
the nature or extent of any such adjustment, when made, or
with respect to the method employed in making the same. The
Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any Shares or of
any securities or property that may at any time be issued or
delivered upon the exercise of any Warrant, or with respect
to whether any such Shares or other securities will when
issued be validly issued and fully paid and nonassessable,
and makes no representation with respect thereto.
(i) Reliance on Certificates of Officers. Whenever
in the performance of its duties under this Agreement, the
Warrant Agent shall deem it necessary or desirable that any
fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the
President or a Vice President or the Treasurer of the Company
and delivered to the Warrant Agent; and such certificate
shall be full authorization to the Warrant Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(j) Compliance with Instructions. The Warrant Agent
is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from the
President or a Vice President or the Treasurer of the
Company, and to apply to such officers for advice or
instructions in connection with the Warrant Agent's duties,
and it shall not be liable for any action taken or suffered
or omitted by it in good faith in accordance with written
instructions of any such officer.
SECTION 13. Change of Warrant Agent. (a) If the Warrant Agent
advises the Company that it is incapable of acting as Warrant Agent, or if the
Warrant Agent resigns as Warrant Agent (which it may do only upon 30 days'
prior written notice to the Company), the Company shall appoint a successor to
the Warrant Agent. If the Company shall fail to make such appointment within 30
days after it has been notified in writing of such incapacity or resignation by
the Warrant Agent, then the duties of the Warrant Agent shall be carried out by
the Company.
(b) The Company, in its discretion, shall be entitled to
remove the Warrant Agent with or without cause at any time specified in written
notice to the Warrant Agent, and the Company then shall carry out the duties of
the Warrant Agent or shall appoint a successor to the Warrant Agent.
(c) Any successor Warrant Agent appointed by the Company
shall be a bank or trust company, in good standing, incorporated under the laws
of a State or of the United States of America, and must have at the time of its
appointment as Warrant Agent a combined capital and surplus of at least
$100,000,000. After appointment, the successor Warrant Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as
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<PAGE> 18
Warrant Agent without further act or deed; but the former Warrant Agent shall
deliver and transfer to the successor Warrant Agent any property at the time
held by it hereunder and execute and deliver any further assurance, conveyance,
act or deed necessary for such purpose or requested by the Company.
(d) The Company shall cause notice of the appointment of any
successor Warrant Agent to be mailed by first-class mail, postage prepaid, to
each registered holder of a Warrant Certificate at his address appearing on the
Warrant Register. The Company's or Warrant Agent's failure to give any notice
provided for in this Section 13, or any defect therein, shall not, however,
affect the legality or validity of the appointment of a successor Warrant
Agent.
SECTION 14. Issuance of New Warrant Certificates.
Notwithstanding any of the provisions of this Agreement or of the Warrant
Certificates to the contrary, the Company may, at its option, issue new Warrant
Certificates evidencing Warrants in such form as may be approved by its Board
of Trustees to reflect any adjustment or change in the Exercise Price and the
number or kind or class of shares or other securities or property purchasable
under the Warrant Certificates made in accordance with the provisions of this
Agreement. The Company may, at its option, require registered holders of
Warrants to surrender their old Warrant Certificates for any such new Warrant
Certificates.
SECTION 15. Notices to Company and Warrant Agent. Any notice
pursuant to this Agreement to be given by the Warrant Agent or by the
registered holder of any Warrant Certificate to the Company shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed to
the Company as follows:
Crown American Realty Trust
Pasquerilla Plaza
Johnstown, Pennsylvania 15901
Attention:____________________
(except that such notice shall be sent to such other address as the Company may
have subsequently furnished in writing to the Warrant Agent for this purpose).
Any notice pursuant to this Agreement to be given by the
Company or by any registered holder of any Warrant Certificate to the Warrant
Agent shall be sufficiently given if sent by first-class mail, postage prepaid,
addressed to the Warrant Agent as follows:
____________________
____________________
____________________
Attention:__________________
(except that such notice shall be sent to such other address as the Warrant
Agent may have subsequently furnished in writing to the Company for this
purpose).
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<PAGE> 19
SECTION 16. Supplements and Amendments. (a) The Company and
the Warrant Agent may from time to time supplement or amend this Agreement or
the provisions of the Warrant Certificates without the approval of any holders
of Warrant Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein that may be defective or inconsistent
with any provisions herein, or to make any other provisions in regard to
matters or questions arising hereunder that the Company and the Warrant Agent
deem necessary or desirable and that do not adversely affect the interests of
the holders of Warrant Certificates in any material respect.
(b) With the consent of the registered holders of at least a
majority in number of the Warrants at the time outstanding, the Company and the
Warrant Agent may at any time and from time to time by supplemental agreement
or amendment add any provisions to or change in any manner or eliminate any of
the provisions of this Agreement or the Warrants or of any supplemental
agreement or modify in any manner the rights and obligations of the Warrant
holders and of the Company; provided, however, that no such supplemental
agreement or amendment shall, without the consent of the registered holder of
each outstanding Warrant affected thereby:
(1) alter the provisions of this Agreement so as to affect
adversely the price at which or the period during which the Warrants are
exercisable; or
(2) reduce the number of Warrants outstanding the consent of
whose holders is required for any such supplemental agreement or amendment.
SECTION 17. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder. Without the written consent of the Company, the Warrant Agent may
not assign its rights and obligations hereunder except as provided in Section
13.
SECTION 18. Termination. This Agreement shall terminate at
the close of business 30 days after the Expiration Date. Notwithstanding the
foregoing, this Agreement will terminate on any earlier date when all Warrants
have been exercised or have been acquired by the Company. The provisions of
Section 12(a) shall survive such termination.
SECTION 19. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
SECTION 20. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company, the Warrant Agent and the registered holders of the Warrant
Certificates any legal or equitable right, remedy or claim under this
Agreement, and this Agreement shall be for the sole and exclusive benefit of
the Company, the Warrant Agent and the registered holders of the Warrant
Certificates.
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<PAGE> 20
SECTION 21. Headings and Table of Contents. The section and
subsection headings herein and the table of contents are for convenience only
and shall not affect the construction hereof.
SECTION 22. Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
CROWN AMERICAN REALTY TRUST
By:__________________________________
Title:____________________________
[SEAL]
Attest:
__________________________________
Secretary
_____________________________________
By:__________________________________
Title:____________________________
[SEAL]
Attest:
__________________________________
Authorized Officer
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<PAGE> 21
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[FACE]
VOID AFTER 5:00 P.M., PITTSBURGH TIME,__________________ , ____
No. Warrants
CUSIP
CROWN AMERICAN REALTY TRUST
COMMON SHARE WARRANT
This Warrant Certificate certifies that ___________, or registered assigns, is
the registered holder of ____ Common Share Warrants (the "Warrants") expiring
______________, (the "Expiration Date") of CROWN AMERICAN REALTY TRUST, a
Maryland real estate investment trust (the "Company"). Each Warrant entitles the
holder to purchase from the Company, on or before the Expiration Date, one fully
paid and nonassessable Common Share, without par value (the "Common Share"), of
the Company at the exercise price (the "Exercise Price") at the time in effect
under the Warrant Agreement referred to on the reverse hereof ($________ per
share at the time of the initial issuance of the Warrants), payable in lawful
money of the United States of America, upon surrender of this Warrant
Certificate and payment of such Exercise Price at an office or agency maintained
by the Company for such purpose, but subject to the conditions set forth herein
and in the Warrant Agreement; provided, however, that the number or kind of
shares (or in certain events other property) purchasable upon exercise of the
Warrants and payment of the Exercise Price may as of the date of this Warrant
Certificate have been, or may after such date be, adjusted as a result of the
occurrence of certain events, as more fully provided in the Warrant Agreement.
Payment of the Exercise Price shall be made in cash or by certified or cashier's
check payable to the order of the Company and shall be accompanied by the Form
of Exercise on the reverse hereof properly completed by the holder.
No Warrant may be exercised after 5:00 p.m., prevailing local
time in Pittsburgh, Pennsylvania, on the Expiration Date.
The Company has appointed ____________________ as Warrant
Agent under the Warrant Agreement (__________________ and any successor or
successors under the Warrant Agreement being referred to herein as the "Warrant
Agent"). The Company has designated the offices of__________________________ at
______________________ as the initial office or agency at which this Warrant
Certificate may be surrendered for exercise, transfer or denominational
exchange.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent by the manual signature of one of its
authorized officers.
IN WITNESS WHEREOF, CROWN AMERICAN REALTY TRUST has caused
this Warrant Certificate to be duly executed under its official seal with the
facsimile signature of its President and attested to with the facsimile
signature of its Secretary.
[FACSIMILE SEAL]
Attest: CROWN AMERICAN REALTY TRUST
__________________________________ By:____________________________________
Assistant Secretary Title:_________________________________
Dated:____________________________
Countersigned:
__________________________________
as Warrant Agent,
By:_______________________________
Authorized Signature
Void after____________
A-2
<PAGE> 22
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
CROWN AMERICAN REALTY TRUST
COMMON SHARE WARRANT
The Warrants evidenced by this Warrant Certificate are part
of a duly authorized issue of Warrants issued pursuant to a Warrant Agreement
dated as of____________ __, 1997 (the "Warrant Agreement") between the Company
and ________________, as Warrant Agent, to which Warrant Agreement reference is
hereby made for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants. Copies of the Warrant Agreement are on file
and available for inspection and can be obtained at the corporate trust office
of the Warrant Agent.
With certain exceptions as therein provided, the Warrant
Agreement provides that, with the consent of the holders of at least a majority
in number of the Warrants at the time outstanding, the Company and the Warrant
Agent may at any time and from time to time by supplemental agreement or
amendment add any provisions to or change in any manner or eliminate any of the
provisions of the Warrant Agreement or the Warrants or of any supplemental
agreement or modify in any manner the rights and obligations of the holders and
of the Company.
The holder of Warrants evidenced by this Warrant Certificate
may exercise them by surrendering this Warrant Certificate, with the Form of
Exercise hereon properly completed and executed, and upon payment of the
Exercise Price. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or his
assignee a new Warrant Certificate or Certificates evidencing the number of
Warrants not exercised. No adjustment will be made for any dividends on any
shares issuable upon exercise of Warrants evidenced by this Warrant
Certificate. The Warrant Agent may charge, and, unless otherwise instructed by
the Company shall charge, the party exercising Warrants evidenced by this
Warrant Certificate a sum sufficient to reimburse it and the Company for any
tax or taxes or government charge required to be paid in connection with any
issuance of a certificate for shares purchased on exercise of any Warrants.
The Warrant Agreement provides that, upon the occurrence of
certain events, the Exercise Price may, subject to certain conditions, be
adjusted and that, under certain circumstances, Warrants may become exercisable
for securities or other assets other than the shares referred to on the face
hereof. If the Exercise Price is adjusted, the Warrant Agreement provides that,
at the election of the Company, either (i) the number of shares purchasable
upon the exercise of each Warrant shall be adjusted or (ii) each outstanding
Warrant shall be adjusted
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<PAGE> 23
to become a different number of Warrants. In the case of (ii), the Company will
cause to be distributed to holders of Warrant Certificates either Warrant
Certificates representing the additional Warrants issuable pursuant to the
adjustment, or substitute Warrant Certificates to replace all outstanding
Warrant Certificates. If substitute Warrant Certificates are to be issued, the
Company can require any recipient of such Warrant Certificate to surrender
existing Warrant Certificates. In lieu of fractional Warrants and fractional
shares the Company shall pay an amount in cash as provided in the Warrant
Agreement. In addition, the Company, in its discretion, may reduce the Exercise
Price or increase the number of shares purchasable upon exercise of Warrants, as
provided in the Warrant Agreement.
Subject to the limitations provided herein and in the Warrant
Agreement, this Warrant Certificate is transferable, in whole or in part (in
whole Warrants), on the Warrant Register, upon surrender of this Warrant
Certificate at an office or agency maintained by the Company for such purpose,
duly endorsed by, or otherwise accompanied by a written assignment in form
satisfactory to the Company and the Warrant Agent duly executed by, the holder
hereof or his duly authorized attorney, together with funds to pay any
transfer, documentary, stamp or other taxes or government charges payable in
connection with such transfer and any other amounts required pursuant to this
Warrant Certificate. Upon such surrender and payment, the Warrant Agent will
countersign and deliver a new Warrant Certificate, in the name of the assignee
and in a permissible denomination or denominations (in whole Warrants)
specified in such instrument of assignment. If less than all of this Warrant
Certificate is being transferred, the Warrant Agent will countersign and
deliver a new Warrant Certificate or Certificates for the portion of this
Warrant Certificate not being transferred.
This Warrant Certificate may be divided or combined with
other Warrant Certificates of other denominations upon surrender hereof at an
office or agency maintained by the Company for such purpose, together with a
written notice specifying the names and denominations (in whole Warrants) in
which new Warrant Certificates are to be issued, signed by the holder hereof or
his duly authorized attorney, together with the funds to pay any transfer,
documentary, stamp or other taxes or government charges payable in connection
with such transfer and any other amounts required pursuant to this Warrant
Certificate. Upon such surrender and payment, a new Warrant Certificate or
Certificates representing a like aggregate number of Warrants shall be issued
and delivered in accordance with such notice.
If this Warrant Certificate at any time becomes mutilated,
lost, stolen or destroyed, the Company will issue, and the Warrant Agent will
countersign, in exchange and substitution for and upon cancellation hereof, or
in lieu of and in substitution for this Warrant Certificate, a new Warrant
Certificate of like tenor and representing an equivalent number of Warrants,
but only upon receipt of evidence satisfactory to the Company and the Warrant
Agent of such loss, theft or destruction and indemnity satisfactory to each of
them. Applicants for such substitute Warrant Certificates must also comply
with such other regulations and pay such other charges as the Company or the
Warrant Agent may prescribe.
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<PAGE> 24
The Company shall make no service or other charge in
connection with any transfer or exchange of this Warrant Certificate, except
for any transfer, documentary, stamp or other taxes or government charges
payable in connection therewith and any other amounts permitted by the Warrant
Agreement (including any charges for the issuance of Warrant Certificates in
exchange for or in lieu of this Warrant Certificate if the same should become
mutilated, destroyed, stolen or lost, as provided above).
The Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, any distribution to the holder
hereof and for all other purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
This Warrant Certificate shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
Signatures on exercises and assignments of this Warrant must,
unless waived by the Company, be guaranteed.
[FORM OF EXERCISE]
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to purchase ______ Common Shares
of the Company (or such other securities or assets of the Company as are
purchasable in their place pursuant to this Warrant Certificate), and herewith
tenders payment for such shares (or other securities or assets) to the order of
Crown American Realty Trust (the "Company") in the amount of $__________ by
certified or cashier's check or in cash in accordance with the terms hereof. The
undersigned requests that a certificate for such shares (or other securities) be
registered in the name of
____________________ Name
____________________ Address
____________________ Social Security or
Taxpayer Identification Number
and, if less than all Warrants represented by this Warrant Certificate are
being exercised, that a new Warrant Certificate representing the remaining
balance of Warrants be registered in the name of
____________________ Name
____________________ Address
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<PAGE> 25
____________________ Social Security or
Taxpayer Identification Number
and, if any cash payments are to be made in lieu of fractional shares, that
such payments be made to
____________________ Name
____________________ Address
____________________ Social Security or
Taxpayer Identification Number
IN THE ABSENCE OF ANY SPECIFICATION REQUIRED ABOVE, SHARES OR NEW WARRANT
CERTIFICATES WILL BE REGISTERED IN THE NAME OF, OR CASH PAYMENTS WILL BE MADE
TO, THE REGISTERED HOLDER AT THE ADDRESS SET FORTH ON THE WARRANT REGISTER
MAINTAINED BY THE WARRANT AGENT.
Date:_____________________________ Signature:_____________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
Signature Guaranteed:
__________________________________
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<PAGE> 26
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________ Name
__________________________ Address
__________________________ Social Security or
Taxpayer Identification Number
_______________ Warrants represented by the within Warrant Certificate, and
does hereby irrevocably constitute and appoint
_______________ Attorney to transfer said Warrants on the books of the
within-named Company, with full power of substitution.
Date: _____________________________ Signature:_______________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant Certificate.)
Signature Guaranteed:
___________________________________
A-7
<PAGE> 1
EXHIBIT 4.4
____% Senior Preferred Shares
(Liquidation Preference $50.00 Per Share)
ARTICLES SUPPLEMENTARY
CROWN AMERICAN REALTY TRUST
---------------------------
Articles Supplementary Classifying and Designating a
Series of Preferred Shares as
____% Senior Preferred Shares
and Fixing Distribution and
Other Preferences and Rights of Such Series
---------------------------
Dated as of June ___, 1997
CROWN AMERICAN REALTY TRUST
-----------
Articles Supplementary Classifying and Designating a
Series of Preferred Shares as
_____% Senior Preferred Shares
and Fixing Distribution and
Other Preferences and Rights of Such Series
-----------
Crown American Realty Trust, a Maryland real estate trust,
having its principal office in the Commonwealth of Pennsylvania in the City of
Pittsburgh ("Crown"), hereby certifies to the State Department of Assessments
and Taxation of Maryland that:
Pursuant to authority conferred upon the Board of Trustees by
the Second Amended and Restated Declaration of Trust (the "Declaration"), and
bylaws of Crown (the "Bylaws"), the board of trustees of Crown (the "Board of
Trustees") adopted resolutions authorizing the creation and issuance of up to
________ shares, with a liquidation preference of $50.00 per share, of ____%
Senior Preferred Shares (the "Senior Preferred Shares") and adopted resolutions
granting the Board of Trustees with full power and authority, subject to the
foregoing resolution, to determine the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption of the shares of such series. Such
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption, number of shares and dividend rate, as determined by such duly
authorized committee are as follows:
Section 1 Number of Shares and Designation.
This series of Senior Preferred Shares shall be designated
as _____% Senior Preferred Shares and the number of shares which shall
<PAGE> 2
constitute such series shall not be more than____________ shares, par value $.01
per share, which number may be decreased (but not below the number thereof then
outstanding) from time to time by the Board of Trustees.
Section 2 Dividend Rights.
(a) Subject to the preferential rights of any other series of
shares ranking senior as to dividends to the Senior Preferred Shares
and to the provisions of the Declaration relating to rights of holders
of Excess Shares (as defined in the Declaration), the record holders
of Senior Preferred Shares shall be entitled to receive dividends,
when and as declared by the Board of Trustees of Crown out of funds
legally available for payment of dividends. Such dividends shall be
payable by Crown in cash at the rate of $_______ per annum per share.
(b) Dividends on Senior Preferred Shares shall accrue and be
cumulative from the date of issuance of the Senior Preferred Shares.
Dividends shall be payable quarterly in arrears when and as declared by
the Board of Trustees in March, June, September and December of each
year (on the same dates as dividends are paid on Crown's common shares,
par value $.01 per share (the "Common Shares")) (each, a "Preferred
Dividend Payment Date"), commencing in ___________ 1997. If any
Preferred Dividend Payment Date occurs on a day that is not a day,
other than a Saturday or Sunday, that is neither a legal holiday nor a
day on which banking institutions in Pittsburgh are authorized or
required by law, regulation or executive order to close (a "Business
Day"), any accrued dividends otherwise payable on such Preferred
Dividend Payment Date shall be paid on the next succeeding Business
Day. The amount of dividends payable on Senior Preferred Shares for
each full quarterly period from, and including, any Preferred Dividend
Payment Date to, but not including, the next Preferred Dividend Payment
Date (the "Dividend Period") shall be computed by dividing by four (4)
the annual dividend rate set forth in Section 2(a). Dividends payable
in respect of any Dividend Period (other than the initial Dividend
Period) which is less than a full Dividend Period in length will be
computed from the immediately preceding Dividend Payment Date to, but
not including, the date on which dividends are paid on the basis of a
360-day year consisting of twelve 30-day months. Dividends shall be
paid to the holders of record of the Senior Preferred Shares as their
names shall appear on the share transfer records of Crown at the close
of business on the record date, which will be the first day of the
calendar month in which the applicable Preferred Dividend Payment Date
falls or such other date designated by the Board of Trustees for the
payment of dividends that is no more than thirty (30) nor less than ten
(10) days prior to such Preferred Dividend Payment Date (each, a
"Record Date"). Dividends in respect of any past Dividend Period that
is in arrears may be declared and paid at any time to holders of record
on the Record Date for such payment. Any dividend payment made on
Senior Preferred Shares shall be first credited against the earliest
accrued but unpaid dividend due which remains payable. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the Senior Preferred Shares which may
be in arrears.
(c) Notwithstanding anything contained herein to the
contrary, no dividends on Senior Preferred Shares shall be declared by
the Board of Trustees or paid or set apart for payment by Crown at
such time as, and to the extent that, the terms and provisions of
any agreement of Crown, including any agreement relating to its
indebtedness, or any provisions of the Declaration relating to any
series of preferred shares, par value $.01 per share, of Crown (the
"Preferred Shares") ranking senior to the Senior Preferred Shares,
prohibits such declaration,
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<PAGE> 3
payment or setting apart for payment or provides that such declaration,
payment or setting apart for payment would constitute a breach thereof
or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
(d) If any Senior Preferred Shares are outstanding, no full
dividends shall be declared or paid or set apart for payment on any
series of capital shares of Crown ranking junior to or on a parity
with the Senior Preferred Shares as to dividends for any period unless
full cumulative dividends have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set
apart for such payment on the Senior Preferred Shares for all past
Dividend Periods and the then current Dividend Period. When dividends
are not paid in full (or a sum sufficient for such full payment is not
so set apart) upon the Senior Preferred Shares and any series of
Preferred Shares ranking on a parity as to dividends with the Senior
Preferred Shares, all dividends declared upon the Senior Preferred
Shares and any other such series of Preferred Shares ranking on a
parity as to dividends with the Senior Preferred Shares shall be
declared pro rata so that the amount of dividends declared per share
on the Senior Preferred Shares and such other series of Preferred
Shares shall in all cases bear to each other the same ratio that
accrued and unpaid dividends per share on the Senior Preferred Shares
and such other series of Preferred Shares bear to each other.
(e) Except as provided in Section 2(d), unless full
cumulative dividends on the Senior Preferred Shares have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past
Dividend Periods and the then current Dividend Period, no dividends
(other than dividends payable in Common Shares or other capital shares
of Crown ranking junior to the Senior Preferred Shares as to dividends
and upon liquidation, dissolution and winding up) shall be declared or
paid or set aside for payment or other distribution shall be declared
or made upon any series of capital shares of Crown ranking junior to
or on a parity with the Senior Preferred Shares as to dividends nor,
subject to Crown's right to purchase Excess Shares as set forth in the
Declaration, shall shares of any series of capital shares of Crown
ranking junior to or on a parity with the Senior Preferred Shares upon
liquidation, dissolution or winding up be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of
any series of capital shares of Crown ranking junior to or on a parity
with the Senior Preferred Shares) by Crown (except by conversion into
or exchange for other capital shares of Crown ranking junior to the
Senior Preferred Shares as to dividends and upon liquidation,
dissolution and winding up).
(f) Notwithstanding anything contained herein to the
contrary, dividends on the Senior Preferred Shares, if not paid on a
Preferred Dividend Payment Date, will accrue whether or not dividends
are declared for such Preferred Dividend Payment Date, whether or not
Crown has earnings and whether or not there are funds legally
available for the payment of such dividends. Any dividend payment made
on shares of Senior Preferred Shares shall first be credited against
the earliest accrued but unpaid dividend due with respect to such
Senior Preferred Shares which remains payable.
Section 3 Distribution Upon Liquidation, Dissolution or
Winding Up.
(a) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of Crown, subject to the
prior preferences and other rights of any series of capital shares
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<PAGE> 4
of Crown ranking senior to the Senior Preferred Shares upon
liquidation, dissolution or winding up, but before any distribution or
payment shall be made to the holders of capital shares of Crown ranking
junior to the Senior Preferred Shares in the distribution of assets
upon liquidation, dissolution or winding up of Crown, the holders of
Senior Preferred Shares shall be entitled to receive out of the assets
of Crown legally available for distribution to its shareholders
liquidating distributions in cash or property at its fair market value
as determined by the Board of Trustees of Crown in the amount of $50.00
per share, plus an amount equal to any accrued or unpaid dividends on
any such Senior Preferred Shares to the date of liquidation (the
"Liquidation Preference"). After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of
Senior Preferred Shares will have no right or claim to any of the
remaining assets of Crown and shall not be entitled to any other
distribution in the event of liquidation, dissolution or winding up of
the affairs of Crown.
(b) In the event that, upon any such voluntary or involuntary
liquidation, dissolution or other winding up, the legally available
assets of Crown are insufficient to pay the amount of the Liquidation
Preference per share and the corresponding amounts payable on all
capital shares of Crown ranking on a parity with the Senior Preferred
Shares in the distribution of assets upon liquidation, dissolution or
winding up, then the holders of the Senior Preferred Shares and all
such other capital shares shall share ratably in any such distribution
of assets in proportion to the full liquidating distributions to which
they would otherwise be respectively entitled.
(c) Neither the consolidation or merger of Crown into or with
another company or any other entity nor the sale, lease, transfer or
conveyance of all or substantially all of the assets of Crown to
another company or any other entity shall be deemed to constitute a
liquidation, dissolution or winding up of the affairs of Crown within
the meaning of this Section 3.
Section 4 Redemption by Crown.
(a) The Senior Preferred Shares will not be redeemable prior
to ___________, 2002, except under certain limited circumstances to
preserve Crown's status as a REIT. See "Restrictions on Transfer."
The Senior Preferred Shares may be redeemed, in whole or from time
to time in part, at any time on and after _____________ , 2002 at
the option of Crown at the price of $________ per share (the
"Preferred Redemption Price"), plus all accrued and unpaid dividends
thereon to the Preferred Redemption Date (defined below), except as may
be provided below, without interest.
(b) Each date fixed for redemption pursuant to Section 4(d)
below is called a "Preferred Redemption Date." If the Preferred
Redemption Date is after a Record Date and before the related
Preferred Dividend Payment Date, the dividend payable on such
Preferred Dividend Payment Date shall be paid to the holder in whose
name the Senior Preferred Shares to be redeemed is registered at the
close of business on such Record Date notwithstanding the redemption
thereof between such Record Date and the related Preferred Dividend
Payment Date or Crown's default in the payment of the dividend due.
(c) In case of redemption of less than all shares of Senior
Preferred Shares at the time outstanding, the shares to be redeemed
shall be selected pro rata from the holders of record of such shares
in proportion to the number of shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by any other
equitable method determined by Crown, to the extent practicable, that
will not result in a violation of the Ownership Limit (as defined in
the Declaration).
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<PAGE> 5
(d) Notice of any redemption will be given by publication in
a newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks commencing
not less than 30 nor more than 60 days prior to the Preferred
Redemption Date. A similar notice will be mailed by Crown, postage
prepaid, not less than 30 nor more than 60 days prior to the Preferred
Redemption Date, addressed to the respective holders of record of the
Senior Preferred Shares to be redeemed at their respective addresses
as they appear on the share transfer records of Crown. No failure to
give such notice or any defect therein or in the mailing thereof shall
affect the validity of the proceedings for the redemption of any
Senior Preferred Shares except as to the holder to whom Crown has
failed to give notice or except as to the holder to whom notice was
defective. In addition to any information required by law or by the
applicable rules of any exchange upon which the Senior Preferred
Shares may be listed or admitted to trading, such notice shall state:
(i) the Preferred Redemption Date; (ii) the Preferred Redemption
Price; (iii) the aggregate number of Senior Preferred Shares to be
redeemed and, if less than all shares held by such holder are to be
redeemed, the number of such shares to be redeemed; (iv) the place or
places where certificates for such shares are to be surrendered for
payment of the Preferred Redemption Price; and (v) that dividends on
the shares to be redeemed will cease to accrue on the Preferred
Redemption Date.
(e) If notice has been mailed in accordance with Section 4(d)
above and provided that on or before the Preferred Redemption Date
specified in such notice all funds necessary for such redemption shall
have been set aside by Crown, separate and apart from its other funds
in trust for the pro rata benefit of the holders of the shares so
called for redemption, so as to be and to continue to be available
therefor, then, from and after the Preferred Redemption Date,
dividends on the shares of the Senior Preferred Shares so called for
redemption shall cease to accrue, and such shares shall no longer be
deemed to be outstanding and shall not have the status of Senior
Preferred Shares, and all rights of the holders thereof as
shareholders of Crown (except the right to receive from Crown the
Preferred Redemption Price) shall cease. Notwithstanding the
foregoing, upon Crown's default in the payment of the dividend due,
the holders of Senior Preferred Shares at the close of business on any
Record Date will be entitled to receive the dividend payable with
respect to such Senior Preferred Shares on the corresponding Preferred
Dividend Payment Date, although such Senior Preferred Shares shall
have been redeemed between such Record Date and such corresponding
Preferred Dividend Payment Date. Upon surrender, in accordance with
the redemption notice, of the certificates for any Senior Preferred
Shares so redeemed (properly endorsed or assigned for transfer, if
Crown shall so require and the notice shall so state), such shares
shall be redeemed by Crown at the Preferred Redemption Price. In case
fewer than all the shares represented by any such certificate are
redeemed, a new certificate or certificates shall be issued
representing the unredeemed shares without cost to the holder thereof.
(f) No Senior Preferred Shares may be redeemed except with
funds legally available for the payment of the Preferred Redemption
Price.
(g) Unless full cumulative dividends on all Senior Preferred
Shares shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for
payment for all past Dividend Periods and the then current Dividend
Period, no Senior Preferred Shares shall be redeemed unless all
outstanding Senior Preferred Shares are simultaneously redeemed;
provided, however, that the foregoing
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<PAGE> 6
shall not prevent the purchase or acquisition of Senior Preferred
Shares pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding Senior Preferred Shares; and, unless full
cumulative dividends on all outstanding shares of Senior Preferred
Shares have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for
all past Dividend Periods and the then current Dividend Period, Crown
shall not purchase or otherwise acquire directly or indirectly, through
a subsidiary or otherwise, any Senior Preferred Shares.
(h) All Senior Preferred Shares redeemed pursuant to this
Section 4 shall be retired and shall be restored to the status of
authorized and unissued Preferred Shares, without designation as to
series, and subject to the applicable limitations set forth herein may
thereafter be reissued as any series of Preferred Shares.
(i) The Senior Preferred Shares have no stated maturity and
will not be subject to any sinking fund.
Section 5 Voting Rights.
(a) The holders of record of Senior Preferred Shares shall
not be entitled to any voting rights except as hereinafter provided in
this Section 5 or as otherwise provided by law. Crown shall not (i)
without the affirmative vote or consent of the holders of at least a
majority of the Senior Preferred Shares outstanding at the time, given
in person or by proxy, either in writing or at a meeting (such Senior
Preferred Shares voting separately as a class), authorize, create or
issue, or increase the authorized or issued amount of, any class or
series of capital shares ranking senior to the Senior Preferred Shares
as to dividends or upon liquidation, dissolution or winding up or
reclassify any authorized capital shares of Crown into any such senior
shares, or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such capital
shares; or (ii) without the affirmative vote or consent of at least
two-thirds of the Senior Preferred Shares outstanding at the time,
given in person or by proxy, either in writing or at a meeting (such
Senior Preferred Shares voting separately or as a class), amend, alter
or repeal the provisions of the Declaration (including these Articles
Supplementary), whether by merger, consolidation or otherwise, so as
to materially and adversely affect any right, preference, privilege or
voting power of the Senior Preferred Shares or the holders thereof;
provided, however, that any increase in the amount of the authorized
Preferred Shares or the creation or issuance of any other series of
Preferred Shares, or any increase in the amount of authorized Senior
Preferred Shares or any other series of Preferred Shares, in each case
ranking on a parity with or junior to the Senior Preferred Shares with
respect to payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to
materially and adversely affect such rights, preferences, privileges
or voting powers.
(b) Whenever dividends on any Shares have been in arrears for
six or more quarterly periods (regardless of whether such periods are
consecutive), the holders of such Senior Preferred Shares (voting
separately as a class with all other series of preferred shares upon
which rights to vote on such matter with Senior Preferred Shares have
been conferred and are then exercisable) will be entitled to vote for
the election of two additional trustees of Crown at a special meeting
called by the holders of record of at least 10% of the Senior
Preferred Shares and such other preferred shares, if any (unless such
request is received less than 90 days before the date fixed for the
next annual or special meeting of the shareholders), or at the next
annual meeting of shareholders, and at each subsequent annual
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<PAGE> 7
meeting until all dividends accumulated on such Senior Preferred Shares
for the past dividend periods and the then current dividend period have
been fully paid or declared and a sum sufficient for the payment
thereof set aside for payment. In such event, the entire Board of
Trustees will be increased by two trustees. Each of such two trustees
will be elected to serve until the earlier of (i) the election and
qualification of such trustee's successor or (ii) payment of the
dividend arrearage for the Senior Preferred Shares. Such right of the
holders of Senior Preferred Shares to elect trustees may be exercised
until all dividends to which the holders of Senior Preferred Shares
shall have been entitled for all previous Dividend Periods and the
current Dividend Period shall have been paid in full or declared and a
sum of money sufficient for the payment thereof set aside for payment,
at which time the right of the holders of Senior Preferred Shares to
elect such number of trustees shall cease, the term of such trustees
previously elected shall thereupon terminate, and the authorized number
of trustees of Crown shall thereupon return to the number of authorized
trustees otherwise in effect, but subject always to the same provisions
for the renewal and divestment of such special voting rights in the
case of any such future dividend default or defaults and subject to the
rights of any other series of Preferred Shares to vote for the election
of trustees, together with the Senior Preferred Shares, as described in
Section 5(e) that shall not have then expired.
(c) At any time when the voting right described under Section
5(b) shall become exercisable in the holders of Senior Preferred
Shares and if such right shall not already have been initially
exercised, a proper officer of Crown shall, upon the written request
of holders of record of at least ten percent (10%) of Senior Preferred
Shares, and of any other series of Preferred Shares entitled to vote
on such matter as described in Section 5(e), then outstanding,
addressed to the Secretary of Crown, call a special meeting of holders
of Senior Preferred Shares. Such meeting shall be held at the
earliest practicable date upon the notice required for annual meetings
of shareholders at the place for holding annual meetings of
shareholders of Crown or, if none, at a place designated by the
Secretary of Crown. If such meeting shall not be called by the proper
officers of Crown within thirty (30) days after the personal service
of such written request upon the Secretary of Crown, or within thirty
(30) days after mailing the same within the United States, by
registered mail, addressed to the Secretary of Crown at its principal
office (such mailing to be evidenced by the registry receipt issued by
the postal authorities), then the holders of record of at least ten
percent (10%) of Senior Preferred Shares, and of other Preferred
Shares entitled to vote on such matter as described in Section 5(e),
then outstanding may designate in writing a holder of Senior Preferred
Shares or such other Preferred Shares to call such meeting at the
expense of Crown, and such meeting may be called by such person so
designated upon the notice required for annual meetings of
shareholders and shall be held at the place of holding annual meetings
of Crown or, if none, at a place designated by such holder. Any holder
of Senior Preferred Shares that would be entitled to vote at such
meeting shall have access to the share books of Crown for the purpose
of causing a meeting of shareholders to be called pursuant to the
provisions of this Section 5(c). Notwithstanding the provisions of
this Section 5(c), however, no such special meeting shall be called if
any such request is received less than 90 days before the date fixed
for the next ensuing annual or special meeting of shareholders.
(d) If any trustee so elected by the holders of Senior
Preferred Shares shall cease to serve as a trustee before such
trustee's term shall expire, the holders of Senior Preferred Shares
(and any other series of Preferred Shares, if any, entitled
-7-
<PAGE> 8
to vote on such matter, as described in Section 5(e)) then outstanding
may, at a special meeting of the holders called as provided above,
elect a successor to hold office for the unexpired term of the trustee
whose place shall be vacant.
(e) If, at any time when the holders of Senior Preferred
Shares are entitled to elect trustees pursuant to the provisions of
Sections 5(c) & (b) above, the holders of any one or more additional
series of Preferred Shares are entitled to elect trustees by reason of
any default or event specified in the Declaration (or any articles
supplementary thereto), as in effect at the time, or the articles
supplementary for such series, and if the terms for such other
additional series so permit, then the voting rights of the two or more
series then entitled to vote shall be combined (with each series
having a number of votes proportional to the aggregate liquidation
preference of its outstanding shares). In such case, the holders of
Senior Preferred Shares and of all such other series then entitled so
to vote, voting as a class, shall elect such trustees. If the holders
of any such other series have elected such trustees prior to the
happening of the default or event permitting the holders of Senior
Preferred Shares to elect trustees, or prior to a written request for
the holding of a special meeting being received by the Secretary of
Crown as elsewhere required in Section 5(c) above, then a new election
shall be held with all such other series of Preferred Shares and the
Senior Preferred Shares voting together as a single class for such
trustees, resulting in the termination of the term of such previously
elected trustees upon the election of such new trustees. If the
holders of any such other series are entitled to elect in excess of
two trustees, the Senior Preferred Shares shall not participate in the
election of more than two such trustees, and those trustees whose
terms first expire shall be deemed to be the trustees elected by the
holders of Senior Preferred Shares; provided that, if at the
expiration of such terms, the holders of Senior Preferred Shares are
entitled to vote in the election of trustees pursuant to the
provisions of this Section 5, then the Secretary of Crown shall call a
meeting (which meeting may be the annual meeting or special meeting of
shareholders referred to in Section 5(c) above) of holders of Senior
Preferred Shares for the purpose of electing replacement trustees (in
accordance with the provisions of this Section 5) to be held at or
prior to the time of expiration of the expiring terms referred to
above.
(f) Except as required by law, the foregoing voting
provisions shall not apply if, at or prior to the time when the act
with respect to which such vote would otherwise be required shall be
effected, all outstanding shares of the Senior Preferred Shares shall
have been redeemed or shall have been called for redemption upon
proper notice and sufficient funds shall have been deposited in trust
to effect such redemption.
Section 6 Ranking.
The Senior Preferred Shares shall, with respect to dividend
rights and distributions upon liquidation, dissolution and winding up, rank (i)
senior to the Common Shares, any Excess Shares (except as provided in the last
sentence of this Section 6) and all other capital shares issued from time to
time by Crown the terms of which specifically provide that the capital shares
of such series rank junior to the Senior Preferred Shares with respect to
dividend rights or distributions upon liquidation, dissolution or winding up of
Crown; (ii) on a parity with the shares of all other capital shares issued by
Crown the terms of which specifically provide that the shares rank on a parity
with the Senior Preferred Shares with respect to dividends and distributions
upon liquidation, dissolution or winding up of Crown or make no specific
provisions as to their ranking; and (iii) junior to all other capital shares
issued by Crown the terms of which specifically provide that the shares rank
senior to the Senior Preferred Shares with respect to dividends and
distributions upon
-8-
<PAGE> 9
liquidation, dissolution or winding up of Crown (the issuance of which must have
been approved by a vote of at least a majority of the outstanding Senior
Preferred Shares). The Senior Preferred Shares ranks on a parity with the Senior
Preferred Shares that are Excess Shares with respect to distributions upon
liquidation, dissolution or winding up.
Section 7 Restrictions on Transfer
(a) For Crown to qualify as a real estate investment trust
under the Internal Revenue Code of 1986, as amended (the "Code"), it
cannot be "closely held"; that is, not more than 50% of the value of
the outstanding shares of beneficial interest may be owned, directly or
indirectly, by five or fewer individuals (as defined in the Code to
include certain entities) during the last half of a taxable year, the
shares of beneficial interest 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 certain
percentages of Crown's gross income must be derived from particular
activities.
(b) The Declaration contains a number of provisions which
restrict the ownership and transfer of shares of beneficial interest
and which are designed to safeguard Crown against an inadvertent loss
of real estate investment trust status. These include ownership
restrictions ("Ownership Restrictions") that restrict, with certain
exceptions, common shareholders from owning, under the applicable
attribution rules of the Code, more than 7.5% of the outstanding
Common Shares and preferred shareholders from owning more than 9.8% of
the outstanding Preferred Shares.
(c) The Ownership Restrictions will not be automatically
removed even if the real estate investment trust 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 Restrictions would require an amendment to the Declaration.
Amendments to the Declaration require the affirmative vote of holders
owning a majority of the shares then outstanding and entitled to vote
thereon, except as expressly provided in the Declaration. In addition
to preserving Crown's status as a REIT, the Ownership Restrictions may
have the effect of precluding an acquisition of control of Crown
without the approval of the Board of Trustees.
(d) The trustees of Crown may waive the Ownership
Restrictions if evidence satisfactory to the trustees and Crown's tax
counsel is presented showing that such waiver will not jeopardize
Crown's status as a REIT under the Code. As a condition of such
waiver, the trustees of Crown may require that an intended transferee
give written notice to Crown, furnish such opinions of counsel,
affidavits, undertakings, agreements and information as may be
required by the trustees and/or an undertaking from the applicant with
respect to preserving the real estate investment trust status of
Crown. Any transfer of shares or any security convertible into shares
that would (i) create a direct or indirect ownership of shares in
excess of the ownership limit, (ii) result in the shares being owned
by fewer than 100 persons or (iii) result in Crown being "closely
held" within the meaning of Section 856(h) of the Code, will be void
with respect to the intended transferee and will be exchanged for an
equal number of Excess Shares (as defined in the Declaration). Under
the Declaration, Excess Shares shall be deemed to have been
transferred to Crown, as trustee of a separate trust (the "Special
Trust"), for the exclusive benefit of the person or persons to whom
the interest in the Special Trust can ultimately be transferred.
-9-
<PAGE> 10
(e) Excess Shares are not transferable. The purported
transferee of any shares (including the Senior Preferred Shares) that
are exchanged for Excess Shares may designate a transferee of the
interest in the Special Trust if the Excess Shares held in the Special
Trust and represented by such Special Trust interest to be transferred
would not be Excess Shares in the hands of the designated transferee
at a price not to exceed the price paid by the purported transferee
(or, if no consideration was paid, the market price at the time of the
original attempted transfer) at which point such Excess Shares will
automatically be exchanged for the shares to which the Excess Shares
are attributable. In addition, Excess Shares are subject to purchase
by Crown at a purchase price equal to the lesser of: (i) the price
paid for the shares by the intended transferee (or, if no
consideration was paid, the market price of the shares the attempted
transfer of which resulted in Excess Shares, measured on the date of
the transfer); or (ii) the market price of the shares the attempted
transfer of which resulted in Excess Shares measured on the date on
which Crown elects to purchase the Excess Shares. "Market Price" means
the last reported sales price reported on the NYSE of shares of the
relevant class on the trading day immediately preceding the relevant
date, or if the shares of the relevant class are not then traded on
the NYSE, the last reported sales price of shares of the relevant
class on the trading date immediately preceding the relevant date as
reported on any exchange or quotation system over which the shares of
the relevant class may be traded, or if the Shares of the relevant
class are not then traded over any exchange or quotation system, then
the market price of the shares of the relevant class on the relevant
date as determined in good faith by the board of trustees of the
Special Trust.
(f) From and after the intended transfer to the purported
transferee of the Excess Shares, the purported transferee shall cease
to be entitled to distributions (except upon liquidation), voting
rights and other benefits with respect to the Excess Shares except the
right to payment of the purchase price for the shares (including the
Senior Preferred Shares). Any dividend or distribution paid to a
purported transferee on Excess Shares prior to the discovery by Crown
that the shares have been transferred in violation of the Declaration
shall be repaid to Crown upon demand. If the foregoing transfer
restrictions are determined to be void or invalid by virtue of any
legal decision, statute, rule or regulation, then the intended
transferee of any Excess Shares may be deemed, at the option of Crown,
to have acted as an agent on behalf of Crown in acquiring the Excess
Shares and to hold the Excess Shares on behalf of Crown. All
certificates representing shares (including the Senior Preferred
Shares) will bear a legend referring to the restrictions described
above.
(g) All certificates representing shares of beneficial
interest will bear a legend referring to the restrictions described
above.
(h) All persons who own, directly or by virtue of the
applicable attribution provisions of the Code, more than 7.5% of the
value of any class of outstanding shares of beneficial interest must
file an affidavit with Crown containing the information specified in
the Declaration by January 1 of each year. In addition, each
shareholder shall upon demand be required to disclose to Crown in
writing such information with respect to the direct, indirect and
constructive ownership of shares of beneficial interest as the Board
of Trustees deems necessary to comply with the provisions of the Code
applicable to a real estate investment trust, to comply with the
requirements of any taxing
-10-
<PAGE> 11
authority or governmental agency or to determine any such compliance.
(i) The transfer agent and registrar for the Shares is
American Stock Transfer and Trust Company. The Senior Preferred Shares
will be, when issued, duly authorized, fully paid and nonassessable and
will have no preemptive rights.
IN WITNESS WHEREOF, Crown has caused these Articles
Supplementary to be signed in its name and on its behalf by its Chairman of the
Board of Trustees and Chief Executive Officer and attested to by its Secretary
on this ______ day of __________, 1997 and its said Chairman of the Board of
Trustees and Chief Executive Officer acknowledges under the penalties of perjury
that these Articles Supplementary are the corporate act of Crown and that to the
best of his knowledge, information and belief, the matters and facts set forth
herein are true in all material respects.
CROWN AMERICAN REALTY TRUST
By:_______________________________________
Name: Frank J. Pasquerilla
Title: Chairman of the Board of Trustees
and Chief Executive Officer
Attest:
By:_______________________________
Name:__________________________
Title: Secretary
-11-
<PAGE> 1
EXHIBIT 4.5
[FORM OF PREFERRED SHARE CERTIFICATE]
[FRONT OF CERTIFICATE]
_____% SENIOR _____% SENIOR
PREFERRED SHARES PREFERRED SHARES
Number Shares
------ ------
The shares evidenced hereby are
subject to restrictions on ownership
and transfer as more fully described
on the reverse side hereof.
[LOGO] This Certificate is transferable in
__________________________________ ________________
Formed Under the Laws of
the State of Maryland
CUSIP
See reverse for certain definitions
CROWN AMERICAN REALTY TRUST
This is to certify that ________________________________ is the owner of
___________ fully paid and non-assessable shares of the ______% Senior
Preferred Shares of CROWN AMERICAN REALTY TRUST ("Crown") transferable on the
books of Crown in person or by duly authorized attorney upon surrender of this
Certificate properly endorsed. This Certificate and the shares represented
hereby are issued and shall be held subject to all of the provisions of the
Second Amended and Restated Declaration of Trust (the "Declaration") of Crown
and its Bylaws to all of which the holder, by acceptance hereof, assents. This
Certificate is not valid unless countersigned and registered by the Transfer
Agent and Registrar. Witness the facsimile seal of Crown and the facsimile
signatures of its duly authorized officers.
Dated:
Countersigned and registered: [Facsimile Signature]
__________________________________ ____________________________________
Chief Executive Officer
Transfer Agent and Registrar
By:
__________________________________
Authorized Signature
[Facsimile Signature]
____________________________________
Secretary
<PAGE> 2
[REVERSE OF CERTIFICATE]
CROWN AMERICAN REALTY TRUST
CLASSES OF SHARES
Crown is authorized in the Declaration to issue more than one class of
capital shares consisting of Common Shares, Excess Shares and one or more series
of Preferred Shares. The Board of Trustees of Crown is authorized to determine
the designations and any preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, terms and conditions of
redemption of any class or series of Preferred Shares before the issuance of
such class or series. Crown will furnish, without charge, to any shareholder
making a written request therefore, a written statement of the designations and
any preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption of each class or series of shares which Crown is authorized to issue.
Requests for such written statements may be directed to the secretary of Crown
at the principal office of Crown.
RESTRICTIONS ON OWNERSHIP AND TRANSFER
The shares represented by this certificate are subject to restrictions
on ownership and transfer for the purpose of Crown's maintenance of its status
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended. Except as otherwise provided pursuant to the Declaration of Crown, no
person may beneficially own or constructively own in excess of 9.8% of the value
of the then-outstanding capital shares of Crown, with certain further
restrictions and exceptions set forth in Crown's Declaration. Transfer or
ownership of shares in violation of the foregoing restrictions causes such
shares to be automatically converted into Excess Shares. Excess Shares have
limited economic rights and no voting rights, and Crown has an option to redeem
Excess Shares under certain circumstances. In addition, notwithstanding any
other provision of the Declaration to the contrary, any purported acquisition of
shares by Crown that would result in the disqualification of Crown as a real
estate investment trust shall be null and void ab initio. All capitalized terms
in this legend have the meanings ascribed to them in the Declaration, a copy of
which, including the restrictions on transfer and ownership, will be furnished,
without charge, to each holder of shares of Crown who directs a request
therefore to the secretary of Crown at the principal office of Crown.
The following abbreviations, when used in the inscription of the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws and regulations:
<TABLE>
<S> <C>
TEN COMM -- as tenants in common UNIF GIFT MIN ACT _____ (Cust) Custodian
TEN ENT -- as tenants by the entireties _____ (Minor) under
JT TEN -- as joint tenants with rights Uniform Gifts to Minors Act
of survivorship and not as _____ (State)
tenants in common
UNIF TRF MIN ACT _____ (Cust) Custodian
(until age __) _____
(Minor) under Uniform
Transfers to Minors Act
________ (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ______________________ hereby sell, assign and
transfer unto
<PAGE> 3
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
___________________ shares represented by this Certificate, and do hereby
irrevocably constitute and appoint __________________________ attorney to
transfer the said shares on the books of Crown with full power in
substitution in the premises.
Date:________________________ X _______________________________________
X _______________________________________
NOTICE: The signature(s) to this assignment
must correspond with the name(s) as
written upon the face of the
certificate in every particular,
without alteration or enlargement or
any change whatever.
Signature(s) Guaranteed
By__________________________________________
The signature(s) should be guaranteed by an
eligible guarantor institution (banks,
stockbrokers, savings and loan associations
and credit unions with membership in an
approved signature guarantee medallion
program), pursuant to S.E.C. Rule 17Ad-15.
<PAGE> 1
REED SMITH SHAW & MCCLAY
EXHIBIT 5
MAILING ADDRESS: 435 SIXTH AVENUE HARRISBURG, PA
P.O. BOX 2009 McLEAN, VA
NEW YORK, NY PITTSBURGH, PENNSYLVANIA 15219-1886 NEW YORK, NY
PITTSBURGH, PA 15230-2009 NEWARK, NJ
412-288-3131 PHILADELPHIA, PA
PRINCETON, NJ
WRITER'S DIRECT NUMBERS: FAX 412-288-3063 WASHINGTON, DC
PHONE 412-288-3131
FAX 412-288-3063
WASHINGTON, DC
Crown American Realty Trust
Pasquerilla Plaza
Johnstown, PA 15901
Dear Sirs:
We are counsel for Crown American Realty Trust, a Maryland
real estate investment trust (the "Company"), and have acted as such in
connection with the proposed sale by the Company of up to 2,500,000 preferred
shares of beneficial interest (the "Shares"), pursuant to an underwriting
agreement to be entered into by the Company and Friedman, Billings, Ramsey &
Co., Inc. as the representative of the underwriters to be named therein (the
"Underwriters"). This opinion is furnished in connection with the filing by
the Company of a Registration Statement on Form S-3 under the Securities Act of
1933, as amended, relating to such proposed sale. We have examined such public
and trust records and documents and such questions of law, and have made such
other investigation as we deemed appropriate for purposes of this opinion.
Based upon the foregoing, we are pleased to advise you that
in our opinion the Shares have been duly authorized and will be, when delivered
to the Underwriters pursuant to such underwriting agreement as contemplated by
such Registration Statement, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to such Registration Statement and to the reference to us under the caption
"Legal Matters" in the prospectus contained therein and the prospectus
supplement relating thereto.
Very truly yours,
REED SMITH SHAW & McCLAY
<PAGE> 1
EXHIBIT 8
REED SMITH SHAW & MCCLAY
2500 ONE LIBERTY PLACE
1650 MARKET STREET HARRISBURG, PA
McLEAN, VA
PHILADELPHIA, PENNSYLVANIA 19103-7301 NEW YORK, NY
NEWARK, NJ
WRITER'S DIRECT NUMBERS: 215-851-8100 PITTSBURGH, PA
PHONE 215-851-8208 PRINCETON, NJ
FAX 215-851-1420 FAX 215-851-1420 WASHINGTON, DC
INTERNET [email protected]
June __, 1997
Crown American Realty Trust
Pasquerilla Plaza
Johnstown, Pennsylvania 15901-0879
Re: FEDERAL INCOME TAX CONSEQUENCES
Ladies and Gentlemen:
We have acted as counsel to Crown American Realty Trust, a
Maryland real estate investment trust (the "Company"), in connection with its
issuance of preferred shares of beneficial interest of the Company pursuant to
a registration statement on Form S-3 under the Securities Act of 1933, as
amended, filed with the Securities and Exchange Commission on June __, 1997 as
amended as of the date it became effective (the "Registration Statement").
You have requested our opinion concerning certain of the
federal income tax consequences to the Company and the purchasers of the
securities described above in connection with the issuance described above.
This opinion is based on various facts and assumptions, including the facts set
forth in the Registration Statement concerning the business, properties and
governing documents of the Company, Crown American Properties, L.P. (the
"Operating Partnership") and Crown American Financing Partnership (the
"Financing Partnerships" and collectively, the "Partnerships"). We have also
been furnished with, and with your consent have relied upon, certain
representations made by the Company and the Partnerships with respect to
certain factual matters through a certificate of an officer of the Company (the
"Officer's Certificate").
In our capacity as counsel to the Company, we have made such
legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and other instruments as we have deemed
necessary or appropriate for purposes of this opinion. In our examination, we
have assumed the authenticity of all documents submitted to us as originals,
the genuineness of all signatures thereon, the legal capacity of natural
persons executing such documents and the conformity to authentic original
documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject
transaction only of the federal income tax laws of the United States and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of other federal laws, the laws of any state or other jurisdiction or
as to any matters of municipal law or the laws of any other local agencies
within any state.
<PAGE> 2
REED SMITH SHAW & MCCLAY
Crown American Realty Trust
June __, 1997
Page 2
Based on such facts, assumptions and representations, it is
our opinion that:
1. Commencing with the Company's taxable year ending
December 31, 1993, the Company has been organized in conformity with the
requirements for qualification as a "real estate investment trust," and its
proposed method of operation, as described in the representations by the
Company and the Partnerships will enable the Company to satisfy the
requirements for qualification and taxation as a "real estate investment trust"
under the Internal Revenue Code of 1986 (the "Code").
2. The statements in the Registration Statement set forth
under the caption "Certain Federal Income Tax Considerations to Crown of its
REIT Election" and in the prospectus supplement relating thereto under the
caption "Certain Federal Income Tax Consequences" to the extent such
information constitutes matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by us and are accurate in all material respects.
No opinion is expressed as to any matter not discussed
herein.
This opinion is based on various statutory provisions,
regulations promulgated thereunder and interpretations thereof by the Internal
Revenue Service and the courts having jurisdiction over such matters, all of
which are subject to change either prospectively or retroactively. Also, any
variation or difference in the facts from those set forth in the Registration
Statement or the Officer's Certificate may affect the conclusions stated
herein. Moreover, the Company's qualification and taxation as a real estate
investment trust depends upon the Company's ability to satisfy, through actual
annual operating results, distribution levels and diversity of share ownership,
the various qualification tests imposed under the Code, the results of which
have not been and will not be reviewed by us. Accordingly, no assurance can be
given that the actual results of the Company's operation for any one taxable
year will satisfy such requirements.
This opinion is rendered only to you, and is solely for your
use in connection with the issuance of preferred shares by the Company pursuant
to the Registration Statement. This opinion may not be relied upon by you for
any other purpose, or furnished to, quoted to, or relied upon by any other
person, firm or corporation, for any purpose, without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement and the prospectus supplement related
thereto.
Very truly yours,
REED SMITH SHAW & McCLAY
WLK:fgy
<PAGE> 1
Exhibit 23.2
ARTHUR ANDERSON LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference of our report dated February 18, 1997, included in the Crown
American Realty Trust 1996 Form 10-K into this registration statement on
Form S-3.
/s/ ARTHUR ANDERSON LLP
-----------------------
ARTHUR ANDERSON LLP
Washington, D.C.,
June 12, 1997
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Clifford A. Barton,
Trustee of Crown American Realty Trust (the "Company") whose signature appears
below constitutes and appoints John M. Kriak and Ronald P. Rusinak, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities, to sign the Company's Registration Statement on Form S-3
and any or all amendments or post-effective amendments thereto and to file
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
June , 1997
- --------------- ----------------------
Date (Name) Clifford A. Barton
Title: Trustee
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Donald F. Mazziotti,
Trustee of Crown American Realty Trust (the "Company") whose signature appears
below constitutes and appoints John M. Kriak and Ronald P. Rusinak, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities, to sign the Company's Registration Statement on Form S-3
and any or all amendments or post-effective amendments thereto and to file
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
June 12, 1997 /s/ DONALD F. MAZZIOTTI
- --------------- -----------------------
Date (Name) Donald F. Mazziotti
Title: Trustee
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Margaret T. Monaco,
Trustee of Crown American Realty Trust (the "Company") whose signature appears
below constitutes and appoints John M. Kriak and Ronald P. Rusinak, and each of
them, her true and lawful attorney-in-fact and agent, with full power of
substitution and revocation, for her and in her name, place and stead, in any
and all capacities, to sign the Company's Registration Statement on Form S-3
and any or all amendments or post-effective amendments thereto and to file
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
June 12, 1997 /s/ MARGARET T. MONACO
- --------------- ----------------------
Date (Name) Margaret T. Monaco
Title: Trustee
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Zachary L. Solomon,
Trustee of Crown American Realty Trust (the "Company") whose signature appears
below constitutes and appoints John M. Kriak and Ronald P. Rusinak, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities, to sign the Company's Registration Statement on Form S-3
and any or all amendments or post-effective amendments thereto and to file
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
June , 1997
- --------------- ----------------------
Date (Name) Zachary L. Solomon
Title: Trustee
<PAGE> 1
EXHIBIT 25
==================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
_____________________________________________________
_______________________
(Exact name of Trustee as specified in its charter)
_______________________
_______________________ _________ _______________
(Address of principal executive offices) (Zip Code) (I.R.S. Employer
Identification No.)
_____________________________
_____________________________
_____________________________
_____________________________
Attn: _____________________________
(Name, address and telephone number of agent for service)
CROWN AMERICAN REALTY TRUST
(Exact name of obligor as specified in its charter)
MARYLAND 25-1713733
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
PASQUERILLA PLAZA
JOHNSTOWN, PENNSYLVANIA 15901
(Address of principal executive offices) (Zip Code)
$________ Securities
(Title of Indenture Securities)
==================================================================
<PAGE> 2
2
1. GENERAL INFORMATION
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
Federal Deposit Insurance Corporation, Washington, D.C.;
Comptroller of Currency, Washington, D.C.; and The Board of
Governors of the Federal Reserve System, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR.
The obligor is not an affiliate of the Trustee.
3. VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting
securities of the Trustee:
AS OF _______________________
COLUMN A COLUMN B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
_____________________ ________________________
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
The Trustee is not a Trustee under another indenture under which any
other securities, or certificates of interest or participations in any
other securities of the obligor are outstanding.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
Neither the Trustee nor any of the directors nor executive officers of
the Trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Voting securities of the Trustee owned by the obligor and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the Trustee.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Voting securities of the Trustee owned by any underwriter and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the Trustee.
8. SECURITIES OF OBLIGOR OWNED OR HELD BY THE TRUSTEE.
The amount of securities of the obligor which the Trustee owns
beneficially or holds as collateral security for obligations in
default does not exceed one percent of the outstanding securities of
the obligor.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
The Trustee does not own beneficially or hold as collateral security
for obligations in default any securities of an underwriter for the
obligor.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security
for obligations in default voting securities of a person who, to the
knowledge of the Trustee (1) owns 10% or more of the voting securities
of the obligor, or (2) is an affiliate, other than a subsidiary, of the
obligor.
<PAGE> 3
3
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PER CENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security
for obligations in default any securities of a person who, to the
knowledge of the Trustee, owns 50 percent or more of the voting
securities of the obligor.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
The obligor is not indebted to the Trustee.
13. DEFAULTS BY THE OBLIGOR.
Not applicable.
14. AFFILIATIONS WITH THE UNDERWRITERS.
No underwriter is an affiliate of the Trustee.
15. FOREIGN TRUSTEE.
Not applicable.
16. LIST OF EXHIBITS.(1)
(1) Articles of Incorporation of the Trustee.
(2) Certificate of Authority of the Trustee to commence business.
(3) Authorization of the Trustee to exercise corporate trust
powers.
(4) By-laws of the Trustee.
(5) Not Applicable. (A copy of each Indenture referred to in
Item 4.)
(6) Consent by the Trustee required by Section 321 (b) of the
Trust Indenture Act of 1939.
(7) Report of condition of Trustee.
(8) Not applicable. (Order pursuant to which foreign trustee is
authorized to act or sole trustee.)
(9) Not applicable. (Consent to Service of Process by foreign
trustee.)
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, ______________, ___________________ organized and
existing under the laws of the State of _____________, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of _________________,
__________________ on the _________ day of ___________________.
_____________________, (Trustee)
By:_____________________________
Title:__________________________
- ---------------------------------
(1) To be filed by Amendment.
