<PAGE>
As filed with the Securities and Exchange Commission on August 8, 1997
Registration Nos. 333-4544 and 333-4544-01
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHATEAU COMMUNITIES, INC. CP LIMITED PARTNERSHIP
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
MARYLAND MARYLAND
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
38-3132038 38-3140664
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
6430 South Quebec Street
Englewood, Colorado 80111
(303) 741-3707
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
Gary P. McDaniel
6430 South Quebec Street
Englewood, Colorado 80111
(303) 741-3707
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Jay L. Bernstein, Esq.
Rogers & Wells
200 Park Avenue
New York, New York 10166
Approximate date of commencement of proposed sale to public:
From time to time after this Registration Statement becomes
effective as determined by market conditions.
If the only securities being registered on the Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ X ]
If this Form is filed to registered 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 the delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Each Class of Securities to be Registered(1)(2)| Proposed Maximum Offering Price(3) | Amount of Registration Fee(4)
- ---------------------------------------------------------|--------------------------------------|----------------------------------
<S> | <C> | <C>
Common Stock(5)..........................................| |
- ---------------------------------------------------------| |
Warrants(6)..............................................| |
- ---------------------------------------------------------| |
Preferred Stock(7).......................................| $200,000,000 |
- ---------------------------------------------------------| |
Depositary Shares Representing Preferred Stock(8)........| |
- ---------------------------------------------------------| |
Guarantees(9)............................................| |
- ---------------------------------------------------------|--------------------------------------|
Debt Securities(10)......................................| $100,000,000 |
- ---------------------------------------------------------|--------------------------------------|----------------------------------
Total...........................................| $300,000,000 | $90,910(11)
===================================================================================================================================
</TABLE>
(Footnotes on next page)
The Registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the registrants
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
(Footnotes from previous page)
(1) The Common Stock, Warrants, Preferred Stock, Depositary Shares, Debt
Securities and Guarantees (collectively, the "Offered Securities")
registered hereunder may be sold separately, together or as units with
other Offered Securities registered hereunder.
(2) Pursuant to this Registration Statement, Chateau Communities, Inc. may
issue Common Stock, Warrants, Preferred Stock, Depositary Shares and
Guarantees and CP Limited Partnership may issue Debt Securities.
(3) The aggregate maximum public offering price of (i) all Common Stock,
Warrants, Preferred Stock, Depositary Shares and Guarantees issued by
Chateau Communities, Inc. pursuant to this Registration Statement,
including any of such securities issued upon exchange for or conversion
into any other of such securities, will not exceed $200,000,000 and (ii)
all Debt Securities issued by CP Limited Partnership pursuant to this
Registration Statement will not exceed $100,000,000.
(4) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
(5) Such indeterminate number of shares of Common Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion of
Preferred Stock or Depositary Shares of Chateau Communities, Inc.
registered hereunder or upon exercise of the Warrants registered
hereunder, as the case may be.
(6) Such indeterminate amount and number of Warrants, representing rights to
purchase Common Stock registered hereunder.
(7) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued at indeterminate prices.
(8) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts, representing a fractional interest of a share of
Preferred Stock.
(9) To the extent that any Debt Securities issued by CP Limited Partnership
are not deemed to be investment grade, such Debt Securities will be fully
and unconditionally guaranteed by, and will be accompanied by Guarantees
of, Chateau Communities, Inc. None of the proceeds from such Debt
Securities will be received by Chateau Communities, Inc. in connection
with the issuance of the Guarantees.
(10) Such indeterminate amount of Debt Securities, as may from time to time be
issued by CP Limited Partnership, which will either be non-convertible
investment grade debt securities or other non-convertible debt securities
that are fully and unconditionally guaranteed by Chateau Communities, Inc.
(11) Of the amount shown, $85,780 was paid with the initial filing of this
Registration Statement, and $5,130 was paid with the filing of
Pre-Effective Amendment No. 1 to this Registration Statement
2
<PAGE>
PROSPECTUS
$200,000,000
CHATEAU COMMUNITIES, INC.
Common Stock, Warrants, Preferred
Stock, Depositary Shares and Guarantees
$100,000,000
CP LIMITED PARTNERSHIP
Debt Securities
Chateau Communities, Inc. (the "Company") may from time to time offer in
one or more series (i) shares of its common stock, par value $.01 per share (the
"Common Stock"); (ii) warrants to purchase Common Stock (the "Warrants"); or
(iii) shares or fractional shares of its preferred stock, par value $.01 per
share (the "Preferred Stock"), which may be issued in the form of depositary
shares (the "Depositary Shares") evidenced by depositary receipts, with an
aggregate public offering price of up to $200,000,000. CP Limited Partnership, a
Maryland limited partnership and a majority-owned subsidiary of the Company (the
"Operating Partnership"), may from time to time offer in one or more series
unsecured non-convertible investment grade debt securities or other
non-convertible debt securities which will be fully and unconditionally
guaranteed by the Company (any such debt securities being referred to herein as
"Debt Securities" and any such guarantees being referred to herein as
"Guarantees"), with an aggregate public offering price of up to $100,000,000.
The Common Stock, Warrants, Preferred Stock, Depositary Shares, Debt Securities
and Guarantees (collectively, the "Offered Securities") may be offered
separately or together, in separate series, in amounts, at prices and on terms
to be determined at the time of offering and set forth in one or more
supplements to this Prospectus (each, a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Common Stock,
any public offering price; (ii) in the case of Warrants, the duration, offering
price, exercise price and detachability features; (iii) in the case of Preferred
Stock, the specific title, any distribution, liquidation, redemption,
conversion, voting and other rights and any initial public offering price; (iv)
in the case of Depositary Shares, the fractional share of Preferred Stock
represented by each such Depositary Share; and (v) in the case of Debt
Securities, the title, aggregate principal amount, denominations, maturity,
rate, if any (which may be fixed or variable), or method of calculation thereof,
time of payment of any interest, any terms for redemption at the option of the
Operating Partnership or the holder, any terms for sinking fund payments, rank,
any conversion or exchange rights, any Guarantees, and the initial public
offering price and any other terms in connection with the offering and sale of
such Debt Securities. In addition, such specific terms may include limitations
on direct or beneficial ownership and restrictions on transfer of the Offered
Securities, in each case as may be appropriate to preserve the status of the
Company as a real estate investment trust ("REIT") for federal income tax
purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about all material federal income tax considerations relating to,
and any listing on a securities exchange of, the Offered Securities covered by
such Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company or the Operating Partnership, or to or through
underwriters or dealers. If any agents or underwriters are involved in the sale
of any of the Offered 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 Offered
Securities may be sold without delivery of the applicable Prospectus Supplement
describing the method and terms of the offering of such series of Offered
Securities.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is August 8, 1997
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus in connection with the offer 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 underwriters, agents or dealers.
This Prospectus does not constitute an offer to sell or solicitation of an offer
to buy securities in any jurisdiction to any person to whom 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 an implication that
there has been no change in the affairs of the Company or the Operating
Partnership since the date hereof or the information contained or incorporated
by reference herein is correct at any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith , files reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission). Such reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 , and at the Commission's
Regional Offices at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and Seven World Trade Center, 13th Floor, New York, New
York 10048 . Copies of such material also can be obtained from the Public
Reference Section of the Commission, Washington, D.C. 20549 at prescribed rates.
The Company files its reports, proxy statements and other information with the
Commission electronically. The Commission maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission. The Common Stock of the Company is listed on the New York Stock
Exchange ("NYSE") and similar information concerning the Company can be
inspected and copied at the offices of the NYSE, 20 Broad Street, New York, New
York, 10005.
The Company has filed with the Commission a registration statement (of
which this Prospectus is a part) on Form S-3 (together with all amendments and
exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Offered Securities.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission, and in the exhibits thereto.
Statements contained in this Prospectus as to the content of any contract or
other document are not necessarily complete, and in each instance reference is
made to the copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference and the exhibits and schedules thereto. For further information
regarding the Company and the Offered Securities, reference is hereby made to
the Registration Statement and such exhibits and schedules, which may be
examined without charge at, or copies obtained upon payment of prescribed fees
from, the Commission and its regional offices listed below.
FORWARD-LOOKING INFORMATION
Certain information both included and incorporated by reference herein
may contain forward-looking statements within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act, and as such may
involve known and unknown risks, uncertainties and other factors which may
cause the actual results, performance or achievements of the Company to be
materially different from future results, performance or achievements
expressed or implied by such forward-looking statements. Forward-looking
statements, which are based on certain assumptions and describe future plans,
strategies and expectations of the Company, are generally identifiable by use
of the words "may," "will," "should," "expect," "anticipate," estimate,"
"believe," "intend" or "project" or the negative thereof or other variations
thereon or comparable terminology. Factors which could have a material
adverse effect on the operations and future prospects of the Company include,
but are not limited to, changes in: economic conditions generally and the
real estate market specifically, legislative/regulatory changes (including
changes to laws governing the taxation of REITs), availability of capital,
interest rates, competition, supply and demand for properties in the
Company's current and proposed market areas and general accounting
principles, policies and guidelines applicable to REITs. These risks and
uncertainties should be considered in evaluating any forward-looking
statements contained herein.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Chateau Communities, Inc. and CP Limited
Partnership with the Commission pursuant to the Exchange Act are incorporated by
reference herein and made a part hereof:
2
<PAGE>
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
2. The Operating Partnership's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996.
3. The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1997.
4. The Operating Partnership's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997.
5. The description of the Company's Common Stock contained in the Company's
registration statement on Form 8-A, filed pursuant to the Exchange Act,
including any amendments or reports filed for the purpose of updating such
description.
6. The Company's Current Report on Form 8-K, dated May 22, 1997, filed with
the Commission on May 30, 1997 pursuant to the Exchange Act.
7. The Company's Current Report on Form 8-K, dated June 16, 1997, filed
with the Commission on June 24, 1997 pursuant to the Exchange Act.
All documents subsequently filed by the Company or the Operating
Partnership pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act
and prior to the termination of the offering of all Offered Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such document.
Any statement or information contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed modified or
superseded for the purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus .
The Company and the Operating Partnership will provide without charge to
each person to whom this Prospectus is delivered, upon written or oral request
of such person, a copy of any and all of the information incorporated by
reference into this Prospectus (not including exhibits to the information that
is incorporated by reference unless such exhibits are specifically incorporated
by reference to the information that this Prospectus incorporates). Written
requests for the information described in this paragraph shall be directed to:
Chateau Communities, Inc., 6430 South Quebec Street, Englewood, Colorado 80111.
3
<PAGE>
THE COMPANY AND THE OPERATING PARTNERSHIP
The Company, a self-administered and self-managed equity real estate
investment trust ("REIT"), is the largest owner/manager of manufactured home
communities in the United States, based both on the number of communities and
the number of residential homesites owned. On February 11, 1997, the Company
completed a strategic merger of equals (the "Merger") with ROC Communities,
Inc. ("ROC"), in which ROC merged with a special-purpose merger subsidiary of
the Company. As a result of the Merger, the businesses of the Company and ROC
were combined. At March 31, 1997, the Company owned and operated 128
manufactured home communities (the "Properties") located in 27 states, with
an aggregate of 42,986 homesites. The Company's portfolio is geographically
diversified, with significant concentrations in the southeastern and
midwestern United States, as well as the Pacific Coast states, permitting
economies of scale in property management operations. The Company's portfolio
is also diversified by resident orientation, with approximately 28% of the
residential homesites in communities which are adult-oriented and 72% of
residential homesites in comunities which are family-oriented. At March 31,
1997, approximately 94.1% of the Company's homesites were occupied. In
addition, the Company fee manages 6,953 residential homesites in 34
communities. Also at March 31, 1997, the Company owned undeveloped land
adjacent to existing communities containing approximately 4,200 expansion
sites which are zoned for manufactured housing.
The Company conducts substantially all of its activities through the
Operating Partnership in which as of March 31, 1997 it owned, directly and
through ROC (the other general partner of the Operating Partnership), an
approximate 90% general partner interest. As general partners of the Operating
Partnership, the Company and ROC have unilateral control and complete
responsibility for the management of the Operating Partnership and over each of
the Properties. The Company's Common Stock is listed on the NYSE under the
Symbol "CPJ."
The Company's and the Operating Partnership's executive and principal
property management offices are located at 6430 South Quebec Street, Englewood,
Colorado 80111 and their telephone number is (303) 741-3707. The Company and the
Operating Partnership have regional property management offices in Clinton
Township, Michigan; Indianapolis, Indiana; Tampa, Florida; and Atlanta, Georgia.
USE OF PROCEEDS
Except as otherwise provided in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from any sale of the Offered Securities
for working capital and for general corporate purposes, which may include the
repayment of indebtedness, the financing of capital commitments and possible
future acquisitions, expansions and development of manufactured housing
communities.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Year Ended December 31,
Three months ended ----------------------------------------
March 31, 1997 1996 1995 1994 1993 1992
--------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed charges............... 2.03 2.24 2.12 3.47 1.31 1.20
Ratio of funds from operations
to fixed charges............... 3.25 3.11 2.99 4.66 1.82 1.65
</TABLE>
4
<PAGE>
Ratio of earnings to fixed charges represents income before extraordinary
item plus fixed charges to fixed charges (principally interest and amortization
of deferred financing costs). Ratio of funds from operations to fixed charges
represents funds from operations plus fixed charges to fixed charges. Funds from
operations, as used in the above table and as defined by the National
Association of Real Estate Investment Trusts, means net income excluding gains
(or losses) from debt restructuring and sales of property plus depreciation and
amortization. Manangement believes that funds from operations is an important
and widely used measure of the operating performance of REITs which provides a
relevant basis for comparison among REITs. Funds from operations (i) does not
represent cash flow from operations as defined by generally accepted accounting
principles (ii) should not be considered as an alternative to net income as a
measure of operating performance or to cash flows from operating, investing and
financing activities and (iii) is not an alternative to cash flows as a measure
of liquidity. Funds from operations does not represent cash generated from
operating activities as defined by generally accepted accounting principles and,
therefore, should not be considered as an alternative to net income as the
primary indicator of operating performance or to cash flows as a measure of
liquidity, nor does it indicate that cash flows are sufficient to fund all cash
needs. The ratios for 1993 include the ratio for certain predecessors of the
Company and the Operating Partnership. The ratios for 1992 represent the ratios
of the same predecessors. To date, the Company has not issued any Preferred
Stock. Consequently, the ratios of earnings to combined fixed charges and
preferred stock dividends would not be any different from the ratios of earnings
to fixed charges shown above.
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general term and provisions of the
Indenture under which the Debt Securities are to be issued by the Operating
Partnership. The particular terms of the Debt Securities will be set forth in a
Prospectus Supplement relating to such Debt Securities.
The Debt Securities may be issued by the Operating Partnership, and will
be either (i) non-convertible investment grade Debt Securities or (ii)
non-convertible Debt Securities that are fully and unconditionally guaranteed
by, and are accompanied by Guarantees of, the Company. The Debt Securities will
be issued pursuant to indentures (each an "Indenture") between the Operating
Partnership and a trustee named in the Indenture (the "Trustee"). The form of
each Indenture has been filed as an exhibit to the Registration Statement of
which this Prospectus is a part, subject to such amendments or supplements as
may be adopted from time to time and is available for inspection as described
above under "Available Information." Each Indenture will be dated as of a date
on or prior to the issuance of the Debt Securities to which it relates. The
Indentures are subject to, and governed by, the Trust Indenture Act of 1939, as
amended (the "TIA"). The statements made hereunder relating to the Indentures
and the Debt Securities to be issued thereunder are summaries of certain
provisions thereof, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Indentures
and the Debt Securities.
General
The Debt Securities will be direct, unsecured obligations of the Operating
Partnership. Except for any series of Debt Securities which is specifically
subordinated to other indebtedness of the Operating Partnership, the Debt
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of the Operating Partnership.
Section 301 of the Indenture provides that the Debt Securities may be
issued without limit as to aggregate principal amount, in one or more series, in
each case as established from time to time in or pursuant to authority granted
by the Company and ROC, as general partners of the Operating Partnership, or
indentures supplemental to the Indenture. Prior to the issuance of Debt
Securities of any series, any or
5
<PAGE>
all of the following, as applicable (each of which (except for the matters set
forth in clauses (1), (2) and (13) below), if so provided, may be determined
from time to time by the Operating Partnership with respect to unissued Debt
Securities of or within the series when issued from time to time) and will be
set forth in the Prospectus Supplement relating to the series of Debt
Securities:
(1) the title of the Debt Securities of or within the series (which shall
distinguish the Debt Securities of such series from all other series in Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt Securities
of or within the series that may be authenticated and delivered under the
Indenture;
(3) the date or dates, or the method by which such date or dates will be
determined, on which the principal of the Debt Securities of or within the
series shall be payable and the amount of principal payable thereon;
(4) the rate or rates at which the Debt Securities of or within the series
shall bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall 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 Debt Security on any Interest Payment Date,
or the method by which such date shall be determined, and the basis upon which
interest shall be calculated if other than that of a 360-day year consisting of
twelve 30-day months;
(5) the place or places, if any other than or in addition to the Borough
of Manhattan, the City of New York or the City of Chicago, where the principal
of (and premium or Make-Whole Amount, if any) and interest, if any, on Debt
Securities of or within the series may be surrendered for registration of
transfer or exchange and notices or demands to or upon the Operating Partnership
in respect of the Debt Securities of or within the series and the Indenture may
be served;
(6) the period or periods within which, the price or prices (including the
premium or Make-Whole Amount, if any) at which, and other terms and conditions
upon which Debt Securities of or within the series may be redeemed in whole or
in part, at the option of the Operating Partnership, if the Operating
Partnership is to have the option;
(7) the obligation, if any, of the Operating Partnership to redeem, repay
or purchase Debt Securities of or within 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, and other terms and conditions upon which Debt Securities of or within
the series shall be redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Debt Securities of or within the series
shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of or within the series that shall be
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 502 of the Indenture or the method by which such portion shall be
determined;
6
<PAGE>
(11) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Debt Securities of or
within the series may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without limitation, on one
or more currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(12) provisions, if any, granting special rights to the Holder of Debt
Securities of or within the series upon the occurrence of such events as may be
specified;
(13) any deletions from, modifications of or additions to the Events of
Default or covenants of the Operating Partnership with respect to Debt
Securities of or within the series;
(14) whether any Debt Securities of or within the series are to be
issuable initially in temporary global form and whether any Debt Securities of
or within the series are to be issuable in permanent global form and, if so,
whether beneficial owners of interests in any such permanent global Debt
Security may exchange such interests for Debt Securities of such series and of
like tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
Section 305 of the Indenture, and, if Debt Securities of or within the series
are to be issuable as a global Debt Security, the identity of the depositary for
such series;
(15) the date as of which any temporary global Debt Security representing
Outstanding Securities of or within the series shall be dated if other than the
date of original issuance of the first Debt Security of the series to be issued;
(16) the Person to whom any interest on any Debt Security of the series
shall be payable, if other than the Person in whose name that Debt Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, and the extent to which, or the
manner in which, any interest payable on a temporary global Debt Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304 of the Indenture;
(17) the applicability, if any, of Sections 1402 and/or 1403 of the
Indenture to the Debt Securities of or within the series and any provisions in
modification of, in addition to or in lieu of any of the provisions of Article
Fourteen;
(18) if the Debt Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Debt Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(19) if the Debt Securities of or within the series are to be issued upon
the exercise of debt warrants, the time, manner and place for such Debt
Securities to be authenticated and delivered; and
(20) the extent to which the Debt Securities of or within the series are
subordinated to other indebtedness; and
(21) any other terms of the Debt Securities of or within the series or of
any Guarantees issued concurrently with such Debt Securities not inconsistent
with the provisions of the applicable Indenture.
All Debt Securities of any one series shall be substantially identical,
except, in the case of Debt Securities issued in global form, as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the
Board of Directors, or in any indenture supplemental to the Indenture.
7
<PAGE>
All Debt Securities of any 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, for issuances of additional Debt Securities of such series.
Consolidation, Merger, Sale, Lease Or Conveyance
The Operating Partnership may consolidate with, or sell, lease or convey
all or substantially all of its assets to, or merge with or into any other
entity, provided that in any such case, (i) either the Operating Partnership
shall be the continuing entity, or the successor entity (if any other than the
Operating Partnership) shall be an entity organized and existing under the laws
of the United States of America or a State thereof and such successor entity
shall expressly assume the due and punctual payment of the principal of and any
interest (including all Additional Amounts, if any) on all of the Debt
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of the Indenture to be
performed by the Operating Partnership by supplemental indenture, satisfactory
to the Trustee, executed and delivered to the Trustee by such entity and (ii)
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Operating Partnership or any
Subsidiary as a result thereof as having been incurred by the Operating
Partnership or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing and (iii) an
Officers' Certificate and an Opinion of Counsel covering such conditions shall
be delivered to the Trustee.
Certain Covenants
Existence. Except as permitted under "Consolidation, Merger, Sale, Lease
or Conveyance" the Operating Partnership will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
and franchises; provided, however, that Operating Partnership shall not be
required to preserve any right or franchise if it determines that the
preservation thereof is no longer desirable in the conduct of the business of
the Operating Partnership, and that the loss thereof is not disadvantageous in
any material respect to the Holders.
Payment of Taxes and Other Claims. The Operating Partnership, will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Operating Partnership or upon the income, profits or property
of the Operating Partnership, and (ii) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Operating Partnership; provided, however, that the Operating Partnership
shall not be required to pay or discharge or cause to be paid or
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discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Additional Covenants. Reference is made to the applicable Prospectus
Supplement for information with respect to any additional covenants specific to
a particular series of Debt Securities.
Events Of Default, Notice And Waiver
Each Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder: (i) default
for 30 days in the payment of any installment of interest on any Debt Security
of such series; (ii) default in the payment of the principal of (or premium, if
any, on) any Debt Security of such series at its maturity; (iii) default in
making any sinking fund payment as required for any Debt Security of such
series; (iv) default in the performance of any other covenant of the Issuer
contained in the applicable Indenture (other than a covenant added to such
Indenture solely for the benefit of a series of Debt Securities issued
thereunder other than such series), such default having continued for 60 days
after written notice as provided in such Indenture; (v) default in the payment
of an aggregate principal amount exceeding a specified dollar amount of any
evidence of indebtedness of the Issuer 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; (vi) certain events of bankruptcy,
insolvency or reorganization, or court appointment of a receiver, liquidator or
trustee of the Issuer or any Significant Subsidiary (as hereinafter defined) or
any of their respective property; and (vii) any other event of default provided
with respect to a particular series of Debt Securities. The term "Significant
Subsidiary" means each significant subsidiary (as defined in Regulation S-X
promulgated under the Securities Act) of the Issuer.
If an event of default under the Indentures with respect to Debt Securities
of any series at the time outstanding occurs and is continuing, then in every
such case the applicable Trustee or the holders of not less than 25% in
principal amount of the outstanding Debt Securities of that series may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities or indexed securities, such portion of the principal
amount as may be specified in the terms thereof) of all of the Debt Securities
of that series to be due and payable immediately by written notice thereof to
the Issuer (and to the applicable 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 the
applicable 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
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 (i) the Issuer shall have
deposited with the applicable Trustee all required payments of the principal of
(and premium, if any) and interest, if any, 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 Trustee and (ii) all events of default, other than
the non-payment of accelerated principal (or specified portion thereof), or
premium (if any) or interest on the 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 the applicable Indenture. Each
Indenture also provides 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 (i) in the payment of the principal of (or premium, if any) or
interest, if any, on any Debt Security of such series or (ii) 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.
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The Trustee is required to give notice to the Holders of the Debt
Securities within 90 days of a default under the Indenture; provided, however,
that the Trustee may withhold such notice (except a default in the payment of
the principal of (or the Make-Whole Amount, if any) or interest on any Debt
Securities of any series or in the payment of any sinking fund installment with
respect to Debt Securities of such series if the Responsible Officers of the
Trustee consider such withholding to be in the interest of such Holders.
The Indenture provides that no Holders of the Debt Securities may
institute any proceedings, judicial or otherwise, with respect to the Indenture
or for any remedy thereunder, except in the case of failure of the Trustee, for
60 days, to act after it has received a written request to institute proceedings
in respect of an Event of Default from the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities, as well as an offer of
reasonable indemnity (Section 507). This provision will not prevent, however,
any Holder of Debt Securities from instituting suit for the enforcement of
payment of the principal of (or the Make-Whole Amount, if any) and interest on
such Debt Securities at the respective due dates thereof.
Modification of the Indenture
Modifications and amendments of the Indenture may be made with the consent
of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities which are affected by such modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the Holder of each such Note affected thereby, (a) change
the Stated Maturity of the principal of (or the Make-Whole Amount, if any), or
any interest on, any such Debt Security; (b) reduce the principal amount of, or
the rate or amount of interest on, or any Make-Whole Amount payable on
redemption of, any such Debt Security; (c) change the Place of Payment, or the
coin or currency, for payment of principal of (or the Make-Whole Amount, if any)
or interest on, any such Debt Security; (d) impair the right to institute suit
for the enforcement of any payment on or with respect to any such Debt Security
on or after the Stated Maturity thereof; (e) reduce the percentage of
Outstanding Debt Securities of any series necessary to modify or amend the
Indenture, to waive compliance with certain provisions thereof or certain
defaults and consequences thereunder or to reduce the quorum or voting
requirements set forth in the Indenture; or (f) modify any of the foregoing
provisions or any of the provisions relating to the waiver of certain past
defaults or certain covenants, except to increase the required percentage to
effect such action or to provide that certain other provisions may not be
modified or waived without the consent of the Holder of such Note.
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities have the right to waive compliance by the Operating Partnership
with certain covenants in the Indenture.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise provided in the Prospectus Supplement, the Operating
Partnership may discharge certain obligations to Holders of Debt Securities that
have not already been delivered to the Trustee for cancellation and that either
have become due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
Trustee, in trust, funds in an amount sufficient to pay the entire indebtedness
on such Debt Securities in respect of principal and interest to the date of such
deposit (if such Debt Securities have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be.
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The Indenture provides that, unless otherwise provided in the Prospectus
Supplement, the Operating Partnership may elect either (a) to defease and be
discharged from any and all obligations with respect to the Debt Securities
(except for the obligations to register the transfer or exchange of the Debt
Securities, to replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities
and to hold moneys for payment in trust ("Defeasance") (Section 1402) or (b) to
be released from its obligations with respect to the Debt Securities under
provisions of the Indenture described under "Certain Covenants," and its
obligations with respect to any other covenant, and any omission to comply with
such obligations shall not constitute a default or an Event or Default with
respect to the Debt Securities ("Covenant Defeasance") (Section 1403), in either
case upon the irrevocable deposit by the Operating Partnership with the Trustee,
in trust, of cash or Government Obligations (as deemed below), or both, which
through the scheduled payment of principal and interest in accordance with their
terms will provide money in an amount sufficient to pay the principal of and
interest on the Debt Securities on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Operating
Partnership has delivered to the Trustee an Opinion of Counsel (as specified in
the Indenture) to the effect that the Holders of the Debt Securities will not
recognize income, gain or loss for United States Federal income tax purposes as
a result of such defeasance or covenant defeasance and will be subject to United
States Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or covenant defeasance
had not occurred, and such Opinion of Counsel, in the case of defeasance, must
refer to and be based upon a ruling of the Internal Revenue Service (the "IRS")
or a change in applicable United States Federal income tax laws occurring after
the date of the Indenture.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
In the event the Operating Partnership effects covenant defeasance and the
Debt Securities are declared due and payable because of the occurrence of any
Event of Default other than an Event of Default with respect to provisions of
the Indenture which as a result of such covenant defeasance would no longer be
applicable to the Debt Securities, the cash and Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities at the time of their Stated Maturity but may not be sufficient to pay
amounts due on the Debt Securities at the time of the acceleration resulting
from such Event of Default. However, the Operating Partnership would remain
liable to make payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect
to the Debt Securities of a particular series.
GUARANTEES
If the Operating Partnership issues any Debt Securities that are rated
below investment grade at the time of issuance, the Company will fully and
unconditionally guarantee, on a senior or subordinated basis, the due and
punctual payment of principal of or premium, if any, and interest on such
Debt Securities, and the due and punctual payment of any sinking fund
payments thereon, when and as the same shall become due and payable, whether
at a maturity date, by declaration of acceleration, call for redemption or
otherwise. The applicability and terms of any such Guarantees relating to a
series of Debt Securities will be set forth in the Prospectus Supplement
relating to such Debt Securities.
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DESCRIPTION OF COMMON STOCK
Stock - General
The Company's Articles of Incorporation, as amended and supplemented (the
"Charter") , provide that the Company may issue up to 92,000,000 shares of
capital stock, currently consisting of 90,000,000 shares of Common Stock (par
value $.01 per share) and 2,000,000 shares of Preferred Stock (par value $.01
per share), of which, at April 30, 1997, 25,175,114 shares of Common Stock were
issued and outstanding. Up to 2,198,000 shares of Common Stock have been
reserved for issuance under the Company's stock option and incentive plans. In
addition, 2,756,057 shares of Common Stock are reserved for issuance upon the
conversion of outstanding units of limited partner interest ("OP Units") in
the Operating Partnership. The Board of Directors has the authority to classify
or reclassify any authorized but unissued shares of capital stock into one or
more classes or series (including classes or series of preferred stock) and to
establish the terms of such classes or series. Under Maryland law, stockholders
generally are not liable for a corporation's debts or obligations. The following
descriptions do not purport to be complete and are subject to, and qualified in
their entirety by reference to, the more complete descriptions thereof set forth
in the following documents: (i) the Charter and (ii) the Company's By-Laws (the
"By-Laws"), which documents are exhibits to the Registration Statement of which
this Prospectus is a part.
Common Stock
The following description of the Common Stock sets forth certain general
terms and provisions of the Common Stock to which any Prospectus Supplement may
relate, including a Prospectus Supplement providing that Common Stock will be
issuable upon conversion of Preferred Stock or Depositary Shares or upon the
exercise of Warrants issued by the Company. This description is in all respects
subject to and qualified in its entirety by reference to the applicable
provisions of the Company's Charter and its By-laws. The Common Stock is listed
on the NYSE under the symbol "CPJ." The transfer agent and registrar for the
Common Stock is The Huntington National Bank.
All shares of Common Stock offered hereby will, when issued, be duly
authorized, fully paid and nonassessable. Subject to the preferential rights of
any other shares or series of stock and to the provisions of the Company's
Charter regarding "Excess Stock" (as defined below), holders of shares of Common
Stock will be entitled to receive dividends on such stock if, as and when
authorized and declared by the Board of Directors of the Company out of assets
legally available therefor and to share ratably in the assets of the Company
legally available for distribution to its stockholders in the event of its
liquidation, dissolution or winding-up after payment of, or adequate provision
for, all known debts and liabilities of the Company. The Company currently pays
quarterly dividends to holders of Common Stock.
Subject to the provisions of the Company's Charter regarding Excess Stock,
each outstanding share of Common Stock entitles the holder to one vote on all
matters submitted to a vote of stockholders, and, except as otherwise required
by law or except as provided with respect to any other class or series of stock,
the holders of such shares will possess the exclusive voting power. In the
election of directors, each outstanding shares of Common Stock entitles the
holder to one vote for each director to be elected, but there is no cumulative
voting in the election of directors, which means that the holders of a majority
of the outstanding shares of Common Stock can elect all of the directors then
standing for election and the holders of the remaining shares will not be able
to elect any directors.
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Holders of shares of Common Stock have no conversion, sinking fund,
redemption rights or preemptive rights to subscribe for any securities of the
Company.
Subject to the provisions of the Company's Charter regarding Excess Stock,
shares of Common Stock will have equal dividend, distribution, liquidation and
other rights, and will have no preference, appraisal or exchange rights.
Pursuant to Maryland law, a corporation generally cannot dissolve, amend
its Charter, merge, sell all or substantially all of its assets, engage in a
share exchange or engage in similar transactions outside the ordinary course of
business unless approved by the affirmative vote of stockholders holding at
least two-thirds of the shares entitled to vote on the matter unless a lesser
percentage (but not less than a majority of all of the votes to be cast on the
matter) is set forth in the corporation's Charter. The Company's Charter does
not provide for a lesser percentage in such situations.
Restrictions on Transfer
For the Company to qualify as a REIT under the Internal Revenue Code of
1986, as amended (the "Code"), shares of Common Stock must be beneficially owned
by 100 or more persons during at least 335 days of the taxable year of 12 months
(other than the first year) or during a proportionate part of a shorter taxable
year. Also, not more than 50% of the value of the outstanding shares of capital
stock 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 (other than the first year) or during a proportionate part of a
shorter taxable year. (See "Federal Income Tax Considerations").
Because the Board of Directors believes it is essential for the Company to
continue to qualify as a REIT, the Charter, subject to certain exceptions,
provides that, except as otherwise provided below, no holder may own, or be
deemed to own by virtue of the attribution provisions of the Code, more than 7%
(the "Ownership Limit") of the number or value of the issued and outstanding
stock of the Company (or such greater percentage up to 9.8% as shall be
determined by the Board of Directors). The Company's Board of Directors, upon
receipt of a ruling from the IRS and upon such other conditions as the Board of
Directors may direct, may also exempt a proposed transferee from the Ownership
Limit. As a condition of such exemption, the intended transferee must give
written notice to the Company of the proposed transfer no later than the
fifteenth day prior to any transfer which, if consummated, would result in the
intended transferee owning shares in excess of the Ownership Limit. The Board of
Directors of the Company may require such opinions of counsel, affidavits,
undertakings or agreements as it may deem necessary or advisable in order to
determine or ensure the Company's status as a REIT. Any transfer of shares of
Common Stock or Preferred Stock that would (i) create a direct or indirect
ownership of shares of stock in excess of the Ownership Limit, (ii) result in
the shares of stock being owned by fewer than 100 persons, or (iii) result in
the Company being "closely held" within the meaning of Section 856(h) of the
Code, shall be null and void, and the intended transferee will acquire no rights
to the shares. The foregoing restrictions on transferability and ownership will
not apply if the Board of Directors determines that it is no longer in the best
interests of the Company to attempt to qualify, or to continue to qualify, as a
REIT.
The Company's Charter excludes certain predecessors of the Company (the
"Chateau Contributing Parties") from the Ownership Limit. Each of John A. Boll
and J. Peter Ministrelli (and certain persons related to each of them) is exempt
from the Ownership Limit up to a maximum level of 14.1% and 10.0%, respectively.
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Any purported transfer of shares that would result in a person owning
shares of capital stock in excess of the Ownership Limit or cause the Company to
become "closely held" under Section 856(h) of the Code that is not otherwise
permitted as provided above will constitute excess shares ("Excess Stock"), and
shall be deemed to have been transferred to such person or persons (who are
unaffiliated with the Company and the purported transferee), as designated from
time to time by the Company, who shall serve as Trustee or Co Trustees, as the
case may be, of a Trust for the exclusive benefit of one or more organizations
described in Sections 170(b)(1)(A) and 170(c) of the Code, as Beneficiary of
such Trust. While this Excess Stock is held in trust, any dividends or other
distributions shall be paid to the Trustee and the Trustee shall be deemed to
hold an irrevocable proxy to vote the shares. Subject to the Ownership Limit,
the Excess Stock may be retransferred by the trustee to any person (if the
Excess Stock would not be Excess Stock in the hands of such person). The
Purported Beneficial Transferee shall receive the lesser of (i) the price per
share which such Purported Beneficial Transferee paid for the Common Stock or
Preferred Stock, as the case may be, in the purported Transfer that resulted in
the Excess Stock or, if the Purported Beneficial Transferee did not give value
for such Excess Stock (through a gift, devise or other transaction), a price per
share equal to the Market Price for the shares of the Excess Stock on the date
of the purported Transfer that resulted in the Excess Stock, and (ii) the price
per share received by the Trustee from the sale or other disposition of the
shares of Excess Stock held by the Trust. Any proceeds in excess of the amount
payable to the Purported Beneficial Transferee shall be payable to the
Beneficiary.
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 Stock may be deemed, at the option of the
Company, to have acted as an agent on behalf of the Company in acquiring such
Excess Stock and to hold such Excess Stock on behalf of the Company.
In addition, Excess Stock shall be deemed to have been offered for sale to
the Company, or its designee, at a price per share equal to the lesser of (i)
the price per share in the transaction that created such Excess Stock (or, in
the case of a devise or gift, the Market Price at the time of such devise or
gift) and (ii) the Market Price of the Common Stock or Preferred Stock to which
such Excess Stock relates on the date the Company, or its designee, accepts such
offer. The Company shall have the right to accept such offer for a period of 90
days after the later of (i) the date of the Transfer which resulted in such
Excess Stock and (ii) the date the Board of Directors determines in good faith
that a Transfer resulting in Excess Stock has occurred, if the Company does not
receive a notice of such Transfer.
All certificates representing shares of stock will bear a legend referring
to the restrictions described above.
All persons who own directly or by virtue of the attribution provisions of
the Code, more than 5% (or such other percentage between 1/2 of 1% and 5%, as
provided in the rules and regulations promulgated under the Code) of the number
or value of the outstanding shares of stock of the Company must give written
notice of such ownership to the Company by January 31 of each year. In addition,
each stockholder shall upon demand be required to disclose to the Company in
writing such information with respect to the direct, indirect and constructive
ownership of shares of Common Stock or Preferred Stock as the Board of Directors
deems reasonably necessary to comply with the provisions of the Code applicable
to a REIT, to comply with the requirements of any taxing authority or
governmental agency or to determine any such compliance.
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These ownership limitations could have the effect of discouraging a
takeover or other transaction in which holders of some, or a majority, of shares
of Common Stock or Preferred Stock (if issued and outstanding) might receive a
premium for their shares over the then prevailing market price or which such
holders might believe to be otherwise in their best interest.
DESCRIPTION OF PREFERRED STOCK
General
Under the Charter, the Company currently has authority to issue 2,000,000
shares of Preferred Stock, none of which is outstanding as of the date of this
Prospectus. In addition, under the Charter the Board of Directors has authority
to classify or reclassify any authorized but unissued shares of any class of
capital stock into classes or series of preferred stock. Prior to issuance of
shares of each series, the Board of Directors is required by the Maryland
General Corporation Law (the "MGCL") and the Charter to fix for each series,
subject to the provisions of the Charter, the terms, preferences, conversion or
other rights, voting powers, restrictions (including restrictions on transfers
of shares), limitations as to distributions, qualifications and terms or
conditions of redemption , and to file articles supplementary to the Charter
(the "Articles Supplementary") reflecting such terms, preferences and other
rights. The Board of Directors could authorize the issuance of shares of
Preferred Stock with terms and conditions that could have the effect of
discouraging a takeover or other transaction in which holders of some, or a
majority, of the shares of Common Stock might receive a premium for their shares
over the then-prevailing market price or might believe to be otherwise in their
best interest.
The Preferred Stock will, upon issuance against full payment of the
purchase price therefor, will be fully paid and nonassessable and will have no
preemptive rights (except as may be granted by the Board of Directors at the
time of issuance). The specific terms of a particular class or series of
Preferred Stock will be described in the Prospectus Supplement relating to that
class or series, including a Prospectus Supplement providing that Preferred
Stock may be issuable upon the exercise of Warrants issued by the Company. The
description of Preferred Stock set forth below and the description of the terms
of a particular class or series of Preferred Stock set forth in a Prospectus
Supplement do not purport to be complete and are qualified in their entirety by
reference to the articles supplementary relating to that class or series. The
discussion of Excess Stock is also applicable to Preferred Stock.
Terms
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. The statements below describing the Preferred Stock are
in all respects subject to and qualified in their entirety by reference to the
applicable provisions of the Charter and the By-Laws and any Articles
Supplementary designating terms of a series of Preferred Stock.
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for the specific terms thereof, including, where
applicable, the following:
1. The title of such Preferred Stock;
2. The number of shares of such Preferred Stock offered, the liquidation
preference per share and the offering price of such Preferred Stock;
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3. The distribution rate(s), period(s), and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
4. Whether such Preferred Stock is cumulative or not and, if cumulative,
the date from which distributions on such Preferred Stock shall accumulate;
5. The provision for sinking fund, if any, for such Preferred Stock;
6. The provision for redemption, if applicable, of such Preferred Stock;
7. Any listing of such Preferred Stock on any securities exchange;
8. The terms and conditions, if applicable, upon which such Preferred
Stock will be converted into Common Stock, including the conversion price (or
manner of calculation thereof);
9. Any limitations on direct or beneficial ownership and restrictions on
transfer, in each case as may be appropriate to preserve the status of the
Company as a REIT;
10. The relative ranking and preferences of such Preferred Stock as to
distribution rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company;
11. Any limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with such class or series of Preferred Stock as
to distribution rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company;
12. Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock; and
13. Any voting rights of such Preferred Stock.
Rank
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to distribution rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to Common Stock (and
Excess Stock arising from Common Stock) of the Company, and to all equity
securities ranking junior to such Preferred Stock with respect to distribution
rights and rights upon liquidation, dissolution or winding up of the Company;
(ii) on a parity with all equity securities issued by the Company the terms of
which specifically provide that such equity securities rank on a parity with the
Preferred Stock with respect to distribution rights or rights upon liquidation,
dissolution or winding up of the Company; and (iii) junior to all equity
securities issued by the Company the terms of which specifically provide that
such equity securities rank senior to the Preferred Stock with respect to
distribution rights or rights upon liquidation, dissolution or winding up of the
Company.
Conversion Rights
The terms and conditions, if any, upon which any shares of any class or
series of Preferred Stock are convertible into Common Stock will be set forth in
the applicable Prospectus Supplement relating thereto. Such terms will include
the number of shares of Common Stock into which the share of Preferred
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Stock 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 such class or series of Preferred Stock or the Company, the
events requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such class or series of Preferred
Stock.
Restrictions on Transfer
The provisions contained in the Charter restricting certain transfers and
limiting the beneficial ownership, directly or indirectly, of the Company's
outstanding capital stock will affect any shares of Preferred Stock that may
from time to time be issued by the Company. See "Description of Common
Stock--Restrictions on Transfer."
DESCRIPTION OF DEPOSITARY SHARES
General
The Company may issue Depositary Shares, each of which will represent a
fractional interest of a share of particular class or series of Preferred Stock,
as specified in the applicable Prospectus Supplement. Shares of a class or
series of Preferred Stock represented by Depositary Shares will be deposited
under a separate Deposit Agreement (each, a "Deposit Agreement") among the
Company, the depositary named therein (the "Preferred Stock Depositary") and the
holders from time to time of the depositary receipts issued by the Preferred
Stock Depositary which will evidence the Depositary Shares ("Depositary
Receipts"). Subject to the terms of the Deposit Agreement, each owner of a
Depositary Receipt will be entitled, in proportion to the fractional interest of
a share of a particular class or series of Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipt, to all the rights and
preferences of the class or series of the Preferred Stock represented by such
Depositary Shares (including dividend, voting, conversion, redemption and
liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Stock by the Company to a Preferred Stock
Depositary, the Company will cause such Preferred Stock Depositary to issue, on
behalf of the Company, the Depositary Receipts. Copies of the applicable form of
Deposit Agreement and Depositary Receipt may be obtained from the Company upon
request, and the statements made hereunder relating to the Deposit Agreement and
the Depositary Receipt to be issued thereunder are summaries of certain
anticipated provisions thereof and do not purport to be complete and are subject
to, and qualified in their entirety by reference to, all of the provisions of
the applicable Deposit Agreement and related Depositary Receipts.
Dividends and Other Distributions
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of a class or series of Preferred Stock
to the record holders of Depositary Receipts evidencing the related Depositary
Shares in proportion to the number of the such Depositary Receipts owned by such
holders, subject to certain obligations of holders to file proofs, certificates
and other information and to pay certain charges and expenses to such Preferred
Stock Depositary.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and
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expenses to the Preferred Stock Depositary, unless such Preferred Stock
Depositary determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the Company,
sell such property and distribute the net proceeds from such sale to such
holders.
No distribution will be made in respect of any Depositary Share to the
extent that it represents any class or series of Preferred Stock converted into
Excess Stock or otherwise converted or exchanged.
Withdrawal of Stock
Upon surrender of the Depositary Receipts at the corporate trust office of
the Preferred Stock Depositary (unless the related Depositary Shares have
previously been called for redemption or converted or converted into Excess
Stock or otherwise), the holders thereof will be entitled to delivery at such
office, to or upon each such holder's order, of the number of whole or
fractional shares of the class or series of Preferred Stock and any money or
other property represented by the Depositary Shares evidenced by such Depositary
Receipts. Holders of Depositary Receipts will be entitled to receive whole or
fractional shares of the related class or series of Preferred Stock on the basis
of the proportion of Preferred Stock represented by each Depositary Share as
specified in the applicable Prospectus Supplement, but holders of such shares of
Preferred Stock will not thereafter be entitled to receive Depositary Shares
therefor. If the Depositary Receipts delivered by the holder evidence a number
of Depositary Shares in excess of the number of Depositary Shares representing
the number of shares of Preferred Stock to be withdrawn, the Preferred Stock
Depositary will deliver to such holder at the same time a new Depositary Receipt
evidencing such excess number of Depositary Shares.
Redemption of Depositary Shares
Whenever the Company redeems shares of Preferred Stock held by the
Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of the
same redemption date the number of the Depositary Shares representing shares of
such class or series of Preferred Stock so redeemed, provided the Company shall
have paid in full to the Preferred Stock Depositary the redemption price of the
Preferred Stock to be redeemed plus an amount equal to any accrued and unpaid
dividends thereon to the date fixed for redemption. The redemption price per
Depositary Share will be equal to the corresponding proportion of the redemption
price and any other amounts per share payable with respect to such class or
series of Preferred Stock. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional Depositary Shares) or
by any other equitable method determined by the Company that will not result in
the issuance of any Excess Stock.
From and after the date fixed for redemption, all dividends in respect of
the shares of a class or series of Preferred Stock so called for redemption will
cease to accrue, the Depositary Shares so called for redemption will no longer
be deemed to be outstanding and all rights of holders of the Depositary Receipts
evidencing the Depositary Shares so called for redemption will cease, except the
right to receive any moneys payable upon such redemption and any money or other
property to which the holders of such Depositary Receipts were entitled upon
such redemption upon surrender thereof to the Preferred Stock Depositary.
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Voting of the Preferred Stock
Upon receipt of notice of any meeting at which the holders of a class or
series of Preferred Stock deposited with the Preferred Stock Depositary are
entitled to vote, the Preferred Stock Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Receipts evidencing the Depositary Shares which represent such class or series
of Preferred Stock. Each record holder of Depositary Receipts evidencing
Depositary Shares on the record date (which will be the same date as the record
date for such class or series of Preferred Stock) will be entitled to instruct
the Preferred Stock Depositary as to the exercise of the voting rights
pertaining to the amount of Preferred Stock represented by such holder's
Depositary Shares. The Preferred Stock Depositary will vote the amount of such
class or series of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the amount of Preferred
Stock represented by such Depositary Shares to the extent it does not receive
specific instructions from the holders of Depositary Receipts evidencing such
Depositary Shares. The Preferred Stock Depositary will not be responsible for
any failure to carry out any instruction to vote, or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith
and does not result from negligence or willful misconduct of the Preferred Stock
Depositary.
Liquidation Preference
In the event of the liquidation, dissolution or winding up of the Company
whether voluntary or involuntary, the holders of each Depositary Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock as set forth in the applicable Prospectus Supplement.
Conversion of Preferred Stock
The Depositary Shares, as such, will not be convertible into Common Stock
or any other securities or property of the Company, except in connection with
certain exchanges in connection with the preservation of the Company's status as
a REIT. See "Description of Common Stock--Restrictions on Transfer."
Nevertheless, if so specified in the applicable Prospectus Supplement relating
to an offering of Depositary Shares, the Depositary Receipts may be surrendered
by holders thereof to the applicable Preferred Stock Depositary with written
instructions to the Preferred Stock Depositary to instruct the Company to cause
conversion of a class or a series of Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipts into whole shares of
Common Stock, other shares of a class or series of Preferred Stock (including
Excess Stock) of the Company or other shares of stock, and the Company has
agreed that upon receipt of such instructions and any amounts payable in respect
thereof, it will cause the conversion thereof utilizing the same procedures as
those provided for delivery of Preferred Stock to effect such conversion. If the
Depositary Shares evidenced by a Depositary Receipt are to be converted in part
only, a Depositary Receipt or Receipts will be issued for any Depositary Shares
not to be converted. No fractional shares of Common Stock will be issued upon
conversion, and if such conversion will result in a fractional share being
issued, an amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common Stock on the last
business day prior to the conversion.
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Amendment and Termination of a Deposit Agreement
The form of Depositary Receipt evidencing Depositary Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Stock
Depositary. However, any amendment that materially and adversely alters the
rights of the holders of Depositary Receipts or that would be materially and
adversely inconsistent with the rights granted to the holders of the related
Preferred Stock will not be effective unless such amendment has been approved by
the existing holders of at least two-thirds of the applicable Depositary Shares
evidenced by the applicable Depositary Receipts then outstanding. No amendment
shall impair the right, subject to certain anticipated exceptions in the Deposit
Agreement, of any holder of Depositary Receipts to surrender any Depositary
Receipt with instructions to deliver to the holder the related class or series
of Preferred Stock and all money and other property, if any, represented
thereby, except in order to comply with law. Every holder of any outstanding
Depositary Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Depositary Receipt, to consent and agree to
such amendment and to be bound by the applicable Deposit Agreement as amended
thereby.
The Deposit Agreement may be terminated by the Company upon not less than
30 days prior written notice to the Preferred Stock Depositary if (i) such
termination is necessary to preserve the Company's status as a REIT or (ii) a
majority of each series or class of Preferred Stock subject to such Deposit
Agreement consents to such termination, whereupon the Preferred Stock Depositary
will deliver or make available to each holder of Depositary Receipts, upon
surrender of the Depositary Receipts held by such holder, such number of whole
or fractional shares of Preferred Stock as are represented by the Depositary
Shares evidenced by such Depositary Receipts together with any other property
held by Preferred Stock Depositary with respect to such Depositary Receipts. The
Company has agreed that if the Deposit Agreement is terminated to preserve the
Company's status as a REIT, then the Company will use its best efforts to list
each class or series of Preferred Stock issued upon surrender of the related
Depositary Shares on a national securities exchange. In addition, the Deposit
Agreement will automatically terminate if (i) all outstanding Depositary Shares
have been redeemed, (ii) there shall have been a final distribution in respect
of each class or series of Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of the Depositary Receipts evidencing the Depositary
Shares representing such class or series of Preferred Stock or (iii) each share
of the related Preferred Stock shall have been converted into stock of the
Company not so represented by Depositary Shares.
Charges of a Preferred Stock Depositary
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the Preferred Stock Depositary in
connection with the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and expenses of the
Preferred Stock Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
Resignation and Removal of Depositary
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary. A successor
Preferred Stock Depositary must be appointed within 60 days after delivery of
the notice of
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resignation or removal and must be a bank or trust company having its principal
office in the United States and have a combined capital and surplus of at least
$50,000,000.
Miscellaneous
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if
it is prevented from or delayed in, by law or any circumstances beyond its
control, performing its obligations under the Deposit Agreement. The obligations
of the Company and the Preferred Stock Depositary under the Deposit Agreement
will be limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of a class or
series of Preferred Stock represented by the Depositary Shares), gross
negligence or willful misconduct, and the Company and the Preferred Stock
Depositary will not be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Receipts, Depositary Shares or shares of a class or
series of Preferred Stock represented thereby unless satisfactory indemnity is
furnished. The Company and the Preferred Stock Depositary may rely on written
advice of counsel or accountants, or information provided by persons presenting
shares of Preferred Stock represented thereby for deposit, holders of Depositary
Receipts or other persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be genuine and signed by
a proper party.
In the event a Preferred Stock Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on the
one hand, and the Company, on the other hand, the Preferred Stock Depositary
shall be entitled to act on such claims, requests or instructions received from
the Company.
Restrictions on Transfer
The provisions contained in the Charter restricting certain transfers and
limiting the beneficial ownership, directly or indirectly, of the Company's
outstanding capital stock will affect any Depositary Shares that may from time
to time be issued by the Company. See "Description of Common Stock--Restrictions
on Transfer."
DESCRIPTION OF WARRANTS
The Company has no Warrants outstanding (other than options issued under
the Company's stock option plans). The Company may issue Warrants for the
purchase of Common Stock. Warrants may be issued independently or together with
any other Offered Securities offered by any Prospectus Supplement and may be
attached to or separate from such Offered Securities. Each series of Warrants
will be issued under a separate warrant agreement (each, a "Warrant Agreement")
to be entered into between the Company and a warrant agent specified in the
applicable Prospectus Supplement (the "Warrant Agent"). The Warrant Agent will
act solely as an agent of the Company in connection with the Warrants of such
series and will not assume any obligation or relationship of agency or trust for
or with any provisions of the Warrants offered hereby. Further terms of the
Warrants and the applicable Warrant Agreements will be set forth in the
applicable Prospectus Supplement.
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The applicable Prospectus Supplement will describe the terms of the
Warrants in respect of which this Prospectus is being delivered, including,
where applicable, the following: (1) the title of such Warrants; (2) the
aggregate number of such Warrants; (3) the price or prices at which such
Warrants will be issued; (4) the designation, terms and number of shares of
Common Stock purchasable upon exercise of such Warrants; (5) the designation and
terms of the Offered Securities, if any, with which such Warrants are issued and
the number of such Warrants issued with each such Offered Security; (6) the
date, if any, on and after which such Warrants and the related Common Stock will
be separately transferable; (7) the price at which each share of Common Stock
purchasable upon exercise of such Warrants may be purchased; (8) the date on
which the right to exercise such Warrants shall commence and the date on which
such right shall expire; (9) the minimum or maximum amount of such Warrants
which may be exercised at any one time; (10) information with respect to
book-entry procedures, if any; and (11) any other terms of such Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Warrants.
FEDERAL INCOME TAX CONSIDERATIONS
General
The following summary of material federal income tax considerations
relevant to the Company is based upon current law, and is not intended as tax
advice. The following discussion is not exhaustive of all possible tax
considerations, and does not give a detailed discussion of any state, local, or
foreign tax considerations. Nor does it discuss all of the aspects of federal
income taxation that may be relevant to a prospective holder of Offered
Securities in light of his or her particular investment or tax circumstances or
to certain types of stockholders (including insurance companies, tax-exempt
entities, financial institutions or broker-dealers, foreign corporations and
persons who are not citizens or residents of the United States) who are subject
to special treatment under the federal income tax laws. The tax treatment of a
holder of any Offered Securities will also vary depending upon the terms of the
specific securities acquired by such holder. Additional federal income tax
considerations relevant to holders of the Offered Securities other than Common
Stock may be provided in the applicable Prospectus Supplement relating thereto.
The statements in this discussion are based on current provisions of the
Code, existing, temporary, and currently proposed Treasury Regulations under the
Code, the legislative history of the Code, existing administrative rulings and
practices of the IRS, and judicial decisions. No assurance can be given that
legislative, judicial, or administrative changes will not affect the accuracy of
any statements in this Prospectus with respect to transactions entered into or
contemplated prior to the effective date of such changes.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT WITH 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.
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Taxation of the Company
General. The Company elected to be taxed as a REIT under Sections 856
through 860 of the Code and applicable Treasury Regulations, commencing with its
taxable year ended December 31, 1993. The Company believes that it was organized
and has operated in a manner so as to qualify for taxation as a REIT under the
applicable provisions of the Code, and the Company intends to continue to
operate in such a manner. No assurance can be given, however, that the Company
has operated in a manner so as to qualify or will operate in a manner so as to
remain qualified as a REIT. Rogers & Wells, counsel to the Company ("Counsel"),
has rendered an opinion that commencing with its taxable year ended December 31,
1993, the Company was organized in conformity with the requirements for
qualification and taxation as a REIT, and the Company's proposed method of
operation will enable it to continue to so qualify. It must be emphasized that
Counsel's opinion is based on various assumptions and is conditioned upon
certain representations made by the Company as to factual matters. In addition,
Counsel's opinion is based upon factual representations of the Company
concerning its business and properties and the business and properties of the
Operating Partnership. Unlike a tax ruling, an opinion of counsel is not binding
upon the IRS and no assurance can be given that the IRS will not challenge the
status of the Company as a REIT. Moreover, such qualification and taxation as a
REIT depend upon the Company's ability to meet, through actual annual operating
results, distribution levels, diversity of stock ownership and various other
qualification tests imposed under the Code, discussed below, the results of
which will not be reviewed by Counsel. Accordingly, no assurance can be given
that the actual results of the Company's operations for any taxable year will
satisfy such requirements. See "-Failure to Qualify."
The following is a description of the material aspects of the federal
income tax consequences to the Company and its stockholders of the treatment of
the Company as 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.
In any year in which the Company qualifies as a REIT, it generally will
not be subject to federal corporate income tax on that portion of its net
income which is distributed currently to stockholders. However, the Company
will be subject to federal income or excise tax as follows: (i) the Company
will be taxed at regular corporate rates on any undistributed REIT taxable
income and undistributed net capital gains; (ii) under certain circumstances,
the Company may be subject to the "alternative minimum tax" on its items of
tax preference, if any; (iii) if the Company has (1) net income from the sale
or other disposition of "foreclosure property" (generally, property acquired
by reason of a foreclosure or otherwise on default of a loan secured by the
property) that is held primarily for sale to customers in the ordinary course
of business or (2) other nonqualifying net income from foreclosure property,
it will be subject to tax at the highest corporate rate on such income; (iv)
if the Company has net income from prohibited transactions (which are, in
general, certain sales or other dispositions of property (other than
dispositions of foreclosure property, and, as a result of the Taxpayer Relief
Act of 1997, enacted August 5, 1997 (the "Taxpayer Relief Act"), effective
for the Company's taxable year ending December 31, 1998, dispositions of
property that occur due to involuntary conversion) held primarily for sale to
customers in the ordinary course of business), such income will be subject to
a 100% tax; (v) if the Company should fail to satisfy the 75% gross income
test or the 95% gross income test (as discussed below), and has nonetheless
maintained its qualification as a REIT because certain other requirements
have been met, it will be subject to a 100% tax on the net income
attributable to the greater of the amount by which the Company fails the 75%
or 95% test, multiplied by a fraction intended to reflect the Company's
profitability; (vi) if the Company should fail to distribute with respect to
each calendar year at least the sum of (1) 85% of its REIT ordinary income
for such year, (2) 95% of its REIT capital gain net income for such year, and
(3) any undistributed taxable income from prior years, the Company would
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be subject to a 4% excise tax on the excess of such required distribution over
the amounts actually distributed; (vii) if the Company acquires any asset from a
C corporation (i.e., generally a corporation subject to full corporate-level
tax) in a transaction in which the basis of the asset in the Company's hands is
determined by reference to the basis of the asset (or any other property) in the
hands of the C corporation and the Company subsequently recognizes gain on the
disposition of such asset during the 10-year period (the "Recognition Period")
beginning on the date on which the asset was acquired by the Company (or the
Company first qualified as a REIT), then the excess of (1) the fair market value
of the asset as of the beginning of the applicable Recognition Period, over (2)
the REIT's adjusted basis in such asset as of the beginning of such Recognition
Period will be subject to tax at the highest regular corporate rate (pursuant to
Treasury Regulations issued by the IRS which have not yet been promulgated).
Organizational Requirements. The Code defines a REIT as a corporation,
trust, or association (i) that is managed by one or more trustees or directors;
(ii) the beneficial ownership of which is evidenced by transferable shares or by
transferable certificates of beneficial interest; (iii) that would be taxable as
a domestic corporation but for Sections 856 through 859 of the Code; (iv) that
is neither a financial institution nor an insurance company subject to certain
provisions of the Code; (v) the beneficial ownership of which is held by 100 or
more persons; (vi) during the last half of each taxable year not more than 50%
in value of the outstanding stock of which is owned, directly or indirectly
(through the application of certain attribution rules), by five or fewer
individuals (as defined in the Code to include certain entities); and (vii) that
has the calendar year as its taxable year. In addition, certain other tests,
described below, regarding the nature of its income and assets must also be
satisfied.
The Code provides that conditions (i) through (iv), inclusive, must be
met during the entire taxable year and that condition (v) 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. Conditions
(v) and (vi) will not apply until after the first taxable year for which an
election is made to be taxed as a REIT. In addition, the Company intends to
comply with Treasury regulations requiring it to ascertain the actual
ownership of its outstanding shares. The Taxpayer Relief Act eliminates the
rule that a failure to comply with these regulations will result in a loss of
REIT status. Instead, a failure to comply with the regulations will result
in a fine. This provision will be effective for the Company's taxable year
ending December 31, 1998.
As a result of the Merger, ROC became a subsidiary of Chateau, with the
intent that both the Company and ROC would continue to qualify as REITs for the
purposes of the Code. The Company and ROC believe that they have satisfied and
will continue to satisfy the requirements set forth in (i) through (vii) above.
In addition, both the Company and ROC's Charters include certain restrictions
regarding transfer of the their shares. These restrictions are intended (among
other things) to assist the Company and ROC in continuing to satisfy the share
ownership requirements described in conditions (v) and (vi) above. See
"Description of Common Stock--Restrictions on Transfer." Moreover, to evidence
compliance with these requirements, a REIT must maintain records which disclose
the actual ownership of its outstanding stock. In fulfilling its obligations to
maintain records, both the Company and ROC have and will continue to demand
written statements each year from the record holders of designated percentages
of their stock disclosing the actual owners of such Shares. A list of those
persons failing or refusing to comply with such demand is maintained as a part
of the their respective records. A stockholder failing or refusing to comply
with such written demands must submit with his tax return a similar statement
disclosing the actual ownership of the shares of stock and certain other
information.
The Company may have one or more "qualified REIT subsidiaries." A
corporation that is a "qualified REIT subsidiary" is not treated as a separate
corporation for federal income tax purposes, and all assets, liabilities and
items of income, deduction, and credit of a "qualified REIT subsidiary" are
treated as assets, liabilities, and items of the REIT. Thus, the Company's
"qualified REIT subsidiaries" will not be subject to federal corporate income
taxation, although they may be subject to state or local taxation. (A
qualified REIT subsidiary is a corporation all of the capital stock of which
has been owned by the REIT from the commencement of such corporate existence.
The Taxpayer Relief Act eliminates the requirement that a REIT own a
qualified REIT subsidiary from the commencement of its corporate existence.
This change will be effective for the Company's taxable year ending December
31, 1998.)
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In the case of a REIT that is a partner in a partnership, the REIT is
deemed to own its proportionate share of the assets of the partnership and is
deemed to receive the income of the partnership attributable to such share. In
addition, the character of assets and gross income of the partnership shall
retain the same character in the hands of the REIT. Thus, the Company and ROC's
proportionate share of the assets, liabilities and items of income of the
Operating Partnership, CCF, L.P. (the "Financing Partnership") and other
partnerships in which the Operating Partnership holds an interest (the "Subtier
Partnerships") should be treated as assets, liabilities and items of income of
the Company and ROC, to the extent of their respective interest therein, for
purposes of applying the requirements described herein. See "--Tax Aspects of
the Company's Investments in Partnerships."
Asset Tests. For the Company and ROC to maintain qualification as REITs,
at the close of each quarter of its taxable year, each company must satisfy two
tests relating to the nature of its assets. First, at least 75% of the value of
such company's total assets must be represented by real estate assets (including
(i) real property, (ii) stock or debt instruments purchased with the proceeds of
a stock offering or long-term (at least five years) debt offering of such
Company and held for not more than one year following the receipt of such
proceeds, (iii) interests in mortgages on real property, and (iv) shares in
other REITs), cash, cash items (including receivables) and government
securities. Second, although the remaining 25% of each Company's assets
generally may be invested without restriction, securities in this class may not
exceed either (i) 5% of the value of such Company's total assets as to any one
non-governmental issuer, or (ii) 10% of the outstanding voting securities of any
one issuer.
The Company believes that it and ROC has, and will continue to be able to
comply with the asset tests. More than 75% of the assets of each of the Company
and ROC are real estate assets. In addition, neither Company holds any
securities representing more than 10% of any one issuer's voting securities,
other than any qualified REIT subsidiary or another qualified REIT, or
securities of any one issuer exceeding 5% of the value of its gross assets. The
securities of ROC held by the Company will not cause the Company to violate the
asset tests as long as ROC qualifies as a REIT. If, however, ROC fails to
qualify as a REIT for any reason, the Company would fail the asset tests because
such securities will no longer qualify as real estate assets for purposes of the
75% asset test and the Company owns more than 10% of ROC's voting securities.
After initially meeting the asset tests at the close of any quarter,
neither the Company nor ROC will lose its status as a REIT for failure to
satisfy the asset tests at the end of a later quarter solely by reason of
changes in asset values. If the failure to satisfy the asset tests results from
an acquisition of securities or other property during a quarter, the failure can
be cured by disposition of sufficient nonqualifying assets within 30 days after
the close of that quarter as may be required to cure any noncompliance. However,
there can be no assurance that such action will always be successful.
Income Tests. For the Company and ROC to maintain qualification as REITs,
there are three separate percentage tests relating to the sources of each
company's gross income which must be satisfied for each taxable year. First, at
least 75% of each company's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived from (i) rents from real
property (except as modified below); (ii) interest on obligations secured by
mortgages on real property or on interests in real property; (iii) gains from
the sale or other disposition of real property, interests in real property and
interests in mortgages on real property, other than gains from property held
primarily for sale to customers in the ordinary course of the Company's trade or
business; (iv) dividends or other distributions on shares in other REITs, as
well as gain from the sale of such shares; (v) abatements and refunds of taxes
on real property; (vi) income and gain derived from foreclosure property; (vii)
commitment fees received or accrued for entering into agreements to make loans
secured by mortgages
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on real property or to purchase or lease real property; and (viii)
qualified temporary investment income. Second, at least 95% of each company's
gross income (excluding gross income from prohibited transactions) for each
taxable year must be derived from the same items which qualify under the 75%
gross income test, and from dividends, interest and gain from the sale or
disposition of stock or other securities, or from any combination of the
foregoing. Any payments made to the Company by a financial institution
pursuant to a bona fide interest rate swap or cap agreement to hedge any
variable rate indebtedness incurred or to be incurred to acquire or carry
real property, or interests in real property, and any gain from the sale or
other disposition of such agreement also will be included. Third, each
company must derive less than 30% of its gross income for each taxable year
from the sale or other disposition of (i) real property (including interests
in real property and interests in mortgages on real property) held for less
than four years (other than foreclosure property and property involuntarily
or compulsorily converted), (ii) stock or securities held for less than one
year, and (iii) property in a transaction which is a prohibited transaction.
The Taxpayer Relief Act repeals the 30% gross income test for taxable years
beginning after its enactment on August 5, 1997. Thus, the 30% gross income
test will apply only to the Company's taxable year ending December 31, 1997.
Rents received from a tenant will qualify as "rents from real
property" in satisfying the 75% or the 95% gross income tests described above
only if several conditions (related to the identity of the tenant, the
computation of rent payable and the nature of the property leased) are met.
Neither company anticipates receiving rents in excess of a de minimus amount
that fail to meet these conditions. Finally, for rents received to qualify as
rents from real property, a REIT generally must not operate or manage the
property or furnish or render services to tenants, other than through an
"independent contractor" which is adequately compensated from whom the REIT
derives no revenue. The "independent contractor" requirement, however, does
not apply to the extent that the services provided by the REIT are of a type
that a tax exempt organization can provide to its tenants without causing its
rental income to be unrelated business taxable income under the Code, which
includes those services provided which are "usually or customarily rendered"
in connection with the rental of space for occupancy only and are not
otherwise considered "rendered to the occupant". The Taxpayer Relief Act
provides a de minimis rule for non-customary services which is effective for
taxable years beginning after August 5, 1997. If the value of the
non-customary service income with respect to a property (valued at not less
than 150% of the Company's direct costs of performing such services) is 1% or
less of the total income derived from the property, then all rental income
except the non-customary service income will qualify as "rents from real
property." This provision will be effective for the Company's taxable years
ending December 31, 1998.
The Company believes that it and ROC have, and will continue to satisfy
the gross income tests discussed above. The Company receives a significant
amount of dividends from ROC, which will be qualifying income for purposes of
the 95% gross income test, and for the 75% gross income test so long as ROC
qualifies as a REIT. In addition, the majority of both the Company and ROC's
income will be derived from their interests in the Operating Partnership and
Subtier Partnerships, which income will, for the most part, qualify as "rents
from real property" for purposes of the 75% and 95% gross income tests.
The Operating Partnership will provide certain services with respect to
its properties and any newly acquired manufactured housing community properties.
The Company believes, however, that the services which it provides are usually
or customarily rendered in connection with the rental of space for occupancy
only, and therefore that the provision of such services will not cause the rents
received with respect to any properties to fail to qualify as rents from real
property for purposes of the 75% and 95% gross income tests. Further, the
Company has obtained a private letter ruling from the IRS holding that certain
services and amenities provided through the Operating Partnership will not cause
its distributive share of rents paid by tenants to be excluded from the
definition of rents from real property.
The Operating Partnership will receive fees in exchange for the
performance of certain management and administrative services relating to
properties not owned by the Operating Partnership. Such management and
administrative fees are not qualifying income for purposes of the 75% and 95%
gross income tests. The Company and ROC's share of the aggregate amount of such
fees and other
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non-qualifying income in any taxable year, however, should not cause either
company to exceed the limits on non-qualifying income under the 75% or 95% gross
income tests.
If the Company or ROC 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 entitled to relief under certain provisions of the Code . It is
not possible, however, to state whether in all circumstances the Company or ROC
would be entitled to the benefit of these relief provisions. Even if these
relief provisions apply, a tax would be imposed with respect to certain excess
net income.
Annual Distribution Requirements. In order to qualify as REITs, both
the Company and ROC are required to distribute dividends (other than capital
gain dividends) to its stockholders each year in an amount which equals or
exceeds (A) the sum of (i) 95% of such company's REIT taxable income
(computed without regard to the dividends paid deduction and the REIT'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
(including, as a result of the Taxpayer Relief Act, inter alia, cancellation
of indebtedness income and original issue discount income). Such
distributions must be paid in the taxable year to which they relate, or in
the following taxable year if declared before the company timely files its
tax return for such year and if paid on or before the first regular dividend
payment after such declaration. To the extent that either company 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 on the undistributed amount at regular capital gains or ordinary
corporate tax rates, as the case may be. Furthermore, if either company
should fail to distribute during each calendar year at least the sum of (i)
85% of its REIT 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 years, it will be subject to a 4% excise tax on the excess of such
required distribution over the amounts actually distributed.
Both the Company and ROC have made and intend to continue to make timely
distributions sufficient to satisfy the annual distribution requirements. It is
possible that either company, from time to time, may not have sufficient cash or
other liquid assets to meet the 95% distribution requirement, due primarily to
the expenditure of cash for nondeductible expenses such as principal
amortization or capital expenditures . To avoid any problem with the 95%
distribution requirement, the Company and ROC will closely monitor the
relationship between their REIT taxable income and cash flow and, if necessary,
will borrow funds (or cause the Operating Partnership to borrow funds) in order
to satisfy the distribution requirement.
Under certain circumstances, a REIT may be able to rectify a failure to
meet the distribution requirements by paying a "deficiency dividend" (plus
applicable penalties and interest) within a specified period.
Failure to Qualify. If either the Company or ROC fails to qualify for
taxation as a REIT in any taxable year and the special relief provisions do not
apply, the Company (and ROC if it fails to qualify) will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to stockholders in any year in which it
fails to qualify will not be deductible , nor will they be required to be made.
In such event, to the extent of current and accumulated earnings and profits,
all distributions to stockholders will be taxable as ordinary income and,
subject to certain limitations in the Code, corporate distributees may eligible
for the dividends received deduction. Unless entitled to relief under specific
statutory provisions, the Company (and ROC if it fails to qualify) also will 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 either the Company or ROC would be entitled to such statutory
relief.
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Tax Aspects of the Company's Investment in Partnerships
General. The Company and ROC hold direct and indirect interests in the
Operating Partnership, the Financing Partnership and the Subtier Partnerships
(together, the "Partnerships").
The Company believes that each of the Partnerships are properly treated as
partnerships for federal income tax purposes. If, however, either the Operating
Partnership, the Financing Partnership and/or a Subtier Partnership was treated
as an association taxable as a corporation, the Company would most likely fail
to qualify as a REIT. See "Federal Income Tax Considerations--Taxation of the
Company--Failure to Qualify". Furthermore, in such a situation, any Partnership
treated as a corporation would be subject to corporate income taxes.
Tax Allocations with Respect to the Properties. The Operating Partnership
was originally formed by way of contribution of properties which had appreciated
in value (the "Chateau Properties") at the date of contribution. In addition,
ROC, contributed or caused to be contributed properties, which were also
appreciated , to the Operating Partnership and Financing Partnership immediately
after the Merger (the "ROC Properties"). When property is contributed to a
partnership in exchange for an interest in the partnership, the partnership
generally takes a carryover basis in that property for tax purposes equal to the
adjusted basis of the contributing partner in the property, rather than a basis
equal to the fair market value of the property at the time of contribution (this
difference is referred to as a "Book-Tax Difference"). The Company also
inherited most or all of the existing Book-Tax Differences with respect to OP
Units previously exchanged by unitholders. The partnership agreements of the
Operating Partnership and the Financing Partnership require allocations of
income, gain, loss and deduction with respect to contributed properties to be
made in a manner consistent with the special rules in Section 704(c) of the Code
and the Treasury Regulations thereunder, which will tend to eliminate the
Book-Tax Differences with respect to the ROC Properties and the Chateau
Properties over the life of the Operating Partnership and the Financing
Partnership. Under these rules, ROC and/or the Company and the initial
contributors of the Chateau Properties who are OP unitholders are generally
allocated lower amounts of depreciation deductions with respect to, and
increased taxable gain on a sale of, the ROC or Chateau Properties,
respectively. However, because of certain technical limitations, the special
allocation rules of Section 704(c) may not always entirely eliminate the
Book-Tax Difference on an annual basis or with respect to a specific taxable
transaction such as a sale. Thus, the carryover basis of the contributed ROC
Properties in the hands of the Operating Partnership and the Financing
Partnership and the carryover basis of the contributed Chateau Properties in the
hands of the Operating Partnership could cause the Company (i) to be allocated
lower amounts of depreciation and other deductions for tax purposes that it
would be allocated if such properties had a tax basis equal to their fair market
value at the time of acquisition and (ii) to be allocated lower amounts of
taxable loss in the event of the sale of such a property at a book loss less
than the economic or book loss allocated to it as a result of such sale. The
foregoing principles also apply in determining the earnings and profits of the
Company for purposes of determining the portion of distributions taxable as
dividend income. The application of these rules over time may result in a higher
portion of distributions being taxed as dividends than would have occurred had
the Company purchased the Chateau and ROC Properties and the OP Units exchanged
at their respective fair market values.
Taxation of Stockholders
Taxation of Taxable Domestic Stockholders. As long as the Company
qualifies as a REIT, distributions made to the Company's taxable domestic
stockholders out of current or accumulated earnings and profits (and not
designated as capital gain dividends) will be taken into account by them as
ordinary income, and corporate stockholders will not be eligible for the
dividends received deduction
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as to such amounts. Distributions that are designated as capital gain
dividends will be taxed as long-term capital gains (to the extent they do not
exceed the Company's actual net capital gain for the taxable year) without
regard to the period for which the stockholder has held its stock. However,
corporate stockholders may be required to treat up to 20% of certain capital
gain dividends as ordinary income. The Taxpayer Relief Act provides that,
beginning with the Company's taxable year ending December 31, 1998, if the
Company elects to retain and pay income tax on any net long term capital
gain, domestic stockholders of the Company would include in their income as
long term capital gain their proportionate share of such net long term
capital gain. A domestic stockholder would also receive a refundable tax
credit for such domestic stockholder's proportionate share of the tax paid by
the Company on such retained capital gains, and an increase in basis in an
amount equal to the difference between the undistributed long term capital
gains and the amount of tax paid by the Company. To the extent that the
Company makes distributions in excess of its current and accumulated earnings
and profits, such distributions are treated first as a tax-free return of
capital to the stockholder, reducing the tax basis of a stockholder's Common
Stock by the amount of such distribution (but not below zero), with
distributions in excess of the stockholder's tax basis taxable as capital
gains (if the Common Stock is held as a capital asset). In addition, any
dividend declared by the Company in October, November or December of any year
and payable to a stockholder of record on a specific date in any such month
shall be treated as both paid by the Company and received by the stockholder
on December 31 of such year, provided that the dividend is actually paid by
the Company during January of the following calendar year. Stockholders may
not include in their individual income tax returns any net operating losses
or capital losses of the Company.
In general, any loss upon a sale or exchange of Common Stock by a
stockholder who has held such stock 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 the Company required to be treated by such
stockholder as long-term capital gains.
Backup Withholding. The Company will report to its domestic
stockholders and to the IRS the amount of dividends paid during each calendar
year, and the amount of tax withheld, if any, with respect thereto. Under the
backup withholding rules, a stockholder may be subject to backup withholding at
the rate of 31% with respect to dividends paid unless such stockholder (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
domestic stockholder that does not provide the Company with its 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 stockholder's
income tax liability. In addition, the Company may be required to withhold a
portion of capital gain distributions made to any stockholders who fail to
certify their non-foreign status to the Company. See "--Taxation of Foreign
Stockholders" below.
Taxation of Tax-Exempt Stockholders. Distributions by the Company to a
stockholder that is a tax-exempt entity generally should not constitute
unrelated business taxable income ("UBTI") , provided that the tax-exempt entity
has not financed the acquisition of its shares with "acquisition indebtedness"
within the meaning of the Code, and that the shares are not otherwise used in an
unrelated trade or business by such tax-exempt entity. In addition, under
certain circumstances, qualified trusts that own more than 10% (by value) of the
Company's shares may be required to treat a certain percentage of dividends as
UBTI. This requirement will only apply if the Company is a "pension-held REIT."
The restrictions on ownership in the Company's Charter should prevent the
Company from being treated as a pension-held REIT.
Taxation of Foreign Stockholders. The rules governing United States
federal income taxation of nonresident alien individuals, foreign corporations,
foreign partnerships and other foreign stockholders (collectively, "Non-U.S.
Stockholders") are complex and no attempt will be made herein to provide more
than a summary of such rules. Prospective Non-U.S. Stockholders 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, as well as the tax treatment of such an investment under their
home country laws.
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In general, Non-U.S. Stockholders will be subject to regular United States
federal income taxation with respect to their investment in shares of Common
Stock in the same manner as a U.S. Stockholder (i.e., at graduated rates on a
net basis, after allowance of deductions) if such investment is "effectively
connected" with the conduct by such Non-U.S. Stockholder of a trade or business
in the United States. A Non-U.S. Stockholder that is a corporation and that
receives income with respect to its investment in shares of Common Stock that is
(or is treated as) "effectively connected" with the conduct of a trade or
business in the United States may also be subject to the 30% branch profits tax
imposed under Section 884 of the Code, which is payable in addition to the
regular United States corporate income tax. The following discussion addresses
only the United States federal income taxation of Non-U.S. Stockholders whose
investment in shares of Common Stock is not "effectively connected" with the
conduct of a trade or business in the United States. Prospective investors whose
investment in shares of Common Stock may be "effectively connected" with the
conduct of a United States trade or business should consult their own tax
advisors as to the tax consequences thereof.
Distributions that are not attributable to gain from sales or exchanges by
the Company of United States real property interests and not designated by the
Company 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 the Company. Such distributions ordinarily will 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. Pursuant to current
Treasury Regulations, dividends paid to an address in a country outside the
United States are generally presumed to be paid to a resident of such country
for purposes of determining the applicability of withholding discussed above and
the availability of a reduced tax treaty rate. Under proposed Treasury
Regulations, not currently in effect, however, a Non-U.S. Stockholder who wishes
to claim the benefit of an applicable treaty rate would be required to satisfy
certain certification and other requirements. Distributions made by the Company
in excess of its current and accumulated earnings and profits will not be
taxable to a stockholder to the extent they do not exceed the adjusted basis of
the stockholder's shares, but rather will reduce the adjusted basis of such
shares (but not below zero). To the extent that such distributions exceed the
adjusted basis of the Non-U.S. Stockholder's shares, they will give rise to tax
liability if the Non-U.S. Stockholder would otherwise be subject to tax on any
gain from the sale or disposition of his shares in the Company, as described
below.
As a result of a legislative change made by the Small Business Job
Protection Act of 1996, effective for distributions made after August 20, 1996,
the Company is required to withhold 10% of any distribution in excess of the
Company's current and accumulated earnings and profits. Consequently, although
the Company intends to withhold at a rate of 30% on the entire amount of any
distribution, to the extent that the Company does not do so any portion of a
distribution not subject to withholding at a rate of 30% will be subject to
withholding at a rate of 10%. However, the Non-U.S. Stockholder may seek a
refund of such amounts from the IRS if it is subsequently determined that such
distribution was, in fact, in excess of current or accumulated earnings and
profits of the Company, and the amount withheld exceeded the Non-U.S.
Stockholder's United States tax liability, if any, with respect to the
distribution.
For any year in which the Company qualifies as a REIT, distributions that
are attributable to gain from sales or exchanges by the Company of United States
real property interests will be taxed to a Non-U.S. Stockholder under the
provisions of the Foreign Investment in Real Property Tax Act of 1980
("FIRPTA"). Under FIRPTA, these distributions are taxed to a Non-U.S.
Stockholder as if such gain were effectively connected with the conduct of a
United States trade or business. Non-U.S. Stockholders would thus be taxed at
the normal capital gain rates applicable to U.S. stockholders (subject to
applicable alternative minimum tax and special alternative minimum tax in the
case of nonresident alien individuals), without regard as to whether such
distributions are designated by the
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Company as capital gain dividends. Also, distributions subject to FIRPTA may be
subject to a 30% branch profits tax in the hands of a foreign corporate
stockholder not entitled to treaty exemption. The Company is required by
Treasury Regulations to withhold 35% of any distribution to a Non-U.S.
Stockholder that could be designated by the Company as a capital gain dividend.
This amount is creditable against the Non-U.S. Stockholder's FIRPTA tax
liability.
Gain recognized by the Non-U.S. Stockholder upon a sale of shares
generally will not be taxed under FIRPTA if the Company is a "domestically
controlled REIT," defined generally as a REIT in which at all times during a
specified testing period less than 50% in value of its stock was held directly
or indirectly by foreign persons. The Company believes that it is, and will
continue to be a domestically controlled REIT and therefore, that the sale of
its shares will not be subject to taxation under FIRPTA.
If the gain on the sale of shares were to be subject to tax under FIRPTA,
the Non-U.S. Stockholder would be subject to the same treatment as U.S.
Stockholders with respect to such gain (subject to applicable alternative
minimum tax and a special alternative minimum tax in the case of nonresident
alien individuals and the possible application of the 30% branch profits tax in
the case of foreign corporations), and the purchaser of the shares would be
required to withhold and remit to the IRS 10% of the purchase price.
Notwithstanding the foregoing, gain from the sale or exchange of shares of
Company stock not otherwise subject to FIRPTA and distributions made by the
Company to Non-U.S. Stockholders that are designated as capital gain dividends
(and are not attributable to the sale or other disposition of a United States
real property interest) generally will not be taxable unless the Non-U.S.
Stockholder is a nonresident alien individual who is present in the United
States for 183 days or more during the taxable year and has a "tax home" in the
United States. In such case, the nonresident alien individual will be subject to
a 30% United States withholding tax on the amount of such individual's gain.
Other Tax Considerations
Dividend Reinvestment Program. Stockholders participating in the Company's
dividend reinvestment program will be deemed to have received the gross amount
of any cash distributions which would have been paid by the Company to such
stockholders had they not elected to participate. These deemed distributions
will be treated as actual distributions from the Company generally. See "Federal
Income Tax Considerations--Taxation of Stockholders." Participants in the
dividend reinvestment program are subject to federal income tax on the amount of
the deemed distributions to the extent that such distributions represent
dividends or gains, even though they receive no cash. Shares of Common Stock
received under the program will have a holding period beginning with the day
after purchase, and a tax basis equal to their cost (which is the gross amount
of the deemed distribution).
State and Local Taxes. The Company and its stockholders may be subject to
state or local taxation in various jurisdictions, including those in which it or
they transact business or reside. The state and local tax treatment of the
Company and its stockholders may not conform to the federal income tax advisors
regarding the effect of state and local tax laws on an investment in the Common
Stock of the Company.
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PLAN OF DISTRIBUTION
The Company may sell the Common Stock, Preferred Stock, Warrants,
Depositary Shares and Guarantees, and the Operating Partnership may sell the
Debt Securities, through underwriters or dealers, directly to one or more
purchasers (including executive officers of the Company or other persons that
may be deemed affiliates of the Company), through agents or through a
combination of any such methods of sale.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of the sale, at prices related
to such prevailing market prices or at negotiated prices. Further, the
distribution of any Common Stock in one or more special offerings pursuant to a
dividend reinvestment plan or other similar plan of the Company may be effected
from time to time at a fixed price or prices, which may be changed, at market
prices prevailing at the time of the sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or the Operating Partnership or
from purchasers of the Offered Securities, for whom they may act as agents in
the form of discounts, concessions or commissions. Underwriters may sell the
Offered Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents . Underwriters, dealers and agents that participate in the distribution
of the Offered Securities may be deemed to be underwriters under the Securities
Act, and any discounts or commissions they receive from the Company or the
Operating Partnership and any profit on the resale of the Offered Securities
they realize may be deemed to be underwriting discounts and commissions under
the Securities Act. Any such underwriter or agent will be identified, and any
such compensation received from the Company or the Operating Partnership will be
described, in the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, each
series of the Offered Securities will be a new issue with no established trading
market, other than the Common Stock which is listed on the NYSE. Any shares of
Common Stock sold pursuant to a Prospectus Supplement will be listed on the
NYSE, subject to official notice of issuance. The Company or the Operating
Partnership, as the case may be, may elect to list any series of Debt
Securities, Warrants, Preferred Stock or Depositary Shares on an exchange, but
is not obligated to do so. It is possible that one or more underwriters may make
a market in a series of the Offered Securities, but will not be obligated to do
so and may discontinue any market making at any time without notice. Therefore,
no assurance can be given as to the liquidity of, or the trading market for, the
Offered Securities.
Under agreements into which the Company or the Operating Partnership may
enter, underwriters, dealers and agents who participate in the distribution of
the Offered Securities may be entitled to indemnification by the Company or the
Operating Partnership, as the case may be, against certain liabilities,
including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with , or
perform services for, or be tenants of, the Company or the Operating Partnership
in the ordinary course of business.
In order to comply with the securities laws of certain states, if
applicable, the Offered Securities will be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in
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certain states the Offered Securities may not be sold unless they have been
registered or qualified for sale in the applicable state or an exemption from
the registration or qualification requirement is available and is complied with.
LEGAL MATTERS
The legality of the Offered Securities will be passed upon for the Company
by Rogers & Wells, New York, New York. Rogers & Wells will rely on Piper &
Marbury L.L.P., Baltimore, Maryland, as to matters of Maryland law.
EXPERTS
The consolidated balance sheets as of December 31, 1996 and 1995, and the
consolidated statements of income, stockholders' equity and cash flows for each
of the three years in the period ended December 31, 1996, incorporated by
reference in this Registration Statement, have been incorporated herein in
reliance on the reports of Coopers & Lybrand L.L.P., independent accountants,
given the authority of that firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses to be incurred in
connection with the issuance and distribution of the securities being
registered.
Registration Fee................................................ $ 90,910
Printing or Copying Expenses............,....................... 50,000
Legal Fees and Expenses......................................... 125,000
Accounting Fees and Expenses.................................... 25,000
Miscellaneous................................................... 10,000
Total........................................................... $300,910
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Charter limits the liability of the Company's directors and
officers to the Company and its stockholders to the fullest extent permitted
from time to time by Maryland law. Maryland law presently permits the liability
of directors and officers to a corporation or its stockholders for money damages
to be limited, except to the extent that (i) it is proved that the director or
officer actually received an improper benefit or profit in money, property or
services for the amount of the benefit or profit in money, property or services
actually received, or (ii) a judgment or other final adjudication is entered
in a proceeding based on a finding that the director's or officer's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. This provision
does not limit the ability of the Company or its stockholders to obtain other
relief, such as an injunction or rescission.
The Charter and By-Laws require (or permit, as the case may be) the
Company to indemnify its directors, officers and certain other parties to the
fullest extent permitted from time to time by Maryland law. The Maryland
General Corporation Law ("MGCL") permits a corporation to indemnify its
directors, officers and certain other parties against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service to or at the request of the corporation, unless it is
established that (i) the act or omission of the indemnified party was
material to the matter giving rise to the proceeding and (x) was committed in
bad faith or (y) was the result of active and deliberate dishonesty, (ii) the
indemnified party actually received an improper personal benefit in money,
property or services or (iii) in the case of any criminal proceeding, the
indemnified party had reasonable cause to believe that the act or omission
was unlawful. Indemnification may be made against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by the director
or officer in connection with the proceeding; provided, however,that if the
proceeding is one by or in the right of the corporation, indemnification may
not be made with respect to any proceeding in which the director or officer
has been adjudged to be liable to the corporation. In addition, a director or
officer may not be indemnified with respect to any proceeding charging
improper personal benefit to the director or officer in which the director or
officer was adjudged to be liable on the basis that personal benefit was
improperly received. The termination of any proceeding by conviction, or upon
a plea of nolo contendere or its equivalent, or an entry of any order of
probation
II-1
<PAGE>
prior to judgment, creates a rebuttable presumption that the director or officer
did not meet the requisite standard of conduct required for indemnification to
be permitted. It is the position of the Securities and Exchange Commission that
indemnification of directors and officers for liabilities arising under the
Securities Act is against public policy and is unenforceable pursuant to Section
14 of the Securities Act.
The partnership agreement of the Operating Partnership also provides for
indemnification of the Company and its officers and directors and from the
reimbursement of the Company to the extent it is required to provide
indemnification of its directors to the extent provided in the partnership
agreement. The partnership agreement also limits the liability of the Company
and its officers and directors to the Operating Partnership and its partners to
the extent provided.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors and officers of the Operating Partnership
pursuant to the foregoing provisions or otherwise, the Operating Partnership has
been advised that, although the validity and scope of the governing statute have
not been tested in court, in the opinion of the Securities and Exchange
Commission, 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
Exhibit No. Description
- ----------- -----------
1.1* Form of Underwriting Agreement (for Debt Securities)
1.2* Form of Underwriting Agreement (for Common Stock)
1.3* Form of Underwriting Agreement (for Warrants)
1.4* Form of Underwriting Agreement (for Preferred Stock)
3.1+ Articles of Amendment and Restatement of the Company (1993)
3.2++++++ Articles of Amendment of the Company (1995)
3.3+++ Articles of Amendment of the Company (1997)
3.4++++ Amended and Restated By-Laws of the Company
3.5* Form of Articles Supplementary of the Company (for Preferred Stock)
3.6+++++ Amended and Restated Agreement of Limited Partnership of the
Operating Partnership
4.1++ Form of Common Stock Certificates
4.2* Form of Preferred Stock Certificate
4.3* Form of Warrant Agreement
4.4* Form of Deposit Agreement
II-2
<PAGE>
4.5 Form of Indenture of the Operating Partnership
5.1 Opinion of Rogers & Wells
5.2 Opinion of Piper & Marbury L.L.P.
8+++++++ Opinion of Rogers & Wells Regarding Tax Matters
12 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Rogers & Wells with regard to Opinion included as
Exhibit 5.1 (included as part of Exhibit 5.1)
23.2 Consent of Piper & Marbury L.L.P. (included as part of Exhibit 5.2)
23.3 Consent of Coopers & Lybrand L.L.P.
23.4 Consent of Rogers & Wells with regard to Opinion included as
Exhibit 8
24 Power of Attorney (included on Page II-7)
25* Statement of Eligibility of Trustee on Form T-1
- ----------
* To be filed by post-effective amendment to this Registration Statement
or pursuant to a Form 8-K to be filed after effectiveness by the
Company
+ Incorporated by reference to the Exhibits filed with the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1995 filed with the Commission on August 10, 1995 (Commission
File No. 1-12496)
++ Incorporated by reference to the Exhibits filed with the Company's
Registration Statement on Form S-11 filed with the Securities and
Exchange Commission on November 10, 1993 (Commission File No.
33-69150)
+++ Incorporated by reference to the Exhibits filed with the Company's
Current Report on Form 8-K, filed with the Commission on May 30, 1997
++++ Incorporated by reference to the Exhibits filed with the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1997, filed with the Commission on May 15, 1997 (Commission File No.
1-12496)
+++++ Incorporated by reference to the Exhibits filed with the Company's
Form S-4, filed with the Commission on December 24, 1996 (Commission
File No. 333-18807)
++++++ Incorporated by reference to the Exhibits filed with the Company's
Form S-8, filed with the Commission on June 5, 1997
+++++++ Incorporated by reference to the Exhibits filed with the Company's
Current Report on Form 8-K, filed with the Commission on June 24, 1997
II-3
<PAGE>
Item 17. UNDERTAKINGS
(a) Each of the undersigned registrants hereby undertake:
(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 and 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 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are
II-4
<PAGE>
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Form F-3.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants' annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions, or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrants of expenses incurred or paid by a director, officer
or controlling person of the registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrants will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) The undersigned registrants hereby undertake to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrants certify that they have reasonable grounds to believe that they meet
all of the requirements for a filing on Form S-3 and have duly caused this
Amendment No. 2 to the Registration Statement to be signed on their respective
behalf by the undersigned, thereunto duly authorized, in the City of Englewood,
State of Colorado, on the 30th day of July, 1997.
CHATEAU COMMUNITIES, INC.
By: /s/ Tamara D. Fischer
----------------------------
Tamara D. Fischer
Chief Financial Officer
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc. as
general partner
By: /s/ Tamara D. Fischer
----------------------------
Tamara D. Fischer
Executive Vice President and
Chief Financial Officer
II-6
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below, hereby constitutes and appoints
Gary P. McDaniel, C.G. Kellogg and Tamara D. Fischer, or any of them, his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Amendment No. 1 to the Registration Statement and any
or all further amendments, including pre-effective and post-effective
amendments, thereto, and to file the same, with exhibits thereto and any and all
other documents filed as part of or in connection therewith, with the Securities
and Exchange Commission, granting unto each of such attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection with such matters, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of such attorneys-in-fact and agents or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the date indicated:
Signature Title Date
/s/ John A. Boll Chairman of the Board of May 30, 1997
- ------------------------
John A. Boll
/s/ Gary P. McDaniel Director and Chief Executive May 30, 1997
- ------------------------ Officer (Principal Executive
Gary P. McDaniel Officer)
/s/ C.G. Kellogg Director and President May 30, 1997
- ------------------------
C.G. Kellogg
/s/ Tamara D. Fischer Chief Financial Officer May 30, 1997
- ------------------------ (Principal Financial
Tamara D. Fischer Accounting Officer)
/s/ Edward R. Allen Director May 30, 1997
- ------------------------
Edward R. Allen
/s/ Gebran S. Anton, Jr. Director May 30, 1997
- ------------------------
Gebran S. Anton, Jr.
/s/ James l. Clayton Director May 30, 1997
- ------------------------
James L. Clayton
/s/ Steven G. Davis Director May 30, 1997
- ------------------------
Steven G. Davis
/s/ James M. Hankins Director May 30, 1997
- ------------------------
James M. Hankins
/s/ James M. Lane Director May 30, 1997
- ------------------------
James M. Lane
/s/ Donald E. Miller Director May 30, 1997
- ------------------------
Donald E. Miller
II-7
<PAGE>
/s/ Rhonda G. Hogan Director May 30, 1997
- ------------------------
Rhonda G. Hogan
II-8
<PAGE>
Exhibit Index
Exhibit No. Description
- ------- --- -----------
1.1* Form of Underwriting Agreement (for Debt Securities)
1.2* Form of Underwriting Agreement (for Common Stock)
1.3* Form of Underwriting Agreement (for Warrants)
1.4* Form of Underwriting Agreement (for Preferred Stock)
3.1+ Articles of Amendment and Restatement of the Company (1993)
3.2++++++ Articles of Amendment of the Company (1995)
3.3+++ Articles of Amendment of the Company (1997)
3.4++++ Amended and Restated By-Laws of the Company
3.5* Form of Articles Supplementary of the Company (for Preferred Stock)
3.6+++++ Amended and Restated Agreement of Limited Partnership of the
Operating Partnership
4.1++ Form of Common Stock Certificates
4.2* Form of Preferred Stock Certificate
4.3* Form of Warrant Agreement
4.4* Form of Deposit Agreement
4.5 Form of Indenture of the Operating Partnership
5.1 Opinion of Rogers & Wells
5.2 Opinion of Piper & Marbury L.L.P.
8+++++++ Opinion of Rogers & Wells Regarding Tax Matters
12 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Rogers & Wells with regard to Opinion included as
Exhibit 5.1 (included as part of Exhibit 5.1)
23.2 Consent of Piper & Marbury L.L.P. (included as part of Exhibit 5.2)
23.3 Consent of Coopers & Lybrand L.L.P.
23.4 Consent of Rogers & Wells with regard to Opinion included as
Exhibit 8
24 Power of Attorney (included on Page II-7)
II-9
<PAGE>
25* Statement of Eligibility of Trustee on Form T-1
- ----------
* To be filed by post-effective amendment to this Registration Statement
or pursuant to a Form 8-K to be filed after effectiveness by the
Company
+ Incorporated by reference to the Exhibits filed with the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1995 filed with the Commission on August 10, 1995 (Commission
File No. 1-12496)
++ Incorporated by reference to the Exhibits filed with the Company's
Registration Statement on Form S-11 filed with the Securities and
Exchange Commission on November 10, 1993 (Commission File No. 33-69150)
+++ Incorporated by reference to the Exhibits filed with the Company's
Current Report on Form 8-K, filed with the Commission on May 30, 1997
++++ Incorporated by reference to the Exhibits filed with the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1997, filed with the Commission on May 15, 1997 (Commission File No.
1-12496)
+++++ Incorporated by reference to the Exhibits filed with the Company's
Form S-4, filed with the Commission on December 24, 1996 (Commission
File No. 333-18807)
++++++ Incorporated by reference to the Exhibits filed with the Company's
Form S-8, filed with the Commission on June 5, 1997
+++++++ Incorporated by reference to the Exhibits filed with the Company's
Current Report on Form 8-K, filed with the Commission on June 24, 1997
II-10
<PAGE>
- ------------------------------------------------------------------------------
CP LIMITED PARTNERSHIP
Issuer
TO
[TRUSTEE]
Trustee
--------------------
Form of Indenture
Dated as of _____________, 199_
--------------------
Debt Securities
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
PARTIES.................................................................. 1
RECITALS OF THE ISSUER................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions............................................... 1
Act.................................................................. 2
Additional Amounts................................................... 2
Affiliate............................................................ 2
Annual Service Charge................................................ 2
Authenticating Agent................................................. 2
Authorized Newspaper................................................. 2
Bankruptcy Law....................................................... 2
Bearer Security...................................................... 2
Board of Directors................................................... 2
Board Resolution..................................................... 2
Business Day......................................................... 2
CEDEL................................................................ 3
Commission........................................................... 3
Conversion Event..................................................... 3
Corporate Trust Office............................................... 3
corporation.......................................................... 3
coupon............................................................... 3
Custodian............................................................ 3
Debt................................................................. 3
Defaulted Interest................................................... 4
Dollar or $.......................................................... 4
DTC.................................................................. 4
ECU.................................................................. 4
Euroclear............................................................ 4
European Communities................................................. 4
European Monetary System............................................. 4
Event of Default..................................................... 4
Foreign Currency..................................................... 4
GAAP................................................................. 4
General Partner...................................................... 4
Government Obligations............................................... 4
Holder............................................................... 5
Indenture............................................................ 5
Indexed Security..................................................... 5
Interest............................................................. 5
i
<PAGE>
Interest Payment Date................................................ 5
Issuer............................................................... 5
Issuer Request and Issuer Order...................................... 5
Maturity............................................................. 6
Officers' Certificate................................................ 6
Opinion of Counsel................................................... 6
Original Issue Discount Security..................................... 6
Outstanding.......................................................... 6
Paying Agent......................................................... 7
Person............................................................... 7
Place of Payment..................................................... 7
Predecessor Security................................................. 7
Redemption Date...................................................... 8
Redemption Price..................................................... 8
Registered Security.................................................. 8
Regular Record Date.................................................. 8
Repayment Date....................................................... 8
Repayment Price...................................................... 8
Responsible Officer.................................................. 8
Security............................................................. 8
Security Register and Security Registrar............................. 8
Significant Subsidiary............................................... 8
Special Record Date.................................................. 9
Stated Maturity...................................................... 9
Subsidiary........................................................... 9
Trust Indenture Act or TIA........................................... 9
Trustee.............................................................. 9
United States........................................................ 9
Unsecured Debt....................................................... 9
Yield to Maturity.................................................... 9
SECTION 102. Compliance Certificates and Opinions...................... 9
SECTION 103. Form of Documents Delivered to Trustee.................... 10
SECTION 104. Acts of Holders........................................... 11
SECTION 105. Notices, etc., to Trustee and Issuer...................... 12
SECTION 106. Notice to Holders; Waiver................................. 12
SECTION 107. Effect of Headings and Table of Contents.................. 13
SECTION 108. Successors and Assigns.................................... 14
SECTION 109. Separability Clause....................................... 14
SECTION 110. Benefits of Indenture..................................... 14
SECTION 111. Governing Law............................................. 14
SECTION 112. Legal Holidays............................................ 14
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities....................................... 14
SECTION 202. Form of Trustee's Certificate of Authentication........... 15
ii
<PAGE>
SECTION 203. Securities Issuable in Global Form........................ 15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series...................... 16
SECTION 302. Denominations............................................. 20
SECTION 303. Execution, Authentication, Delivery and Dating............ 20
SECTION 304. Temporary Securities...................................... 22
SECTION 305. Registration, Registration of Transfer and Exchange....... 24
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.......... 28
SECTION 307. Payment of Interest; Interest Rights Preserved............ 29
SECTION 308. Persons Deemed Owners..................................... 31
SECTION 309. Cancellation.............................................. 31
SECTION 310. Computation of Interest................................... 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................... 32
SECTION 402. Application of Trust Funds................................ 33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default......................................... 34
SECTION 502. Acceleration of Maturity; Rescission and Annulment........ 35
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................... 36
SECTION 504. Trustee May File Proofs of Claim.......................... 37
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons..................................... 38
SECTION 506. Application of Money Collected............................ 38
SECTION 507. Limitation on Suits....................................... 39
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts.......... 39
SECTION 509. Restoration of Rights and Remedies........................ 39
SECTION 510. Rights and Remedies Cumulative............................ 40
SECTION 511. Delay or Omission Not Waiver.............................. 40
SECTION 512. Control by Holders of Securities.......................... 40
SECTION 513. Waiver of Past Defaults................................... 40
SECTION 514. Waiver of Usury, Stay or Extension Laws................... 41
SECTION 515. Undertaking for Costs..................................... 41
ARTICLE SIX
THE TRUSTEE
iii
<PAGE>
SECTION 601. Notice of Defaults........................................ 41
SECTION 602. Certain Rights of Trustee................................. 42
SECTION 603. Not Responsible for Recitals or Issuance of Securities.... 43
SECTION 604. May Hold Securities....................................... 43
SECTION 605. Money Held in Trust....................................... 43
SECTION 606. Compensation and Reimbursement............................ 44
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests................................................. 44
SECTION 608. Resignation and Removal; Appointment of Successor......... 44
SECTION 609. Acceptance of Appointment by Successor.................... 46
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.................................................. 47
SECTION 611. Appointment of Authenticating Agent....................... 47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders.............. 49
SECTION 702. Reports by Trustee........................................ 49
SECTION 703. Reports by Issuer......................................... 49
SECTION 704. Issuer to Furnish Trustee Names and Addresses of
Holders................................................... 49
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Issuer and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions... 50
SECTION 802. Rights and Duties of Successor Corporation................ 50
SECTION 803. Officers' Certificate and Opinion of Counsel.............. 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders........ 51
SECTION 902. Supplemental Indentures with Consent of Holders........... 52
SECTION 903. Execution of Supplemental Indentures...................... 53
SECTION 904. Effect of Supplemental Indentures......................... 54
SECTION 905. Conformity with Trust Indenture Act....................... 54
SECTION 906. Reference in Securities to Supplemental Indentures........ 54
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts........................................ 54
SECTION 1002. Maintenance of Office or Agency........................... 55
iv
<PAGE>
SECTION 1003. Money for Securities Payments to Be Held in Trust......... 56
SECTION 1004. Existence................................................. 57
SECTION 1005. Payment of Taxes and Other Claims......................... 58
SECTION 1006. Provision of Financial Information........................ 58
SECTION 1007. Statement as to Compliance................................ 58
SECTION 1008. Additional Amounts........................................ 58
SECTION 1009. Waiver of Certain Covenants............................... 59
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................. 60
SECTION 1102. Election to Redeem; Notice to Trustee..................... 60
SECTION 1103. Selection by Trustee of Securities to Be Redeemed......... 60
SECTION 1104. Notice of Redemption...................................... 60
SECTION 1105. Deposit of Redemption Price............................... 62
SECTION 1106. Securities Payable on Redemption Date..................... 62
SECTION 1107. Securities Redeemed in Part............................... 63
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................. 63
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..... 63
SECTION 1203. Redemption of Securities for Sinking Fund................. 64
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.................................. 64
SECTION 1302. Repayment of Securities................................... 64
SECTION 1303. Exercise of Option........................................ 65
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable................................................... 65
SECTION 1305. Securities Repaid in Part................................. 66
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance......................... 67
SECTION 1402. Defeasance and Discharge.................................. 67
SECTION 1403. Covenant Defeasance....................................... 67
SECTION 1404. Conditions to Defeasance or Covenant Defeasance........... 68
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust;
v
<PAGE>
Other Miscellaneous Provisions............................ 69
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called................. 70
SECTION 1502. Call, Notice and Place of Meetings........................ 71
SECTION 1503. Persons Entitled to Vote at Meetings...................... 71
SECTION 1504. Quorum; Action............................................ 71
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings............................................... 72
SECTION 1506. Counting Votes and Recording Action of Meetings........... 73
vi
<PAGE>
CP Limited Partnership
Reconciliation and tie between Trust Indenture Act of 1939 (the "TIA") and
Indenture, dated as of _________, 199_
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1).................................. 607
(a)(2)..................................... 607
(b)........................................ 607, 608
Sec. 312(a)..................................... 704
Sec. 312(c)..................................... 701
Sec. 313(a)..................................... 702
(c)........................................ 702
Sec. 314(a)..................................... 1006
(a)(4)..................................... 1007
(c)(1)..................................... 102
(c)(2)..................................... 102
(e)........................................ 102
Sec. 315(b)..................................... 601
Sec. 316(a) (last sentence)..................... 101 ("Outstanding")
(a)(1)(A).................................. 502, 512
(a)(1)(B).................................. 513
(b)........................................ 508
Sec. 317(a)(1).................................. 503
(a)(2)..................................... 504
Sec. 318(a)..................................... 111
(c)........................................ 111
____________________
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.
vii
<PAGE>
INDENTURE, dated as of ______________, 199__, between CP Limited
Partnership, a Maryland limited partnership (the "Issuer"), having its principal
offices at 6430 South Quebec Street, Englewood, Colorado 80111 and [TRUSTEE], a
_______________ organized under the laws of ______________, as Trustee hereunder
(the "Trustee"), having its Corporate Trust Office at [ADDRESS].
RECITALS OF THE ISSUER
The Issuer deems it necessary to issue from time to time for its lawful
purposes debt securities (hereinafter called the "Securities") evidencing its
unsecured indebtedness, and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or formulas, to
mature at such times 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, 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 the
Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase 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 ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(ii) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein;
<PAGE>
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(iv) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Issuer in respect of certain taxes imposed on certain
Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the amount which is expensed
in any 12-month period for interest on Debt.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the General Partner or
any committee of such board of directors duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the General Partner to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Business Day," when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, any day, other than a 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.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
anytime after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties on such date.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at [ADDRESS].
"corporation" includes corporations, associations, partnerships, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Issuer or any Subsidiary means any indebtedness of the Issuer
or any Subsidiary, whether or not contingent, in respect of (i) borrowed money
or evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Issuer or any Subsidiary,
(iii) the reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the balance
deferred and unpaid of the purchase price of any property except any such
balance that constitutes an accrued expense or trade payable or (iv) any lease
of property by the Issuer or any Subsidiary as lessee which is reflected on the
Issuer's consolidated balance sheet as a capitalized lease in accordance with
GAAP, in the case of items of indebtedness under (i) through (iii) above to the
extent that any such items (other than letters of credit) would appear as a
liability on the Issuer's consolidated balance sheet in accordance with GAAP,
and also includes, to the extent not otherwise included, any obligation by the
Issuer or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), indebtedness of another person (other than the Issuer or any
Subsidiary) (it being understood that
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Debt shall be deemed to be incurred by the Issuer and its Subsidiaries on a
consolidated basis whenever the Issuer and its Subsidiaries on a consolidated
basis shall create, assume, guarantee or otherwise become liable in respect
thereof).
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent basis.
"General Partner" means Chateau Communities, Inc., as sole general partner
of the Issuer.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company
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as custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of any such Government Obligation held by
such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.
"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, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means 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 hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which 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 hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to 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.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1008, includes such
Additional Amounts.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the "Issuer" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor.
"Issuer Request" and "Issuer Order" mean, respectively, a written request
or order signed in the name of the Issuer by the General Partner's Chairman of
the Board, the President or a
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Vice President, and by the General Partner's Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, and delivered to the
Trustee.
"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 provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the General Partner's
Chairman of the Board of Directors, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Issuer or who may be an employee of or other counsel for the Issuer and
who shall be satisfactory to 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 a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"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, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated in trust by
the Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto; 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, except to the extent provided in Sections 1402
and 1403, with respect to which the Issuer has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 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 the
Issuer;
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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 or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Section 313 of the TIA, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Issuer, of the principal amount (or, in the
case of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Issuer or any other obligor upon the Securities or any Affiliate of the
Issuer 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 making such calculation or 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 so owned 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 the Issuer or any
other obligor upon the Securities or any Affiliate of the Issuer or of such
other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest, if any, on any Securities or
coupons on behalf of the Issuer.
"Person" means any individual, corporation, partnership, limited liability
company, 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, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
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"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, 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 above designated officers 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.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities 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 the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
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 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933) of the Issuer.
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"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"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.
"Subsidiary" means a corporation, partnership or limited liability company
a majority of the outstanding voting stock, partnership interests or membership
interests, as the case may be, of which is owned or controlled, directly or
indirectly, by the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock having voting
power for the election of directors, or trustees, as the case may be, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"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 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture 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; provided, however, that, if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary which is not
secured by any mortgage, lien, charge, pledge or security interest of any kind
upon any of the properties owned by the Issuer or any of its Subsidiaries.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application
or request by the Issuer to the Trustee to take any action under any provision
of this Indenture, the Issuer 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
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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 (including certificates delivered
pursuant to Section 1007) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. 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 as 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 of the General Partner may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
General Partner stating that the information as to such factual matters is in
the possession of the Issuer, unless such counsel knows that the certificate or
opinion or representations as 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.
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SECTION 104. 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. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(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 him 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 his 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 reasonable manner which the Trustee deems sufficient.
(C) The ownership of Registered Securities shall be proved by the Security
Register.
(D) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Issuer may assume that such ownership of any
Bearer Security continues until (i) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (ii) such
Bearer Security is produced to the Trustee by some other Person, (iii) such
Bearer Security is surrendered in exchange for a Registered Security or (iv)
such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
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(E) If the Issuer shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Issuer may, at its option, in or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Issuer shall have no obligation to do so. Notwithstanding Section
316(c) of the TIA, such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(F) 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 the Issuer in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Issuer. 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:
(i) the Trustee by any Holder or by the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at [ADDRESS]; Attention: [__________]; and
(ii) the Issuer 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 the Issuer addressed
to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Trustee by the Issuer.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Issuer or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered
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Securities 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 of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in New York City and
in such other city or cities as may be specified in such Securities on a
Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent, waiver or
other action required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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.
SECTION 107. 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.
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SECTION 108. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the laws of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but 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, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity; provided that
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons, and the form of any guarantee shall be in substantially the forms as
shall be established in one or more indentures supplemental hereto or approved
from time to time by or pursuant to a Board Resolution in accordance with
Section 301, shall have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture or any
indenture supplemental hereto, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Issuer may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law
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or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject to
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[TRUSTEE]
as Trustee
By ____________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (x) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Issuer Order to be delivered to the Trustee pursuant to Section 303 or
304. Subject to the provisions of Section 303 and, if applicable, Section 304,
the Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Issuer Order. If an Issuer Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Issuer with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Issuer and the Issuer delivers to the Trustee the
Security in global form together with written instructions
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(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Issuer, the Trustee and any agent of the Issuer and the
Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. Any Securities issued hereunder may be
unconditionally guaranteed by a guarantor to be named in an indenture
supplemental hereto as to payment of principal, premium, if any, and interest.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable, each of
which, if so provided, may be determined from time to time by the Issuer with
respect to unissued Securities of the series when issued from time to time:
(i) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(ii) the aggregate principal amount and any limit upon the aggregate
principal amount of the Securities of the series that may be authenticated
and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(iii) the percentage of the principal amount at which the
Securities of the series will be issued and, if other than the principal
amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of maturity thereof;
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(iv) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of the series shall
be payable;
(v) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall 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 Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(vi) the Place of Payment, if any, other than or in addition to the
Borough of Manhattan, New York City, where the principal of (and premium,
if any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer,
or exchange and notices or demands to or upon the Issuer in respect of the
Securities of the series and this Indenture may be served;
(vii) 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, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Issuer, if the Issuer is to have the option;
(viii) the obligation, if any, of the Issuer to redeem, repay or
purchase 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 Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(ix) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than denominations of $5,000 and any
integral multiple thereof, the denomination or denominations in which any
Bearer Securities of the series shall be issuable;
(x) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(xi) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
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(xii) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest, if
any, or Additional Amounts, if any, on the Securities of the series shall
be payable or in which the Securities of the series shall be denominated;
(xiii) whether 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 (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity
indices or other indices) and the manner in which such amounts shall be
determined;
(xiv) whether the principal of (and premium, if any) or interest,
if any, or Additional Amounts, if any, on the Securities of the series are
to be payable, at the election of the Issuer 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, and the terms and
conditions upon which, such election may be made, and the time and manner
of, and identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or currencies, currency
unit or units or composite currency or currencies in which such Securities
are denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(xv) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(xvi) any deletions from, modifications of or additions to the
Events of Default or covenants of the Issuer with respect to Securities of
the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(xvii) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a global
Security, the identity of the depositary for such series;
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(xviii) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(xix) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than 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, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(xx) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen;
(xxi) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(xxii) 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;
(xxiii) if the Securities of the series are subordinated in right of
payment to any other class or classes of Debt of the Issuer, the terms and
conditions of such subordination;
(xxiv) if the Securities of the series are to be guaranteed, the
terms and conditions of such guarantee;
(xxv) whether and under what circumstances the Issuer will pay
Additional Amounts as contemplated by Section 1008 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Issuer will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option); and
(xxvi) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to
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denomination and except as may otherwise be provided in or pursuant to such
Board Resolution (subject to Section 303) and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. All Securities of
any 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, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the General Partner and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in denominations of $5,000
and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Issuer by the General Partner's Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon, and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the General Partner
shall bind the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Issuer Order
shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
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the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if
the Board Resolution or supplemental indenture establishing such series shall so
permit, such Issuer Order may set forth procedures acceptable to the Trustee for
the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. 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 315(a) through 315(d) of the TIA) shall be fully protected
in relying upon;
(i) an Opinion of Counsel stating that:
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Issuer to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Issuer in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Issuer, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights generally and to general equitable principles;
and
(ii) 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 best of 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 such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's
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own rights, duties, obligations or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or an Issuer Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, 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
shall have been authenticated and delivered hereunder but never issued and sold
by the Issuer, and the Issuer shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Issuer, 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 304. Temporary Securities. (A) Pending the preparation of
definitive Securities of any series, the Issuer may execute, and upon Issuer
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, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(B) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Issuer 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 the Issuer 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
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(accompanied by any nonmatured coupons appertaining thereto), the Issuer 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; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
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.
(B) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(B) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary global Security shall,
unless otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL, for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Issuer. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his
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behalf and delivers to Euroclear or CEDEL, as the case may be, a certificate
in the form set forth in Exhibit A-1 to this Indenture (or in such other form
as may be established pursuant to Section 301), dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be available
from the offices of Euroclear and CEDEL, the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying Agent. Unless
otherwise specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must
bear the cost of insurance, postage, transportation and the like unless such
Person takes delivery of such definitive Securities in person at the offices
of Euroclear or CEDEL. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(B) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Issuer.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Issuer shall cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency of the Issuer in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Issuer in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of
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Registered Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby appointed "Security Registrar" for the
purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that
the Trustee shall cease to be Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Issuer in a Place of Payment for that series, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denomination or denominations
and of a like aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any such Registered Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Issuer in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Issuer and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business
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at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the
case may be, and interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Issuer or to a nominee of such
successor to DTC. If at any time DTC notifies the Issuer that it is unwilling
or unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act if so required by applicable law or regulation, the Issuer
shall appoint a successor depositary with respect to such global Security or
Securities. If (i) a successor depositary for such global Security or
Securities is not appointed by the Issuer within 90 days after the Issuer
receives such notice or becomes aware of such unwillingness, inability or
ineligibility, (ii) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable
series of Securities represented by such global Security or Securities advise
DTC to cease acting as depositary for such global Security or Securities or
(iii) the Issuer, in its sole discretion, determines at any time that all
Outstanding Securities (but not less than all) of any series issued or issuable
in the form of one or more global Securities shall no longer be represented by
such global Security or Securities, then the Issuer shall execute, and the
Trustee shall authenticate and deliver, definitive Securities of like series,
rank, tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such global Security or Securities. If any
beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Issuer shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered for exchange by DTC or such other depositary as shall be specified
in the Issuer Order with respect thereto to the Trustee, as the Issuer's agent
for such purpose; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
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Securities to be redeemed and ending on the relevant Redemption Date if the
Security for which exchange is requested may be among those selected for
redemption; and provided further that no Bearer Security delivered in exchange
for a portion of a permanent global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a permanent global Security (i) after the
close of business at the office or agency where such exchange occurs on any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date or (ii) after the close of business at the
office or agency where such exchange occurs on any Special Record Date and the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, 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 Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Issuer or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer 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 304, 906, 1107 or 1305 not involving any transfer.
The Issuer or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
1103 and ending at the close of business on (a) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (b) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, (ii) to register
the transfer of or exchange any Registered Security so selected for redemption
in whole or in part, except, in the case of any Registered Security to be
redeemed in part, the portion thereof not to be redeemed, (iii) to exchange any
Bearer Security so selected for redemption except that such a Bearer Security
may be exchanged for a Registered Security of that series and like tenor;
provided that such Registered Security shall be simultaneously
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surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option
of the Holder, except the portion, if any, of such Security not to be so
repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Issuer, together with, in proper cases, such
security or indemnity as may be required by the Issuer or the Trustee to hold
each of them or any agent of either of them harmless, the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Issuer and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to hold
each of them and any agent of either of them harmless, then, in the absence of
notice to the Issuer or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Issuer shall execute and upon its request
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Issuer in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer 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 with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security and its coupons,
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if any, or the destroyed, lost or stolen coupon 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 and their coupons, if any, 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 or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that 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 at the office or agency of the Issuer maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the Issuer's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 308, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency where such exchange occurs) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Issuer, at its election in each case, as
provided in clause (i) or (ii) below:
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(i) the Issuer may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered 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. The Issuer shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Issuer shall deposit
with the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) 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 on or 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 provided in this clause. Thereupon, the Trustee 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. The Trustee shall promptly notify
the Issuer of such Special Record Date and, in the name and at the expense
of the Issuer, 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 Registered Securities of such series at
his address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion, in
the name and at the expense of the Issuer, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the Registered 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 (ii). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture; or
(ii) the Issuer may make payment of any Defaulted Interest on the
Registered 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 the Issuer to the Trustee
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of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of, 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.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Issuer, the Trustee and
any agent of the Issuer or the Trustee may treat the Person in whose name such
Registered 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
Sections 305 and 307) interest, if any, on, such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security be overdue,
and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Issuer, the
Trustee nor any agent of the Issuer or the Trustee shall be affected by notice
to the contrary.
None of the Issuer, 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 of a Security
in global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it;
provided, however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the Securities to the
Trustee. The Issuer may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and may deliver to the Trustee
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(or to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Issuer has not issued
and sold, and all Securities so delivered shall be promptly cancelled by the
Trustee. If the Issuer shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. 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.
Cancelled Securities and coupons held by the Trustee shall be destroyed by
the Trustee and the Trustee shall deliver a certificate of such destruction
to the Issuer, unless by an Issuer Order the Issuer directs their return to
it.
SECTION 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of 12 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Issuer Request cease to be of further effect with respect to any
series of Securities specified in such Issuer Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1008), and the Trustee, upon receipt of an
Issuer Order, and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when
(i) either
(a) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee
for cancellation; or
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(b) all Securities of such series and, in the case of (1) or (2)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at their Stated Maturity
within one year, or
(3) if redeemable at the option of the Issuer, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuer,
and the Issuer, in the case of (1), (2) or (3) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies,
currency unit or units or composite currency or currencies in which
the Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such coupons
not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, and any
Additional Amounts with respect thereto, to the date of such deposit
(in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(ii) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(iii) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Issuer to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (b) of clause (i) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and interest, if any,
and Additional Amounts for whose payment such money has been deposited with or
received by the
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Trustee, but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used herein
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) default in the payment of any interest on or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days;
(ii) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity;
(iii) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series;
(iv) default in the performance, or breach, of any covenant or
warranty of the Issuer 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 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 the Issuer
by the Trustee or to the Issuer and the Trustee 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;
(v) default under any evidence of recourse indebtedness of the
Issuer, or under any mortgage, indenture or other instrument of the Issuer
(including a default with respect to Securities of any series other than
that series) under which there may be issued or by which there may be
secured any recourse indebtedness of the Issuer (or by any Subsidiary, the
repayment of which the Issuer has guaranteed or for which the Issuer is
directly responsible or liable as obligor or guarantor), whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount exceeding
$__________ of such indebtedness when due and payable after the expiration
of any applicable grace period with respect thereto and shall have resulted
in such indebtedness in an aggregate principal amount exceeding $__________
becoming or being declared due and payable prior to the date on which it
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would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or
annulled, within a period of 10 days after there shall have been given, by
registered or certified mail, to the Issuer by the Trustee or to the Issuer
and the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default and requiring the Issuer to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder;
(vi) the Issuer or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case,
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(d) makes a general assignment for the benefit of its creditors;
(vii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that remains unstayed and in effect for 90 days,
and:
(a) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case,
(b) appoints a Custodian of the Issuer or any Significant
Subsidiary or for all or substantially all of either of its property,
or
(c) orders the liquidation of the Issuer or any Significant
Subsidiary; or
(viii) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11 of the
United States Code or any similar Federal or State law for the relief of debtors
and the term "Custodian" means any receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any
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Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Issuer (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
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 provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay in the currency or currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(a) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(b) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities,
(c) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(ii) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or
interest, if any, on Securities of that series which have become due solely
by such declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer covenants that if:
(i) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related
coupon when such
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interest or Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(ii) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity,
then the Issuer will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, and Additional Amounts, with interest
upon any overdue principal (and premium, if any) and, to the extent that payment
of such interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Issuer 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, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon such Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Issuer or any other obligor upon such Securities
of such series, 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 and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effective 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 504. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or any other obligor upon the Securities or the property of the
Issuer 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 or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
overdue principal, premium, if any, or interest, if any) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of
principal (and premium, if any) and interest, if any, and Additional
Amounts, if any, owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim
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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
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons 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 and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, if any, and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, 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 and any
predecessor Trustee under Section 606;
SECOND: to the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest, if
any, and any Additional Amounts payable, 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 aggregate amounts due and payable
on such Securities and coupons for principal (and premium, if any),
interest and Additional Amounts, respectively; and
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THIRD: to the payment of the remainder, if any, to the Issuer.
SECTION 507. Limitation on Suits. No Holder of any Security of any
series or any related coupon 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:
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(ii) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) 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 whatsoever by virtue of, or by availing to, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts. Notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have
the right which is absolute and unconditional to receive payment of the
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest, if any, on, and any Additional Amounts in respect of, such Security or
payment of such coupon on the respective due dates expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon 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, the Issuer, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
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proceeding, 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 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not less
than 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:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(iii) the Trustee need not take any action which might involve it
in personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. 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 and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default:
(i) in the payment of the principal of (or premium, if any) or
interest on, or Additional Amounts payable in respect of, any Security of
such series or any related coupons; or
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(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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 Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Issuer
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 usury, 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 the Issuer (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.
SECTION 515. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the 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, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest,
if any, on any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in Section 313(c) of the
TIA, notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest,
if any, on or any Additional Amounts with respect to any Security 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
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Holders of the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character specified in
Section 501(iv) with respect to the Securities and coupons of such series, no
such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
Section 315(a) through 315(d) of the TIA:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Trustees may be sufficiently evidenced by a
Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(v) 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 or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
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the books, records and premises of the Issuer, personally or by agent or
attorney following reasonable notice to the Issuer;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(viii) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
The Trustee shall not be required 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.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Issuer, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Issuer of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Issuer, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to Sections 310(b) and 311 of the TIA, may
otherwise deal with the Issuer with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar, Authenticating Agent or such other
agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Issuer.
<PAGE>
SECTION 606. Compensation and Reimbursement. The Issuer agrees:
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(iii) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(vi) or Section 501(vii), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Issuer under this
Section, the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of (or premium, if any) or interest, if any, on
particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the TIA and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation 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 the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor. (A)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this
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Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
609.
(B) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Issuer. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(C) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the
Issuer.
(D) If at any time:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the TIA after written request therefor by the Issuer or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(ii) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Issuer or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities or (ii) subject to Section 315(e) of the TIA, any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(E) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Issuer, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such
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appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Issuer. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Issuer or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(F) The Issuer shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (A) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Issuer and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Issuer or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
606.
(B) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustee's co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
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trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Issuer or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(C) Upon request of any such successor Trustee, the Issuer shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (A) or (B) of this Section, as the case may be.
(D) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee 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 Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding, 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 or
repayment thereof, 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. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Issuer.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Issuer and shall at all times be
a bank or trust company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any State or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital
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and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, 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. In case at
any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
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 such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Issuer. The Trustee for any series of Securities may at any time terminate
the agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[TRUSTEE]
as Trustee
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By:____________________________,
as Authenticating Agent
By:_____________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder
of Securities or coupons, by receiving and holding the same, agrees with the
Issuer and the Trustee that neither the Issuer nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with Section 312 of the
TIA, 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 312(b) of the TIA.
SECTION 702. Reports by Trustee. Within 60 days after [May 15] of each
year commencing with the first [May 15] after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of the TIA a brief report dated as of
such [May 15] if required by Section 313(a) of the TIA.
SECTION 703. Reports by Issuer. The Issuer will:
(i) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Issuer with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(ii) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 313(c) of the TIA, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
Section 1006 and paragraph (i) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
SECTION 704. Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(i) semiannually, not later than 15 days after the Regular Record Date for
interest for each series of Securities, a list, in such form as the Trustee may
reasonably require, of the
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names and addresses of the Holders of Registered Securities of such series as of
such Regular Record Date, or if there is no Regular Record Date for interest for
such series of Securities, semiannually, upon such dates as are set forth in the
Board Resolution or indenture supplemental hereto authorizing such series, and
(ii) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Issuer 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 the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Issuer and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. The Issuer 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 in any such case, (i)
either the Issuer shall be the continuing corporation, or the successor
corporation shall be a corporation organized and existing under the laws of the
United States or a State thereof and such successor corporation shall expressly
assume the due and punctual payment of the principal of (and premium, if any)
and any interest (including all Additional Amounts, if any, payable pursuant to
Section 1008) on all of the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Issuer by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation and (ii) immediately after giving
effect to such transaction and treating any indebtedness which becomes an
obligation of the Issuer or any Subsidiary as a result thereof as having been
incurred by the Issuer or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or the lapse of time, or
both, would become an Event of Default, shall have occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any Securities which
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such successor corporation thereafter shall cause to be signed and delivered
to the Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Issuer, when authorized
by or pursuant to a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another Person to the Issuer and
the assumption by any such successor of the covenants of the Issuer herein
and in the Securities contained;
(ii) to add to the covenants of the Issuer 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 the
Issuer;
(iii) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely for
the benefit of such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may
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limit the right of the Holders of a majority in aggregate principal
amount of that or those series of Securities to which such additional
Events of Default apply to waive such default;
(iv) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect;
(v) 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;
(vi) to secure the Securities;
(vii) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301;
(viii) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee;
(ix) 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
the provisions of this Indenture; provided such provisions shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(x) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Issuer and the Trustee, the Issuer, when authorized by
or pursuant to a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of
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adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(i) 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 principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any obligation of
the Issuer to pay Additional Amounts pursuant to Section 1008 (except as
contemplated by Section 801(i) and permitted by Section 901(i)), 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 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, 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 or repayment at the option of the Holder, on
or after the Redemption Date or the Repayment Date, as the case may be);
(ii) 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 reduce the requirements of
Section 1504 for quorum or voting; or
(iii) modify any of the provisions of this Section, Section 513 or
Section 1009, 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.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the
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modification thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, 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 Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 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 the Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts. The Issuer covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest, if any, on and any Additional
Amounts payable in respect of the Securities of that series in accordance with
the terms of such series of Securities, any coupons appertaining thereto and
this Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1008 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Issuer, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
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SECTION 1002. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Issuer shall 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 and where notices and demands to or upon the Issuer in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Issuer will maintain: (i) in the
Borough of Manhattan, New York City, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Issuer in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise); (ii)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1008); provided, however, that if
the Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Issuer will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (iii) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United States
an office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Issuer in
respect of the Securities of that series and this Indenture may be served. The
Issuer will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Issuer 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, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1008) at the offices specified in the Security, in London, England, and
the Issuer hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Issuer hereby appoints
the Trustee its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Issuer in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1008) shall be made at the office of the designated agent of
the Issuer's Paying Agent in the
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Borough of Manhattan, New York City, if (but only if) payment in Dollars of
the full amount of such principal, premium, interest or Additional Amounts,
as the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Issuer in accordance with this Indenture,
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Issuer may 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 of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Issuer 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. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Issuer hereby designates as a Place of Payment for each series of Securities
the office or agency of the Issuer in the Borough of Manhattan, New York City,
and initially appoints the Trustee at its Corporate Trust Office as Paying Agent
in such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Issuer
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If the
Issuer shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, on or before each due date
of the principal of (and premium, if any), or interest on or Additional Amounts
in respect of, any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts 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 the Issuer shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, before each due date of the
principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium, if any) or interest or Additional Amounts, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.
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The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(i) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities or Additional Amounts 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;
(ii) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium, if any) or interest or Additional Amounts; and
(iii) 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.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer 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 sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of (and premium, if any) or interest, if
any, on, or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
interest or Additional Amounts has become due and payable shall be paid to the
Issuer upon Issuer Request or (if then held by the Issuer) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment of such
principal of (and premium, if any) or interest, if any, on, or any Additional
Amounts in respect of, any Security, without interest thereon, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuer 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 the Issuer cause to be published once,
in an Authorized Newspaper, 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 the Issuer.
SECTION 1004. Existence. Subject to Article Eight, the Issuer will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; provided, however, that the Issuer
shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer
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desirable in the conduct of the business of the Issuer and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Issuer or any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Issuer or any Subsidiary; provided, however, that the Issuer 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 1006. Provision of Financial Information. Whether or not the
Issuer is subject to Section 13 or 15(d) of the Exchange Act and for so long as
any Securities are outstanding, the Issuer will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports
and other documents which the Issuer would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the "Financial Statements") if
the Issuer were so subject, such documents to be filed with the Commission on or
prior to the respective dates (the "Required Filing Dates") by which the Issuer
would have been required so to file such documents if the Issuer were so
subject.
The Issuer will also in any event (i) within 15 days of each Required
Filing Date (a) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders copies of the
annual reports and quarterly reports which the Issuer would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Issuer were subject to such Sections and (b) file with the Trustee copies
of the annual reports, quarterly reports and other documents which the Issuer
would have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Issuer were subject to such Sections and (ii)
if filing such documents by the Issuer with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder.
SECTION 1007. Statement as to Compliance. The Issuer will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the General Partner's principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Issuer's compliance with all conditions and covenants under this Indenture and,
in the event of any noncompliance, specifying such noncompliance and the nature
and status thereof. For purposes of this Section 1007, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1008. Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts, the Issuer will pay to the Holder of any
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 301. Whenever in this Indenture
there is mentioned, in any context except in the case of Section 502(i), the
payment of the principal of or any premium or interest on, or in respect
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of, any Security of any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section
301 to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms and express
mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Issuer will furnish the
Trustee and the Issuer's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Issuer will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The Issuer
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Issuer's
not furnishing such an Officers' Certificate.
SECTION 1009. Waiver of Certain Covenants. The Issuer may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1009, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Issuer and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. 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
301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
Issuer to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuer of less
than all of the Securities of any series, the Issuer shall, at least 45 days
prior to the giving of the notice of redemption in Section 1104 (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, the Issuer shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of any series issued on the same day with the same terms
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 issued on such date with the same terms
not previously called for redemption, by 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 minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Issuer and the Security Registrar (if
other than itself) 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 Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption
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as a whole or in part, or any defect in the notice to any such Holder, shall
not affect the validity of the proceedings for the redemption of any other
such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(iii) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(iv) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(v) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(vi) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(vii) that the redemption is for a sinking fund, if such is the
case,
(viii) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Issuer, the Trustee for such series and any Paying
Agent is furnished,
(ix) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Issuer, on which such exchanges may be
made, and
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(x) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
SECTION 1105. Deposit of Redemption Price. At least one Business Day
prior to any Redemption Date, the Issuer shall deposit with the Trustee or with
a Paying Agent (or, if the Issuer is acting as its own Paying Agent, which it
may not do in the case of a sinking fund payment under Article Twelve, segregate
and hold in trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. 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 in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Issuer shall default in the payment of
the Redemption Price and accrued interest) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Issuer at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that installments of interest on
Registered Securities 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
307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Issuer and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to
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receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation
and surrender of those coupons.
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 borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security which
is to be redeemed only in part (pursuant to the provisions of this Article or of
Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Issuer 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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 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 such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. 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.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The
Issuer may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (i) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (ii) apply as a credit Securities of such
series which have been redeemed either at the election of the Issuer pursuant to
the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Issuer; provided that such Securities so delivered or applied as
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a credit have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for Securities of any series, the
Issuer will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Issuer shall thereupon be obligated to pay the amount
therein specified. Not less than 30 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 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Issuer in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Issuer covenants that at least one Business Day prior to the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and
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(except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to
be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Issuer shall from time to time notify the Holders of such
Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (i) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc., or
a commercial bank or trust company in the United States setting forth the name
of the Holder of the Security, the principal amount of the Security, the
principal amount of the Security to be repaid, the CUSIP number, if any, or a
description of the tenor and terms of the Security, a statement that the option
to elect repayment is being exercised thereby and a guarantee that the Security
to be repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Issuer.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Issuer on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Issuer shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Issuer, together with accrued
interest, if
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any, to the Repayment Date; provided, however, that coupons whose Stated
Maturity is on or prior to the Repayment Date shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and provided
further that, in the case of Registered Securities, installments of interest,
if any, whose Stated Maturity is on or prior to the Repayment Date shall be
payable (but without interest thereon, unless the Issuer shall default in the
payment thereof) 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
307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Issuer and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any Registered
Security which is to be repaid in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Issuer, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
made for either or both of (i) defeasance of the Securities of or within a
series under Section 1402 or (ii) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Issuer may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Issuer shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (i) and (ii) below, and to have satisfied all of its
other obligations under such Securities and any coupons appertaining thereto and
this Indenture insofar as such Securities and any coupons appertaining thereto
are concerned (and the Trustee, at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (ii) the Issuer's obligations with respect
to such Securities under Sections 305, 306, 1002 and 1003 and with respect to
the payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1008, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article. Subject to compliance with this
Article Fourteen, the Issuer may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Issuer shall be released from its obligations under
Sections 1004 to 1009, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities
<PAGE>
and any coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1009, inclusive, or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Issuer may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein
to any such Section or such other covenant or by reason of reference in any
such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or
an Event of Default under Section 501(iv) or 501(viii) or otherwise, as the
case may be, but, except as specified above, the remainder of this Indenture
and such Securities and any coupons appertaining thereto shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(i) The Issuer shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 607
who shall agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (i) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, (ii) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and interest, if any,
on such Securities and any coupons appertaining thereto, money in an amount, or
(iii) a combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, 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,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any) and interest, if any,
on such Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or interest and
(ii) any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining thereto.
(ii) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Issuer is a party or by which it
is bound.
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(iii) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities and any
coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(vi) and 501(vii) are concerned, at
any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(iv) In the case of an election under Section 1402, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(v) In the case of an election under Section 1403, the Issuer shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(vi) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (a) as a result of a deposit pursuant to
subsection (i) above and the related exercise of the Issuer's option under
Section 1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Issuer, with
respect to the trust funds representing such deposit or by the Trustee for such
trust funds or (b) all necessary registrations under said Act have been
effected.
(vii) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Issuer in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or
<PAGE>
through any Paying Agent (including the Issuer acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and
any coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds
except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(i) has been made, (i) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency or currency unit other than that in which the deposit
pursuant to Section 1404(i) has been made in respect of such Security or (ii) a
Conversion Event occurs in respect of the currency or currency unit in which the
deposit pursuant to Section 1404(i) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such currency
or currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such currency or currency
unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Issuer from time to time
upon Issuer Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent,
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waiver or other action provided by this Indenture to be made, given or taken
by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (A) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at such place in the
Borough of Manhattan, New York City, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of 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, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(B) In case at any time the Issuer, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Issuer or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, New York City, or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection A. of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(i) a Holder of one or more Outstanding Securities of such series or (ii) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Issuer and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at the reconvening of any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(A), except that
such notice
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<PAGE>
need be given only once not less than five days prior to the date on which
the meeting is scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (A) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of 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 deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner
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<PAGE>
specified in Section 104 or by having the signature of the Person executing
the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer Securities.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(B) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Holders of Securities as provided in Section 1502(B), in which case the
Issuer or the Holders of Securities of the series 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 vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(C) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, 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, except as
a Holder of a Security of such series or proxy.
(D) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series 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, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series 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 fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Issuer and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
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* * * * *
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
74
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CP LIMITED PARTNERSHIP
By:____________________________________
Name:
Title:
[TRUSTEE]
as Trustee
By:____________________________________
Name:
Title:
Attest:
___________________
Name:
Title:
Attest:
___________________
Name:
Title:
75
<PAGE>
STATE OF ___________ )
) ss:
COUNTY OF __________ )
On the _____ day of ____________ 199_, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _____________________________________, that he/she is
________________ of Chateau Communities, Inc., one of the general partners of CP
Limited Partnership, which is one of the parties described in and which executed
the foregoing instrument, and that he/she signed his/her name thereto by
authority the Board of Trustees.
[Notarial Seal]
_______________________________________
Notary Public
COMMISSION EXPIRES
76
<PAGE>
STATE OF ____________ )
) ss:
COUNTY OF ____________ )
On the _____ day of ____________ 199_, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _____________________________________, that he/she is
________________ of [TRUSTEE], one of the parties described in and which
executed the foregoing instrument, and that he/she signed his/her name thereto
by authority of the Board of Directors.
[Notarial Seal]
_______________________________________
Notary Public
COMMISSION EXPIRES
77
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise CP Limited Partnership or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not
A-1
<PAGE>
correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to U.S.$ _______________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________________, 19__
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
_________________________________________________
(Authorized Signatory)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _______________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise CP Limited Partnership
or its agent that such financial institution will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations
A-3
<PAGE>
with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _____________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[ ]
as Operator of the Euroclear System [CEDEL S.A.]
By:______________________________________________
A-4
<PAGE>
EXHIBIT 5.1
August 8, 1997
Chateau Communities, Inc.
CP Limited Partnership
6430 South Quebec Street
Englewood, Colorado 80111
Ladies and Gentlemen:
We have acted as special counsel to Chateau Communities, Inc., a
Maryland corporation (the "Company"), and CP Limited Partnership, a Maryland
limited partnership (the "Partnership"), in connection with the Company's and
the Partnership's registration statement on Form S-3 (Registration Numbers
333-4544 and 333-4544-01)(as the same may be amended or supplemented from time
to time, the "Registration Statement"), including the prospectus included
therein at the time the Registration Statement is declared effective (the
"Prospectus"), filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), for
offering (i) by the Company from time to time of up to $200,000,000 aggregate
initial offering price of (a) shares of common stock, par value $0.01 per share
(the "Common Stock"); (b) warrants to purchase Common Stock (the "Common Stock
Warrants"); and (c) shares or fractional shares of preferred stock, par value
$0.01 per share (the "Preferred Stock"), which may be issued in the form of
depositary shares (the "Depositary Shares") evidenced by depositary receipts
(the "Depositary Receipts"); and (ii) by the Partnership from time to time of up
to $100,000,000 aggregate initial offering price of debt securities (the "Debt
Securities") which may be guaranteed by unconditional and irrevocable guarantees
thereof by the Company (the "Guarantees"). The Debt Securities, the Common
Stock, the Common Stock Warrants, the Preferred Stock, the Depositary Shares and
the Guarantees are collectively referred to as the "Securities." The
<PAGE>
Chateau Communities, Inc. 2 August 8, 1997
CP Limited Partnership
Registration Statement provides that the Securities may be offered separately
or together, in separate series, in amounts, at prices and on terms to be set
forth in one or more supplements to the Prospectus (each, a "Prospectus
Supplement"). This opinion is being provided at your request in connection
with the filing of the Registration Statement.
The Debt Securities will be issued from time to time pursuant to an
indenture in substantially the form included in the Registration Statement as
Exhibit 4.5 (the "Indenture"). The Common Stock Warrants will be issued under
one or more warrant agreements (each, a "Warrant Agreement"), each to be between
the Company and a financial institution identified therein as warrant agent
(each, a "Warrant Agent"). The Depositary Shares will be issued under one or
more deposit agreements (each, a "Deposit Agreement"), each to be between the
Company and a financial institution identified therein as depositary (each, a
"Depositary"). The Guarantees will be evidenced by an agreement or other
instrument of the Company (each, a "Guaranty Agreement") to be issued with the
related issuance of the Debt Securities.
In rendering the opinions expressed herein, we have examined the
Registration Statement, the Indenture, the Company's Articles of Amendment and
Restatement (the "Charter") and Bylaws, the Partnership's Agreement of Limited
Partnership, as amended (the "Partnership Agreement"), and Certificate of
Limited Partnership, and certain minutes of corporate proceedings and/or written
consents of the Company's Board of Directors. We have also examined and relied
as to factual matters upon the representations, warranties and other statements
contained in originals or copies, certified or otherwise identified to our
satisfaction, of such records, documents, certificates and other instruments as
in our judgment are necessary or appropriate to enable us to render the opinions
expressed below.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the authenticity of all documents, certificates
and instruments submitted to us as originals and the conformity with originals
of all documents submitted to us as copies.
We assume that (i) prior to the issuance of any shares of Common Stock
or Preferred Stock (or Securities convertible into shares of Common Stock or
Preferred Stock), there will exist, under the Charter, the requisite number of
authorized but unissued shares of Common Stock or Preferred Stock, as the case
may be; and (ii)
<PAGE>
Chateau Communities, Inc. 3 August 8, 1997
CP Limited Partnership
appropriate certificates representing shares of Common Stock or Preferred
Stock, as the case may be, will be executed and delivered upon issuance and
sale of any such shares, and will comply with all applicable requirements of
Maryland law.
We assume that the issuance, sale, amount and terms of the Securities
to be offered from time to time will be authorized and determined by proper
action of the Board of Directors of the Company or by the Board of Directors of
the Company as the general partner of the Partnership, as the case may be, in
accordance with the parameters described in the Registration Statement (each, a
"Board Action") and in accordance with the Charter, the Partnership Agreement,
the Indenture or any applicable Supplemental Indenture, as the case may be, and
applicable Maryland law.
To the extent that the obligations of the Partnership under any
Indenture may be dependent upon such matters, we assume for purposes of this
opinion that the financial institution identified in such Indenture as trustee
(the "Trustee") is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization; that the Trustee is duly qualified
to engage in the activities contemplated by such Indenture; that such Indenture
has been duly authorized, executed and delivered by the Trustee and constitutes
the legally valid and binding obligation of the Trustee enforceable against the
Trustee in accordance with its terms; that the Trustee is in compliance,
generally, with respect to acting as a trustee under such Indenture, with all
applicable laws and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
such Indenture.
To the extent that the obligations of the Company under a Warrant
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the Warrant Agent is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Warrant
Agent is duly qualified to engage in the activities contemplated by the Warrant
Agreement; that the Warrant Agreement has been duly authorized, executed and
delivered by the Warrant Agent and constitutes the legally valid and binding
obligation of the Warrant Agent enforceable against the Warrant Agent in
accordance with its terms; that the Warrant Agent is in compliance, generally,
with respect to acting as Warrant Agent under the Warrant Agreement, with all
applicable laws and regulations; and that the Warrant Agent has the requisite
organizational and legal power and authority to perform its obligations under
the Warrant Agreement.
<PAGE>
Chateau Communities, Inc. 4 August 8, 1997
CP Limited Partnership
To the extent that the obligations of the Company under a Deposit
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the Depositary is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Depositary
is duly qualified to engage in the activities contemplated by the Deposit
Agreement; that the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes the legally valid and binding
obligation of the Depositary enforceable against the Depositary in accordance
with its terms; that the Depositary is in compliance, generally, with respect to
acting as Depositary under the Deposit Agreement, with all applicable laws and
regulations; and that the Depositary has the requisite organizational and legal
power and authority to perform its obligations under the Deposit Agreement.
Based upon the foregoing, and such examination of law as we have
deemed necessary, we are of the opinion that:
1. Upon approval of the Indenture by all necessary Board Action, and when
executed and delivered by the Partnership in accordance with such
Board Action, and assuming due authorization, execution and delivery
by the Trustee, the Indenture will constitute a valid and binding
obligation of the Partnership.
2. When the Registration Statement has become effective under the Act and
the Debt Securities have been (a) duly established by the Indenture or
a Supplemental Indenture, (b) duly authenticated by the Trustee, and
(c) duly executed and delivered on behalf of the Partnership against
payment therefor in accordance with the terms and provisions of the
applicable Board Action, the Indenture, any applicable Supplemental
Indenture and as contemplated by the Registration Statement, the
Prospectus or the applicable Prospectus Supplement and, if applicable,
an underwriting agreement relating to the issuance of such Debt
Securities, the Debt Securities will be duly authorized and will
constitute valid and binding obligations of the Company.
3. When the Registration Statement has become effective under the Act and
a series of the Preferred Stock has been duly authorized and
established in accordance with the applicable Board Action, the terms
of the Charter and applicable Maryland law, and upon payment for such
shares
<PAGE>
Chateau Communities, Inc. 5 August 8, 1997
CP Limited Partnership
(a) in the manner contemplated by the applicable Board Action, the
Registration Statement, the Prospectus or the applicable Prospectus
Supplement and, if applicable, an underwriting agreement relating to
the issuance of such Preferred Stock, or (b) pursuant to the
exchange of validly issued and fully paid Depositary Shares in
accordance with the terms of an applicable valid and binding Deposit
Agreement, such shares of Preferred Stock issued thereby will be
duly authorized, validly issued, fully paid and non-assessable.
4. When the Registration Statement has become effective under the Act,
the Depositary Shares have been duly authorized and established in
accordance with the applicable Board Action, and the Depositary
Receipts in the form contemplated and authorized by a Deposit
Agreement have been duly executed and delivered by the Depositary and
delivered to and paid for by the purchasers thereof in the manner
contemplated by such Board Action, the Registration Statement, the
Prospectus or the applicable Prospectus Supplement and, if applicable,
an underwriting agreement relating to the issuance of such Depositary
Shares, such Depositary Shares will be validly issued and will entitle
the holders thereof to the rights specified in the Depositary Receipts
and such Deposit Agreement.
5. When the Registration Statement has become effective under the Act,
the Common Stock Warrants have been (a) duly established by the
related Warrant Agreement and (b) duly authenticated by the Warrant
Agent and duly authorized and established by the applicable Board
Action, and warrant certificates representing the Common Stock
Warrants have been duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms and
provisions of the applicable Board Action, the Warrant Agreement and
as contemplated by the Registration Statement, the Prospectus or the
applicable Prospectus Supplement and, if applicable, an underwriting
agreement relating to the issuance of such Common Stock Warrants, the
Common Stock Warrants will be duly authorized and will constitute
valid and binding obligations of the Company.
6. When the Registration Statement has become effective under the Act and
payment for such shares of Common Stock
<PAGE>
Chateau Communities, Inc. 6 August 8, 1997
CP Limited Partnership
has been made (a) in the manner contemplated by the applicable Board
Action, the Registration Statement, the Prospectus or the applicable
Prospectus Supplement and, if applicable, an underwriting agreement
relating to the issuance of such shares, or (b) pursuant to (i) the
conversion of validly issued and fully paid and non-assessable
shares of Preferred Stock in accordance with the established terms
of such Preferred Stock, or (ii) the exercise of validly issued
Common Stock Warrants in accordance with the terms of an applicable
Warrant Agreement, such shares of Common Stock issued thereby will
be duly authorized, validly issued, fully paid and non-assessable by
the Company.
7. When the Registration Statement has become effective under the Act,
the Guaranty Agreement evidencing the Company's guaranty of validly
issued and binding Debt Securities has been duly authorized and
established in accordance with the applicable Board Action, the
Registration Statement, the Prospectus or the applicable Prospectus
Supplement, the applicable Guarantees will be duly authorized and will
constitute valid and binding obligations of the Company.
The opinions stated herein relating to the validity and binding nature
of obligations of the Company and the Partnership, as the case may be, are
subject to (i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and (ii) the effect of general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
The opinions stated herein are limited to the federal laws of the
United States, the laws of the State of New York and Maryland. To the extent
that the opinions set forth herein are dependent on the laws of the State of
Maryland, we have relied, with your permission, on the opinion of Piper &
Marbury L.L.P. of even date herewith.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to this firm under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ Rogers & Wells
<PAGE>
Exhibit 5.2
PIPER & MARBURY
L.L.P.
CHARLES CENTER SOUTH
36 SOUTH CHARLES STREET
BALTIMORE, MARYLAND 21201-3018
410-539-2530
FAX: 410-539-0489
August 8, 1997
Chateau Communities, Inc.
CP Limited Partnership
6430 South Quebec Street
Englewood, Colorado 80111
Registration Statement of Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as special Maryland counsel to Chateau Communities, Inc., a
Maryland corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended (the "Act"), pursuant to a
Registration Statement on Form S-3 (Registration Numbers 333-4544 and
333-4544-01) of the Company and CP Limited Partnership, a Maryland limited
partnership (the "Operating Partnership"), filed with the Securities and
Exchange Commission (the "Commission") on May 3, 1997, Amendment No. 1
thereto filed with the Commission on May 30, 1997, and Amendment No. 2
thereto to be filed with the Commission on or about August 8, 1997 (together,
the "Registration Statement"), including the prospectus included therein at
the time the Registration Statement is declared effective (the "Prospectus"),
for offering (a) by the Company from time to time of up to $200,000,000
aggregate initial offering price of: (i) shares of Common Stock, par value
$0.01 per share (the "Common Stock"); (ii) warrants to purchase the Common
Stock (the "Warrants"); and (iii) shares or fractional shares of Preferred
Stock, par value $0.01 per share (the "Preferred Stock"), including the
Preferred Stock that is convertible into the Common Stock (the "Convertible
Preferred Stock"), which Preferred Stock may be issued in the form of
depositary shares (the "Depositary Shares") evidenced by depositary receipts
(the "Depositary Receipts"); and (b) by the Operating Partnership from time
to time of up to $100,000,000 aggregate initial offering price of
non-convertible debt securities (the "Debt Securities"), which may be
guaranteed by unconditional and irrevocable guarantees thereof by the Company
(the "Guarantees"). The Common Stock, the Warrants, the Preferred Stock, the
Depositary Shares, the Debt Securities, and the Guarantees are collectively
referred to as the "Securities." The Registration Statement provides that the
Securities may be offered separately or together, in separate series, in
amounts, at prices, and on
<PAGE>
Piper & Marbury
L.L.P.
Chateau Communities, Inc.
August 8, 1997
Page 2
terms to be set forth in one or more supplements to the Prospectus (each a
"Prospectus Supplement"). This opinion is being provided at your request in
connection with the filing of the Registration Statement.
In our capacity as special Maryland counsel, we have reviewed the
following:
(a) The Registration Statement;
(b) The Charter, certified by the Department of Assessments and
Taxation of the State of Maryland (the "Department"), and By-Laws, as
amended and restated and in effect on the date hereof, of the Company;
(c) The Charter, certified by the Department, and By-Laws, as amended
and restated and in effect on the date hereof, of ROC Communities, Inc., a
Maryland corporation and a wholly owned subsidiary of the Company (the
"Subsidiary Company");
(d) The Amended and Restated Agreement of Limited Partnership, as
amended and restated and in effect on the date hereof (the "Partnership
Agreement"), and the related Certificate of Limited Partnership, certified
by the Department, of the Operating Partnership;
(e) The Preliminary Prospectus dated August 8, 1997 (the "Preliminary
Prospectus") relating to the issuance of the Securities, which forms part
of the Registration Statement;
(f) Short-form good standing certificates for the Company, the
Subsidiary Company, and the Operating Partnership, dated August 8, 1997,
issued by the Department;
<PAGE>
Piper & Marbury
L.L.P.
Chateau Communities, Inc.
August 8, 1997
Page 3
(g) An Officer's Certificate (the "Certificate") of the
Company and the Subsidiary Company, dated the date hereof, as to certain
factual matters; and
(h) Such other documents as we have considered necessary to the
rendering of the opinions expressed below.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, and the conformity
with originals of all documents submitted to us as copies (and the authenticity
of the originals of such copies), and that all public records reviewed are
accurate and complete. In making our examination of documents executed by
parties other than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder, and we
have also assumed the due authorization by all requisite action, corporate or
other, and the valid execution and delivery by such parties of such documents
and the validity, binding effect and enforceability thereof with respect to such
parties. As to any facts material to this opinion which we did not
independently establish or verify, we have relied solely upon the Certificate.
We further assume that:
(a) The issuance, sale, amount, and terms of the Securities to be
offered from time to time by the Company will be authorized and determined
by proper action of the Board of Directors of the Company (each, a "Board
Action") in accordance with the Company's Charter and By-Laws and
applicable Maryland law, in each case so as not to result in a default
under or breach of any agreement or instrument binding upon the Company and
so as to comply with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over the Company.
(b) Prior to the issuance of any shares of the Common Stock or the
Preferred Stock or of any of the Warrants, there will exist, under the
Charter of the Company, the requisite number of authorized but unissued
shares of the Common Stock or the Preferred Stock (and securities of any
class into which any Preferred Stock may be convertible), as the case may
be, and that all actions necessary to the creation and designation of any
such Preferred Stock (and securities of any class into which any Preferred
Stock may be convertible), whether by Charter
<PAGE>
Piper & Marbury
L.L.P.
Chateau Communities, Inc.
August 8, 1997
Page 4
amendment or by classification or reclassification of existing capital
stock and the filing of Articles Supplementary, will have been taken.
(c) Appropriate certificates representing shares of the Common Stock
or the Preferred Stock will be executed and delivered upon issuance and
sale of any shares of the Common Stock or the Preferred Stock, as the case
may be, and will comply with the Company's Charter and By-Laws and all
applicable requirements of Maryland law.
(d) Any Warrants will be issued under a valid and legally binding
warrant agreement (a "Warrant Agreement") that conforms to the description
thereof set forth in the Prospectus Supplement, and will comply with the
Company's Charter and By-Laws and all applicable requirements of Maryland
law.
(e) Any Depositary Shares will be issued under a valid and legally
binding deposit agreement (each, a "Deposit Agreement") that conforms to
the description thereof set forth in the Prospectus Supplement, and will
comply with the Company's Charter and By-Laws and all applicable
requirements of Maryland law.
(f) The issuance, sale, amount, and terms of the Debt Securities to
be offered from time to time by the Operating Partnership will be
authorized and determined by proper action of the Board of Directors of the
Company and the Subsidiary Company, the general partners of the Operating
Partnership, (each, a "Partnership Action") in accordance with the
Partnership Agreement, the Charter and By-Laws of both the Company and the
Subsidiary Company, and applicable Maryland law, in each case so as not to
result in a default under or breach of any agreement or instrument binding
upon the Operating Partnership, the Company, or the Subsidiary Company and
so as to comply with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over the Operating
Partnership, the Company, and the Subsidiary Company.
(g) Any Debt Securities will be issued under a valid and legally
binding indenture (an "Indenture") that conforms to the description thereof
set forth in the Prospectus Supplement and will comply with the Partnership
Agreement and applicable Maryland law.
<PAGE>
Piper & Marbury
L.L.P.
Chateau Communities, Inc.
August 8, 1997
Page 5
(h) Appropriate debentures, notes, and/or other evidences of
indebtedness evidencing the Debt Securities will be executed and
authenticated in accordance with the Indenture, will be delivered upon the
issuance and sale of the Debt Securities, and will comply with the
Indenture, the Partnership Agreement, and applicable Maryland law.
(i) Any Guarantees will be evidenced by a valid and legally binding
agreement or other instrument (each, a "Guaranty Agreement") that conforms
to the description thereof set forth in the Prospectus Supplement, will be
executed and delivered upon the issuance and sale of the Guarantees and the
related Debt Securities, and will comply with the Indenture, the Charter
and By-Laws of the Company, and applicable Maryland law.
(k) The underwriting agreements for offerings of the Common Stock,
the Warrants, the Preferred Stock, the Debt Securities, and the Guarantees
(each, an "Underwriting Agreement," and collectively, the "Underwriting
Agreements") will be valid and legally binding contracts that conform to
the description thereof set forth in the applicable Prospectus Supplement.
(l) To the extent that the obligations of the Company under any
Warrant Agreement may be dependent upon such matters, the financial
institution to be identified in such Warrant Agreement as warrant agent
(the "Warrant Agent") will be duly organized, validly existing, and in good
standing under the laws of its jurisdiction of organization; the Warrant
Agent will be duly qualified to engage in the activities contemplated by
such Warrant Agreement; such Warrant Agreement will have been duly
authorized, executed, and delivered by the Warrant Agent and will
constitute the legally valid and binding obligation of the Warrant Agent
enforceable against the Warrant Agent in accordance with its terms; the
Warrant Agent will be in compliance, generally, with respect to acting as
Warrant Agent under such Warrant Agreement, with all applicable laws and
regulations; and the Warrant Agent will have the requisite organizational
and legal power and authority to perform its obligations under such Warrant
Agreement.
(m) To the extent that the obligations of the Company under any
Deposit Agreement may be dependent upon such matters, the financial
institution to be identified in such Deposit Agreement as depositary (the
"Depositary") will be duly organized, validly existing, and in good
standing under the laws of its jurisdiction of organization; the Depositary
will be duly qualified to engage in the activities contemplated by such
Deposit Agreement; such Deposit Agreement will
<PAGE>
Piper & Marbury
L.L.P.
Chateau Communities, Inc.
August 8, 1997
Page 6
have been duly authorized, executed, and delivered by the Depositary and
will constitute the legally valid and binding obligation of the Depositary
enforceable against the Depositary in accordance with its terms; the
Depositary will be in compliance, generally, with respect to acting as
Depositary under such Deposit Agreement, with all applicable laws and
regulations; and the Depositary will have the requisite organizational and
legal power and authority to perform its obligations under such Deposit
Agreement.
(n) To the extent that the obligations of the Operating Partnership
under any Debt Securities or related Indenture or of the Company under any
Guaranty Agreement may be dependent upon such matters, the financial
institution to be identified in such Indenture as Trustee (the "Trustee")
will be duly organized, validly existing, and in good standing under the
laws of its jurisdiction of organization; the Trustee will be duly
qualified to engage in the activities contemplated by such Indenture; such
Indenture will have been duly authorized, executed, and delivered by the
Trustee and will constitute the legally valid and binding obligation of the
Trustee enforceable against the Trustee in accordance with its terms; the
Trustee will be in compliance, generally, with respect to acting as Trustee
under such Indenture, with all applicable laws and regulations; and the
Trustee will have the requisite organizational and legal power and
authority to perform its obligations under such Indenture.
(o) The Board of Directors of the Company has approved resolutions
(i) relating to the Company's authorization of the filing of the
Registration Statement and (ii) on behalf of the Operating Partnership as
a general partner thereof, relating to its authorization of the filing of
the Registration Statement and the form of the Indenture.
(p) The Board of Directors of the Subsidiary Company has approved
resolutions, on behalf of the Operating Partnership as a general partner
thereof, relating to its authorization of the filing of the Registration
Statement and the form of the Indenture.
Based upon and subject to the foregoing, we are of the opinion and advise
you that, as of the date hereof:
1. Upon due authorization by Board Action of an issuance of Common
Stock, and upon issuance and delivery of certificates for shares of such
Common Stock against payment therefor in accordance with the terms and
provisions of such Board Action, the Registration Statement (as declared
effective under the Act), the Prospectus or the applicable Prospectus
Supplement and, if applicable, an Underwriting Agreement, or upon issuance
and delivery of certificates for shares of such Common Stock pursuant to
the exercise of one or more Warrants, the shares of Common Stock
represented by such certificates will be duly authorized, validly issued,
fully paid, and non-assessable.
2. When the Warrants have been duly authorized and established in
accordance with the applicable Board Action, the terms of the Company's
Charter and By-Laws, and applicable Maryland law, and, upon execution,
issuance, and delivery of the Warrant Agreements against payment therefor
in accordance with
<PAGE>
Piper & Marbury
L.L.P.
Chateau Communities, Inc.
August 8, 1997
Page 7
the terms and provisions of such Board Action, the Warrant Agreement, the
Registration Statement (as declared effective under the Act), the
Prospectus, or the applicable Prospectus Supplement and, if applicable, an
Underwriting Agreement, the Warrant Agreements will constitute valid and
legally binding obligations of the Company.
3. When a series of the Preferred Stock (and securities of any class
into which any Preferred Stock may be convertible) has been duly authorized
and established in accordance with the applicable Board Action, the terms
of the Company's Charter and By-Laws, and applicable Maryland law, and,
upon issuance and delivery of certificates for shares of such series of the
Preferred Stock against payment therefor in accordance with the terms and
provisions of such Board Action, the Registration Statement (as declared
effective under the Act), the Prospectus or the applicable Prospectus
Supplement and, if applicable, an Underwriting Agreement, the shares of the
Preferred Stock represented by such certificates will be duly authorized,
validly issued, fully paid, and non-assessable.
4. When the Registration Statement has become effective under the Act
and when the Depositary Shares have been duly authorized and established in
accordance with the applicable Board Action, and the Depositary Receipts in
the form contemplated and authorized by a Deposit Agreement have been duly
executed and delivered by the Depositary and delivered to and paid for by
the purchasers thereof in the manner contemplated by such Board Action, the
Registration Statement, the Prospectus or the applicable Prospectus
Supplement, and, if applicable, an underwriting agreement relating to the
issuance of such Depositary Shares, such Depositary Shares will be validly
issued and will entitle the holders thereof to the rights specified in the
Depositary Receipts and such Deposit Agreement.
5. When a series of the Debt Securities has been duly authorized and
established in accordance with the applicable Partnership Action, the terms
of the Indenture, the Partnership Agreement, and applicable Maryland law,
and, upon execution, issuance, and delivery of debentures, notes, and/or
other evidences of indebtedness for such series of the Debt Securities
against payment therefor in accordance with the terms and provisions of
such Partnership Action, the Indenture, the Registration Statement (as
declared effective under the Act), the Prospectus, or the applicable
Prospectus Supplement and, if applicable, an Underwriting Agreement, the
Debt Securities will constitute valid and legally binding obligations of
the Operating Partnership.
<PAGE>
Piper & Marbury
L.L.P.
Chateau Communities, Inc.
August 8, 1997
Page 8
6. When a series of the Debt Securities has been duly authorized and
established in accordance with the applicable Partnership Action, the terms
of the Indenture, the Partnership Agreement, and applicable Maryland law,
when the related Guarantees has been duly authorized and established in
accordance with the applicable Board Action, the terms of the Indenture,
the Company's Charter and By-Laws, and applicable Maryland law and, upon
execution, issuance, and delivery of the Guaranty Agreements against
payment therefor in accordance with the terms and provisions of such Board
Action, the Indenture, the Registration Statement (as declared effective
under the Act), the Prospectus, or the applicable Prospectus Supplement
and, if applicable, an Underwriting Agreement, the Guarantees will
constitute valid and legally binding obligations of the Company.
The opinion stated herein relating to the validity and binding nature of
obligations of the Company or the Operating Partnership is subject to (i) the
effect of any applicable bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium, or
similar laws affecting creditors' rights generally and (ii) the effect of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
The opinion expressed above is limited to the laws of the State of
Maryland, exclusive of the securities or "blue sky" laws of the State of
Maryland. The foregoing opinion is rendered as of the date hereof. We assume
no obligation to update such opinion to reflect any facts or circumstances which
may hereafter come to our attention or changes in the law which may hereafter
occur. To the extent that any documents referred to herein are governed by the
law of a jurisdiction other than Maryland, we have assumed that the laws of such
jurisdiction are the same as the law of Maryland.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.2 to the Registration Statement and to the reference to our firm under
the heading "Legal Matters" in the Registration Statement. We further consent
to the reliance on this opinion by Rogers & Wells in rendering their opinion to
the Company and the Operating Partnership in connection with the filing of the
Registration Statement. The opinion expressed above is limited to the matters
set forth herein, and no other opinion should be inferred beyond the matters
expressly stated.
Very truly yours,
/s/ Piper & Marbury
<PAGE>
EXHIBIT 12
CP LIMITED PARTNERSHIP
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Company/
Company Predecessor Predecessor
For the Quarter For the Year For the Year For the Year For the Year For the Year
Ended Ended Ended Ended Ended Ended
March 31, December 31, December 31, December 31, December 31, December 31,
1997 1996 1995 1994 1993 1992
--------------- ------------ ------------ ------------ ------------ ------------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before
extraordinary$charges $ 5,588 $16,100 $13,979 $14,897 $ 3,931 $ 2,921
Fixed charges 5,438 13,002 12,488 6,027 12,708 14,334
------- ------- ------- ------- ------- -------
$11,026 $29,102 $26,467 $20,924 $16,639 $17,255
======= ======= ======= ======= ======= =======
Fixed charges:
Interest expens $ 5,320 $12,525 $11,914 $ 5,560 $12,381 $13,907
Amortization of 108 437 538 436 296 396
deferred financing
costs
Interest factor on rental
expense(1) 10 40 36 31 31 31
------- ------- ------- ------- ------- -------
$ 5,438 $13,002 $12,488 $ 6,027 $12,708 $14,334
======= ======= ======= ======= ======= =======
Ratio of earnings to
fixed charges 2.03 2.24 2.12 3.47 1.31 1.20
======= ======= ======= ======= ======= =======
</TABLE>
(1) Amount represents one third of all rental expense (the proportion deemed
representative of the interest factor).
Exh. 12 -1
<PAGE>
EXHIBIT 23.3
Coopers Coopers & Lybrand L.L.P.
& Lybrand
a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Chateau Communities, Inc. and CP Limited Partnership on Form S-3 of our report
dated February 12, 1997, on our audits of the consolidated/combined financial
statements and financial statement schedule of Chateau Properties, Inc. and CP
Limited Partnership as of December 31, 1996 and 1995, and for each of the three
years ended December 31, 1996, 1995 and 1994, which report is incorporated by
reference in the 1996 Annual Reports on Form 10-K of Chateau Properties, Inc.
and CP Limited Partnership. We also consent to the reference to our Firm under
the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Detroit, Michigan
August 7, 1997
<PAGE>
EXHIBIT 23.4
CONSENT OF ROGERS & WELLS
We hereby consent to the incorporation by reference in the
Registration Statement of Chateau Communities, Inc. (the "Company") and CP
Limited Partnership on Form S-3 of our opinion regarding tax matters dated June
16, 1997, which opinion was filed as an exhibit to the Company's Current Report
on Form 8-K, filed with the Securities and Exchange Commission (the
"Commission") on June 24, 1997 to include certain additional exhibits to the
Company's Registration Statement on Form S-3 filed with the Commission on June
6, 1997. We also consent to the reference to this firm under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ ROGERS & WELLS
Rogers & Wells
New York, New York
August 8, 1997
