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EXHIBIT 4.5.1
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CP LIMITED PARTNERSHIP
AND
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of December 19, 1997
Supplementing the Trust Indenture
Dated as of December 19, 1997
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$100,000,000
MandatOry Par Put Remarketed SecuritiesSM ("MOPPRSSM")
due December 10, 2014
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"MandatOry Par Put Remarketed SecuritiesSM" and
"MOPPRSSM" are service marks owned by Xxxxxxx
Xxxxx & Co., Inc.
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SUPPLEMENTAL INDENTURE, dated as of the 19th day of December, 1997,
between CP LIMITED PARTNERSHIP, a limited partnership organized and existing
under the laws of the State of Maryland (the "Operating Partnership"), and The
First National Bank of Chicago, having its principal corporate trust office in
The City of Chicago, Illinois, as trustee (the "Trustee");
WHEREAS, the Operating Partnership has heretofore executed and
delivered to the Trustee an Indenture dated as of December 19, 1997 (the
"Original Indenture" and, together with this First Supplemental Indenture, the
"Indenture") providing for the issuance by the Operating Partnership from time
to time of its unsecured debt securities to be issued in one or more series (in
the Original Indenture and herein called the "Securities"); and
WHEREAS, the Operating Partnership, in the exercise of the power and
authority conferred upon and reserved to it under the provisions of the Original
Indenture, has duly determined to make, execute and deliver to the Trustee this
First Supplemental Indenture to the Original Indenture in order to establish the
form and terms of, and to provide for the creation and issue of a series of
Securities designated as the "6.92% MandatOry Par Put Remarketed SecuritiesSM
("MOPPRSSM") due December 10, 2014" under the Original Indenture in the
aggregate principal amount of $100,000,000; and
WHEREAS, all things necessary to make the Securities, when executed
by the Operating Partnership and authenticated and delivered by the Trustee or
any Authenticating Agent and issued upon the terms and subject to the conditions
hereinafter and in the Indenture set forth against payment therefor, the valid,
binding and legal obligations of the Operating Partnership and to make this
First Supplemental Indenture a valid, binding and legal agreement of the
Operating Partnership, have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH that,
in order to establish the terms of a series of Securities designated as the
"6.92% MandatOry Par Put Remarketed Securities due December 10, 2014", and for
and in consideration of the premises and of the covenants contained in the
Original Indenture and in this First Supplemental Indenture and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed as follows:
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"MandatOry Par Put Remarketed SecuritiesSM" and "MOPPRSSM" are service marks
owned by Xxxxxxx Xxxxx & Co., Inc.
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ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. Each capitalized term that is used herein
and is defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein.
"Acquired Debt" shall mean Debt of a Person (i) existing at the time
such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary or
such acquisition. Acquired Debt shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Adjusted Total Assets" as of any date shall mean the sum of (i)
$281,626,340, (ii) $52,831,381, (iii) the purchase price or cost of any real
estate assets or mortgages receivable acquired (including the value of any OP
Units issued in connection therewith) or real estate assets developed or capital
improvements incurred after the IPO and the amount of any securities offering
proceeds and other proceeds of Debt received after the IPO and (iv) all other
assets of the Operating Partnership acquired after the IPO (but excluding
intangibles and accounts receivable) after eliminating inter-company accounts
and transactions.
"Annual Service Charge" for any period shall mean the maximum amount
which is payable during such period for interest on, and the amortization during
such period of any original issue discount of, Debt of the Operating Partnership
and its Subsidiaries and the amount of dividends which are payable during such
period in respect of any Disqualified Stock.
"Applicable Spread" has the meaning specified in Section 204.
"Base Rate" has the meaning specified in Section 204.
"Beneficial Owner" shall mean the person who acquires an interest in
the MOPPRS which is reflected on the records of the DTC through its
participants.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
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"Capital Stock" shall mean, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall mean the common stock of the Company.
"Company" shall mean Chateau Communities, Inc.
"Comparable Treasury Issues" has the meaning specified in Section
204.
"Consolidated Income Available for Debt Service" for any period
shall mean Earnings from Operations of the Operating Partnership and its
Subsidiaries plus amounts which have been deducted, and minus amounts which have
been added, for the following (without duplication): (i) interest on Debt of the
Operating Partnership and its Subsidiaries; (ii) provision for taxes of the
Operating Partnership and its Subsidiaries based on income; (iii) amortization
of debt discount; (iv) provisions for gains and losses on real estate assets and
real estate depreciation and amortization; (v) the effect of any noncash charge
resulting from a change in accounting principles in determining Earnings from
Operations for such period; and (vi) amortization of deferred charges.
"Debt" of the Operating Partnership or any Subsidiary shall mean any
indebtedness of the Operating Partnership or any Subsidiary, whether or not
contingent, in respect of (i) money borrowed or evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness for borrowed money secured
by any Encumbrance existing on property owned by the Operating Partnership 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 or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Operating Partnership or any Subsidiary with respect to redemption, repayment or
other repurchase of any Disqualified Stock or (v) any lease of property by the
Operating Partnership or any Subsidiary as lessee which is reflected on the
Operating Partnership's consolidated balance sheet as a capitalized lease in
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accordance with GAAP, to the extent, in the case of items of indebtedness under
(i) through (iii) above, that any such items (other than letters of credit)
would appear as a liability on the Operating Partnership's consolidated balance
sheet in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation by the Operating Partnership 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), Debt of another
Person (other than the Operating Partnership or any Subsidiary). Debt shall be
deemed to be incurred by the Operating Partnership or any Subsidiary whenever
the Operating Partnership or such Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof.
"Determination Date" shall be the third Business Day immediately
preceding the Remarketing Date.
"Disqualified Stock" shall mean, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than Capital Stock which is, redeemable solely in exchange for
Common Stock), (ii) is convertible into or exchangeable or exercisable for Debt
or Disqualified Stock or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable
solely in exchange for Common Stock), in each case on or prior to the Stated
Maturity Date of the MOPPRS.
"Dollar Price" has the meaning specified in Section 204.
"DTC" has the meaning specified in Section 204.
"DTC Participant" shall mean any person that has an account with DTC
through which Beneficial Owners acquire an interest in the MOPPRS.
"Earnings from Operations" for any period shall mean net earnings
excluding gains and losses on sales of investments, extraordinary items, and
property valuation losses, net as reflected in the financial statements of the
Operating Partnership and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Encumbrance" shall mean any mortgage, lien, charge, pledge or
security interest of any kind.
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"Event of Default" has the meaning specified in Section 101 of the
Original Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"GAAP" has the meaning specified in Section 101 of the Original
Indenture.
"IPO" shall mean the 1993 initial public offering of the Company.
"Interest Rate to Maturity" shall mean the rate of interest that the
MOPPRS will bear as determined by the Remarketing Dealer in accordance with the
procedures set forth herein.
"Make-Whole Amount" has the meaning specified in Section 206.
"MOPPRS" have the meaning specified in Section 201.
"Notification Date" has the meaning specified in Section 204.
"Operating Partnership" shall mean CP Limited Partnership, a
Maryland limited partnership.
"Optional Redemption Price" has the meaning specified in Section
206.
"OP Units" shall mean units of limited partnership interest in the
Operating Partnership.
"Person" has the meaning specified in Section 101 of the Original
Indenture.
"Redemption Price" has the meaning specified in Section 206.
"Reference Corporate Dealer" has the meaning specified in Section
204.
"Reference Treasury Dealer" has the meaning specified in Section
204.
"Reinvestment Rate" has the meaning specified in Section 206.
"Remaining Scheduled Payments" has the meaning specified in Section
204.
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"Remarketing Agreement" shall mean the agreement dated as of
December 23, 1997 which sets forth the rights and obligations of the Company,
the Operating Partnership and the Remarketing Dealer with respect to the
remarketing of the MOPPRS.
"Remarketing Date" shall mean December 10, 2004.
"Remarketing Dealer" shall mean Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated.
"Security" has the meaning specified in Section 101 of the Original
Indenture.
"Stated Maturity Date" shall mean December 10, 2014.
"Statistical Release" has the meaning specified in Section 206.
"Subsidiary" shall mean, with respect to any Person, any corporation
or other entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests are owned, directly or
indirectly, by such Person. For the purposes of this definition, "voting equity
securities" shall mean equity securities having voting power for the election of
directors, whether at all times or only so long as no senior class of security
has such voting power by reason of any contingency.
"Total Unencumbered Assets" shall mean the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed
money and (ii) all other assets of the Operating Partnership and its
Subsidiaries not subject to an Encumbrance for borrowed money determined in
accordance with GAAP (but excluding accounts receivable and intangibles).
"Treasury Rate" has the meaning specified in Section 204.
"Trustee" shall mean The First National Bank of Chicago.
"Undepreciated Real Estate Assets" as of any date shall mean the
cost (original cost plus capital improvements) of real estate assets of the
Operating Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP. For
purposes of this definition, the original cost of each real asset owned by the
Operating Partnership and its Subsidiaries as of the closing date of the IPO
shall be determined by reference to each such asset's contribution to the net
operating income of the Operating Partnership as of the closing date of the IPO.
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"Unsecured Debt" shall mean Debt which is not secured by any
Encumbrance upon any of the properties of the Operating Partnership or any
Subsidiary.
Section 102. Section References. Each reference to a particular
section set forth in this First Supplemental Indenture shall, unless the context
otherwise requires, refer to this First Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE MOPPRS
Section 201. Title of the MOPPRS. Pursuant to Section 901 of the
Original Indenture, this First Supplemental Indenture hereby establishes a
series of Securities designated as the "6.92% MandatOry Par Put Remarketed
Securities due December 10, 2014" of the Operating Partnership (the "MOPPRS").
For purposes of the Original Indenture, the MOPPRS shall constitute a single
series of Securities.
Section 202. Amount and Denominations; DTC. The aggregate principal
amount of MOPPRS that may be issued under this First Supplemental Indenture is
limited to $100,000,000.
The MOPPRS shall be issuable only in fully registered form and shall
initially be registered in the name of The Depositary Trust Company ("DTC"), or
its nominee who is hereby designated as "Holder" under the Original Indenture.
The authorized denominations of MOPPRS shall be $1,000 and integral multiples
thereof.
Section 203. Interest To Remarketing Date. (a) The MOPPRS shall bear
interest at the annual interest rate of 6.92% per annum to the Remarketing Date.
(b) On and after the Remarketing Date or the Maturity Date or earlier redemption
or repurchase, if any, provided that the MOPPRS shall have been remarketed as
provided herein, the MOPPRS shall bear the Interest Rate to Maturity, and for
such period, for all purposes herein and in the Original Indenture, interest
shall be calculated at such Interest Rate to Maturity.
Section 204. Remarketing and Determination of Interest Rate to
Maturity. The Remarketing Dealer's obligations set forth herein shall be
performed pursuant to the Remarketing Agreement.
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(a) Mandatory Tender. Provided that the Remarketing Dealer gives notice to
the Operating Partnership and the Trustee on a Business Day not more than
fifteen nor less than five Business Days prior to the Remarketing Date of its
intention to purchase the MOPPRS for remarketing (the "Notification Date"), each
MOPPRS shall be automatically tendered, or deemed tendered, to the Remarketing
Dealer for purchase on the Remarketing Date, except in the circumstances set
forth in Sections 205 and 206. The purchase price for the tendered MOPPRS shall
equal 100% of the principal amount thereof plus accrued and unpaid interest.
When the MOPPRS are tendered for remarketing, the Remarketing Dealer may
remarket the MOPPRS for its own account at varying prices to be determined by
the Remarketing Dealer at the time of each sale. From and after the Remarketing
Date, the MOPPRS shall bear interest at the Interest Rate to Maturity. If the
Remarketing Dealer elects to remarket the MOPPRS, the obligation of the
Remarketing Dealer to purchase the MOPPRS on the Remarketing Date is subject to
the conditions specified in Section 8 of the Remarketing Agreement. If for any
reason the Remarketing Dealer does not purchase all tendered MOPPRS on the
Remarketing Date, the Operating Partnership shall be required to repurchase the
MOPPRS from the Beneficial Owners thereof at a price equal to the principal
amount thereof plus all accrued and unpaid interest, if any, on the MOPPRS to
the Remarketing Date.
(b) Remarketing. The Interest Rate to Maturity shall be established
by the Remarketing Dealer in accordance with the following procedures:
(i) Interest Rate to Maturity. Subject to the Remarketing Dealer's
election to remarket the MOPPRS as provided in subsection (a) above, the
Interest Rate to Maturity shall be determined by the Remarketing Dealer by 3:30
p.m., New York City time, on the third Business Day preceding the Remarketing
Date (the "Determination Date") to the nearest one hundred-thousandth (0.00001)
of one percent per annum, and shall be equal to the sum of 5.753% (the "Base
Rate") plus the Applicable Spread (as defined below), which will be based on the
Dollar Price (as defined below) of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i)
an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS, and (iii) a stated annual interest rate equal to the Base Rate
plus the spread
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bid by the applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as set forth in this subsection (b)(i) of Section 204,
then the Applicable Spread shall be the lowest of such bid indications obtained
as set forth in this subsection (b)(i) of Section 204. The Interest Rate to
Maturity announced by the Remarketing Dealer, absent manifest error, shall be
binding and conclusive upon the Beneficial Owners and Holders of the MOPPRS, the
Operating Partnership, the Company and the Trustee.
"Dollar Price" shall mean, with respect to the MOPPRS, the present
value, as of the Remarketing Date, of the Remaining Scheduled Payments (as
defined below) discounted to the Remarketing Date, on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months), at the Treasury
Rate (as defined below).
"Reference Corporate Dealers" mean leading dealers of publicly
traded debt securities of the Operating Partnership in The City of New York
(which may include the Remarketing Dealer or one of its affiliates) selected by
the Remarketing Dealer.
"Treasury Rate" shall mean, with respect to the Remarketing Date,
the rate per annum equal to the semi-annual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues (as defined below), assuming a price for the Comparable Treasury Issues
(expressed as a percentage of its principal amount), equal to the Comparable
Treasury Price (as defined below) for such Remarketing Date.
"Comparable Treasury Issues" shall mean the United States Treasury
security or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being purchased.
"Comparable Treasury Price" shall mean, with respect to the
Remarketing Date, (a) the offer prices for the Comparable Treasury Issues
(expressed in each case as a percentage of its principal amount) on the
Determination Date, as set forth on "Telerate Page 500" (or such other page as
may replace Telerate Page 500) or (b) if such page (or any successor page) is
not displayed or does not contain such offer prices on such Business Day, (i)
the average of the Reference Treasury Dealer Quotations for such Remarketing
Date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (ii) if the Remarketing Dealer obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury
Dealer Quotations. "Telerate Page 500" shall mean the display designated as
"Telerate Page 500" on Dow Xxxxx Markets Limited (or such other page as may
replace Telerate Page 500 on such service)
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or such other service displaying the offer prices specified in (a) above as may
replace Dow Xxxxx Markets Limited.
"Reference Treasury Dealer Quotations" shall mean, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m. New York City time, on the Determination Date.
"Reference Treasury Dealer" shall mean each of Credit Suisse First
Boston Corporation, Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Salomon Brothers Inc and
their respective successors; provided, however, that if any of the foregoing or
their affiliates shall cease to be a primary U.S. Government securities dealer
in The City of New York (a "Primary Treasury Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" shall mean, with respect to the
MOPPRS, the remaining scheduled payments of the principal thereof and interest
thereon, calculated at the Base Rate only, that would be due after the
Remarketing Date to and including the Stated Maturity Date; provided, however,
that if the Remarketing Date is not an Interest Payment Date with respect to the
MOPPRS, the amount of the next succeeding scheduled interest payment thereon,
calculated at the Base Rate only, will be reduced by the amount of interest
accrued thereon, calculated at the Base Rate only, to the Remarketing Date.
(ii) Notification of Results; Settlement. Provided the Remarketing
Dealer has previously notified the Operating Partnership and the Trustee on the
Notification Date of its intention to purchase all tendered MOPPRS on the
Remarketing Date, the Remarketing Dealer shall notify the Operating Partnership,
the Trustee and DTC by telephone, confirmed in writing, by 4:00 p.m., New York
City time, on the Determination Date, of the Interest Rate to Maturity.
All of the tendered MOPPRS shall be automatically delivered to the
account of the Trustee, by book-entry through DTC pending payment of the
purchase price therefor, on the Remarketing Date.
In the event that the MOPPRS are remarketed as provided for in the
Remarketing Agreement, the Remarketing Dealer shall make or cause the Trustee to
make payment to the DTC Participant of each tendering Beneficial Owner of
MOPPRS, by book-entry through DTC by the close of business on the Remarketing
Date against delivery
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through DTC of such Beneficial Owner's tendered MOPPRS, of 100% of the principal
amount for tendered MOPPRS that have been purchased for remarketing by the
Remarketing Dealer. If the Remarketing Dealer does not purchase all of the
MOPPRS on the Remarketing Date, it shall be the obligation of the Operating
Partnership to make or cause to be made such payment for the MOPPRS, as provided
in Section 205 hereof. In any case, the Operating Partnership shall make or
cause the Trustee to make payment of interest to each Beneficial Owner of MOPPRS
due on the Remarketing Date by book-entry through DTC by the close of business
on the Remarketing Date.
The transactions set forth in this Section 204 shall be executed on
the Remarketing Date through DTC in accordance with the procedures of DTC, and
the accounts of the respective DTC Participants will be debited and credited and
the MOPPRS delivered by book-entry as necessary to effect the purchases and
sales thereof.
Transactions involving the sale and purchase of MOPPRS remarketed by
the Remarketing Dealer on and after the Remarketing Date shall settle in
immediately available funds through DTC's Same-Day Funds Settlement System.
The settlement procedures set forth above, including provisions for
payment by purchasers of MOPPRS in the remarketing or for payment to selling
Beneficial Owners of tendered MOPPRS, may be modified to the extent required by
DTC. In addition, the Remarketing Dealer may, without the consent of the Holders
of the MOPPRS, modify the settlement procedures set forth above in order to
facilitate the settlement process.
As long as DTC's nominee holds the certificates representing any
MOPPRS in the book-entry system of DTC, no certificates for such MOPPRS will be
delivered by any selling Beneficial Owner to reflect any transfer of such MOPPRS
effected in the remarketing.
Section 205. Repurchase of the MOPPRS. In the event that (i) the
Remarketing Dealer for any reason does not notify the Operating Partnership of
the Interest Rate to Maturity by 4:00 p.m., New York City time, on the
Determination Date, or (ii) prior to the Remarketing Date, the Remarketing
Dealer has resigned and no successor has been appointed on or before the
Determination Date, or (iii) since the Notification Date, a failure of any of
the conditions specified in Section 8 of the Remarketing Agreement has occurred,
or (iv) the Remarketing Dealer elects not to remarket the MOPPRS, or (v) the
Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the
Remarketing Date, the Operating Partnership shall repurchase the MOPPRS as a
whole on the Remarketing Date at a price equal to 100% of the principal amount
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of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS to the
Remarketing Date. In any such case, payment shall be made by the Operating
Partnership to the DTC Participant of each tendering Beneficial Owner of MOPPRS,
by book-entry through DTC by the close of business on the Remarketing Date
against delivery through DTC of such Beneficial Owner's tendered MOPPRS.
Section 206. Redemption of the MOPPRS. (a) Redemption from
Remarketing Dealer. If the Remarketing Dealer elects to remarket the MOPPRS on
the Remarketing Date, the MOPPRS shall be subject to mandatory tender to the
Remarketing Dealer for remarketing on such date, in each case subject to the
conditions set forth in Sections 204 and 205 hereof and to the Operating
Partnership's right to redeem the MOPPRS from the Remarketing Dealer as set
forth in the next sentence. The Operating Partnership shall notify the
Remarketing Dealer and the Trustee, not later than the Business Day immediately
preceding the Determination Date, if the Operating Partnership irrevocably
elects to exercise its right to redeem the MOPPRS, in whole but not in part,
from the Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price.
The "Optional Redemption Price" shall be the greater of (i) 100% of the
principal amount of the MOPPRS and (ii) the sum of the present values of the
Remaining Scheduled Payments thereon, as determined by the Remarketing Dealer,
discounted to the Remarketing Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate, plus in either
case accrued and unpaid interest from the Remarketing Date on the principal
amount being redeemed to the date of redemption.
(b) Redemption from Beneficial Owners. After the Remarketing Date, the
MOPPRS shall be subject to redemption at the option of the Operating
Partnership, in whole or in part, at any time, at a redemption price determined
by the Operating Partnership equal to the sum of (i) the principal amount of the
MOPPRS being redeemed, plus accrued and unpaid interest thereon to the
redemption date, and (ii) the Make-Whole Amount (as defined below), if any, with
respect to such MOPPRS (the "Redemption Price"). For purposes of this section,
interest shall be calculated at the Interest Rate to Maturity.
If notice has been given as provided in the Original Indenture and funds
for the redemption of any MOPPRS called for redemption shall have been made
available on the redemption date referred to in such notice, such MOPPRS shall
cease to bear interest on the date fixed for such redemption specified in such
notice and the only right of the Holders from and after the redemption date
shall be to receive payment of the Redemption Price upon surrender of such
MOPPRS in accordance with such notice.
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Notice of any optional redemption of any MOPPRS shall be given to Holders
at their addresses, as shown in the security register for the MOPPRS, not less
than 30 nor more than 60 days prior to the date fixed for redemption. The notice
of redemption shall specify, among other items, the Redemption Price and the
principal amount of the MOPPRS held by such Holder to be redeemed. If less than
all of the MOPPRS are to be redeemed, the particular MOPPRS to be redeemed shall
be selected by such method as the Trustee deems fair and appropriate.
As used herein:
"Make-Whole Amount" shall mean, in connection with any optional
redemption of any MOPPRS, the excess, if any, of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of any interest (exclusive of interest accrued to
the date of redemption) that would have been payable in respect of each
such dollar if such redemption had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
applicable Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given) from the respective
dates on which such principal and interest would have been payable if such
redemption had not been made, over (ii) the aggregate principal amount of
the MOPPRS being redeemed.
"Reinvestment Rate" shall mean 0.25% plus the yield on treasury
securities at a constant maturity for the most recent week under the
heading "Week Ending" published in the most recent Statistical Release
under the caption "Treasury Constant Maturities" for the maturity (rounded
to the nearest month) corresponding to the remaining life to maturity, as
of the payment date of the principal being redeemed. If no maturity
exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate
shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month. For
the purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" shall mean the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded
United States government securities adjusted to constant maturities, or,
if such
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statistical release is not published at the time of any determination
under the Indenture, then such other reasonably comparable index which
shall be designated by the Operating Partnership.
Section 207. Form and Other Terms of the MOPPRS.
Attached hereto as Exhibit A is a form of the MOPPRS, which form is
hereby established as the form in which the MOPPRS shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of the Indenture
and this First Supplemental Indenture. All of the terms and provisions set forth
in Exhibit A are incorporated herein by reference.
ARTICLE THREE
ADDITIONAL COVENANTS
With respect to the MOPPRS, the following will be additional
Covenants to follow Section 1009 of the Indenture:
SECTION 1010. Limitations on Amount of Debt that the Operating
Partnership May Incur in Relation to Adjusted Total Assets. The Operating
Partnership shall not, and shall not permit any Subsidiary to, incur any
Debt if, immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Operating Partnership and
its Subsidiaries on a consolidated basis determined in accordance with
GAAP is greater than 60% of the sum of (without duplication) (i) the
Adjusted Total Assets of the Operating Partnership and its Subsidiaries as
of the end of the calendar quarter covered in the Operating Partnership's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q as the case
may be, most recently filed with the Commission (or, if such filing is not
permitted or made under the Exchange Act, with the Trustee) prior to the
incurrence of such additional Debt plus (ii) the increase, if any, in
Adjusted Total Assets from the end of the calendar quarter, including
those proceeds obtained in connection with the incurrence of such
additional Debt minus (iii) the decrease, if any, in the Adjusted Total
Assets from the end of such quarter.
SECTION 1011. Limitations on Amount of Debt Secured by any
Encumbrance that the Operating Partnership May Incur. In
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addition to the foregoing limitation on the incurrence of Debt, the
Operating Partnership shall not, and shall not permit any Subsidiary to,
incur any Debt secured by any Encumbrance upon any of the property of the
Operating Partnership or any Subsidiary if, immediately after giving
effect to the incurrence of such additional Debt and the application of
the proceeds thereof, the aggregate principal amount of all outstanding
Debt of the Operating Partnership and its Subsidiaries on a consolidated
basis which is secured by any Encumbrance on property of the Operating
Partnership or any Subsidiary is greater than 40% of the sum of (without
duplication) (i) the Adjusted Total Assets of the Operating Partnership
and its Subsidiaries as of the end of the calendar quarter covered in the
Operating Partnership's Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Debt plus (ii) the
increase, if any, in Adjusted Total Assets from the end of the calendar
quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt minus (iii) the decrease, if any, in
the Adjusted Total Assets from the end of such quarter.
SECTION 1012. Ownership of Total Unencumbered Assets. The Operating
Partnership and its Subsidiaries may not at any time own Total
Unencumbered Assets equal to less than 150% of the aggregate outstanding
principal amount of the Unsecured Debt of the Operating Partnership and
its Subsidiaries on a consolidated basis.
SECTION 1013. Limitations on Debt with Respect to the Ratio of
Consolidated Income Available for Debt Service to the Annual Service
Charge. The Operating Partnership shall not, and shall not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four
consecutive fiscal quarters most recently ended prior to the date on which
such additional Debt is to be incurred shall have been less than 1.5:1 on
a pro forma basis after giving effect thereto and to the application of
the proceeds therefrom, and calculated on the assumption that (i) such
Debt and any other Debt incurred by the Operating Partnership and its
Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other Debt,
had occurred at the beginning of such period; (ii) the repayment or
retirement of any other Debt by the Operating Partnership and its
Subsidiaries since the first day of such four-quarter period had been
repaid or retired at the beginning of such period (except that, in making
such computation, the amount of
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Debt under any revolving credit facility shall be computed based upon the
average daily balance of such Debt during such period); (iii) in the case
of Acquired Debt or Debt incurred in connection with any acquisition since
the first day of such four-quarter period, the related acquisition had
occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro
forma calculation; and (iv) in the case of any acquisition or disposition
by the Operating Partnership or its Subsidiaries of any asset or group of
assets since the first day of such four-quarter period, whether by merger,
stock purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Debt had occurred as of the first
day of such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma calculation.
SECTION 1014. Limitations on Defeasance; Maintenance of MOPPRS in
Book-Entry Form. (a) Neither the Company, the Operating Partnership nor
any of their subsidiaries or affiliates shall defease, purchase or
otherwise acquire, or enter into any agreement to defease, purchase or
otherwise acquire, any of the MOPPRS prior to the remarketing thereof by
the Remarketing Dealer.
(b) Notwithstanding any provision to the contrary set forth in the
Original Indenture, the Operating Partnership shall (i) use its best
efforts to maintain the MOPPRS in book-entry form with DTC or any
successor thereto and to appoint a successor depositary to the extent
necessary to maintain the MOPPRS in book-entry form, and (ii) waive any
discretionary right it otherwise has under the Original Indenture to cause
the MOPPRS to be issued in certificated form.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of,
and shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this First Supplemental Indenture or the proper
authorization or the due execution hereof by the Operating Partnership or for or
in respect of the recitals and statements contained herein, all of which
recitals and statements are made solely by the Operating Partnership.
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Except as expressly amended hereby, the Indenture shall continue in
full force and effect in accordance with the provisions thereof and the
Indenture and the Indenture is in all respects hereby ratified and confirmed.
This First Supplemental Indenture and all its provisions shall be deemed a part
of the Indenture in the manner and to the extent herein and therein provided.
This First Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
This First Supplemental 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 instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental 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: Chateau Communities, Inc., one of
its general partners
By:
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Chief Executive Officer
By: ROC Communities, Inc., its other
general partner
By:
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Chief Executive Officer
ATTEST:
By:
---------------------------
(Corporate Seal)
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-----------------------------------
Name:
Title:
ATTEST:
By:
---------------------------
(Corporate Seal)
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STATE OF __________)
) :
COUNTY OF _________)
On the _____ day of ________, 1997, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of CP LIMITED PARTNERSHIP, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and he signed his name thereto by like authority.
-------------------------------
Notary Public, State of _______
[Notarial Seal]
STATE OF NEW YORK )
) :
COUNTY OF _______ )
On the ___ day of _______, 1997, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is _________________ of
, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and he signed his name
thereto by like authority.
--------------------------------
Notary Public, State of New York
[Notarial Seal]
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Exhibit A
FORM OF MOPPRS
