Maryland | 13-6908486 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
Large accelerated filero | Accelerated filerþ | Non-accelerated filero (Do not check if a smaller reporting company) | Smaller reporting companyo |
Proposed Maximum | Proposed Maximum | Amount of | ||||||
Title of Securities | Amount to be | Aggregate Price | Aggregate | Registration | ||||
to be Registered | Registered(1) | Per Unit(1)(2) | Offering Price(1)(3)(4) | Fee | ||||
Common Shares of Beneficial Interest, $0.01 par value | ||||||||
Preferred Shares of Beneficial Interest, $0.01 par value | ||||||||
Warrants | ||||||||
Total | $350,000,000 | $44,345 | ||||||
Proposed | ||||||||||||||
Amount | Proposed | Maximum | ||||||||||||
to be | Maximum | Aggregate | Amount of | |||||||||||
Title of Each Class of | Registered | Offering Price | Offering Price | Registration | ||||||||||
Securities to be Registered | (1) | Per Unit(1)(2) | (1)(3)(4) | Fee | ||||||||||
Debt Securities | ||||||||||||||
Preferred Shares of Beneficial Interest, par value $.01 per share | ||||||||||||||
Common Shares of Beneficial Interest, par value $.01 per share(5) | ||||||||||||||
Warrants | ||||||||||||||
Rights | ||||||||||||||
TOTAL | $300,000,000 | $11,790(5) | ||||||||||||
(1) | The Registrant is hereby registering such indeterminate amount and number of | |
(2) | The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant. | |
(3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. In no event will the aggregate initial offering price of all securities issued from time to time pursuant to this registration statement exceed | |
(4) | In U.S. dollars or the equivalent thereof in one or more foreign currencies or currency units or composite currencies, including the European Currency Unit. | |
(5) | In accordance with Rule 457(p), the Registrant is applying the previously paid registration fee of $37,523.92, relating to the unsold securities under its registration statement on Form S-3 (File No. 333-113948) initially filed on March 26, 2004, to fully offset the registration fee of $11,790 due for this registration statement. |
The information in |
SUBJECT TO COMPLETION, DATED MARCH 25, 2004
PROSPECTUS
Ramco-Gershenson Properties Trust
$350,000,000
Common Shares of Beneficial Interest,
By this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where an offer or sale is not permitted.
Throughouttime our debt securities, which may be in one or more class or series and may be senior debt securities or subordinated debt securities; our preferred shares, which we may issue in one or more class or series; our common shares; warrants to purchase our preferred shares or common shares; rights to purchase our common shares; and any combination of these securities. The securities will have an aggregate initial offering price of up to $300,000,000. We may sell any combination of the securities described in this prospectus we refer to our common shares, preferred shares,in one or more offerings. We may offer the securities separately or together, in separate classes or series and warrants as securities. Each time we sell securities, we will provide a supplementin amounts, at prices and on terms described in one or more supplements to this prospectus and other offering material.
Our common shares are listed on the New York Stock Exchange under the symbol “RPT.” Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
We may sell securities directly to one or more purchasers, through agents or through underwriters or dealers. If we sell securities through agents or underwriters, we will name them in the prospectus supplement for that offering and describe in the prospectus supplement the applicable purchase price and any fees, commissions or discounts.
make your investment decision.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
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TABLE OF CONTENTS
This prospectus is part of Our SEC filings also are available through the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
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Statements contained inof which this prospectus concerning the provisions of documents are necessarily summaries of those documents and when any of those documents is an exhibit to the registration statement, each such statement is qualified in its entirety by reference to the copy of the document filed with the SEC.a part.
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• | the following sections from our Proxy Statement on Form DEFR14A for our 2008 annual meeting of shareholders held on June 11, 2008: “Trustees and Executive Officers”, “The Board of Trustees”, “Committees of the Board”, “Trustee Compensation”, “Corporate Governance”, “Compensation Discussion and Analysis”, “Compensation Committee Report”, “Report of the Audit Committee”, and “Section 16(a) Beneficial Ownership Reporting Compliance”; | ||
• | our | ||
• | our Current Reports on Form 8-K filed on February 21, 2008, April 30, 2008, July 30, 2008, October 8, 2008, October 22, 2008, October 23, 2008, and December | ||
• | the description of our common shares contained in our registration statement on Form 8-A filed with the SEC on November 1, 1988 (which incorporates by reference pages 101-119 of our prospectus/proxy statement filed with the SEC on November 1, 1988), as updated by the description of our common shares contained in our definitive proxy statement on Schedule 14A for our special meeting of shareholders held on December 18, 1997. |
FORWARD-LOOKING STATEMENTS
SomeSection 27A of the statements in this prospectusSecurities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act. Statements that do not relate strictly to historical or current facts are forward-looking statements. These forward-looking statements include statements relating to our performance. In addition, we may make forward-looking statements in future filings with the SEC and in written materials, press releases and oral statements issuedare generally identifiable by us or on our behalf. Forward-looking statements include statements regarding the intent, belief or current expectationsuse of us or our officers, including statements preceded by, followed by or including forward-looking terminology such as “may,” “will,” “should,” “believe,“potential,” “intend,” “expect,” “endeavor,” “seek,” “anticipate,” “estimate,” “overestimate,” “underestimate,” “believe,” “could,” “project,” “predict,” “continue,” “predict”“trend,” “opportunity,” “pipeline,” “comfortable,” “current,” “position,” “assume,” “outlook,” “remain,” “maintain,” “sustain,” “achieve,” “would” or other similar expressions,words or expressions. Such statements are based on assumptions and expectations which may not be realized and are inherently subject to risks and uncertainties, many of which cannot be predicted with respectaccuracy and some of which might not even be anticipated.
It is importantand do not undertake to note that our actualupdate forward-looking statements. Our future events, financial condition, business or other results couldmay differ materially from those anticipated fromand discussed in the forward-looking statements depending on various importantstatements. Risks and other factors that might cause differences, some of which could be material, include, those factors discussed under “Risk Factors,” beginning on page 3,but are not limited to, changes in political, economic or market conditions generally and the following:
You should read this prospectus, as well as the documents incorporated by reference in them, including our financial statements and the notes to financial statements, before deciding whether to invest in securities.
All forward-looking statements in this prospectus are based on information available to us on the datecapital markets specifically; availability of this prospectus. We do not undertake to update any forward-looking statements that may be made by us or on our behalf in this prospectus or otherwise.
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RISK FACTORS
Investing in our securities involves risk. You should carefully consider the specific factors listed below, together with the cautionary statements under the caption “Forward-Looking Statements” and the other information included in this prospectus and the documents incorporated by reference, before purchasing our securities. The risks described below are not the only ones that we face. Additional risks that are not yet known to us or that we currently think are immaterial could also impair our business, operating results or financial condition. If any of the following risks actually occur, our business, financial condition or results of operations could be adversely affected. In that case, the trading price of the securities could decline, and you may lose all or part of your investment.
Risks Related to Our Business
The economic performance and valuecapital; tenant bankruptcies; concentration of our real estate assets are subjectcredit risk; REIT distribution requirements; inability to all the risks associated with owning and operating real estate, including risks related to adverse changes in national, regional and local economic and market conditions. Our current properties are located in 12 states in the midwestern, southeastern and mid-Atlantic regions of the United States. The economic condition of each of our markets may be dependent on one or more industries. An economic downturn in one of these industries may result in a business downturn for our tenants, and as a result, these tenants may fail to make rental payments, decline to extend leases upon expiration, delay lease commencements or declare bankruptcy.
Any tenant bankruptcies, leasing delays, or failure to make rental payments when due could result in the termination of the tenant’s lease, causing material losses to us and adversely impacting our operating results. If our properties do not generate sufficient income to meet our operating expenses, including future debt service, our income and results of operations would be adversely affected. During 2003, eight of our tenants filed for bankruptcy protection, representing a total of eight locations.
In particular, if any of our anchor tenants becomes insolvent, suffers a downturn in business, or decides not to renew its lease or vacates a property and prevents us from re-letting that property by continuing to pay rent for the balance of the term, it may adversely impact our business. In addition, a lease termination by an anchor tenant or a failure of an anchor tenant to occupy the premises could result in lease terminations or reductions in rent by some of our non-anchor tenants in the same shopping center pursuant to the terms of their leases. In that event, we may be unable to re-let the vacated space.
Similarly, the leases of some anchor tenants may permit them to transfer their leases to other retailers. The transfer to a new anchor tenant could cause customer traffic in the retail center to decrease, which would reduce the income generated by that retail center. In addition, a transfer of a lease to a new anchor tenant could also give other tenants the right to make reduced rental payments or to terminate their leases with us.
Any bankruptcy filings by or relating to one of our tenants or a lease guarantor would bar all efforts by us to collect pre-bankruptcy debts from that tenant, the lease guarantor or their property, unless we receive an order permitting us to do so from the bankruptcy court. The bankruptcy of a tenant or lease guarantor could delay our efforts to collect past due balances under the relevant leases and could ultimately preclude full collection of these sums. If a lease is assumed by the tenant in bankruptcy, all pre-bankruptcy balances due under the lease must be paid to us in full. However, if a lease is rejected by a tenant in bankruptcy, we would have only a general unsecured claim for damages. Any unsecured claim we hold may be paid only to the extent that funds are available and only in the same percentage as is paid to all other holders of unsecured claims. It is possible that we may recover substantially less than the full value of any unsecured claims we hold, if at all, which may adversely affect our operating results and financial condition. As of December 31,
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As of December 31, we received 6.7% of our annualized base rent from Wal-Mart Stores Inc. Seven other tenants each represented at least 2.0% of our total annualized base rent, but none of such tenants represented more than 3.1% of our total annualized base rent. The concentration in our leasing revenues from a small number of tenants creates the risk that, should these tenants experience financial difficulties, our operating results could be adversely affected.
We compete with many other entities for the acquisition of retail shopping centers and land that is appropriate for new developments, including other REITs, institutional pension funds and other owner-operators of shopping centers. These competitors may increase the price we pay to acquire properties or may succeed in acquiring those properties themselves. In addition, the sellers of properties we wish to acquire may find our competitors to be more attractive buyers because they may have greater resources, may be willing to pay more, or may have a more compatible operating philosophy. In particular, larger REITs may enjoy significant competitive advantages that result from, among other things, a lower cost of capital. In addition, the number of entities and the amount of funds competing for suitable properties may increase. This would increase demand for these properties and therefore increase the prices paid for them. If we pay higher prices for properties or are unable to acquire suitable properties at reasonable prices, our ability to grow may be adversely affected.
Integral to our business strategy is our ability to continue to acquire and develop properties. We may not be successful in identifying suitable real estate properties that meet our acquisition criteria and are compatible with our growth strategy or in consummating acquisitions or investments on satisfactory terms. We also may not be successful in identifying suitable areas for new development, negotiating for the acquisition of the land, obtaining required permits and authorizations, completing developments in accordance with our budgets and on a timely basis or leasing any newly-developed space. If we fail tosuccessfully identify or complete suitable acquisitions or developments withinand new developments; inability of our budget,redevelopment projects to yield anticipated returns; competition for both the acquisition and development of real estate properties and the leasing operations; existing exclusivity lease provisions;
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A key component of our business strategy is exploring redevelopment opportunities at existing properties within our portfolioWhen considering forward-looking statements, you should keep in mind the risk factors and other cautionary statements in this prospectus and any prospectus supplement hereto and in connectionreports of the Company filed with property acquisitions. To the extentSEC. Readers are cautioned not to place undue reliance on any of these forward-looking statements, which reflect our management’s views as of the date of this prospectus, or, if applicable, the date of a document incorporated by reference. All subsequent written and oral forward-looking statements attributable to us are expressly qualified in their entirety by the cautionary statements contained or referenced to in this section. Although we believe that the expectations reflected in the forward-looking statements are based on reasonable assumptions, we engage in these redevelopment activities, they will be subjectcannot guarantee future results, levels of activity, performance or achievements. We undertake no obligation to the risks normally associated with these projects, including, among others, cost overruns and timing delayspublicly update any forward-looking statements, whether as a result of new information, future events or the lackoccurrence of availability of materials and labor, weather conditions and other factors outside of our control. Any substantial unanticipated delays or expenses could adversely affect the investment returns from these redevelopment projects and adversely impact our operating results.
We face competition from similar retail centers within the trade areas in which our centers operate to renew leases or re-let spaceevents except as leases expire. Some of these competing properties may be newer, better located or better tenanted than our properties. In addition, any new competitive properties that are developed within
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In a number of cases, our leases contain provisions giving the tenant the exclusive right to sell clearly identified types of merchandise or provide specific types of services within the particular retail center or limit the ability of other tenants to sell that merchandise or provide those services. When releasing space after a vacancy, these provisions may limit the number and types of prospective tenants suitable for the vacant space. If we are unable to re-let space on satisfactory terms, our operating results would be adversely impacted.
Our current properties and any properties we acquire in the future are and will be subject to risks associated with rising operating expenses, any or all of which may negatively affect us. If any propertyRamco-Gershenson Properties Trust is not fully occupied or if revenues are not sufficient to cover operating expenses, then we could be required to expend funds for that property’s operating expenses. Our properties are subject to increases in real estate and other tax rates, utility costs, insurance costs, repairs and maintenance and administrative expenses.
While most of our leases require that tenants pay all or a portion of the applicable real estate taxes, insurance and operating and maintenance costs, renewals of leases or future leases may not be negotiated on these terms, in which event we will have to pay those costs. If we are unable to lease properties on a basis requiring the tenants to pay all or some of these costs, or if tenants fail to pay required tax, insurance, utility and other expenses, we could be required to pay those costs, which could adversely affect our operating results.
Because real estate investments are relatively illiquid, our ability to promptly sell one or more properties in our portfolio in response to changing economic, financial and investment conditions is limited. The real estate market is affected by many factors, such as general economic conditions, availability of financing, interest rates and other factors, including supply and demand, that are beyond our control. We cannot predict whether we will be able to sell any property for the price or on the terms set by us, or whether any price or other terms offered by a prospective purchaser would be acceptable to us. We also cannot predict the length of time needed to find a willing purchaser and to complete the sale of a property. We may be required to expend funds to correct defects or to make improvements before a property can be sold. We cannot assure you that we will have funds available to correct those defects or to make those improvements. These factors and any others that would impede our ability to respond to adverse changes in the performance of our properties could significantly adversely affect our financial condition and operating results.
Catastrophic losses, such as losses resulting from wars, acts of terrorism, earthquakes, floods, hurricanes, tornadoes or other natural disasters, pollution or environmental matters, generally are either uninsurable or not economically insurable, or may be subject to insurance coverage limitations, such as large deductibles or
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The recently-enacted Jobs and Growth Tax Relief Reconciliation Act of 2003 (the “2003 Act”) reduces the maximum federal income tax rate applicable to ordinary income of individuals to 35% for the 2003 through 2010 tax years. The 2003 Act also reduces the rate on which individual stockholders are taxed on corporate dividends to a maximum of 15% for the 2003 through 2008 tax years. The reduced tax rate generally does not apply to ordinary dividends paid by REITs. This change in the maximum tax rate on qualifying dividends may make investments in corporate stock more attractive than investments in REITs, which could negatively affect our stock price.
Risks Related to Our Debt Obligations
Required repayments of debt and related interest can adversely affect our operating performance. As of December 31, 2003, we had $454.4 million of outstanding indebtedness, of which $38.6 million bears interest at a variable rate, and we have the ability to borrow an additional $50 million under our existing secured credit facility and $40 million under our existing unsecured credit facility. Increases in interest rates on our existing indebtedness would increase our interest expense, which could adversely affect our cash flow and our ability to pay dividends. For example, if market rates of interest on our variable rate debt outstanding as of December 31, 2003 increased by 100 basis points, the increase in interest expense on our existing variable rate debt would decrease future earnings and cash flows by approximately $286,000 annually.
The amount of our debt may adversely affect our business and operating results by:
Subject to compliance with the financial covenants in our borrowing agreements, our management and board of trustees have discretion to increase the amount of our outstanding debt at any time. We could become more highly leveraged, resulting in an increase in debt service costs that could adversely affect our cash flow and the amount available for distribution to our shareholders. If we increase our debt, we may also increase the risk of default on our debt.
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In general, we must annually distribute at least 90% of our taxable net income to our shareholders to maintain our REIT status. As a result, those earnings will not be available to fund acquisition, development or redevelopment activities. We have historically funded acquisition, development and redevelopment activities by:
We expect to continue to fund our acquisition, development and redevelopment activities in this way. Our failure to obtain funds from these sources could limit our ability to grow, which could have a material adverse effect on the value of our securities.
The financial covenants contained in our mortgages and debt agreements reduce our flexibility in conducting our operations and create a risk of default on our debt if we cannot continue to satisfy them. The mortgages on our properties contain customary negative covenants such as those that limit our ability, without the prior consent of the lender, to further mortgage the applicable property or to discontinue insurance coverage. In addition, if we breach covenants in our debt agreements, the lender can declare a default and require us to repay the debt immediately and, if the debt is secured, can ultimately take possession of the property securing the loan.
In particular, our outstanding credit facility contains customary restrictions, requirements and other limitations on our ability to incur indebtedness, including limitations on total liabilities to assets and minimum debt service coverage and tangible net worth ratios. Our ability to borrow under our credit facility is subject to compliance with these financial and other covenants. We rely in part on borrowings under our credit facility to finance acquisition, development and redevelopment activities and for working capital. If we are unable to borrow under our credit facility or to refinance existing indebtedness, our financial condition and results of operations would likely be adversely impacted.
Incurring mortgage debt increases our risk of loss because defaults on indebtedness secured by properties may result in foreclosure actions by lenders and ultimately our loss of the related property. We have entered into mortgage loans which are secured by multiple properties and contain cross collateralization and cross default provisions. Cross collateralization provisions allow a lender to foreclose on multiple properties in the event that we default under the loan. Cross default provisions allow a lender to foreclose on the related property in the event a default is declared under another loan. For federal income tax purposes, a foreclosure of any of our properties would be treated as a sale of the property for a purchase price equal to the outstanding balance of the debt secured by the mortgage. If the outstanding balance of the debt secured by the mortgage exceeds our tax basis in the property, we would recognize taxable income on foreclosure but would not receive any cash proceeds.
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Tax Risks
We operate in a manner so as to qualify as a REIT for federal income tax purposes. Although we do not intend to request a ruling from the IRS as to our REIT status, in the opinion of Honigman Miller Schwartz and Cohn LLP, we have qualified as a REIT since the commencement of our taxable year which began January 1, 2003. This opinion was issued in connection with the filing of the registration statement of which this prospectus is a part and is filed as an exhibit to that registration statement. Investors should be aware, however, that opinions of counsel are not binding on the IRS or any court. The opinion of Honigman Miller Schwartz and Cohn LLP represents only the view of our tax counsel based on its review and analysis of existing law and on certain representations as to factual matters and covenants made by us and our Chief Executive Officer. Furthermore, both the validity of the opinion and our continued qualification as a REIT will depend on our satisfaction of certain asset, income, organizational, distribution and shareholder ownership requirements on a continuing basis, the results of which will not be monitored by Honigman Miller Schwartz and Cohn LLP.
If we were to fail to qualify as a REIT for any taxable year, we would be subject to federal income tax, including any applicable alternative minimum tax, on our taxable income at regular corporate rates, and distributions to shareholders would not be deductible by us in computing our taxable income. Any such corporate tax liability could be substantial and would reduce the amount of cash available to us for distribution to our shareholders, which in turn could have a material adverse impact on the value of, and trading prices for, the securities.
DESCRIPTION OF THE COMPANY
We are a fully integrated, self-administered, and self-managedpublicly-traded Maryland real estate investment trust also knownorganized on October 2, 1997. The terms “Company,” “we,” “our” or “us” refer to Ramco-Gershenson Properties Trust, the Operating Partnership (defined below) and/or its subsidiaries, as the context may require. Our principal office is located at 31500 Northwestern Highway, Suite 300, Farmington Hills, Michigan 48334. Our predecessor, RPS Realty Trust, a “REIT,” that acquires, develops, manages and owns communityMassachusetts business trust, was formed on June 21, 1988 to be a diversified growth-oriented REIT. In May 1996, RPS Realty Trust acquired the Ramco-Gershenson interests through a reverse merger, including substantially all of the shopping centers inand retail properties as well as the midwestern, southeasternmanagement company and mid-Atlantic regionsbusiness operations of the United States. As of December 31, 2003, we had a portfolio of 64 shopping centers totaling approximately 13.3 million square feet of gross leaseable area located in 12 states. Our shopping centers include 63 community shopping centers, including ten power centers and two single tenant facilities. We also own one enclosed regional mall. Our properties are located in convenient and easily-accessible locations with abundant parking which are close to residential communities and offer excellent visibility for our tenants and easy access for shoppers.
For approximately half a century, Ramco-Gershenson, Inc. and certain of its predecessor developedaffiliates. The resulting trust changed its name to Ramco-Gershenson Properties Trust and owned shopping centers throughoutRamco-Gershenson, Inc.’s officers assumed management responsibility. The trust also changed its operations from a mortgage real estate investment trust (“REIT”) to an equity REIT and contributed certain mortgage loans and real estate properties to Atlantic Realty Trust, an independent, newly formed liquidating REIT. In 1997, with approval from our shareholders, we changed our state of organization by terminating the United States. Over that time, we developed or acquired over 60 shopping centers withMassachusetts trust and merging into a total of over 16.5 million square feet.
newly formed Maryland real estate investment trust.
“REIT taxable income” (as defined in the Code), excluding any net capital gain, to our shareholders. Additionally, at the end of each fiscal quarter, at least 75% of the value of our total assets must consist of real estate assets (including interests in mortgages on real property and interests in other REITs) as well as cash, cash equivalents and government securities. We are also subject to limits on the amount of certain types of securities we can hold. Furthermore, at least 75% of our gross income for the tax year must be derived from certain sources, which include “rents from real property” and interest on loans secured by mortgages on real property. An additional 20% of our gross income must be derived from these same sources or from dividends and interest from any source, gains from the sale or other disposition of stock or securities or any combination of the foregoing.
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Except as
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Years ended December 31, | ||||||||
2007 | 2006 | 2005 | 2004 | 2003 | ||||
1.31 | 1.36 | 1.45 | 1.43 | 1.37 |
Years ended December 31, | ||||||||
2007 | 2006 | 2005 | 2004 | 2003 | ||||
1.22 | 1.19 | 1.26 | 1.26 | 1.27 |
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• | the title; | ||
• | the aggregate principal amount and whether there is any limit on the aggregate principal amount that we may subsequently issue; | ||
• | whether the debt securities will be senior, senior subordinated, subordinated or junior subordinated; | ||
• | the name of the trustee and its corporate trust office; | ||
• | any limit on the amount of debt securities that may be issued; | ||
• | any subordination provisions; | ||
• | any provisions regarding the conversion or exchange of such debt securities with or into other securities; | ||
• | any default provisions and events of default applicable to such debt securities; | ||
• | any covenants applicable to such debt securities; | ||
• | whether such debt securities are issued in certificated or book-entry form, and the identity of the depositary for those issued in book-entry form; | ||
• | whether such debt securities are to be issuable in registered or bearer form, or both, and any restrictions applicable to the exchange of one form or another and to the offer, sale and delivery of such debt securities in either form; | ||
• | whether such debt securities may be represented initially by a debt security in temporary or permanent global form, and, if so, the initial depositary and the circumstances under which beneficial owners of interests may exchange such interests for debt securities of like tenor and of any authorized form and denomination and the authorized newspapers for publication of notices to holders of bearer securities; | ||
• | any other terms required to establish a class or series of bearer securities; | ||
• | the price(s) at which such debt securities class or series will be issued; | ||
• | the person to whom any interest will be payable on any debt securities, if other than the person in whose name the debt security is registered at the close of business on the regular record date for the payment of interest; | ||
• | any provisions restricting the declaration of dividends or requiring the maintenance of any asset ratio or maintenance of reserves; | ||
• | the date or dates on which the principal of and premium, if any, is payable or the method(s), if any, used to determine those dates; | ||
• | the rate(s) at which such debt securities will bear interest or the method(s), if any, used to calculate the rate(s); |
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• | the date(s), if any, from which any interest will accrue, or the method(s), if any, used to determine the dates on which interest will accrue and date(s) on which interest will be payable; | ||
• | any redemption or early repayment provisions applicable to such debt securities; | ||
• | the stated maturities of installments of interest, if any, on which any interest on such debt securities will be payable and the regular record dates for any interest payable on any debt securities which are registered securities; | ||
• | the places where and the manner in which the principal of and premium and/or interest, if any, will be payable and the places where the debt securities may be presented for transfer; | ||
• | our obligation or right, if any, to redeem, purchase or repay such debt securities of the class or series pursuant to any sinking fund amortization or analogous provisions or at the option of a holder of such debt securities and other related provisions; | ||
• | the denominations in which any registered securities are to be issuable; | ||
• | the currency, currencies or currency units, including composite currencies, in which the purchase price for, the principal of and any premium and interest, if any, on such debt securities will be payable; | ||
• | the time period within which the manner in which and the terms and conditions upon which the purchaser of any of such debt securities can select the payment currency; | ||
• | if the amount of payments of principal, premium, if any, and interest, if any, on such debt securities is to be determined by reference to an index, formula or other method, or based on a coin or currency or currency unit other than that in which such debt securities are stated to be payable, the manner in which these amounts are to be determined and the calculation agent, if any, with respect thereto; | ||
• | if other than the principal amount thereof, the portion of the principal amount of the debt securities of the class or series which will be payable upon declaration or acceleration of the maturity thereof pursuant to an event of default; | ||
• | if we agree to pay any additional amounts on any of the debt securities, and coupons, if any, of the classes or series to any holder in respect of any tax, assessment or governmental charge withheld or deducted, the circumstances, procedures and terms under which we will make these payments; | ||
• | any terms applicable to debt securities of any class or series issued at an issue price below their stated principal amount; | ||
• | whether such debt securities are to be issued or delivered (whether at the time of original issuance or at the time of exchange of a temporary security of such class or series or otherwise), or any installment of principal or any premium or interest is to be payable only, upon receipt of certificates or other documents or satisfaction of other conditions in addition to those specified in the applicable indenture; | ||
• | any provisions relating to covenant defeasance and legal defeasance; | ||
• | any provisions relating to the satisfaction and discharge of the applicable indenture; | ||
• | any special applicable United States federal income tax considerations; | ||
• | any provisions relating to the modification of the applicable indenture both with and without the consent of the holders of the debt securities of the class or series issued under such indenture; and | ||
• | any other material terms not inconsistent with the provisions of the applicable indenture. |
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• | any person from actually or constructively owning our shares that would cause us to be “closely held” under Section 856(h) of the Code or otherwise cause us to fail to qualify as a REIT, including by reason of receiving rents from tenants that are “Related Party Tenants” in an amount that would cause us to fail to satisfy one or both of the REIT gross income tests, and | ||
• | any person from transferring our shares if the transfer would cause our shares to be owned by fewer than 100 persons. |
• | with respect to our common shares, 9.8%, in value or number of shares, whichever is more restrictive, of our outstanding common shares, and | ||
• | with respect to any class or series of our preferred shares, 9.8%, in value or number of shares, whichever is more restrictive, of the outstanding shares of the applicable class or series of our preferred shares. |
• | such person is not an “individual” for purposes of the Code, | ||
• | such person’s share ownership will not cause a person who is an “individual” to be treated as owning common shares in excess of the ownership limit, applying the attribution rules under the Code, and | ||
• | such person’s share ownership will not otherwise jeopardize our REIT status. |
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Trust, as amended (including any articles supplementary setting forth the terms of the preferred shares), and our Bylaws.
will have no preemptive rights.
Series B Preferred Shares
The outstanding 1,000,000 Series B Cumulative Redeemable Preferred Shares were issuedtransfer agent for any preferred shares will be set forth in a public offering. Thethe applicable prospectus supplement.
• | the title and stated value of such preferred shares; | ||
the number of such preferred shares being offered, the liquidation preference per share and the offering price of such preferred shares; | |||
• | the distribution rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to such preferred shares; | ||
• | the date from which distributions on such preferred shares shall accumulate, if applicable; | ||
• | the procedures for any auction and remarketing, if any, for such preferred shares; | ||
• | the provision for a sinking fund, if any, for such preferred shares; | ||
• | the provisions for redemption, if applicable, of such preferred shares; | ||
• | any listing of such preferred shares on any securities exchange; | ||
• | the terms and conditions, if applicable, upon which such preferred shares will be convertible into common shares, including the conversion price (or manner of calculation thereof); | ||
• | a discussion of United States federal income tax considerations applicable to such preferred shares; | ||
• | the relative ranking and preferences of such preferred shares as to distribution rights (including whether any liquidation preference as to the preferred shares will be treated as a liability for purposes of determining the availability of assets of ours for distributions to holders of common or preferred shares remaining junior to the preferred shares as to distribution rights) and rights upon liquidation, dissolution or winding up of our affairs; | ||
• | any limitations on issuance of any class or series of preferred shares ranking senior to or on a parity with such class or series of preferred shares as to distribution rights and rights upon liquidation, dissolution or winding up of our affairs; | ||
• | any limitations on direct or beneficial ownership and restrictions on transfer of such preferred shares, in each case as may be appropriate to preserve our status as a REIT; and |
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The Series B Preferred Shares rank,
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up, as the case may be.
The
Dividends
Notwithstanding the foregoing, dividends on the Series B Preferred Shares accrue whether or not we have earnings, whether or not there are funds legally available for the payment of those dividends and whether or not those dividends are declared. Except as described in the next paragraph, we will not declare or pay or set aside for payment of dividends, and we will not declare or make any distribution of cash or other property, directly or indirectly, on or with respect to any of our common shares, or any other class or series of our shares of beneficial interest ranking, as to dividends,distributions, on a parity with or junior to the Series B Preferred Shares (other thanpreferred shares of such class or series for any period unless (i) if such class or series of preferred shares has a dividendcumulative distribution, full cumulative distributions have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for such payment on the preferred shares of such class or series for all past distribution periods and the then current distribution period or (ii) if such class or series of preferred shares does not have a cumulative distribution, full distributions for the then current distribution period have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for such payment on the preferred shares of such class or series. When distributions are not paid in commonfull (or a sum sufficient for such full payment is not so set apart) upon the preferred shares of any class or inseries and the shares of any other class or series of preferred shares ranking on a parity as to distributions with the preferred shares of such class or series, all distributions authorized upon the preferred shares of such class or series and any other class or series of preferred shares ranking on a parity as to distributions with such preferred shares shall be authorized pro rata so that the amount of distributions authorized per share on the preferred shares of such class or series and such other class or series of preferred shares shall in all cases bear to each other the same ratio that accrued and unpaid distributions per share on the preferred shares of such class or series (which shall not include any accumulation in respect of unpaid distributions for prior distribution periods if such preferred shares do not have a cumulative distribution) and such other class or series of preferred shares bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on preferred shares of such class or series which may be in arrears.
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When we do not pay dividends in full (or we do not set apart a sum sufficient to pay them in full) uponpayment for all past distribution periods and the Series B Preferred Sharesthen current distribution period and any other series of preferred shares of beneficial interest ranking on a parity as to dividends with the Series B Preferred Shares, we will declare any dividends upon the Series B Preferred Shares and any other series of preferred shares of beneficial interest ranking on a parity as to dividends with the Series B Preferred Shares proportionately so that the amount of dividends declared per share of Series B Preferred Shares and such other series of preferred shares of beneficial interest will in all cases bear to each other the same ratio that accrued dividends per share on the Series B Preferred Shares and such other series of preferred shares (which will not include any accrual in respect of unpaid dividends on such other series of preferred shares for prior dividend periods(ii) if such otherclass or series of preferred shares does not have a cumulative dividend) beardistribution, full distributions on all shares of such class or series have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for payment for the then current distribution period, no shares of such class or series of preferred shares shall be redeemed unless all outstanding preferred shares of such class or series are simultaneously redeemed; provided, however, that the foregoing shall not prevent the purchase or acquisition of preferred shares of such class or series pursuant to each other. No interest,a purchase or sum of money in lieu of interest, is payable in respect of any dividend payment or paymentsexchange offer made on the Series B Preferred Shares which may be in arrears.
Holderssame terms to holders of Series B Preferred Sharesall outstanding preferred shares of such class or series, and, unless (a) if such class or series of preferred shares has a cumulative distribution, full cumulative distributions on all outstanding shares of such class or series have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for payment for all past distribution periods and the then current distribution period and (b) if such class or series of preferred shares does not entitled tohave a cumulative distribution, full distributions on all shares of such class or series have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for payment for the then current distribution period, we shall not purchase or otherwise acquire directly or indirectly any dividend, whether payable in cash, propertypreferred shares of such class or series (except by conversion into or exchange for shares of beneficial interest ranking junior to the preferred shares of such class or series as to distributions and upon liquidation).
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19Uponwinding-upwinding up of our affairs, then, before any distribution or payment shall be made to the holders of Series B Preferred Shares areany common shares or any other class or series of shares of beneficial interest ranking junior to any class or series of preferred shares in the distribution of assets upon our liquidation, dissolution or winding up, the holders of such class or series of preferred shares shall be entitled to be paidreceive, after payment or provision for payment of our debts and other liabilities, out of our assets legally available for distribution to our shareholders, aliquidating distributions in the amount of the liquidation preference of $25.00 per share (set forth in the applicable prospectus supplement), plus an amount equal to anyall distributions accrued and unpaid dividendsthereon (which shall not include any accumulation in respect of unpaid distributions for prior distribution periods if such preferred shares do not have a cumulative distribution). After payment of the full amount of the liquidating distributions to which they are entitled, the date of payment (whether or not declared), before any distribution or payment may be made to holders of shares of common shares or any othersuch class or series of ourpreferred shares will have no right or claim to any of beneficial interest ranking junior to the Series B Preferred Shares as to liquidation rights. If,remaining assets of ours. In the event that, upon ourany such voluntary or involuntary liquidation, dissolution or winding up, our legally available assets are insufficient to pay the amount of the liquidating distributions on all such outstanding Series B Preferred Sharespreferred shares and the corresponding amounts payable on all of our shares of other classes or series of shares of beneficial interest of ranking on a parity with the Series B Preferred Sharessuch class or series of preferred shares in the distribution of assets upon liquidation, dissolution or winding up, then the holders of the Series B Preferred Sharessuch class or series of preferred shares and all other such classes or series of shares of beneficial interest ranking on a parity with the Series B Preferred Sharesshall share proportionatelyratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled. Holders of Series B Preferred Shares are entitled to written notice of any liquidation. After payment of the full amount ofwhich they are entitled,all holders of a class or series of preferred shares, the remaining assets of ours shall be distributed among the holders of Series B Preferred Shares have no rightany other classes or claimseries of shares of beneficial interest ranking junior to such class or series of preferred shares upon liquidation, dissolution or winding up, according to their respective rights and preferences and in each case according to their respective number of shares. For purposes of this section, a distribution of assets in any of our remaining assets. Ourdissolution, winding up or liquidation will not include (i) any consolidation or merger of us with or into any other corporation, trust(ii) our dissolution, liquidation, winding up, or reorganization immediately followed by organization of another entity to which such assets are distributed or (iii) a sale or other entity, or the sale, lease or conveyancedisposition of all or substantially all of our property or business will not be deemedassets to constitute our liquidation, dissolution or winding-up.Optional Redemption The Series B Preferred Shares are not redeemable before November 12, 2007. However,another entity; provided that, in order to ensure that we remain qualified as a REIT for federal income tax purposes,each case, effective provision is made in the Series B Preferred Shares are subject to provisions of our declaration of trust, under which Series B Preferred Shares owned by a shareholder in excesscharter of the ownership limit discussed under the heading “Restrictions on Ownershipresulting and Transfer of Shares” below will be transferred to a trust and may be purchased by us under certain circumstances. Onsurviving entity or after November 12, 2007, we may, at our option upon not less than 30 nor more than 60 days’ written notice, redeem the Series B Preferred Shares, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share plus all accrued and unpaid dividends (except as provided below), if any (whether or not declared) to the date fixed for redemption, without interest. If we redeem fewer than all of the outstanding Series B Preferred Shares, the Series B Preferred Shares to be redeemed will be redeemed proportionately (as nearly as may be practicable without creating fractional shares) or by lot or by any other equitable method as we may determine. Holders of Series B Preferred Shares to be redeemed must surrender the preferred shares at the place designated in such notice and are entitled to the redemption price and any accrued and unpaid dividends payable upon the redemption following surrender of the preferred shares. If (i) we have given notice of redemption of any shares of Series B Preferred Shares, (ii) we have irrevocably set aside the funds necessaryotherwise for the redemption (and, if the redemption date falls after a date designated by our board of trustees for the payment of a dividendrecognition, preservation and prior to the corresponding date on which a dividend is scheduled to be paid, we have irrevocably set aside the amount of cash necessary to pay the dividends payable on the date such dividends are to be paid in respectprotection of the Series B Preferred Shares) in trust for the benefit of the holders of any Series B Preferred Shares so called for redemption, and (iii) we have given irrevocable instructions to pay such redemption price, and if applicable, such dividends, then from and after the redemption date dividends will cease to accrue on such Series B Preferred Shares, such Series B Preferred Shares will no longer be deemed outstanding and all rights of the holders of such Series B Preferred Shares will terminate, except the right to receive the redemption price plus any accrued and unpaid dividends payable upon the redemption, without interest. The redemption provisions of the Series B Preferred Shares do not in any way limit or restrict our right or ability to purchase, from time to time either at a public or a private sale, all or any part of the Series B Preferred Shares at such price or prices as we may determine, subject to the provisions of applicable law.12 Unless we have declared and paid in cash, or we are contemporaneously declaring and paying, or we have declared and set aside a sum sufficient for the payment of, the full cumulative dividends on all Series B Preferred Shares for all past dividend periods and the then current dividend period, we may not redeem any Series B Preferred Shares unless we simultaneously redeem all outstanding Series B Preferred Shares and we may not purchase or otherwise acquire directly or indirectly any Series B Preferred Shares except by exchange for shares of beneficial interest ranking junior to the Series B Preferred Shares as to dividends and amounts upon liquidation; except that we may purchase Series B Preferred Shares pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series B Preferred Shares or, subject to certain provisions of our declaration of trust, we may, under certain circumstances, purchase Series B Preferred Shares owned by a shareholder in excess of the ownership limit. We must give notice of redemption by publication in a newspaper of general circulation in the City of New York, such publication to be made once a week for two successive weeks commencing not less than 30 nor more than 60 days prior to the redemption date. We must mail a similar notice, postage prepaid, not less than 30 nor more than 60 days prior to the redemption date, addressed to the respective holders of record of the Series B Preferred Shares to be redeemed at their respective addresses as they appear on our shareholder records. No failure to give such notice or any defect in the notice or in the mailing thereof affects the sufficiency of notice or validity of the proceedings for the redemptionpreferred shares.Series B Preferred Shares except as to a holder to whom notice was defectiveclass or not given. A redemption notice is conclusively presumed to have been duly given on the date mailed whether or not the holder actually received the redemption notice. Each notice must state (i) the redemption date; (ii) the redemption price; (iii) the numberseries of Series B Preferred Shares to be redeemed; (iv) the place or places where certificates for Series B Preferred Shares are to be surrendered for payment of the redemption price; and (v) that dividends on the Series B Preferred Shares to be redeemedpreferred shares will cease to accrue on the redemption date. If we redeem fewer than all of the Series B Preferred Shares held by any holder, the notice mailed to such holder must also specify the number of Series B Preferred Shares held by such holder to be redeemed. If a redemption date falls after a dividend record date and prior to the corresponding dividend payment date, each holder of Series B Preferred Shares at the close of business of such dividend record date is entitled to the dividend payable on such shares on the corresponding dividend payment date notwithstanding the redemption of such shares before that dividend payment date. Except as described above and except to the extent the redemption price includes all accrued and unpaid dividends, we will make no payment or allowance for unpaid dividends, whether or not in arrears, on Series B Preferred Shares for which a notice of redemption has been given. The Series B Preferred Shares that we redeem or repurchase will be restored to the status of authorized but unissued Series B Preferred Shares.The Series B Preferred Shares have no stated maturity and are not subject to any sinking fund or mandatory redemption.Voting Rights Holders of the Series B Preferred Shares do not have any voting rights, except as described below. Whenever dividends onset forth below or as otherwise indicated in the applicable prospectus supplement.Series B Preferred Shares are in arrears for sixclass or more consecutive or non-consecutive quarterly periods, a preferred dividend default will exist, and the holders of the Series B Preferred Shares (voting separately as a class with all other series of parity preferred shares of the Company upon which like voting rights have been conferred and are exercisable) are entitled to vote for the election of a total of two additional trustees of the Company at the next annual meeting of shareholders and at each subsequent meeting until all dividends accumulated on the Series B Preferred Shares and all other series of parity preferred shares upon which like voting rights have been conferred and are exercisable have been fully paid or declared and a sum sufficient has been set aside to pay them. Upon such election, the number of members of our entire board of trustees will be increased by two trustees. If and when all accumulated dividends and the accrued dividend for the then current dividend period shall have been paid on such Series B Preferred Shares and all series of preferred shares, upon which like voting rights have been conferred and are exercisable, the13term of office of each of the additional trustees so elected will terminate and the entire board of trustees shall be reduced accordingly. So long as a preferred dividend default continues, any vacancy in the office of additional trustees elected under this section may be filled by written consent of the trustee elected as described in this paragraph who remains in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Series B Preferred Shares when they have the voting rights described above (voting separately as a class with all other series of parity preferred shares upon which like voting rights have been conferred and are exercisable). Each of the trustees elected as described in this paragraph will be entitled to one vote on any matter. So long as any Series B Preferred Sharespreferred shares remain outstanding, we maywill not, without the affirmative vote or consent of the holders of two-thirdsa majority of the Series B Preferred Sharesshares of each class or series of preferred shares outstanding at the time, given in person or by proxy, either in writing or at a meeting (with the Series B Preferred Shares(such class or series voting separately as a class):class or series), (i) authorize, create or create,issue, or increase the authorized or issued amount of, any class or series of shares of beneficial interest ranking seniorprior to the Series B Preferred Sharessuch class or series of preferred shares with respect to payment of dividendsdistributions or the distribution of assets upon our liquidation, dissolution or winding-upwinding up, or reclassify any of our authorized shares of beneficial interest into any such shares, of beneficial interest of that kind, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such shares of beneficial interest;shares; or (ii) amend, alter or repeal the provisions of our declarationthe Declaration of trust orTrust, as amended, including the applicable articles supplementary relating to the Series B Preferred Shares,for such class or series of preferred shares, whether by merger, consolidation transfer or conveyance of substantially all of our assets or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Series B Preferred Shares or its holders; except that with respect to the occurrence of any of the events described in (ii) above, so long as the Series B Preferred Shares (or any equivalentsuch class or series of preferred shares issued byor the surviving entity in any merger or consolidation to which we became a party) remain outstanding with the terms of the Series B Preferred Shares materially unchanged, the occurrence of such event will not be deemed to materially and adversely affect the rights, preferences, privileges or voting power of holders of Series B Preferred Shares and exceptthereof; provided, however, that (A) any increase in the amount of the authorized Series B Preferred Sharespreferred shares or the creation or issuance of any other class or series of preferred shares, or (B) any increase in the numberamount of authorized Series B Preferred Sharesshares of such class or series or any other class or series of preferred shares, in each case ranking on a parity with or junior to the Series B Preferred Sharespreferred shares of such class or series with respect to the payment of dividendsdistributions or the distribution of assets upon liquidation, dissolution or winding up, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers.
In
The Series B Preferred Shares are not convertible intoclass or exchangeable for any other property or securities.
The transfer agent and registrar for the Series B Preferred Shares is the American Stock Transfer & Trust Company.
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Issuance of Additional Series of Preferred Shares
This section describes the general terms that will apply to any particular series of preferred shares upon which like voting rights have been conferred and are exercisable) will be entitled to vote for the election of beneficial interest that we may offer by this prospectus and an applicable prospectus supplement in the future. When we issue a particulartwo additional trustees of ours until, (i) if such class or series of preferred shares we will describe in the prospectus supplement that relates to the series (1) the specific terms of thehas a cumulative distribution, all distributions accumulated on such preferred shares for the past distribution periods and (2) the extent to whichthen current distribution period shall have been fully paid or authorized and a sum sufficient for the general terms described in this section apply to the preferred shares of that series. The description of preferred shares in this section and in any prospectus supplement may not be complete and is subject to and qualified in its entirety by reference to our declaration of trust, including the articles supplementary relating to eachpayment thereof set aside for payment or (ii) if such class or series of preferred shares which will be filed withdoes not have a cumulative distribution, four consecutive quarterly distributions shall have been fully paid or authorized and a sum sufficient for the SEC and incorporated by reference in the registration statement of which this prospectus is a part at or prior to the time of the issuance ofpayment thereof set aside for payment. In such series of preferred shares.
Prior to issuing a series or class of preferred shares,case, our entire board of trustees is required to set, subject to the provisions of our declaration of trust relating to restrictions on transferwill be increased by two trustees.
This means our board of trustees could authorize the issuance of a class or series of preferred shares which could delay, defer or prevent a transaction or a change in control that might involve a premium price for holders of ourare convertible into common shares or otherwisewill be set forth in their best interest.
Thethe applicable prospectus supplement relating thereto. Such terms will include the number of common shares into which the preferred shares are convertible, the conversion price (or manner of calculation thereof), the conversion period, provisions as to whether conversion will be at the offeringoption of the holders of the preferred shares or us, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event of the redemption of such preferred shares.
All preferred shares offered pursuant to any prospectus supplement will, when issued, be duly authorized, fully paid and non-assessable. This means that the full price for our preferred shares will be paid at issuance and that you, as a purchaser of such preferred shares will not be later required to pay us any additional monies for such preferred shares.
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these restrictions.
• | the title of the warrants, | ||
• | the offering price, | ||
• | the exercise price of the warrants, | ||
• | the aggregate number of common or preferred shares purchasable upon exercise of the warrants and, in the case of warrants for preferred shares, the designation, aggregate number and terms of the class or series of preferred shares purchasable upon exercise of the warrants, | ||
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• | the designation and terms of any class or series of preferred shares with which the warrants are being offered and the number of warrants being offered with such preferred shares, | ||
• | the date, if any, on and after which the warrants and any related class or series of common shares or preferred shares will be transferable separately, | ||
• | the date on which the right to exercise the warrants will commence and the date on which such right shall expire, | ||
• | any federal income tax considerations, and | ||
• | any other material terms of the warrants. |
• | the date for determining the shareholders entitled to the rights distribution; | ||
• | the aggregate number of common shares or other securities purchasable upon exercise of the rights and the exercise price and any adjustments to such exercise price; | ||
• | the aggregate number of rights being issued; | ||
• | the date, if any, on and after which the rights may be transferable separately; | ||
• | the date on which the right to exercise the rights shall commence and the date on which the right shall expire; | ||
• | any special United States federal income tax consequences; and | ||
• | any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the rights. |
Board of Trustees — Number, Classification and Vacancies
Our declaration of trust and bylawsBylaws provide that our board of trustees will establish the number of trustees. Our board of trustees is currently comprised of eightcomprises seven trustees. Our bylawsBylaws also provide that a majority of the entire board of trustees may increase or decrease the number of trustees serving on our board of trustees. Any vacancy on our board of trustees, other than a vacancy created as a result of the removal of any trustee by the action of the shareholders, shall be filled, at any regular meeting or at any special meeting called for that purpose, by the majority of the remaining trustees.
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Our declaration of trustTrust provides that, subject to any rights of holders of one or more classes or series of preferred shares to elect one or more trustees, any trustee may be removed at any time, with or without cause, at a meeting of the shareholders, by the affirmative vote of the holders of not less than two-thirds of the shares then outstanding and entitled to vote generally in the election of trustees. If any trustee shall be so removed, our shareholders may take action to fill the vacancy so created. An individual so elected as trustee by the shareholders shall hold office for the unexpired term of the trustee whose removal created the vacancy.
• | any person who beneficially owns ten percent or more of the voting power of the trust’s shares; or | ||
• | an affiliate or associate of the trust who, at any time within the |
• | 80% of the votes entitled to be cast by holders of outstanding voting shares of the | ||
• | two-thirds of the votes entitled to be cast by holders of voting shares of the trust other than |
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• | one-tenth or more but less than | ||
• | one-third or more but less than a | ||
• | a majority or more of all voting power. |
trust.
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Anti-takeover Effect of Certain ProvisionsBylaws.
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In order for us to qualify as a REIT, no more than 50% in value of our outstanding shares of beneficial interest may be owned, actually or constructively, by five or fewer individuals (as determined under certain attribution rules in the Internal Revenue Code), during the last half of a taxable year (other than the first year
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Because our board of trustees believes it is desirable for us to qualify as a REIT, our declaration of trust (as amended and restated), subject to customary exceptions, provides that no holder may own, or be deemed to own by virtue of the applicable attribution rules of the Internal Revenue Code, more than the ownership limit described below. The ownership attribution rules under the Internal Revenue Code are complex and may cause common shares actually or constructively owned by a group of related individuals and/or entities to be owned constructively by one individual or entity. As a result, the acquisition of less than 9.8% of our common shares (or the acquisition of an interest in an entity that owns, actually or constructively, common shares) by an individual or entity, could, nevertheless cause that individual or entity, or another individual or entity, to own constructively in excess of 9.8% of our outstanding common shares and thus subject those common shares to the ownership limit. Our board of trustees may, in its sole discretion and upon the vote of 75% of its members, grant an exemption from the ownership limit with respect to one or more persons who would not be treated as “individuals” for purposes of the Internal Revenue Code if that person submits to the board information satisfactory to the board, in its reasonable discretion, demonstrating that:
As a condition of a waiver, our board of trustees may, in its reasonable discretion, require undertakings or representations from the applicant to ensure that the conditions described above are satisfied and will continue to be satisfied as long as the person owns shares in excess of the ownership limit. Under some circumstances, our board of trustees may, in its sole discretion and upon the vote of 75% of its members, grant an exemption for individuals to acquire preferred shares in excess of the ownership limit. The ownership limit we refer to in this section means:
Our board of trustees has the authority to increase the ownership limit from time to time, but it does not have the authority to do so to the extent that after giving effect to an increase, five beneficial owners of our common shares could beneficially own in the aggregate more than 49.5% of our outstanding common shares.
In December 2002, our board of trustees granted an exception to the ownership limits described above with respect to the Series B Preferred Shares, provided, however, that no person may beneficially or constructively own in excess of 9.8% (in value or number of shares, whichever is more restrictive) of our outstanding shares (including common shares and all series and classes of preferred shares).
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Our declaration of trust further prohibits:
Any person who acquires, or attempts or intends to acquire, actual or constructive ownership of our shares of beneficial interest that will or may violate any of the foregoing restrictions on transferability and ownership will be required to give notice to us immediately and provide us with any information that we may request in order to determine the effect of the transfer on our status as a REIT.
If any purported transfer of our shares of beneficial interest or any other event would otherwise result in any person violating the ownership limit or the other restrictions in our declaration of trust, then the purported transfer will be void and of no force or effect with respect to the purported transferee as to that number of shares that exceeds the ownership limit and the purported transferee will acquire no right or interest (or, in the case of any event other than a purported transfer, the person or entity holding record title to any shares in excess of the ownership limit will cease to own any right or interest) in these excess shares. Any excess shares described above will be transferred automatically, by operation of law, to a trust, the beneficiary of which will be a qualified charitable organization selected by us. This automatic transfer will be deemed to be effective as of the close of business on the business day (as defined in our declaration of trust) prior to the date of the violating transfer. Within 20 days of receiving notice from us of the transfer of shares to the trust, the trustee of the trust (who will be designated by us and be unaffiliated with us and the purported transferee or owner) will be required to sell the excess shares to a person or entity who could own those shares without violating the ownership limit and distribute to the purported transferee an amount equal to the lesser of the price paid by the purported transferee for the excess shares or the sales proceeds received by the trust for the excess shares. In the case of any excess shares resulting from any event other than a transfer, or from a transfer for no consideration (such as a gift), the trustee will be required to sell the excess shares to a qualified person or entity and distribute to the purported owner an amount equal to the lesser of the fair market value of the excess shares as of the date of the event or the sales proceeds received by the trust for the excess shares. In either case, any proceeds in excess of the amount distributable to the purported transferee or owner, as applicable, will be distributed to the beneficiary of the trust. Prior to a sale of any excess shares by the trust, the trustee will be entitled to receive, in trust for the beneficiary, all dividends and other distributions paid by us with respect to the excess shares, and also will be entitled to exercise all voting rights with respect to the excess shares. Subject to Maryland law, effective as of the date that the shares have been transferred to the trust, the trustee will have the authority (at the trustee’s sole discretion and subject to applicable law) (1) to rescind as void any vote cast by a purported transferee prior to the discovery by us that its shares have been transferred to the trust and (2) to recast votes in accordance with the desires of the trustee acting for the benefit of the beneficiary of the trust. Any dividend or other distribution paid to the purported transferee or owner (prior to the discovery by us that its shares had been automatically transferred to a trust as described above) will be required to be repaid to the trustee upon demand for distribution to the beneficiary of the trust. If the transfer to the trust as described above is not automatically effective (for any reason) to prevent violation of the ownership limit, then our declaration of trust provides that the transfer of the excess shares will be void.
In addition, our shares of beneficial interest held in the trust will be deemed to have been offered for sale to us, or our designee, at a price per share equal to the lesser of (a) the price per share in the transaction that resulted in the transfer to the trust (or, in the case of a devise or gift, the market value at the time of that devise or gift) and (b) the market value of such shares on the date we, or our designee, accept the offer. We will have the right to accept the offer until the trustee has sold the shares of beneficial interest held in the trust. Upon the sale to us, the interest of the beneficiary in the shares sold will terminate and the trustee will distribute the net proceeds of the sale to the purported owner.
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All certificates evidencing our shares of beneficial interest will bear a legend referring to the restrictions described above and a statement that we will furnish a copy of our declaration of trust to a shareholder on request and without charge.
All persons who own, directly or by virtue of the attribution provisions of the Internal Revenue Code, more than 5% (or other percentage between 1/2 of 1% and 5% as provided in the applicable rules and regulations under the Internal Revenue Code) of the lesser of the number or value of our outstanding shares of beneficial interest must give a written notice to us by January 30 of each year. In addition, each shareholder will, upon demand, be required to disclose to us in writing information with respect to the direct, indirect and constructive ownership of our shares of beneficial interest that our board of trustees deems reasonably necessary to comply with the provisions of the Internal Revenue Code applicable to a REIT, to comply with the requirements of any taxing authority or governmental agency or to determine our compliance with such provisions or requirements.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
• | financial institutions; | ||
• | insurance companies; | ||
• | broker-dealers; | ||
• | regulated investment companies; | ||
• | holders who receive securities through the exercise of employee stock options or otherwise as compensation; | ||
• | persons holding securities as part of a “straddle,” “hedge,” “conversion transaction,” “synthetic security” or other integrated investment; | ||
• | except to the extent discussed below, tax-exempt organizations; and | ||
• | except to the extent discussed below, foreign investors. |
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• | We will be taxed at regular corporate rates on any undistributed income, including undistributed net capital gains. | ||
• | We may be subject to the “alternative minimum tax” on our items of tax preference, | ||
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• | If we have net income from “prohibited transactions,” which are, in general, sales or other dispositions of property, other than foreclosure property, held primarily for sale to customers in the ordinary course of business, | ||
• | If we elect to treat property that we acquire in connection with a foreclosure of a mortgage loan or certain leasehold terminations as “foreclosure property,” we may thereby avoid the 100% excise tax on gain from a resale of that property (if the sale would otherwise constitute a prohibited transaction), but the income from the sale or operation of the property may be subject to corporate income tax at the highest applicable rate (currently 35%). | ||
• | We will be subject to a 100% penalty tax on any redetermined rents, redetermined deductions, or excess interest. In general, redetermined rents are rents from real property that are overstated as a result of services furnished by a “taxable REIT subsidiary” (described below) of ours to any of our tenants. Redetermined deductions and excess interest represent amounts that are deducted by a “taxable REIT subsidiary” (described below) of ours for amounts paid to us that are in excess of the amounts that would have been charged based on arm’s-length negotiations. See “— Redetermined Rents, Redetermined Deductions, and Excess Interest” below. | ||
• | If we should fail to satisfy the 75% gross income test or the 95% gross income test discussed below, | ||
• | If we fail to satisfy any of the REIT asset tests (other than a de minimis failure of the 5% and 10% asset tests) described below, due to reasonable cause and not due to willful neglect and we nonetheless maintain our REIT qualification as a result of specified cure provisions, we will be required to pay a tax equal to the greater of $50,000 or the highest corporate tax rate multiplied by the net income generated by the nonqualifying assets that caused us to fail such test. | ||
• | If we fail to satisfy any requirement of the Code for qualifying as a REIT, other than a failure to satisfy the REIT gross income tests or asset tests, and the failure is due to reasonable cause, we may retain our REIT qualification but we will be required to pay a penalty of $50,000 for each such failure. | ||
• | If we should fail to distribute during each calendar year at least the sum of (1) 85% of our | ||
• | We may be required to pay monetary penalties to the IRS in certain circumstances, including if we fail to meet certain record keeping requirements intended to monitor our compliance with rules relating to the composition of a REIT’s shareholders, as described below in “— Requirements for Qualification — General”. | ||
• | |||
If |
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• | Certain of our subsidiaries are corporations and their earnings are subject to corporate income tax. |
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Ownership of Partnership Interests.In the case of a REIT that is a partner in a partnership (treating, as a partner of a partnership for this purpose, a member of a limited liability company that is classified as a partnership for federal income tax purposes), Treasury Regulations provide that the REIT iswill be deemed to own its proportionate share of the partnership’s assets and to earn its proportionate share of the partnership’spartnership, and the REIT will be deemed to be entitled to the income for purposes of the asset and gross income tests applicablepartnership attributable to REITs described below. In addition,such share. The character of the assets and gross income of the partnership (determined at the level of the partnership) are deemed to retain the same character in the hands of the REIT. Thus,REIT for purposes of Section 856 of the Code, including satisfying the gross income and asset tests described below. Accordingly, our proportionate share of the assets, liabilities, and items of
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In the event that any of our disregarded subsidiaries ceases to be wholly-owned by us (for example, if any equity interest in the subsidiary is acquired by a person other than us or one of our other disregarded subsidiaries), the subsidiary’s separate existence would no longer be disregarded for federal income tax purposes. Instead, it would have multiple owners and would be treated as either a partnership or a taxable corporation. Such an event could, depending on the circumstances, adversely affect our ability to satisfy the various asset and gross income requirements applicable to REITs, including the requirement that REITs generally may not own, directly or indirectly, more than 10% (as measured by either voting power or value) of the securities of another corporation.any one issuer. See “— Income Tests” and “— Asset Tests” below.
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• | Any amount received or accrued, directly or indirectly, with respect to any real or personal property cannot be based in whole or in part on the income or profits of any person from such property. However, an amount received or accrued generally will not be excluded from rents from real property solely by reason of being based on a fixed percentage or percentages of receipts or sales. In addition, amounts received or accrued based on income or profits do not include amounts received from a tenant based on the tenant’s income from the property if the tenant derives substantially all of its income with respect to such property from | ||
• | Amounts received from a tenant generally will not qualify as rents from real property in satisfying the gross income tests if the REIT directly, indirectly, or constructively owns, (1) in the case of a tenant which is a corporation, 10% or more of the total combined voting power of all classes of stock entitled to vote or 10% or more of the total value of shares of all classes of stock of such tenant, or (2) in the case of a tenant which is not a corporation, an interest of 10% or more in the assets or net profits of such tenant. (Such a tenant is referred to in this section as a “Related Party Tenant.”) Rents that we receive from a Related Party Tenant that is also a TRS of ours, however, will not be excluded from the definition of “rents from real property” if at least 90% of the space at the property to which the rents relate is leased to third parties, and the rents paid by the TRS are substantially comparable to rents paid by our other tenants for comparable space. Whether rents paid by our TRS are substantially comparable to rents paid by our other tenants is determined at the time the lease with the TRS is entered into, extended, and modified, if such modification increases the rents due under such lease. Notwithstanding the foregoing, however, if a lease with a “controlled” TRS is modified and such modification results in an increase in the rents payable by such TRS, any such increase will not qualify as rents from real property. For purposes of this rule, a “controlled” TRS is a TRS in which we own stock possessing more than 50% of the voting power or more than 50% of the total value. | ||
• | If rent attributable to personal property leased in connection with a lease of real property is greater than 15% of the total rent received under the lease, then the portion of rent attributable to such personal property will not qualify as rents from real property. The determination whether more than 15% of the rents received by a REIT from a property is attributable to personal property is based upon a comparison of the fair market value of the personal property leased by the tenant to the fair market value of all the property leased by the tenant. | ||
• | Rents from real property do not include any amount received or accrued directly or indirectly by a REIT for services furnished or rendered to tenants of a property or for managing or operating a property, unless the services furnished or rendered, or management or operation provided, 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 |
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of providing the services. If the 1% threshold is not exceeded, only the amounts received for providing Impermissible Tenant Services will not qualify as rents from real property. |
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• | At least 75% of the value of our total assets must be represented by some combination of “real estate assets,” cash, cash items, U.S. government securities, and, under some circumstances, stock or debt instruments purchased with new capital. For this purpose, “real estate assets” include interests in real property, such as land, buildings, leasehold interests in real property, stock of corporations that qualify as REITs, and some kinds of mortgage-backed securities and mortgage loans. | ||
• | The aggregate value of all securities of TRSs we hold may not exceed 20% of the value of our total assets (or 25% of the value of our total assets for our taxable years beginning on or after July 31, 2008). |
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• | The value of any one issuer’s securities owned by us may not exceed 5% of the value of our assets. This asset test does not apply to securities of | ||
• | We may not own more than 10% of any one issuer’s outstanding securities, as measured by either voting power or value. This asset test does not apply to securities of TRSs or to any security that qualifies as a “real estate asset.” In addition, solely for purposes of the 10% value test, certain types of securities, including certain “straight debt” | ||
Notwithstanding
partnership.
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In order to
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In addition, if we dispose of any asset subject to the Built-in Gain Rule (described above), then depending on the character of the asset, we might be required to distribute 90% of the Built-in Gain (less our tax on such gain), if any, recognized on the disposition of such asset under the 90% distribution requirement described above.
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generally includes a sale or other disposition of property (other than foreclosure property) that is held primarily for sale to customers in the ordinary course of a trade or business. The Operating Partnership owns interests in real property that is situated on the periphery of certain of the Properties. We and the Operating Partnership believe that this peripheral property is not held primarily for sale to customers and that the sale of such peripheral property will not be in the ordinary course of the Operating Partnership’s business. We intend to conduct our operations so that no asset owned by us or our pass-through subsidiaries will be held primarily for sale to customers, and that a sale of any such asset will not be in the ordinary course of our business. Whether property is held primarily for sale to customers in the ordinary course of our business depends, however, on the facts and circumstances as they exist from time to time, including those relating to a particular property. As a result, no assurance can be given that we can avoid being deemed to own property that the IRS later characterizeswill not recharacterize property we own as property held primarily for sale to customers in the ordinary course of our business, or that we can comply with certain safe-harbor provisions of the Internal Revenue Code that would prevent such treatment. In the event we determine that a property, the ultimate sale of which is expected to result in taxable gain, will be regarded as held primarily for sale to customers in the ordinary course of trade or business, we intend to cause such property to be acquired by or transferred to a TRS so that gain from such sale will be subject to regular corporate income tax as discussed above under “— Effect of Subsidiary Entities — Taxable Subsidiaries.”Foreclosure Property
• | So much of such amounts as constitutes impermissible tenant service income does not exceed 1% of all amounts received or accrued during the year with respect to the property; | ||
• | The TRS renders a significant amount of similar services to unrelated parties and the charges for such services are substantially comparable; | ||
• | Rents paid by tenants leasing at least 25% of the net leasable space in the property who are not receiving services from the TRS are substantially comparable to the rents paid by tenants leasing comparable space who are receiving such services from the TRS and the charge for the services is separately stated; or |
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In the event we determine that a property, the ultimate sale of which is expected to result in taxable gain, will be held primarily for sale to customers in the ordinary course of a trade or business, we intend to cause such property to be acquired by or transferred to a TRS so that gain from such sale will be subject to regular corporate income tax as discussed above under “— Effect of Subsidiary Entities — Taxable Subsidiaries.”
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securities.
Distributions.As a result of |
Distributions. Due to our status as a REIT, distributions made to our taxable domestic shareholders out of current or accumulated earnings and profits, and not designated as capital gain dividends, will generally be taken into account by them as ordinary income and will not be eligible for the dividends received deduction for corporations. The
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On May 28, 2003, the President signed into law the Jobs and Growth Tax Relief Reconciliation Act of 2003. This new tax law reduced the
• | our dividends attributable to dividends received by us from non-REIT corporations, such as TRSs; | ||
• | our dividends attributable to our REIT taxable income in the prior taxable year on which we were subject to corporate level income tax | ||
• | our dividends attributable to income in the prior taxable year from the sale of appreciated (i.e., Built-in Gain) property acquired by us from “C” corporations in carryover basis transactions | ||
The Internal Revenue Service has taken the position in published guidance that if a REIT has two classes of shares, it may designate distributions made to each class in any year as consisting of no more than such class’ proportionate share of particular types of income based on the total distributions paid to each class for such year, including distributions out of net capital gain. Consequently, if both common shares and preferred shares are outstanding, we intend to designate distributions made to the classes as consisting of particular types of income in accordance with the classes’ proportionate shares of such income. Thus, distributions of net capital gain will be allocated between holders of common shares and holders of preferred shares, if any, in proportion to the total distributions made to each class during the taxable year, or otherwise as required by applicable law.
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interest limitation.
• | a citizen or resident of the United States, | ||
• | a corporation | ||
• | an estate the income of which is includable in gross income for U.S. federal income tax purposes regardless of its source, or | ||
• | a trust if (1) a United States court is able to exercise primary supervision over the administration of such trust and one or more United States fiduciaries have the authority to control all substantial decisions of the |
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Even if the foregoing test is not met, common and preferred shares nonetheless will not constitute a USRPI if we are a “domestically-controlled REIT.” A domestically-controlled REIT is a REIT less than 50% in value of the shares of which is held directly or indirectly by non-U.S. shareholders at all times during a prescribed testing
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Tax-exempt entities, including qualified employee pension and profit sharing trusts and individual retirement accounts, generally are exempt from federal income taxation. However, they are subject to taxation on their unrelated business taxable income (which is referred to in this section as “UBTI”). While many investments in real estate generate UBTI, the IRS has ruled that dividend distributions from a REIT to a tax-exempt entity do not constitute UBTI. Based on that ruling, and provided that (1) a tax-exempt shareholder has not held its common or preferred shares as “debt financed property” within the meaning of the Internal Revenue Code (that is, whereproperty the acquisition or holding of the propertywhich is financed through a borrowing by the tax-exempt shareholder), and (2) the shares are not otherwise used in an unrelated trade or business, we believe that distributions from us and income from the sale of theour shares should not give rise to UBTI to a tax-exempt shareholder.
In certain circumstances, a
Because our shares are publicly traded, however, no assurance can be given that we are not (or will not be) a pension-held REIT.
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• | does not actually or constructively own a 10% or greater interest in us; | ||
• | is not a controlled foreign corporation with respect to which we are a “related person” within the meaning of Section 864(d)(4) of the Code; | ||
• | is not a bank receiving interest described in Section 881(c)(3)(A) of the Code; and | ||
• | provides the appropriate certification as to its foreign status. |
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non-U.S. shareholders,foreign investors, and non-U.S. shareholdersforeign investors should consult their tax advisors with respect to any such information reporting and backup withholding requirements. Backup withholding with respect to non-U.S. shareholdersforeign investors is not an additional tax. Rather, the amount of any backup withholding with respect to a payment to a non-U.S. shareholderforeign investor will be allowed as a credit against any United StatesU.S. federal income tax liability of such non-U.S. shareholder.foreign investor. If withholding results in an overpayment of taxes, a refund may be obtained, provided that the required information is furnished to the IRS.Dividend Reinvestment Plan
Requirements”Requirement” above.Legislative or Other Actions Affecting REITs
the common sharesour securities.preferred shares.Local TaxesState and Local Taxes
We are and holders of common shares and preferred shares may be, subject to state, local, or other taxation in various state, local, or other jurisdictions, including those in which we or our shareholders transact business or own propertyproperty. In addition, a holder of our securities may be subject to state, local, or reside.other taxation on our distributions in various state, local, or other jurisdictions, including the jurisdiction in which the holder resides. The tax treatment in such jurisdictions may differ from the federal income tax consequences discussed above. Consequently, prospective investors should consult their own tax advisors regarding the effect of state, local, and other tax laws on their investment in common shares and preferred shares.our securities.
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We may sell our securities from time to time through underwriters or dealers, directly to purchasers, through agents or through a combination of any of these methods. We may also sell our securities directly to investors through subscription rights distributed to our shareholders. In connection with the distribution of subscription rights to shareholders, if all of the underlying securities are not subscribed for, we may sell such unsubscribed securities directly, or through underwriters, to third parties. Any underwriter or agent involved in the offer and sale of securities will be named in the applicable prospectus supplement.
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We may distribute securities in one or more transactions at a fixed price or prices, at prices related to the prevailing market prices at the time of sale, or at negotiated prices (any of which may represent a discount from the prevailing market prices). We may also authorize underwriters acting as our agents to offer and sell securities upon the terms and conditions set forth in the applicable prospectus supplement. In connection with the sale of securities, underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of securities for whom they may act as agent. Underwriters may sell securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent.
Any underwriting compensation that we pay to underwriters or agents in connection with the offering of securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of securities may be deemed to be underwriters, and any discounts and commissions they receive and any profit they realize on resale of securities may be deemed to be underwriting discounts and commissions, under the Securities Act of 1933, as amended, and the rules and regulations thereunder. Underwriters, dealers and agents may be entitled, under agreements entered into with us, to indemnification against and contribution toward certain civil liabilities, including liabilities under the Securities Act.
If so indicated in the applicable prospectus supplement, we will authorize dealers acting as our agents to solicit offers by certain institutions to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate principal amount of securities sold pursuant to contracts will be neither less than nor more than, the respective amounts stated in the applicable prospectus supplement. Institutions with whom contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other institutions but will in all cases be subject to our approval. Contracts will not be subject to any conditions except (1) the purchase by an institution of securities covered by its contracts shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject; and (2) if securities are being sold to underwriters, we will have sold to such underwriters the total principal amount of securities less the principal amount covered by the contracts. Certain of the underwriters and their affiliates may be customers of, engage in transactions with and perform services for us in the ordinary course of business.
Other than our common shares which are listed on the New York Stock Exchange, each series of securities will be a new issue of securities and will have no established trading market. Any common shares sold pursuant to a prospectus supplement will be listed on the New York Stock Exchange, subject to official notice of issuance. Any underwriters to whom securities are sold by us for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other than our common shares, may or may not be listed on a national securities exchange.
Underwriters and agents may engage in transactions with, or perform services for, us and our affiliates in the ordinary course of business.
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LEGAL MATTERS
The validity of any securities offered will be passed upon for us by Ballard Spahr Andrews & Ingersoll, LLP, Baltimore, Maryland. Certain tax matters will be passed upon for us by Honigman Miller Schwartz and Cohn LLP, Detroit, Michigan.
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The following table sets forth allitemizes the expenses payableincurred by us (other than underwriting commissions and discounts) in connection with the offeringissuance and registration of our common sharesthe securities being registered by this registration statement.hereunder. All amounts shown are estimatedestimates except the SEC registration fee, the NYSE supplemental listing fee and the NASD filing fee.
SEC registration fee | $ | 44,345 | ||
NYSE supplemental listing fee | * | |||
NASD filing fee | * | |||
Transfer agent fees | * | |||
Warrants agent fees | * | |||
Legal fees and expenses | * | |||
Accounting fees and Expenses | * | |||
Printing expenses | * | |||
Miscellaneous | * | |||
Total | * | |||
SEC registration fee | $ | 11,790.00 | * | |
Printing and engraving expenses** | $ | ** | ||
Legal fees and expenses** | $ | 150,000.00 | ||
Accounting fees and expenses** | $ | 42,000.00 | ||
Miscellaneous** | $ | ** | ||
Total | $ | 203,790.00 |
* | The SEC registration fee has already been paid and may be offset pursuant to Rule 457(p) with respect to the Registrant’s Registration Statement on Form S-3 (File No. 333-113948) and securities that were not sold thereunder. | ||
Does not include expenses of |
Under Maryland law, a real estate investment trust formed in Maryland is permitted to limit, by provision in its declaration
Our declaration of trustTrust permits us, and our Bylaws require us, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify any trustee or officer (a) against reasonable expenses incurred by him in the successful defense (on the merits or otherwise) of any proceeding to which he is made a party by reason of such status or (b) against any claim or liability to which he may become subject by reason of such status unless it is established that (i) the act or omission that was material to the matter giving rise to the claimprocedure was committed in bad faith or was the result of active and deliberate dishonesty, (ii) he actually received an improper personal benefit in money, property or services, or (iii) in the case of a criminal proceeding, he had reasonable cause to believe that his act or omission was unlawful. We are also required by our Bylaws to pay or reimburse, in advance of a final disposition and without requiring a preliminary determination of the ultimate entitlement to indemnification, reasonable expenses of a trustee or officer made a party to a proceeding by reason of his status as such, provided, however, that in accordance with Maryland law, we have received a written affirmation by the trustee or officer of his good faith belief that he has met the applicable standard for indemnification under such Bylaws and a written undertaking to repay such expenses if it shall ultimately be determined that the applicable standard was not met.
Under We may, with the approval of our board of trustees or any duly authorized committee, provide such indemnification and advance for expenses to any of our employees or agents or to any person who served a predecessor entity.
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The following exhibits are filed herewith or incorporated by reference:
Exhibit No. | ||||
Underwriting Agreement | ||||
4.1 | Amended and Restated Declaration of Trust of the | |||
4.2 | Articles of Amendment to Ramco-Gershenson Properties Trust Declaration of Trust, dated June 8, 2005, incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K dated June 9, 2005. | |||
4.3 | Bylaws of the Company, as amended and restated as of March 10, 2008, incorporated by reference to Exhibit 3.3 to the Company’s Annual Report on Form 10-K for the year ended December 31, | |||
4.4** | Form of Articles Supplementary | |||
4.5** | Form of Warrant (including any form of Warrant Certificate) | |||
Form of Rights Agreement (including any form | ||||
4.7** | Form of Indenture (including any form of Debt Security or Guaranty Security) | |||
5.1* | Opinion of Ballard Spahr Andrews | |||
8.1* | Opinion of Honigman Miller Schwartz and Cohn LLP as to certain tax matters. | |||
12.1* | Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends. | |||
23.1* | Consent of | |||
23.2* | Consent of Ballard Spahr Andrews | |||
23.3* | Consent of Honigman Miller Schwartz and Cohn LLP (included in Exhibit 8.1). | |||
24.1* | Powers of Attorney (included on signature pages). | |||
25.1** | Statement of Eligibility of Trustee on Form T-1 under the Indenture |
Filed herewith | ||
** | To be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Exchange Act, including any Current Report on Form 8-K |
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(1) The undersigned registrant hereby undertakes:
The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; | |||
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 |
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in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than | |||
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), (a)(l)(ii) and (a)(l)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in 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 registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
Provided, however,the paragraphs (a)(i) and (a)(ii) of this section 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 registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
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. | |||
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. |
(2) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant, the registrant pursuant to the foregoing provisions, or otherwise has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of 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 Act and will be governed by the final adjudication of such issue.
(4) The undersigned registrant hereby undertakes that:
That, for the purpose of determining |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b) | ||
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or |
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initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; | ||
Any free writing prospectus relating to the | |||
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and | ||
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each | ||
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. | ||
(d) | The undersigned registrant hereby further undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. |
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January 8, 2009.
RAMCO-GERSHENSON PROPERTIES TRUST |
By: | /s/ |
Gershenson | ||||
Name: | Dennis E. Gershenson | |||
Title: | Chairman of the Board, President | |||
and Chief Executive Officer | ||||
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EXHIBIT INDEX
Date: | ||||
Chairman of the Board, President and Chief Executive Officer | ||||
Dennis E. Gershenson | (Principal Executive Officer) | January 8, 2009 | ||
/s/ Richard J. Smith | Chief Financial Officer & Secretary | |||
Richard J. Smith | (Principal Accounting and | January 8, 2009 | ||
/s/ Stephen R. Blank | Trustee | |||
Stephen R. Blank | January 8, 2009 | |||
/s/ Arthur H. Goldberg | Trustee | |||
Arthur H. Goldberg | January 8, 2009 | |||
/s/ Robert A. Meister | Trustee | |||
Robert A. Meister | January 8, 2009 | |||
/s/ Joel M. Pashcow | Trustee | |||
Joel M. Pashcow | January 8, 2009 | |||
/s/ Mark K. Rosenfeld | Trustee | |||
Mark K. Rosenfeld | January 8, 2009 | |||
/s/ Michael A. Ward | Trustee | |||
Michael A. Ward | January 8, 2009 |
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Exhibit No. | ||||
1.1** | Form of Underwriting Agreement | |||
4.1 | Amended and Restated Declaration of Trust of the | |||
4.2 | Articles of Amendment to Ramco-Gershenson Properties Trust Declaration of Trust, dated June 8, 2005, incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K dated June 9, 2005. | |||
4.3 | Bylaws of the Company, as amended and restated as of March 10, 2008, incorporated by reference to Exhibit 3.3 to the Company’s Annual Report on Form 10-K for the year ended December 31, | |||
4.4** | Form of Articles Supplementary | |||
4.5** | Form of Warrant (including any form of Warrant Certificate) | |||
Form of Rights Agreement (including any form | ||||
4.7** | Form of Indenture (including any form of Debt Security or Guaranty Security) | |||
5.1* | Opinion of Ballard Spahr Andrews | |||
8.1* | Opinion of Honigman Miller Schwartz and Cohn LLP as to certain tax matters. | |||
12.1* | Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends. | |||
23.1* | Consent of | |||
23.2* | Consent of Ballard Spahr Andrews | |||
23.3* | Consent of Honigman Miller Schwartz and Cohn LLP (included in Exhibit 8.1). | |||
24.1* | Powers of Attorney (included on signature pages). | |||
25.1** | Statement of Eligibility of Trustee on Form T-1 under the Indenture |
* | Filed herewith | |
** | To be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Exchange Act, including any Current Report on Form 8-K |
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