As filed with the Securities and Exchange Commission on April
28, 1994
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
NEW PLAN REALTY TRUST
(Exact name of registrant as specified in its
declaration of trust)
Massachusetts 13-1995781
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
__________________
William Newman
Chief Executive Officer
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
__________________
Copies to:
Robinson Silverman Pearce
Aronsohn & Berman
1290 Avenue of the Americas
New York, New York 10104
Attention: Alan S. Pearce, Esq.
Steven G. Scheinfeld, Esq.
Brown & Wood
One World Trade Center
New York, New York 10048
Attention: Thomas R. Smith, Jr., Esq.
Douglas A. Sgarro, Esq.
__________________
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement as determined by market conditions.
If the only securities being registered on this form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box:
If any of the securities being registered on this form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest
reinvestment plans, check the following box: X
CACULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Cass Amount Maximum Maximum
of Securities to be to be Offering Price Aggregate Amount of
Registered(1) Registered (2) Per Unit (2)(3) Offering Price(2)(3) Registration Fee
____________________ ______________ _________________ ____________________ ________________
Debt Securities(4)....... (10) (10) (10)
Preferred Shares,
$1.00 par value(5)...... (10) (10) (10)
Depositary Shares representing
Preferred Shares, $1.00
par value(6)........... (10) (10) (10)
Common Shares of Beneficial
Interest without par value(7) (10) (10) (10)
Warrants(8) (10) (10) (10)
Total(9) $250,000,000 $250,000,000 $86,207(11)
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
(Footnotes on next page)
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(Footnotes for previous page)
(1) This Registration Statement also covers contracts which may
be issued by the Registrant under which the counterparty
may be required to purchase Debt Securities, Preferred
Shares, Depositary Shares, Common Shares of Beneficial
Interest or Warrants. Such contracts would be issued with
respect to the Debt Securities, Preferred Shares,
Depositary Shares, Common Shares of Beneficial Interest
and/or Warrants covered hereby.
(2) In U.S. Dollars or the equivalent thereof denominated in
one or more foreign currencies or units of two or more
foreign currencies or composite currencies (such as
European Currency Units).
(3) Estimated solely for purposes of calculating the
registration fee. No separate consideration will be
received for Preferred Shares or Common Shares of
Beneficial Interest that are issued upon conversion of Debt
Securities, Preferred Shares or Depositary Shares
registered hereunder or upon exercise of the Warrants
registered hereunder, as the case may be. Similarly, no
separate consideration will be received for Debt Securities
that are issued upon the exercise of Warrants registered
hereunder.
(4) Subject to note (9) below, there is being registered
hereunder an indeterminate principal amount of Debt
Securities. If any Debt Securities are being issued at an
original issue discount, then the offering price shall be
in such greater principal amount as shall result in an
aggregated initial offering price not to exceed
$250,000,000 less the dollar amount of any securities
previously issued hereunder.
(5) Subject to note (9) below, there is being registered
hereunder an indeterminate number of Preferred Shares as
may be sold, from time to time, by the Registrant. There
is also being registered hereunder an indeterminate number
of Preferred Shares as shall be issuable upon conversion or
redemption of Debt Securities registered hereby and upon
exercise of Warrants registered hereby.
(6) Subject to note (9) below, there are being registered
hereunder an indeterminate number of Depositary Shares to
be evidenced by Depositary Receipts issued pursuant to a
Deposit Agreement. In the event the Registrant elects to
offer to the public fractional interests in Preferred
Shares registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional
interests, and the Preferred Shares will be issued to the
depositary under the Deposit Agreement.
(7) Subject to note (9) below, there is being registered
hereunder an indeterminate number of Common Shares of
Beneficial Interest as may be sold, from time to time, by
the Registrant. There is also being registered hereunder
an indeterminate number of Common Shares of Beneficial
Interest as shall be issuable upon conversion or redemption
of Debt Securities or Preferred Shares or upon exercise of
Warrants registered hereby.
(8) Subject to note (9) below, there are being registered
hereunder an indeterminate amount and number of Warrants,
representing rights to purchase Debt Securities, Preferred
Shares or Common Shares of Beneficial Interest registered
hereby.
(9) In no event will the aggregate initial offering price of
all securities issued from time to time pursuant to this
Registration Statement exceed $250,000,000. Any securities
registered hereunder may be sold separately or as units
with other securities registered hereunder.
(10) Omitted pursuant to General Instruction II.D of Form S-3
under the Securities Act of 1933, as amended.
(11) Calculated pursuant to Rule 457(o) of the rules and
regulations under the Securities Act of 1933, as amended.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS, DATED APRIL 28, 1994
PROSPECTUS
NEW PLAN REALTY TRUST
$250,000,000
Debt Securities, Preferred Shares,
Depositary Shares, Common Shares and Warrants
New Plan Realty Trust ("New Plan" or the "Trust") may from
time to time offer in one or more series its (i) unsecured debt
securities, which may be either senior debt securities ("Senior
Securities") or subordinated debt securities ("Subordinated
Securities," and together with Senior Securities, the "Debt
Securities"), (ii) preferred shares of beneficial interest, par
value $1.00 per share ("Preferred Shares"), (iii) Preferred
Shares represented by depositary shares ("Depositary Shares"),
(iv) common shares of beneficial interest without par value
("Common Shares"), or (v) warrants to purchase Debt Securities,
Preferred Shares or Common Shares (collectively, "Warrants"),
with an aggregate initial public offering price of up to
$250,000,000 on terms to be determined at the time of offering.
Debt Securities, Preferred Shares, Depositary Shares, Common
Shares and Warrants (collectively, the "Offered Securities") may
be offered, separately or together, in separate series in
amounts, at prices and on terms to be set forth in a supplement
to this Prospectus (a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of
which this Prospectus is being delivered will be set forth in
the applicable Prospectus Supplement and will include, where
applicable: (i) in the case of Debt Securities, the specific
title, aggregate principal amount, ranking, currency, form
(which may be registered or bearer, or certificated or global),
authorized denominations, maturity, rate (or manner of
calculation thereof) and time of payment of interest, terms for
redemption at the option of the Trust or repayment at the option
of the Holder, terms for sinking fund payments, terms for
conversion into Preferred Shares or Common Shares, and any
initial public offering price; (ii) in the case of Preferred
Shares, the specific title and stated value, any dividend,
liquidation, redemption, conversion, voting and other terms and
conditions, and any initial public offering price; (iii) in the
case of Depositary Shares, the fractional share of a Preferred
Share represented by each such Depositary Share; (iv) in the
case of Common Shares, any initial public offering price; and
(v) in the case of Warrants, the number and terms thereof, the
designation and the number of securities issuable upon their
exercise, the exercise price, the terms of the offering and sale
thereof and, where applicable, the duration and detachability
thereof. In addition, such specific terms may include
limitations on direct or beneficial ownership and restrictions
on transfer of certain types of Offered Securities, in each case
as may be appropriate to preserve the status of the Trust as a
real estate investment trust ("REIT") for federal income tax
purposes.
The applicable Prospectus Supplement will also contain
information, where applicable, about certain United States
federal income tax considerations relating to, and any listing
on a securities exchange of, the Offered Securities covered by
such Prospectus Supplement.
The Offered Securities may be offered directly, through
agents designated from time to time by the Trust, or to or
through underwriters or dealers. If any agents or underwriters
are involved in the sale of any of the Offered Securities, their
names, and any applicable purchase price, fee, commission or
discount arrangement between or among them, will be set forth,
or will be calculable from the information set forth, in the
applicable Prospectus Supplement. See "Plan of Distribution."
No Offered Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms
of the offering of such series of Offered Securities.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_______________
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
_______________
The date of this Prospectus is _________ __, 1994.
Information contained herein is subject to completion or
amendment. A registration statement relating to these
securities has been filed with the Securities and Exchange
Commission. These securities may not be sold nor may offers to
buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall
there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any
such State.
AVAILABLE INFORMATION
The Trust is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and
Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Trust with the
Commission in accordance with the Exchange Act can be inspected
and copied at the Commission's Public Reference Section, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following
regional offices of the Commission: Seven World Trade Center,
13th Floor, New York, New York 10048 and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained from the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. In addition, the Common Shares are listed
on the New York Stock Exchange and similar information
concerning the Trust can be inspected and copied at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
The Trust has filed with the Commission a registration
statement (the "Registration Statement") (of which this
Prospectus is a part) under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Offered
Securities. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain
portions of which have been omitted as permitted by the rules
and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any contract or other document
are not necessarily complete, and in each instance reference is
made to the copy of such contract or other document filed as an
exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference and the exhibits and
schedules thereto. For further information regarding the Trust
and the Offered Securities, reference is hereby made to the
Registration Statement and such exhibits and schedules which may
be obtained from the Commission at its principal office in
Washington, D.C. upon payment of the fees prescribed by the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Trust
under the Exchange Act with the Commission and are incorporated
herein by reference:
1. The Trust's Annual Report on Form 10-K for the
year ended July 31, 1993, filed October 15, 1993 pursuant
to the Exchange Act.
2. The Trust's Quarterly Reports on Form 10-Q for the
three-month periods ended October 31, 1993 and January 31,
1994, filed on December 10, 1993 and March 15, 1994,
respectively, pursuant to the Exchange Act.
3. The Trust's Report on Form 8-K dated August 13,
1993, filed August 16, 1993 pursuant to the Exchange Act.
4. The Trust's Amendment on Form 8-K/A dated October
6, 1993, filed October 7, 1993 pursuant to the Exchange
Act.
5. The Trust's Report on Form 8-K dated November 17,
1993, filed November 18, 1993 pursuant to the Exchange Act.
6. The Trust's Amendment on Form 8-K/A dated January
13, 1994, filed January 14, 1994 pursuant to the Exchange
Act.
7. The Trust's Report on Form 8-K dated April 7,
1994, filed April 7, 1994 pursuant to the Exchange Act.
8. The Trust's Amendment No. 2 on Form 8-K/A dated
April 21, 1994, filed April 21, 1994 pursuant to the
Exchange Act.
9. The Trust's Report on Form 8-K dated February 10,
1994, filed February 10, 1994 pursuant to the Exchange Act.
10. Item 1 of the Trust's registration statement on
Form 8-A, as amended, filed May 19, 1986 pursuant to
Section 12 of the Exchange Act.
All documents filed by the Trust pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the
offering of the Offered Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part
hereof from the date of filing such documents.
Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein
(or in the applicable Prospectus Supplement) or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by
reference (not including the exhibits to such information,
unless such exhibits are specifically incorporated by reference
in such information) will be provided without charge to each
person, including any beneficial owner, to whom this Prospectus
is delivered, upon written or oral request. Requests should be
directed to New Plan Realty Trust, Attention: Ronald Frankel,
1120 Avenue of the Americas, New York, New York 10036; (212)
869-3000.
THE TRUST
New Plan, one of the largest publicly traded real estate
investment trust in the United States based on the aggregate
market value of its outstanding Common Shares, is a self-
administered and self-managed equity real estate investment
trust which primarily owns shopping centers. The Trust's
present equity investments consist principally of 88 shopping
centers, with approximately 11,090,000 gross rentable square
feet, five factory outlet centers with approximately 1,534,573
gross rentable square feet (including expansions under
construction), 15 rental apartment complexes containing 2,862
apartment units and one office building containing approximately
51,000 gross rentable square feet. These properties are located
in 18 States. Since the organization of the corporate
predecessor of the Trust in 1962, the Trust and its predecessor
have been directed by members of the Newman family. The Newman
family has been active in real estate ownership and management
since 1926.
The Trust has paid regular and uninterrupted cash
distributions on its Common Shares since it commenced operations
as a real estate investment trust in 1972. These distributions,
which are paid quarterly, have increased from $0.19 per Common
Share in fiscal 1973 to $1.275 per Common Share in fiscal 1993.
Since inception, each distribution has either been equal to or
greater than the distribution preceding it, and the
distributions have been increased in each of the last 59
consecutive quarters. The Trust intends to continue to declare
quarterly distributions on its Common Shares.
The Trust invests its assets in income-producing real
estate, with a primary emphasis on shopping centers, including
factory outlet centers, and garden apartments. The Trust's
primary investment strategy is to identify and purchase well-
located shopping centers, including factory outlet centers, and
garden apartments usually at a significant discount to
replacement cost. The Trust seeks to achieve income growth
through a program of expansion, renovation, leasing, re-leasing
and improving the tenant mix. The Trust minimizes development
risks by generally purchasing existing income-producing
properties.
The Trust, a Massachusetts business trust, maintains its
executive offices at 1120 Avenue of the Americas, New York, New
York 10036, and its telephone number is (212) 869-3000.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of
earnings to fixed charges of the Trust for the periods
indicated:
SIX MONTHS
YEAR ENDED JULY 31, ENDED
1989 1990 1991 1992 1993 JANUARY 31, 1994
____ ____ ____ ____ ____ ________________
13.0 17.1 20.0 30.4 25.3 20.8
To date, the Trust has not issued any preferred shares;
therefore, the ratios of earnings to combined fixed charges and
preferred share dividends are unchanged from the ratios
presented in this section. For purposes of computing these
ratios, earnings have been calculated by adding fixed charges
(excluding capitalized interest) to income (loss) before income
taxes and extraordinary items. Fixed charges consist of
interest costs, whether expensed or capitalized, the interest
component of rental expense, if any, and amortization of debt
discounts and issue costs, whether expensed or capitalized.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus
Supplement, the Trust intends to use the net proceeds from the
sale of the Offered Securities for working capital and general
corporate purposes, which may include the acquisition of
shopping centers, factory outlet centers and garden apartments
as suitable opportunities arise, the expansion and improvement
of certain properties owned or to be owned by the Trust, and the
repayment of certain indebtedness outstanding at such time.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms
and provisions of the Debt Securities to which any Prospectus
Supplement may relate. The particular terms of the Debt
Securities being offered and the extent to which such general
provisions may apply will be described in a Prospectus
Supplement relating to such Debt Securities.
The Senior Securities are to be issued under an Indenture,
as amended or supplemented from time to time (the "Senior
Securities Indenture"), between the Trust and a trustee to be
selected by the Trust (the "Senior Securities Trustee") and the
Subordinated Securities are to be issued under an Indenture, as
amended or supplemented from time to time (the "Subordinated
Securities Indenture"), between the Trust and a trustee to be
selected by the Trust (the "Subordinated Securities Trustee").
The Senior Securities Indenture and the Subordinated Securities
Indenture are referred to herein individually as the "Indenture"
and collectively as the "Indentures," and the Senior Securities
Trustee and the Subordinated Securities Trustee are referred to
herein individually as the "Trustee" and collectively as the
"Trustees." A form of the Senior Securities Indenture has been
filed as an exhibit to the Registration Statement of which this
Prospectus is a part and will be available for inspection at the
corporate trust office of the Senior Securities Trustee or as
described above under "Available Information." A form of the
Subordinated Securities Indenture will be filed as an exhibit to
an amendment to the Registration Statement of which this
Prospectus is a part and will be available for inspection at the
corporate trust office of the Subordinated Securities Trustee or
as described above under "Available Information." The
Indentures will be subject to, and governed by, the Trust
Indenture Act of 1939, as amended (the "TIA"). The descriptions
of the Indentures set forth below assume that the Trust has
entered into the Indentures. The Trust will execute the
applicable Indenture when and if the Trust issues Debt
Securities. The statements made hereunder relating to the
Indentures and the Debt Securities to be issued thereunder are
summaries of certain provisions thereof and do not purport to be
complete and are subject to, and are qualified in their entirety
by reference to, all provisions of the Indentures and such Debt
Securities. Unless otherwise specified, all section references
appearing herein are to sections of the Indentures, and
capitalized terms used but not defined herein shall have the
meanings set forth in the Indentures.
Provisions Applicable to Both Senior Securities and Subordinated
Securities
General
The Debt Securities will be direct, unsecured obligations
of the Trust. Senior Securities will rank pari passu with
certain other senior debt of the Company that may be outstanding
from time to time and will rank senior to all Subordinated
Securities that may be outstanding from time to time. Each
Indenture provides that the Debt Securities may be issued
without limit as to aggregate principal amount, in one or more
series, in each case as established from time to time in or
pursuant to authority granted by a resolution of the Board of
Trustees of the Trust or as established in one or more
indentures supplemental to the Indenture. All Debt Securities
of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the
consent of the Holders of the Debt Securities of such series,
for issuances of additional Debt Securities of such series
(Section 301).
Each Indenture provides that there may be more than one
Trustee thereunder, each with respect to one or more series of
Debt Securities. Any Trustee under either Indenture may resign
or be removed with respect to one or more series of Debt
Securities, and a successor Trustee may be appointed to act with
respect to such series (Section 608). In the event that two or
more persons are acting as Trustee with respect to different
series of Debt Securities, each such Trustee shall be a Trustee
of a trust under the applicable Indenture separate and apart
from the trust administered by any other Trustee (Section 609)
thereunder, and, except as otherwise indicated herein, any
action described herein to be taken by the Trustee may be taken
by each such Trustee with respect to, and only with respect to,
the one or more series of Debt Securities for which it is
Trustee under the applicable Indenture.
Reference is made to the Prospectus Supplement relating to
the series of Debt Securities being offered for the specific
terms thereof, including:
(1) the title of such Debt Securities;
(2) the classification of such Debt Securities as
Senior Securities or Subordinated Securities;
(3) the aggregate principal amount of such Debt
Securities and any limit on such aggregate
principal amount;
(4) the percentage of the principal amount at which
such Debt Securities will be issued and, if other
than the principal amount thereof, the portion of
the principal amount thereof payable upon
declaration of acceleration of the maturity
thereof, or (if applicable) the portion of the
principal amount of such Debt Securities which is
convertible into Common Shares or Preferred
Shares, or the method by which any such portion
shall be determined;
(5) if convertible, in connection with the
preservation of the Trust's status as a REIT, any
applicable limitations on the ownership or
transferability of the Common Shares or Preferred
Shares into which such Debt Securities are
convertible;
(6) the date or dates, or the method for determining
such date or dates, on which the principal of
such Debt Securities will be payable;
(7) the rate or rates (which may be fixed or
variable), or the method by which such rate or
rates shall be determined, at which such Debt
Securities will bear interest, if any;
(8) the date or dates, or the method for determining
such date or dates, from which any such interest
will accrue, the Interest Payment Dates on which
any such interest will be payable, the Regular
Record Dates for such Interest Payment Dates, or
the method by which such dates shall be
determined, the Person to whom such interest
shall be payable, and the basis upon which
interest shall be calculated if other than that
of a 360-day year of twelve 30-day months;
(9) the place or places where the principal of (and
premium, if any) and interest, if any, on such
Debt Securities will be payable, such Debt
Securities may be surrendered for conversion or
registration of transfer or exchange and notices
or demands to or upon the Trust in respect of
such Debt Securities and the applicable Indenture
may be served;
(10) the period or periods within which, the price or
prices at which and the terms and conditions upon
which such Debt Securities may be redeemed, in
whole or in part, at the option of the Trust, if
the Trust is to have such an option;
(11) the obligation, if any, of the Trust to redeem,
repay or purchase such Debt Securities pursuant
to any sinking fund or analogous provision or at
the option of a Holder thereof, and the period or
periods within which, the price or prices at
which and the terms and conditions upon which
such Debt Securities will be redeemed, repaid or
purchased, in whole or in part, pursuant to such
obligation;
(12) if other than U.S. dollars, the currency or
currencies in which such Debt Securities are
denominated and payable, which may be a foreign
currency or units of two or more foreign
currencies or a composite currency or currencies,
and the terms and conditions relating thereto;
(13) whether the amount of payments of principal of
(and premium, if any) or interest, if any, on
such Debt Securities may be determined with
reference to an index, formula or other method
(which index, formula or other method may, but
need not be, based on a currency, currencies,
currency unit or units or composite currency or
currencies) and the manner in which such amounts
shall be determined;
(14) whether such Debt Securities will be issued in
the form of one or more global securities and
whether such global securities are to be issuable
in a temporary global form or permanent global
form;
(15) any additions to, modifications of or deletions
from the terms of such Debt Securities with
respect to the Events of Default or covenants set
forth in the applicable Indenture;
(16) whether such Debt Securities will be issued in
certificated or book-entry form;
(17) whether such Debt Securities will be in
registered or bearer form and, if in registered
form, the denominations thereof if other than
$1,000 and any integral multiple thereof and, if
in bearer form, the denominations thereof and the
terms and conditions relating thereto;
(18) the applicability, if any, of the defeasance and
covenant defeasance provisions of Article XIV of
the applicable Indenture;
(19) if such Debt Securities are to be issued upon the
exercise of Warrants, the time, manner and place
for such Debt Securities to be authenticated and
delivered;
(20) the terms, if any, upon which such Debt
Securities may be convertible into Common Shares
or Preferred Shares of the Trust and the terms
and conditions upon which such conversion will be
effected, including, without limitation, the
initial conversion price or rate and the
conversion period;
(21) whether and under what circumstances the Trust
will pay Additional Amounts as contemplated in
the applicable Indenture on such Debt Securities
in respect of any tax, assessment or governmental
charge and, if so, whether the Trust will have
the option to redeem such Debt Securities in lieu
of making such payment;
(22) the name of the applicable Trustee and the
address of its corporate trust office; and
(23) any other terms of such Debt Securities not
inconsistent with the provisions of the
applicable Indenture (Section 301).
The Debt Securities may provide for less than the entire
principal amount thereof to be payable upon declaration of
acceleration of the maturity thereof ("Original Issue Discount
Securities"). Special U.S. federal income tax, accounting and
other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus
Supplement.
Except as set forth below under "Certain Covenants --
Limitations on Incurrence of Debt," neither Indenture contains
any other provisions that would limit the ability of the Trust
to incur indebtedness or that would afford Holders of Debt
Securities protection in the event of a highly leveraged or
similar transaction involving the Trust or in the event of a
change of control. However, restrictions on ownership and
transfers of the Trust's Common Shares and Preferred Shares are
designed to preserve its status as a REIT and, therefore, may
act to prevent or hinder a change of control. See "Description
of Preferred Shares" and "Description of Common Shares."
Reference is made to the applicable Prospectus Supplement for
information with respect to any deletions from, modifications of
or additions to the Events of Default or covenants of the Trust
that are described below, including any addition of a covenant
or other provision providing event risk or similar protection.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable Prospectus
Supplement, the Debt Securities of any series will be issuable
in denominations of $1,000 and integral multiples thereof
(Section 302).
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of (and premium, if any) and interest
on any series of Debt Securities will be payable at the
corporate trust office of the applicable Trustee, provided that,
at the option of the Trust, payment of interest may be made by
check mailed to the address of the Person entitled thereto as it
appears in the Security Register or by wire transfer of funds to
such Person at an account maintained within the United States
(Sections 301, 305, 306, 307 and 1002).
Any interest not punctually paid or duly provided for on
any Interest Payment Date with respect to a Debt Security
("Defaulted Interest") will forthwith cease to be payable to the
Holder on the applicable Regular Record Date and may either be
paid to the person in whose name such Debt Security is
registered at the close of business on a special record date
(the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the applicable Trustee, notice whereof
shall be given to the Holder of such Debt Security not less than
10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner, all as more completely
described in the applicable Indenture (Section 307).
Subject to certain limitations imposed upon Debt Securities
issued in book-entry form, the Debt Securities of any series
will be exchangeable for other Debt Securities of the same
series and of a like aggregate principal amount and tenor of
different authorized denominations upon surrender of such Debt
Securities at the corporate trust office of the applicable
Trustee. In addition, subject to certain limitations imposed
upon Debt Securities issued in book-entry form, the Debt
Securities of any series may be surrendered for conversion or
registration of transfer thereof at the corporate trust office
of the applicable Trustee. Every Debt Security surrendered for
conversion, registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer. No
service charge will be made for any registration of transfer or
exchange of any Debt Securities, but the Trust may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith (Section
305). If the applicable Prospectus Supplement refers to any
transfer agent (in addition to the Trustee) initially designated
by the Trust with respect to any series of Debt Securities, the
Trust may at any time rescind the designation of any such
transfer agent or approve a change in the location through which
any such transfer agent acts, except that the Trust will be
required to maintain a transfer agent in each Place of Payment
for such series. The Trust may at any time designate additional
transfer agents with respect to any series of Debt Securities
(Section 1002).
Neither the Trust nor any Trustee shall be required to (i)
issue, register the transfer of or exchange Debt Securities of
any series during a period beginning at the opening of business
15 days before any selection of Debt Securities of that series
to be redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption; (ii) register the
transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except the unredeemed portion of any Debt
Security being redeemed in part; or (iii) issue, register the
transfer of or exchange any Debt Security which has been
surrendered for repayment at the option of the Holder, except
the portion, if any, of such Debt Security not to be so repaid
(Section 305).
Merger, Consolidation or Sale
The Trust may merge with or into, consolidate with, or
sell, lease or convey all or substantially all of its assets to,
any other trust or corporation, provided that (a) either the
Trust shall be the continuing trust or corporation, or the
successor trust or corporation (if other than the Trust) formed
by or resulting from any such merger or consolidation or which
shall have received the transfer of such assets shall expressly
assume payment of the principal of (and premium, if any) and
interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and
conditions contained in the Indentures; (b) immediately after
giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Trust or any Subsidiary as a
result thereof as having been incurred by the Trust or such
Subsidiary at the time of such transaction, no Event of Default
under the Indentures, and no event which, after notice or the
lapse of time, or both, would become such an Event of Default,
shall have occurred and be continuing; and (c) an officer's
certificate and legal opinion covering such conditions shall be
delivered to the Trustees (Sections 801 and 803).
Certain Covenants
Limitations on Incurrence of Debt. The Trust will not, and
will not permit any Subsidiary to, incur any Debt (as defined
below) if, immediately after giving effect to the incurrence of
such additional Debt and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Debt
of the Trust and its Subsidiaries on a consolidated basis
determined in accordance with generally accepted accounting
principles is greater than 65% of the sum of (i) the Trust's
Total Assets (as defined below) as of the end of the calendar
quarter covered in the Trust's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently
filed with the Commission (or, if such filing is not permitted
under the Exchange Act, with the Trustee) prior to the
incurrence of such additional Debt, (ii) the purchase price of
any real estate assets or mortgages receivable acquired by the
Trust or any Subsidiary since the end of such calendar quarter,
including those obtained in connection with the incurrence of
such additional Debt, and (iii) the amount of any securities
offering proceeds received by the Trust or any Subsidiary since
the end of such calendar quarter (to the extent that such
proceeds were not used to acquire such real estate assets or
mortgages receivable or used to reduce Debt) (Section 1004).
In addition to the foregoing limitation on the incurrence
of Debt, the Trust will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge,
pledge, encumbrance or security interest of any kind upon any of
the property of the Trust or any Subsidiary if, immediately
after giving effect to the incurrence of such additional Debt
and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Trust and its
Subsidiaries on a consolidated basis which is secured by any
mortgage, lien, charge, pledge, encumbrance or security interest
on property of the Trust or any Subsidiary is greater than 40%
of the sum of (i) the Trust's Total Assets as of the end of the
calendar quarter covered in the Trust's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Trustee) prior to the
incurrence of such additional Debt, (ii) the purchase price of
any real estate assets or mortgages receivable acquired by the
Trust or any Subsidiary since the end of such calendar quarter,
including those obtained in connection with the incurrence of
such additional Debt and (iii) the amount of any securities
offering proceeds received by the Trust or any Subsidiary since
the end of such calendar quarter (to the extent that such
proceeds were not used to acquire such real estate assets or
mortgages receivable or used to reduce Debt) (Section 1004).
In addition to the foregoing limitations on the incurrence
of Debt, the Trust will not, and will not permit any Subsidiary
to, incur any Debt if Consolidated Income Available for Debt
Service (as defined below) for any 12 consecutive calendar
months within the 15 calendar months immediately preceding the
date on which such additional Debt is to be incurred shall have
been less than 1.5 times the Maximum Annual Service Charge (as
defined below) on the Debt of the Trust and all Subsidiaries to
be outstanding immediately after the incurring of such
additional Debt (Section 1004).
Existence. Except as permitted under "Merger,
Consolidation or Sale," the Trust will do or cause to be done
all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Trust shall not be
required to preserve any right or franchise if it determines
that the preservation thereof is no longer desirable in the
conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the Holders of the
Debt Securities (Section 1005).
Maintenance of Properties. The Trust will cause all of its
properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Trust may be necessary so
that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided,
however, that the Trust and its Subsidiaries shall not be
prevented from selling or otherwise disposing for value its
properties in the ordinary course of business (Section 1006).
Insurance. The Trust will, and will cause each of its
Subsidiaries to, keep all of its insurable properties adequately
insured against loss or damage with insurers of recognized
responsibility and having an A.M. Best policy holder's rating of
not less than A-:V (Section 1007).
Payment of Taxes and Other Claims. The Trust will pay or
discharge or cause to be paid or discharged, before the same
shall become delinquent, (i) all future taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary
or upon the income, profits or property of the Trust or any
Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the
property of the Trust or any Subsidiary, unless such lien would
not have a material adverse effect upon such property; provided,
however, that the Trust shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim (i) whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings or (ii) for which the Trust has set apart and
maintains an adequate reserve (Section 1008).
Provision of Financial Information. Whether or not the
Trust is subject to Section 13 or 15(d) of the Exchange Act, the
Trust will, to the extent permitted under the Exchange Act, file
with the Commission the annual reports, quarterly reports and
other documents which the Trust would have been required to file
with the Commission pursuant to such Section 13 or 15(d) if the
Trust were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Trust would have been required so to
file such documents if the Trust were so subject. The Trust
will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders of Debt
Securities, as their names and addresses appear in the Security
Register, without cost to such Holders, copies of the annual
reports and quarterly reports which the Trust would have been
required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Trust were subject to such
Sections and (ii) file with the Trustees copies of the annual
reports, quarterly reports and other documents which the Trust
would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Trust were
subject to such Sections and (y) if filing such documents by the
Trust with the Commission is not permitted under the Exchange
Act, promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such
documents to any prospective Holder (Section 1009).
As used herein,
"Consolidated Income Available for Debt Service" for any
period means Consolidated Net Income (as defined below) of the
Trust and its Subsidiaries plus amounts which have been deducted
for (a) interest on Debt of the Trust and its Subsidiaries, (b)
provision for taxes of the Trust and its Subsidiaries based on
income, (c) amortization of debt discount, (d) property
depreciation and amortization and (e) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period.
"Consolidated Net Income" for any period means the amount
of consolidated net income (or loss) of the Trust and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Debt" of the Trust or any Subsidiary means any
indebtedness of the Trust or any Subsidiary, whether or not
contingent, in respect of (i) borrowed money or evidenced by
bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by the Trust or any Subsidiary, (iii) letters of credit or
amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that
constitutes an accrued expense or trade payable or (iv) any
lease of property by the Trust or any Subsidiary as lessee which
is reflected on the Trust's Consolidated Balance Sheet as a
capitalized lease in accordance with generally accepted
accounting principles, in the case of items of indebtedness
under (i) through (iii) above to the extent that any such items
(other than letters of credit) would appear as a liability on
the Trust's Consolidated Balance Sheet in accordance with
generally accepted accounting principles, and also includes, to
the extent not otherwise included, any obligation by the Trust
or any Subsidiary to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in
the ordinary course of business), indebtedness of another person
(other than the Trust or any Subsidiary) (it being understood
that Debt shall be deemed to be incurred by the Trust or any
Subsidiary whenever the Trust or such Subsidiary shall create,
assume, guarantee or otherwise become liable in respect
thereof).
"Maximum Annual Service Charge" as of any date means the
maximum amount which may become payable in any period of 12
consecutive calendar months from such date for interest on, and
required amortization of, Debt. The amount payable for
amortization shall include the amount of any sinking fund or
other analogous fund for the retirement of Debt and the amount
payable on account of principal on any such Debt which matures
serially other than at the final maturity date of such Debt.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of
the Trust and its Subsidiaries determined in accordance with
generally accepted accounting principles (but excluding accounts
receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
amount of real estate assets of the Trust and its Subsidiaries
on such date, before depreciation and amortization determined on
a consolidated basis in accordance with generally accepted
accounting principles.
Events of Default, Notice and Waiver
Each Indenture provides that the following events are
"Events of Default" with respect to any series of Debt
Securities issued thereunder (a) default for 30 days in the
payment of any installment of interest on any Debt Security of
such series; (b) default in the payment of the principal of (or
premium, if any, on) any Debt Security of such series at its
Maturity; (c) default in making any sinking fund payment as
required for any Debt Security of such series; (d) default in
the performance of any other covenant of the Trust contained in
the applicable Indenture (other than a covenant added to such
Indenture solely for the benefit of a series of Debt Securities
issued thereunder other than such series), continued for 60 days
after written notice as provided in such Indenture; (e) an event
of default under any evidence of indebtedness of the Trust or
any mortgage, indenture or other instrument under which such
indebtedness is issued or by which such indebtedness is secured
or evidenced, such default having resulted in the acceleration
of the maturity of an aggregate principal amount exceeding
$10,000,000 of such indebtedness, but only if such indebtedness
is not discharged or such acceleration is not rescinded or
annulled within a specified period of time; (f) certain events
of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of the Trust,
any Significant Subsidiary or the property of the Trust or any
Significant Subsidiary; and (g) any other Event of Default
provided with respect to a particular series of Debt Securities
(Section 501). The term "Significant Subsidiary" means each
significant subsidiary (as defined in Regulation S-X promulgated
under the Securities Act) of the Trust.
If an Event of Default under the Indenture with respect to
Debt Securities of any series at the time Outstanding occurs and
is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms
thereof) of all of the Debt Securities of that series to be due
and payable immediately by written notice thereof to the Trust
(and to the applicable Trustee if given by the Holders).
However, at any time after such a declaration of acceleration
with respect to Debt Securities of such series (or of all Debt
Securities then Outstanding under the applicable Indenture, as
the case may be) has been made, but before a judgment or decree
for payment of the money due has been obtained by the applicable
Trustee, the Holders of not less than a majority in principal
amount of Outstanding Debt Securities of such series (or of all
Debt Securities then Outstanding under the applicable Indenture,
as the case may be) may rescind and annul such declaration and
its consequences if (a) the Trust shall have deposited with the
applicable Trustee all required payments of the principal of
(and premium, if any) and interest on the Debt Securities of
such series (or of all Debt Securities then outstanding under
the applicable Indenture, as the case may be), plus certain
fees, expenses, disbursements and advances of the Trustee and
(b) all Events of Default, other than the non-payment of
accelerated principal (or specified portion thereof), with
respect to Debt Securities of such series (or of all Debt
Securities then Outstanding under the applicable Indenture, as
the case may be) have been cured or waived as provided in the
applicable Indenture (Section 502). Each Indenture also
provides that the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any
series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) may waive any past
default with respect to such series and its consequences, except
a default (x) in the payment of the principal of (or premium, if
any) or interest on any Debt Security of such series or (y) in
respect of a covenant or provision contained in the applicable
Indenture that cannot be modified or amended without the consent
of the Holder of each Outstanding Debt Security affected thereby
(Section 513).
Each Trustee is required to give notice to the Holder of
Debt Securities within 90 days of a default under the applicable
Indenture; provided, however, that the Trustee may withhold
notice to the Holders of any series of Debt Securities of any
default with respect to such series (except a default in the
payment of the principal of (or premium, if any) or interest on
any Debt Security of such series or in the payment of any
sinking fund installment in respect of any Debt Security of such
series) if the Responsible Officers of the Trustee consider such
withholding to be in the interest of such Holders (Section 601).
Each Indenture provides that no Holders of Debt Securities
of any series may institute any proceedings, judicial or
otherwise, with respect to the applicable Indenture or for any
remedy thereunder, except in the case of failure of the Trustee
thereunder for 60 days, to act after it has received a written
request to institute proceedings in respect of an Event of
Default from the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of such series, as
well as an offer of indemnity reasonably satisfactory to it
(Section 507). This provision will not prevent, however, any
Holder of Debt Securities from instituting suit for the
enforcement of payment of the principal of (and premium, if any)
and interest on such Debt Securities at the respective due dates
thereof (Section 508).
Subject to provisions in each Indenture relating to its
duties in case of default, each Trustee is under no obligation
to exercise any of its rights or powers under the applicable
Indenture at the request or direction of any Holders of any
series of Debt Securities then Outstanding under such Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity (Section 602). The Holders of not less
than a majority in principal amount of the applicable
Outstanding Debt Securities of any series (or of all Debt
Securities then Outstanding under the applicable Indenture, as
the case may be) shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available
to the Trustee, or of exercising any trust or power conferred
upon the Trustee. However, the Trustee may refuse to follow any
direction which is in conflict with any law or the applicable
Indenture, which may involve the Trustee in personal liability
or which may be unduly prejudicial to the Holders of Debt
Securities of such series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, the
Trust must deliver to each Trustee a certificate, signed by one
of several specified officers, stating whether or not such
officer has knowledge of any default under the applicable
Indenture and, if so, specifying each such default and the
nature and status thereof (Section 1010).
Modification of the Indentures
Modifications and amendments of each Indenture may be made
only with the consent of the Holders of not less than a majority
in principal amount of all Outstanding Debt Securities issued
under such Indenture which are affected by such modification or
amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such
Debt Security affected thereby, (a) change the Stated Maturity
of the principal of, or any installment of interest (or premium,
if any) on, any such Debt Security; (b) reduce the principal
amount of, or the rate or amount of interest on, or any premium
payable on redemption of, any such Debt Security, or reduce the
amount of principal of an Original Issue Discount Security that
would be due and payable upon declaration of acceleration of the
maturity thereof or would be provable in bankruptcy, or
adversely affect any right of repayment of the Holder of any
such Debt Security; (c) change the Place of Payment, or the coin
or currency, for payment of principal of, premium, if any, or
interest on any such Debt Security; (d) impair the right to
institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (e) reduce the above-stated
percentage of Outstanding Debt Securities of any series
necessary to modify or amend the applicable Indenture, to waive
compliance with certain provisions thereof or certain defaults
and consequences thereunder or to reduce the quorum or voting
requirements set forth in such Indenture; (f) if Subordinated
Securities, modify any of the provisions of the Subordinated
Securities Indenture relating to the subordination of such
Subordinated Securities in a manner adverse to the Holders
thereof; or (g) modify any of the foregoing provisions or any of
the provisions relating to the waiver of certain past defaults
or certain covenants, except to increase the required percentage
to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of
the Holder of such Debt Security (Section 902).
The Holders of not less than a majority in principal amount
of Outstanding Debt Securities have the right to waive
compliance by the Trust with certain covenants in the applicable
Indenture (Section 1012).
Modifications and amendments of each Indenture may be made
by the Trust and the applicable Trustee without the consent of
any Holder of Debt Securities issued thereunder for any of the
following purposes: (i) to evidence the succession of another
Person to the Trust as obligor under the applicable Indenture;
(ii) to add to the covenants of the Trust for the benefit of the
Holders of all or any series of Debt Securities or to surrender
any right or power conferred upon the Trust in the applicable
Indenture; (iii) to add Events of Default for the benefit of the
Holders of all or any series of Debt Securities; (iv) to add or
change any provisions of the applicable Indenture to facilitate
the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the
issuance of Debt Securities in uncertificated form, provided
that such action shall not adversely affect the interests of the
Holders of the Debt Securities of any series in any material
respect; (v) to change or eliminate any provisions of the
applicable Indenture, provided that any such change or
elimination shall become effective only when there are no Debt
Securities Outstanding of any series created prior thereto which
are entitled to the benefit of such provision; (vi) to secure
the Debt Securities; (vii) to establish the form or terms of
Debt Securities of any series, including the provisions and
procedures, if applicable, for the conversion of such Debt
Securities into Preferred Shares or Common Shares of the Trust;
(viii) to provide for the acceptance of appointment by a
successor Trustee or facilitate the administration of the trusts
under the applicable Indenture by more than one Trustee; (ix) to
cure any ambiguity, defect or inconsistency in the applicable
Indenture, provided that such action shall not adversely affect
the interests of Holders of Debt Securities of any series in any
material respect; or (x) to supplement any of the provisions of
the applicable Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt
Securities, provided that such action shall not adversely affect
the interests of the Holders of the Debt Securities of any
series in any material respect (Section 901).
Each Indenture provides that in determining whether the
Holders of the requisite principal amount of Outstanding Debt
Securities of a series have given any request, demand,
authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be outstanding shall
be the amount of the principal thereof that would be due and
payable as of the date of such determination upon declaration of
acceleration of the maturity thereof, (ii) the principal amount
of a Debt Security denominated in a Foreign Currency that shall
be deemed outstanding shall be the U.S. dollar equivalent,
determined on the issue date for such Debt Security, of the
principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i)
above), (iii) the principal amount of an Indexed Security that
shall be deemed outstanding shall be the principal face amount
of such Indexed Security at original issuance, unless otherwise
provided with respect to such Indexed Security pursuant to
Section 301 of the Indenture, and (iv) Debt Securities owned by
the Trust or any other obligor upon the Debt Securities or any
Affiliate of the Trust or of such other obligor shall be
disregarded (Section 101).
Each Indenture contains provisions of convening meetings of
the Holders of Debt Securities of a series (Section 1501). A
meeting may be called at any time by the applicable Trustee, and
also, upon request, by the Trust or the Holders of at least 10%
in principal amount of the Outstanding Debt Securities of such
series, in any such case upon notice given as provided in the
applicable Indenture (Section 1502). Except for any consent
that must be given by the Holder of each Debt Security affected
by certain modifications and amendments of the applicable
Indenture, any resolution presented at a meeting or adjourned
meeting duly reconvened at which a quorum is present may be
adopted by the affirmative vote of the Holders of a majority in
principal amount of the Outstanding Debt Securities of that
series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other
action that may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in
principal amount of the Outstanding Debt Securities of a series
may be adopted at a meeting or adjourned meeting duly reconvened
at which a quorum is present by the affirmative vote of the
Holders of such specified percentage in principal amount of the
Outstanding Debt Securities of that series. Any resolution
passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the
applicable Indenture will be binding on all Holders of Debt
Securities of that series. The quorum at any meeting called to
adopt a resolution, and at any reconvened meeting, will be
Persons holding or representing a majority in principal amount
of the Outstanding Debt Securities of a series; provided,
however, that if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the Holders
of not less than a specified percentage in principal amount of
the Outstanding Debt Securities of a series, the Persons holding
or representing such specified percentage in principal amount of
the Outstanding Debt Securities of such series will constitute a
quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is
to be taken at a meeting of Holders of Debt Securities of any
series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that the
applicable Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal
amount of all Outstanding Debt Securities affected thereby, or
of the Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting and (ii) the principal amount of the Outstanding Debt
Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining whether
such request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under the
applicable Indenture (Section 1504).
Discharge, Defeasance and Covenant Defeasance
The Trust may discharge certain obligations to Holders of
any series of Debt Securities that have not already been
delivered to the Trustee for cancellation and that either have
become due and payable or will become due and payable within one
year (or scheduled for redemption within one year) by
irrevocably depositing with the applicable Trustee, in trust,
funds in such currency or currencies, currency unit or units or
composite currency or currencies in which such Debt Securities
are payable in an amount sufficient to pay the entire
indebtedness on such Debt Securities in respect of principal
(and premium, if any) and interest to the date of such deposit
(if such Debt Securities have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be (Section
401).
Each Indenture provides that, if the provisions of Article
XIV are made applicable to the Debt Securities of or within any
series pursuant to Section 301 of such Indenture, the Trust may
elect either (a) to defease and be discharged from any and all
obligations with respect to such Debt Securities (except for the
obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental
charge with respect to payments on such Debt Securities and the
obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost
or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment
in trust) ("defeasance") (Section 1402) or (b) to be released
from its obligations with respect to such Debt Securities under
Sections 1004 to 1009, inclusive, of the applicable Indenture
(being the restrictions described under "Certain Covenants") or,
if provided pursuant to Section 301 of such Indenture, its
obligations with respect to any other covenant, and any omission
to comply with such obligations shall not constitute a default
or an Event of Default with respect to such Debt Securities
("covenant defeasance") (Section 1403), in either case upon the
irrevocable deposit by the Trust with the applicable Trustee, in
trust, of an amount, in such currency or currencies, currency
unit or units or composite currency or currencies in which such
Debt Securities are payable at Stated Maturity, or Government
Obligations (as defined below), or both, applicable to such Debt
Securities which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any)
and interest on such Debt Securities, and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates
therefor.
Such a trust may only be established if, among other
things, the Trust has delivered to the applicable Trustee an
Opinion of Counsel (as specified in the applicable Indenture) to
the effect that the Holders of such Debt Securities will not
recognize income, gain or loss for U.S. federal income tax
purposes as a result of such defeasance or covenant defeasance
and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such defeasance or covenant defeasance had not
occurred (Section 1404).
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the Debt
Securities of a particular series are payable, for the payment
of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America
or such government which issued the Foreign Currency in which
the Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other
government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company
as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced
by such depository receipt (Section 101).
Unless otherwise provided in the applicable Prospectus
Supplement, if after the Trust has deposited funds and/or
Government Obligations to effect defeasance or covenant
defeasance with respect to Debt Securities of any series, (a)
the Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of the applicable Indenture
or the terms of such Debt Security to receive payment in a
currency, currency unit or composite currency other than that in
which such deposit has been made in respect of such Debt
Security, or (b) a Conversion Event (as defined below) occurs in
respect of the currency, currency unit or composite currency in
which such deposit has been made, the indebtedness represented
by such Debt Security shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest on such Debt
Security as they become due out of the proceeds yielded by
covering the amount so deposited in respect of such Debt
Security into the currency, currency unit or composite currency
in which such Debt Security becomes payable as a result of such
election or such cessation of usage based on the applicable
market exchange rate (Section 1405). "Conversion Event" means
the cessation of use of (i) a Foreign Currency, both by the
government of the country which issued such currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for
the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit or
composite currency other than the ECU for the purposes for which
it was established (Section 101). Unless otherwise provided in
the applicable Prospectus Supplement, all payments of principal
of (and premium, if any) and interest on any Debt Security that
is payable in a Foreign Currency that ceases to be used by its
government of issuance shall be made is U.S. dollars.
In the event the Trust effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are
declared due and payable because of the occurrence of any Event
of Default other than the Event of Default described in clause
(d) under "Events of Default, Notice and Waiver" with respect to
Section 1004 to 1009, inclusive, of the applicable Indenture
(which Sections would no longer be applicable to such Debt
Securities) or described in clause (g) under "Events of Default,
Notice and Waiver" with respect to any other covenant as to
which there has been covenant defeasance, the amount in such
currency, currency unit or composite currency in which such Debt
Securities are payable, and Government Obligations on deposit
with the applicable Trustee, will be sufficient to pay amounts
due on such Debt Securities at the time of their Stated Maturity
but may not be sufficient to pay amounts due on such Debt
Securities at the time of the acceleration resulting from such
Event of Default. However, the Trust would remain liable to
make payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe
the provisions, if any, permitting such defeasance or covenant
defeasance, including any modifications to the provisions
described above, with respect to the Debt Securities of or
within a particular series.
Conversion Rights
The terms and conditions, if any, upon which the Debt
Securities are convertible into Preferred Shares or Common
Shares will be set forth in the applicable Prospectus Supplement
relating thereto. Such terms will include whether such Debt
Securities are convertible into Preferred Shares or Common
Shares, the conversion price (or manner of calculation thereof),
the conversion period, provisions as to whether conversion will
be at the option of the Holders or the Trust, the events
requiring an adjustment of the conversion price and provisions
affecting conversion in the event of the redemption of such Debt
Securities.
Global Securities
The Debt Securities of a series may be issued in whole or
in part in the form of one or more global securities (the
"Global Securities") that will be deposited with, or on behalf
of, a depositary (the "Depository") identified in the applicable
Prospectus Supplement relating to such series. Global Securities
are expected to be deposited with The Depository Trust Company,
as Depository. Global Securities may be issued in either
registered or bearer form and in either temporary or permanent
form.
Unless and until it is exchanged in whole or in part for
the individual Debt Securities represented thereby, a Global
Security may not be transferred except as a whole by the
Depository for such Global Security to a nominee of such
Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by the Depository or
any nominee of such Depository to a successor Depository or any
nominee of such successor.
The specific terms of the depository arrangement with
respect to a series of Debt Securities will be described in the
applicable Prospectus Supplement relating to such series.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Trust anticipates that the following provisions
will apply to depository arrangements.
Upon the issuance of a Global Security, the Depository for
such Global Security or its nominee will credit on its book-
entry registration and transfer system the respective principal
amounts of the individual Debt Securities represented by such
Global Security to the accounts of persons that have accounts
with such Depository ("Participants"). Such accounts shall be
designated by the underwriters, dealers or agents with respect
to such Debt Securities or by the Trust if such Debt Securities
are offered and sold directly by the Trust. Ownership of
beneficial interests in a Global Security will be limited to
Participants or persons that may hold interests through
Participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the
applicable Depository or its nominee (with respect to beneficial
interests of Participants) and records of Participants (with
respect to beneficial interests of persons who hold through
Participants). The laws of some states require that certain
purchasers of securities take physical delivery of such
securities in definitive form. Such limits and laws may impair
the ability to own, pledge or transfer beneficial interest in a
Global Security.
So long as the Depository for a Global Security or its
nominee is the registered owner of such Global Security, such
Depository or such nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the
applicable Indenture. Except as provided below or in the
applicable Prospectus Supplement, owners of beneficial interest
in a Global Security will not be entitled to have any of the
individual Debt Securities of the series represented by such
Global Security registered in their names, will not receive or
be entitled to receive physical delivery of any such Debt
Securities of such series in definitive form and will not be
considered the owners or holders thereof under the applicable
Indenture.
Payments of principal of, any premium and any interest on,
or any Additional Amounts payable with respect to, individual
Debt Securities represented by a Global Security registered in
the name of a Depository or its nominee will be made to the
Depository or its nominee, as the case may be, as the registered
owner of the Global Security representing such Debt Securities.
None of the Trust, the Trustees, any Paying Agent or the
Security Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Trust expects that the Depository for a series of Debt
Securities or its nominee, upon receipt of any payment of
principal, premium or interest in respect of a permanent Global
Security representing any of such Debt Securities, immediately
will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of such Global Security for such Debt
Securities as shown on the records of such Depository or its
nominee. The Trust also expects that payments by Participants
to owners of beneficial interests in such Global Security held
through such Participants will be governed by standing
instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or
registered in "street name." Such payments will be the
responsibility of such Participants.
If a Depository for a series of Debt Securities is at any
time unwilling, unable or ineligible to continue as depository
and a successor depository is not appointed by the Trust within
90 days, the Trust will issue individual Debt Securities of such
series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Trust may, at any
time and in its sole discretion, subject to any limitations
described in the applicable Prospectus Supplement relating to
such Debt Securities, determine not to have any Debt Securities
of such series represented by one or more Global Securities and,
in such event, will issue individual Debt Securities of such
series in exchange for the Global Security or Securities
representing such series of Debt Securities. Individual Debt
Securities of such series so issued will be issued in
denominations, unless otherwise specified by the Trust, of
$1,000 and integral multiples thereof.
Provisions Applicable Solely to Subordinated Securities
General
Subordinated Securities will be issued under the
Subordinated Indenture and will rank pari passu with certain
other subordinated debt of the Company that may be outstanding
from time to time and will rank junior to all Senior
Indebtedness (as defined below) of the Company (including any
Senior Securities) that may be outstanding from time to time.
All section references appearing below are to sections of the
Subordinated Indenture.
The term "Senior Indebtedness" is defined in the
Subordinated Indenture as indebtedness incurred by the Trust for
money borrowed whether outstanding on the date hereof or
incurred in the future, all deferrals, renewals or extensions of
any such indebtedness and all evidences of indebtedness issued
in exchange for any such indebtedness and guarantees by the
Trust of the foregoing items of indebtedness for money borrowed
by persons other than the Trust, unless, in any such case, such
indebtedness or guarantee provides by its terms that it shall
not constitute Senior Indebtedness.
If Subordinated Securities are issued under the
Subordinated Indenture, the aggregate principal amount of Senior
Indebtedness outstanding as of a recent date will be set forth
in the Prospectus Supplement. The Subordinated Indenture does
not restrict the amount of Senior Indebtedness that the Trust
may incur.
Subordination
The payment of the principal of (and premium, if any) and
interest on the Subordinated Securities is expressly
subordinated, to the extent and in the manner set forth in the
Subordinated Indenture, in right of payment to the prior payment
in full of all Senior Indebtedness of the Trust.
(a) Upon (i) any acceleration of the principal amount due
on the Subordinated Securities or (ii) any payment or
distribution of assets of the Trust of any kind or character,
whether in cash, property or securities, to creditors upon any
dissolution or winding-up or total or partial liquidation or
reorganization of the Trust, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other proceedings,
all principal and premium, if any, and interest due upon all
Senior Indebtedness shall first be paid in full, or payment
thereof provided for in money or money's worth in accordance
with its terms, before any payment is made on account of the
principal of, premium, if any, or interest on the indebtedness
evidenced by the Subordinated Securities, and upon any such
acceleration, dissolution or winding-up or liquidation or
reorganization, any payment or distribution of assets of the
Trust of any kind or character, whether in cash, property or
securities, to which the holders of the Subordinated Securities
would be entitled, except for the provisions of the Subordinated
Indenture, shall (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the
rights conferred by the provisions of the Subordinated
Securities upon the Senior Indebtedness and the holders thereof
with respect to the Subordinated Securities and the holders
thereof by a lawful plan of reorganization under applicable
bankruptcy law), be paid by the Trust or any receiver, trustee
in bankruptcy, liquidating trustee, agent or other person making
such payment or distribution, or by the holders of the
Subordinated Securities if received by them, directly to the
holders of Senior Indebtedness (pro rata to each such holder on
the basis of the respective amounts of Senior Indebtedness held
by such holder) or their representatives, to the extent
necessary to pay all Senior Indebtedness (including interest
thereon) in full, in money or money's worth, after giving effect
to any concurrent payments or distribution to or for the holders
of Senior Indebtedness, before any payment or distribution is
made to the holders of the indebtedness evidenced by the
Subordinated Securities. The consolidation of the Trust with or
the merger of the Trust into another Person or the liquidation
or dissolution of the Trust following the conveyance or transfer
of its property as an entirety, or substantially as an entirety,
to another Person upon the terms and conditions provided in the
Subordinated Indenture shall not be deemed a dissolution,
winding-up, liquidation or reorganization for these purposes.
(b) In the event that any payment or distribution of
assets of the Trust of any kind or character not permitted by
the foregoing provisions, whether in cash, property or
securities, shall be received by the holders of Subordinated
Securities before all Senior Indebtedness is paid in full, or
provision made for such payment, in accordance with its terms,
such payment or distribution shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders
of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of
such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment
of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all such Senior Indebtedness in full in
accordance with its terms, after giving effect to any concurrent
payment or distribution to the holders of such Senior
Indebtedness.
(c) No payment on account of principal of, premium, if
any, sinking funds or interest on the Subordinated Securities
shall be made unless full payment of amounts then due for
principal, premium, if any, sinking funds and interest on any
Senior Indebtedness has been made or duly provided for in money
or money's worth in accordance with the terms of such Senior
Indebtedness. No payment on account of principal, premium, if
any, sinking funds or interest on the Subordinated Securities
shall be made if, at the time of such payment or immediately
after giving effect thereto, (i) there shall exist a default in
the payment of principal, premium, if any, sinking fund or
interest with respect to any Senior Indebtedness, or (ii) there
shall have occurred an event of default (other than a default in
the payment of principal, premium, if any, sinking funds or
interest) with respect to any Senior Indebtedness, as defined
therein or in the instrument under which the same is
outstanding, permitting the holders thereof to accelerate the
maturity thereof, and such event of default shall not have been
cured or waived or shall not have ceased to exist.
Subrogation
From and after the payment in full of all Senior
Indebtedness, the holders of the Subordinated Securities
(together with the holders of any other indebtedness of the
Trust which is subordinate in right of payment to the payment in
full of all Senior Indebtedness, which is not subordinate in
right of payment to the Subordinated Securities and which by its
terms grants such right of subrogation to the holder thereof)
shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets or
securities of the Trust applicable to the Senior Indebtedness
until the Subordinated Securities shall be paid in full, and,
for the purposes of such subrogation, no such payments or
distributions to the holders of Senior Indebtedness of assets or
securities, which otherwise would have been payable or
distributable to holders of the Subordinated Securities, shall,
as between the Trust, its creditors other than the holders of
Senior Indebtedness, and the holders of the Subordinated
Securities, be deemed to be a payment by the Trust to or on
account of the Senior Indebtedness, it being understood that
these provisions of the Subordinated Indenture are and are
intended solely for the purpose of defining the relative rights
of the holders of the Subordinated Securities, on the one hand,
and the holders of the Senior Indebtedness, on the other hand,
and nothing contained in the Subordinated Indenture is intended
to or shall impair as between the Trust, its creditors other
than the holders of Senior Indebtedness, and the holders of the
Subordinated Securities, the obligation of the Trust, which is
unconditional and absolute, to pay to the holders of the
Subordinated Securities the principal of, premium, if any, and
interest on the Subordinated Securities as and when the same
shall become due and payable in accordance with their terms, or
to affect the relative rights of the holders of the Subordinated
Securities and creditors of the Trust other than the holders of
the Senior Indebtedness, nor shall anything therein prevent the
Holder of any Subordinated Security from exercising all remedies
otherwise permitted by applicable law upon default under such
Security subject to the rights of the holders of Senior
Indebtedness to receive cash, property or securities of the
Trust otherwise payable or deliverable to the holders of the
Subordinated Securities or to a representative of such holders,
on their behalf.
DESCRIPTION OF PREFERRED SHARES
The Trust is authorized to issue 1,000,000 preferred shares
of beneficial interest, par value $1.00 per share, and no
Preferred Shares were outstanding as of the date of this
Prospectus.
The following description of the Preferred Shares sets
forth certain general terms and provisions of the Preferred
Shares to which any Prospectus Supplement may relate. The
particular terms of the Preferred Shares being offered and the
extent to which such general provisions may or may not apply
will be described in a Prospectus Supplement relating to such
Preferred Shares. The statements below describing the Preferred
Shares are in all respect subject to and qualified in their
entirety by reference to the applicable provisions of the
Trust's Declaration of Trust, as amended.
General
Subject to limitations prescribed by Massachusetts law and
the Declaration of Trust, as amended, the Board of Trustees is
authorized to fix the number of shares constituting each series
of Preferred Shares and the designations and powers, preferences
and relative, participating, optional or other special rights
and qualifications, limitations or restrictions thereof,
including such provisions as may be desired concerning voting,
redemption, dividends, dissolution or the distribution of
assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution of the Board of Trustees
or a duly authorized committee thereof. The Preferred Shares
will, when issued, be fully paid and nonassessable and will have
no preemptive rights.
Reference is made to the Prospectus Supplement relating to
the Preferred Shares offered thereby for specific terms,
including:
(1) The title and stated value of such Preferred Shares;
(2) The number of shares of such Preferred Shares being
offered, the liquidation preference per share and the
offering price of such Preferred Shares;
(3) The dividend rate(s), period(s) and/or payment date(s)
or method(s) of calculation thereof applicable to such
Preferred Shares;
(4) The date from which dividends on such Preferred Shares
shall accumulate, if applicable;
(5) The procedures for any auction and remarketing, if
any, for such Preferred Shares;
(6) The provision for a sinking fund, if any, for such
Preferred Shares;
(7) The provisions for redemption, if applicable, of such
Preferred Shares;
(8) Any listing of such Preferred Shares on any securities
exchange;
(9) The terms and conditions, if applicable, upon which
such Preferred Shares will be convertible into Common
Shares of the Trust, including the conversion price
(or manner of calculation thereof);
(10) Whether interests in such Preferred Shares will be
represented by Depositary Shares;
(11) A discussion of federal income tax considerations
applicable to such Preferred Shares;
(12) The relative ranking and preferences of such Preferred
Shares as to dividend rights and rights upon
liquidation, dissolution or winding up of the affairs
of the Trust;
(13) Any limitations on issuance of any series of preferred
shares ranking senior to or on a parity with such
series of Preferred Shares as to dividend rights and
rights upon liquidation, dissolution or winding up of
the affairs of the Trust;
(14) Any limitations on direct or beneficial ownership and
restrictions on transfer of such Preferred Shares, in
each case as may be appropriate to preserve the status
of the Trust as a REIT; and
(15) Any other specific terms, preferences, rights,
limitations or restrictions of such Preferred Shares.
Rank
Unless otherwise specified in the applicable Prospectus
Supplement, the Preferred Shares will, with respect to dividend
rights and/or rights upon liquidation, dissolution or winding up
of the Trust, rank (i) senior to all classes or series of Common
Shares of the Trust, and to all equity securities ranking junior
to such Preferred Shares with respect to dividend rights and/or
rights upon liquidation, dissolution or winding up of the Trust,
as the case may be; (ii) on a parity with all equity securities
issued by the Trust the terms of which specifically provide that
such equity securities rank on a parity with the Preferred
Shares with respect to dividend rights and/or rights upon
liquidation, dissolution or winding up of the Trust, as the case
may be; and (iii) junior to all equity securities issued by the
Trust the terms of which specifically provide that such equity
securities rank senior to the Preferred Shares with respect to
dividend rights and/or rights upon liquidation, dissolution or
winding up of the Trust, as the case may be. As used in the
Declaration of Trust, as amended, for these purposes, the term
"equity securities" does not include convertible debt
securities.
Dividends
Holders of Preferred Shares shall be entitled to receive,
when, as and if declared by the Board of Trustees of the Trust,
out of assets of the Trust legally available for payment, cash
dividends at such rates (or method of calculation thereof) and
on such dates as will be set forth in the applicable Prospectus
Supplement. Each such dividend shall be payable to holders of
record as they appear on the stock transfer books of the Trust
on such record dates as shall be fixed by the Board of Trustees
of the Trust.
Dividends on any series of the Preferred Shares may be
cumulative or non-cumulative, as provided in the applicable
Prospectus Supplement. Dividends, if cumulative, will be
cumulative from and after the date set forth in the applicable
Prospectus Supplement. If the Board of Trustees of the Trust
fails to declare a dividend payable on a dividend payment date
on any series of the Preferred Shares for which dividends are
noncumulative, then the holders of such series of the Preferred
Shares will have no right to receive a dividend in respect of
the dividend period ending on such dividend payment date, and
the Trust will have no obligation to pay the dividend accrued
for such period, whether or not dividends on such series are
declared payable on any future dividend payment date.
If any Preferred Shares of any series are outstanding, no
full dividends shall be declared or paid or set apart for
payment on the preferred shares of the Trust of any other series
ranking, as to dividends, on a parity with or junior to the
Preferred Shares of such series for any period unless (i) if
such series of Preferred Shares has a cumulative dividend, full
cumulative dividends have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment
thereof set apart for such payment on the Preferred Shares of
such series for all past dividend periods and the then current
dividend period or (ii) if such series of Preferred Shares does
not have a cumulative dividend, full dividends for the then
current dividend period have been or contemporaneously are
declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Preferred
Shares of such series. When dividends are not paid in full (or
a sum sufficient for such full payment is not so set apart) upon
the Preferred Shares of any series and the shares of any other
series of preferred shares ranking on a parity as to dividends
with the Preferred Shares of such series, all dividends declared
upon the Preferred Shares of such series and any other series of
preferred shares ranking on a parity as to dividends with such
Preferred Shares shall be declared pro rata so that the amount
of dividends declared per share on the Preferred Shares of such
series and such other series of preferred shares shall in all
cases bear to each other the same ratio that accrued dividends
per share on the Preferred Shares of such series (which shall
not include any accumulation in respect of unpaid dividends for
prior dividend periods if such Preferred Shares do not have a
cumulative dividend) and such other 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 dividend payment or
payments on Preferred Shares of such series which may be in
arrears.
Except as provided in the immediately preceding paragraph,
unless (i) if such series of Preferred Shares has a cumulative
dividend, full cumulative dividends on the Preferred Shares of
such series have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then
current dividend period and (ii) if such series of Preferred
Shares does not have a cumulative dividend, full dividends on
the Preferred Shares of such series have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the
then current dividend period, no dividends (other than in common
shares or other capital stock ranking junior to the Preferred
Shares of such series as to dividends and upon liquidation)
shall be declared or paid or set aside for payment or other
distribution upon the Common Shares or any other capital stock
of the Trust ranking junior to or on a parity with the Preferred
Shares of such series as to dividends or upon liquidation, nor
shall any Common Shares or any other capital stock of the Trust
ranking junior to or on a parity with the Preferred Shares of
such series as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Trust (except
by conversion into or exchange for other capital stock of the
Trust ranking junior to the Preferred Shares of such series as
to dividends and upon liquidation).
Any dividend payment made on a series of Preferred Shares
shall first be credited against the earliest accrued but unpaid
dividend due with respect to shares of such series which remains
payable.
Redemption
If so provided in the applicable Prospectus Supplement, the
Preferred Shares of any series will be subject to mandatory
redemption or redemption at the option of the Trust, as a whole
or in part, in each case upon the terms, at the times and at the
redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred
Shares that is subject to mandatory redemption will specify the
number of such Preferred Shares that shall be redeemed by the
Trust in each year commencing after a date to be specified, at a
redemption price per share to be specified, together with an
amount equal to all accrued and unpaid dividends thereon (which
shall not, if such Preferred Shares does not have a cumulative
dividend, include any accumulation in respect of unpaid
dividends for prior dividend periods) to the date of redemption.
The redemption price may be payable in cash or other property,
as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Shares of any series is payable
only from the net proceeds of the issuance of capital stock of
the Trust, the terms of such Preferred Shares may provide that,
if no such capital stock shall have been issued or to the extent
the net proceeds from any issuance are insufficient to pay in
full the aggregate redemption price then due, such Preferred
Shares shall automatically and mandatorily be converted into
shares of the applicable capital stock of the Trust pursuant to
conversion provisions specified in the applicable Prospectus
Supplement.
Notwithstanding the foregoing, unless (i) if such series of
Preferred Shares has a cumulative dividend, full cumulative
dividends on all shares of such series have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all
past dividend periods and the then current dividend period and
(ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends on all shares of such series
have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period, no shares of such
series of Preferred Shares shall be redeemed unless all
outstanding Preferred Shares of such series are simultaneously
redeemed; provided, however, that the foregoing shall not
prevent the purchase or acquisition of Preferred Shares of such
series pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding Preferred Shares of such
series, and, unless (i) if such series of Preferred Shares has a
cumulative dividend, full cumulative dividends on all
outstanding shares of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past dividend
periods and the then current dividend period and (ii) if such
series of Preferred Shares does not have a cumulative dividend,
full dividends on all shares of such series have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the
then current dividend period, the Trust shall not purchase or
otherwise acquire directly or indirectly any Preferred Shares of
such series (except by conversion into or exchange for capital
stock of the Trust ranking junior to the Preferred Shares of
such series as to dividends and upon liquidation).
If fewer than all of the outstanding Preferred Shares of
any series are to be redeemed, the number of shares to be
redeemed will be determined by the Trust and such shares may be
redeemed pro rata from the holders of record of such shares in
proportion to the number of such shares held by such holders
(with adjustments to avoid redemption of fractional shares) or
any other equitable method determined by the Trust.
Notice of redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each holder
of record of Preferred Shares of any series to be redeemed at
the address shown on the stock transfer books of the Trust.
Each notice shall state: (i) the redemption date; (ii) the
number of shares and series of the Preferred Shares to be
redeemed; (iii) the redemption price; (iv) the place or places
where certificates for such Preferred Shares are to be
surrendered for payment of the redemption price; (v) that
dividends on the shares to be redeemed will cease to accrue on
such redemption date; and (vi) the date upon which the holder's
conversion rights, if any, as to such shares shall terminate.
If fewer than all the Preferred Shares of any series are to be
redeemed, the notice mailed to each such holder thereof shall
also specify the number of Preferred Shares to be redeemed from
each such holder. If notice of redemption of any Preferred
Shares has been properly given and if the funds necessary for
such redemption have been irrevocably set aside by the Trust in
trust for the benefit of the holders of any Preferred Shares so
called for redemption, then from and after the redemption date
dividends will cease to accrue on such Preferred Shares, such
Preferred Shares shall no longer be deemed outstanding and all
rights of the holders of such shares will terminate, except the
right to receive the redemption price. Any moneys so deposited
which remain unclaimed by the holders of such Preferred Shares
at the end of two years after the redemption date will be
returned by the applicable bank or trust company to the Trust.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Trust, then, before any
distribution or payment shall be made to the holders of any
Common Shares or any other class or series of capital stock of
the Trust ranking junior to any series of Preferred Shares in
the distribution of assets upon any liquidation, dissolution or
winding up of the Trust, the holders of such series of Preferred
Shares shall be entitled to receive, after payment or provision
for payment of the Trust's debts and other liabilities, out of
assets of the Trust legally available for distribution to
shareholders, liquidating distributions in the amount of the
liquidation preference per share (set forth in the applicable
Prospectus Supplement), plus an amount equal to all dividends
accrued and unpaid thereon (which shall not include any
accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Shares do not have a cumulative
dividend). After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of such
series of Preferred Shares will have no right or claim to any of
the remaining assets of the Trust. In the event that, upon any
such voluntary or involuntary liquidation, dissolution or
winding up, the legally available assets of the Trust are
insufficient to pay the amount of the liquidating distributions
on all such outstanding Preferred Shares and the corresponding
amounts payable on all shares of other classes or series of
capital stock of the Trust ranking on a parity with such series
of Preferred Shares in the distribution of assets upon
liquidation, dissolution or winding up, then the holders of such
series of Preferred Shares and all other such classes or series
of capital stock shall share ratably in any such distribution of
assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
If the liquidating distributions shall have been made in
full to all holders of a series of Preferred Shares, the
remaining assets of the Trust shall be distributed among the
holders of any other classes or series of capital stock ranking
junior to such 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 dissolution, winding up or liquidation will not
include (i) any consolidation or merger of the Trust with or
into any other corporation, (ii) any dissolution, liquidation,
winding up, or reorganization of the Trust immediately followed
by incorporation of another corporation to which such assets are
distributed or (iii) a sale or other disposition of all or
substantially all of the Trust's assets to another corporation;
provided that, in each case, effective provision is made in the
charter of the resulting and surviving corporation or otherwise
for the recognition, preservation and protection of the rights
of the holders of Preferred Shares.
Voting Rights
Holders of any series of Preferred Shares will not have any
voting rights, except as set forth below or as otherwise from
time to time required by law or as indicated in the applicable
Prospectus Supplement. If the Trust elects to issue a series of
Preferred Shares, it may also amend the Declaration of Trust, as
amended, to provide for certain additional voting rights to
holders of Preferred Shares.
Unless provided otherwise for any series of Preferred
Shares, so long as any Preferred Shares remain outstanding, the
Trust shall not, without the affirmative vote or consent of the
holders of a majority of the shares of each series of Preferred
Shares outstanding at the time, given in person or by proxy,
either in writing or at a meeting (such series voting separately
as a class), (i) authorize or create, or increase the authorized
or issued amount of, any class or series of capital stock
ranking prior to such series of Preferred Shares with respect to
payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up, or reclassify any
authorized capital stock of the Trust into any such shares, or
create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such
shares; or (ii) amend, alter or repeal the provisions of the
Trust's Declaration of Trust, as amended, whether by merger,
consolidation or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of such
series of Preferred Shares or the holders thereof; provided,
however, that any increase in the amount of the authorized
preferred shares or the creation or issuance of any other series
of preferred shares, or any increase in the amount of authorized
shares of such series or any other series of Preferred Shares,
in each case ranking on a parity with or junior to the Preferred
Shares of such series with respect to payment of dividends 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.
The foregoing voting provisions will not apply if, at or
prior to the time when the act with respect to which such vote
would otherwise be required shall be affected, all outstanding
shares of such series of Preferred Shares shall have been
redeemed or called for redemption upon proper notice and
sufficient funds shall have been irrevocably deposited in trust
to effect such redemption.
Under Massachusetts law, notwithstanding anything to the
contrary set forth above, holders of each series of Preferred
Shares will be entitled to vote as a class upon a proposed
amendment to the Declaration of Trust, as amended, whether or
not entitled to vote thereon by the Declaration of Trust, as
amended, if the amendment would increase the aggregate number of
authorized shares of such series, increase or decrease the par
value of the shares of such series, or alter or change the
powers, preferences or special rights of the shares of such
series so as to affect them adversely.
Conversion Rights
The terms and conditions, if any, upon which any series of
Preferred Shares are convertible into Common Shares will be set
forth in the applicable Prospectus Supplement relating thereto.
Such terms will include the number of Common Shares into which
the Preferred Shares are convertible, the conversion price (or
manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the
holders of the Preferred Shares or the Trust, the events
requiring an adjustment of the conversion price and provisions
affecting conversion in the event of the redemption of such
Preferred Shares.
Restrictions on Ownership
For the Trust to qualify as a REIT under the Code, not more
than 50% in value of its outstanding capital stock may be owned,
directly or constructively, by five or fewer individuals (as
defined in the Code) during the last half of a taxable year, and
the capital stock must be beneficially owned by 100 or more
persons during at least 335 days of a taxable year of 12 months
(or during a proportionate part of a shorter taxable year).
Therefore, the Declaration of Trust, as amended, imposes certain
restrictions on the ownership and transferability of Preferred
Shares. For a general description of such restrictions, see
"Description of Common Shares -- Restrictions on Ownership."
All certificates representing Preferred Shares will bear a
legend referring to these restrictions.
DESCRIPTION OF DEPOSITARY SHARES
General
The Trust may issue receipts ("Depositary Receipts") for
Depositary Shares, each of which will represent a fractional
interest of a share of a particular series of Preferred Shares,
as specified in the applicable Prospectus Supplement. Preferred
Shares of each series represented by Depositary Shares will be
deposited under a separate Deposit Agreement (each, a "Deposit
Agreement") among the Trust, the depositary named therein (the
"Preferred Shares Depositary") and the holders from time to time
of the Depositary Receipts. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Receipt will be entitled,
in proportion to the fractional interest of a share of a
particular series of Preferred Shares represented by the
Depositary Shares evidenced by such Depositary Receipt, to all
rights and preferences of the Preferred Shares represented by
such Depositary Shares (including dividend, voting, conversion,
redemption and liquidation rights).
The Depositary Shares will be evidenced by Depositary
Receipts issued pursuant to the applicable Deposit Agreement.
Immediately following the issuance and delivery of the Preferred
Shares by the Trust to the Preferred Shares Depositary, the
Trust will cause the Preferred Shares Depositary to issue, on
behalf of the Trust, the Depositary Receipts. Copies of the
applicable form of Deposit Agreement and Depositary Receipt may
be obtained from the Trust upon request, and the following
summary of the form thereof filed as an exhibit to the
Registration Statement of which this Prospectus is a part is
qualified in its entirety by reference thereto.
Dividends and Other Distributions
The Preferred Shares Depositary will distribute all cash
dividends or other cash distributions received in respect of the
Preferred Shares to the record holders of Depositary Receipts
evidencing the related Depositary Shares in proportion to the
number of such Depositary Receipts owned by such holders,
subject to certain obligations of holders to file proofs,
certificates and other information and to pay certain charges
and expenses to the Preferred Shares Depositary.
In the event of a distribution other than in cash, the
Preferred Shares Depositary will distribute property received by
it to the record holders of Depositary Receipts entitled
thereto, subject to certain obligations of holders to file
proofs, certificates and other information and to pay certain
charges and expenses to the Preferred Shares Depositary, unless
the Preferred Shares Depositary determines that it is not
feasible to make such distribution, in which case the Preferred
Shares Depositary may, with the approval of the Trust, sell such
property and distribute the net proceeds from such sale to such
holders.
Withdrawal of Shares
Upon surrender of the Depositary Receipts at the corporate
trust office of the Preferred Shares Depositary (unless the
related Depositary Shares have previously been called for
redemption), the holders thereof will be entitled to delivery at
such office, to or upon such holder's order, of the number of
whole or fractional Preferred Shares and any money or other
property represented by the Depositary Shares evidenced by such
Depositary Receipts. Holders of Depositary Receipts will be
entitled to receive whole or fractional shares of the related
Preferred Shares on the basis of the proportion of Preferred
Shares represented by each Depositary Share as specified in the
applicable Prospectus Supplement, but holders of such Preferred
Shares will not thereafter be entitled to receive Depositary
Shares therefor. If the Depositary Receipts delivered by the
holder evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of shares of
Preferred Shares to be withdrawn, the Preferred Shares
Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary
Shares. The Trust does not expect that there will be any public
market for Preferred Shares that are withdrawn as described in
this paragraph.
Redemption of Depositary Shares
Whenever the Trust redeems Preferred Shares held by the
Preferred Shares Depositary, the Preferred Shares Depositary
will redeem as of the same redemption date the number of
Depositary Shares representing the Preferred Shares so redeemed,
provided the Trust shall have paid in full to the Preferred
Shares Depositary the redemption price of the Preferred Shares
to be redeemed plus an amount equal to any accrued and unpaid
dividends thereon to the date fixed for redemption. The
redemption price per Depositary Share will be equal to the
redemption price and any other amounts per share payable with
respect to the Preferred Shares. If fewer than all the
Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed will be selected pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by
any other equitable method determined by the Trust.
From and after the date fixed for redemption, all dividends
in respect of the Preferred Shares so called for redemption will
cease to accrue, the Depositary Shares so called for redemption
will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Receipts evidencing the Depositary
Shares so called for redemption will cease, except the right to
receive any moneys payable upon such redemption and any money or
other property to which the holders of such Depositary Receipts
were entitled upon such redemption upon surrender thereof to the
Preferred Shares Depositary.
Voting of the Preferred Shares
Upon receipt of notice of any meeting at which the holders
of the Preferred Shares are entitled to vote, the Preferred
Shares Depositary will mail the information contained in such
notice of meeting to the record holders of the Depositary
Receipts evidencing the Depositary Shares which represent such
Preferred Shares. Each record holder of Depositary Receipts
evidencing Depositary Shares on the record date (which will be
the same date as the record date for the Preferred Shares) will
be entitled to instruct the Preferred Shares Depositary as to
the exercise of the voting rights pertaining to the amount of
Preferred Shares represented by such holder's Depositary Shares.
The Preferred Shares Depositary will vote the amount of
Preferred Shares represented by such Depositary Shares in
accordance with such instructions, and the Trust will agree to
take all reasonable action which may be deemed necessary by the
Preferred Shares Depositary in order to enable the Preferred
Shares Depositary to do so. The Preferred Shares Depositary
will abstain from voting the amount of Preferred Shares
represented by such Depositary Shares to the extent it does not
receive specific instructions from the holders of Depositary
Receipts evidencing such Depositary Shares. The Preferred
Shares Depositary shall not be responsible for any failure to
carry out any instruction to vote, or for the manner or effect
of any such vote made, as long as any such action or non-action
is in good faith and does not result from negligence or willful
misconduct of the Preferred Shares Depositary.
Liquidation Preference
In the event of the liquidation, dissolution or winding up
of the Trust, whether voluntary or involuntary, the holders of
each Depositary Receipt will be entitled to the fraction of the
liquidation preference accorded each Preferred Share represented
by the Depositary Share evidenced by such Depositary Receipt, as
set forth in the applicable Prospectus Supplement.
Conversion of Preferred Shares
The Depositary Shares, as such, are not convertible into
Common Shares or any other securities or property of the Trust.
Nevertheless, if so specified in the applicable Prospectus
Supplement relating to an offering of the Depositary Shares, the
Depositary Receipts may be surrendered by holders thereof to the
Preferred Shares Depositary with written instructions to the
Preferred Shares Depositary to instruct the Trust to cause
conversion of the Preferred Shares represented by the Depositary
Shares evidenced by such Depositary Receipts into whole shares
of Common Shares, other shares of Preferred Shares of the Trust
or other shares of capital stock, and the Trust has agreed that
upon receipt of such instructions and any amounts payable in
respect thereof, it will cause the conversion thereof utilizing
the same procedures as those provided for delivery of Preferred
Shares to effect such conversion. If the Depositary Shares
evidenced by a Depositary Receipt are to be converted in part
only, a new Depositary Receipt will be issued for any Depositary
Shares not to be converted. No fractional shares of Common
Shares will be issued upon conversion, and if such conversion
will result in a fractional share being issued, an amount will
be paid in cash by the Trust equal to the value of the
fractional interest based upon the closing price of the Common
Shares on the last business day prior to the conversion.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary
Shares which represent the Preferred Shares and any provision of
the Deposit Agreement may at any time be amended by agreement
between the Trust and the Preferred Shares Depositary. However,
any amendment that materially and adversely alters the rights of
the holders of Depositary Receipts or that would be materially
and adversely inconsistent with the rights granted to the
holders of the related Preferred Shares will not be effective
unless such amendment has been approved by the existing holders
of at least a majority of the Depositary Shares evidenced by the
Depositary Receipts then outstanding. No amendment shall impair
the right, subject to certain exceptions in the Deposit
Agreement, of any holder of Depositary Receipts to surrender any
Depositary Receipt with instructions to deliver to the holder
the related Preferred Shares and all money and other property,
if any, represented thereby, except in order to comply with law.
Every holder of an outstanding Depositary Receipt at the time
any such amendment becomes effective shall be deemed, by
continuing to hold such Depositary Receipt, to consent and agree
to such amendment and to be bound by the Deposit Agreement as
amended thereby.
The Deposit Agreement may be terminated by the Trust upon
not less than 30 days' prior written notice to the Preferred
Shares Depositary if (i) such termination is necessary to
preserve the Trust's status as a REIT or (ii) at least two-
thirds of each series of Preferred Shares affected by such
termination consents to such termination, whereupon the
Preferred Shares Depositary shall deliver or make available to
each holder of Depositary Receipts, upon surrender of the
Depositary Receipts held by such holder, such number of whole or
fractional shares of Preferred Shares as are represented by the
Depositary Shares evidenced by such Depositary Receipts together
with any other property held by the Preferred Shares Depositary
with respect to such Depositary Receipt. The Trust has agreed
that if the Deposit Agreement is terminated to preserve the
Trust's status as a REIT, then the Trust will use its best
efforts to list the Preferred Shares issued upon surrender of
the related Depositary Shares on a national securities exchange.
In addition, the Deposit Agreement will automatically terminate
if (i) all outstanding Depositary Shares shall have been
redeemed or converted, or (ii) there shall have been a final
distribution in respect of the related Preferred Shares in
connection with any liquidation, dissolution or winding up of
the Trust and such distribution shall have been distributed to
the holders of Depositary Receipts evidencing the Depositary
Shares representing such Preferred Shares.
Charges of Preferred Shares Depositary
The Trust will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
Deposit Agreement. In addition, the Trust will pay the fees and
expenses of the Preferred Shares Depositary in connection with
the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay certain other
transfer and other taxes and governmental charges as well as the
fees and expenses of the Preferred Shares Depositary for any
duties requested by such holders to be performed which are
outside of those expressly provided for in the Deposit
Agreement.
Resignation and Removal of Depositary
The Preferred Shares Depositary may resign at any time by
delivering to the Trust notice of its election to do so, and the
Trust may at any time remove the Preferred Shares Depositary,
any such resignation or removal to take effect upon the
appointment of a successor Preferred Shares Depositary. A
successor Preferred Shares Depositary must be appointed within
60 days after delivery of the notice of resignation or removal
and must be a bank or trust company having its principal office
in the United States and having a combined capital and surplus
of at least $50,000,000.
Miscellaneous
The Preferred Shares Depositary will forward to holders of
Depositary Receipts any reports and communications from the
Trust which are received by the Preferred Shares Depositary with
respect to the related Preferred Shares.
Neither the Preferred Shares Depositary nor the Trust will
be liable if it is prevented from or delayed in, by law or any
circumstances beyond its control, performing its obligations
under the Deposit Agreement. The obligations of the Trust and
the Preferred Shares Depositary under the Deposit Agreement will
be limited to performing their duties thereunder in good faith
and without negligence or willful misconduct, and the Trust and
the Preferred Shares Depositary will not be obligated to
prosecute or defend any legal proceeding in respect of any
Depositary Receipts, Depositary Shares or Preferred Shares
represented thereby unless satisfactory indemnity is furnished.
The Trust and the Preferred Shares Depositary may rely on
written advice of counsel or accountants, or information
provided by persons presenting Preferred Shares represented
thereby for deposit, holders of Depositary Receipts or other
persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be
genuine and signed by a proper party.
In the event the Preferred Shares Depositary shall receive
conflicting claims, requests or instructions from any holders of
Depositary Receipts, on the one hand, and the Trust, on the
other hand, the Preferred Shares Depositary shall be entitled to
act on such claims, requests or instructions received from the
Trust.
DESCRIPTION OF COMMON SHARES
The Trust has the authority to issue an unlimited number of
common shares of beneficial interest without par value. At
April 28, 1994, the Trust had outstanding 49,422,890 common
shares of beneficial interest without par value.
The following description of the Common Shares sets forth
certain general terms and provisions of the Common Shares to
which any Prospectus Supplement may relate, including a
Prospectus Supplement providing that Common Shares will be
issuable upon conversion of Debt Securities or Preferred Shares
or upon the exercise of Warrants. The statements below
describing the Common Shares are in all respects subject to and
qualified in their entirety by reference to the applicable
provisions of the Trust's Declaration of Trust, as amended.
Holders of the Trust's Common Shares will be entitled to
receive dividends when, as and if declared by the Board of
Trustees of the Trust, out of funds legally available therefor.
Payment and declaration of dividends on the Common Shares and
purchases of Common Shares by the Trust will be subject to
certain restrictions if the Trust fails to pay dividends on the
Preferred Shares. See "Description of Preferred Shares". Upon
any liquidation, dissolution or winding up of the Trust, holders
of Common Shares will be entitled to share equally and ratably
in any assets available for distribution to them, after payment
or provision for payment of the debts and other liabilities of
the Trust and the preferential amounts owing with respect to any
outstanding Preferred Shares. The Common Shares will possess
ordinary voting rights for the election of trustees and in
respect of other corporate matters, each share entitling the
holder thereof to one vote. Holders of Common Shares will not
have cumulative voting rights in the election of directors,
which means that holders of more than 50% of all of the Trust's
Common Shares voting for the election of trustees can elect all
of the trustees if they choose to do so and the holders of the
remaining shares cannot elect any trustees. Approval of the
following matters requires the affirmative vote of the holders
of at least 66 2/3% of all outstanding Common Shares:
amendments to the Trust's Declaration of Trust, as amended,
termination of the Trust, certain mergers, reorganizations or
consolidations of the Trust or the sale, conveyance, exchange or
other disposition of more than 50% of the Trust's property.
Holders of Common Shares will not have preemptive rights, which
means they have no right to acquire any additional Common Shares
that may be issued by the Trust at a subsequent date. The
Common Shares will, when issued, be fully paid and
nonassessable.
Restrictions on Ownership
For the Trust to qualify as a REIT under the Code, not more
than 50% in value of its outstanding capital stock may be owned,
directly or indirectly, by five or fewer individuals (as defined
in the Code) during the last half of a taxable year, and its
capital stock must be beneficially owned by 100 or more persons
during at least 335 days of a taxable year of 12 months (or
during a proportionate part of a shorter taxable year). The
Declaration of Trust, as amended, imposes certain restrictions
on the ownership and transferability of Common Shares and
Preferred Shares (collectively, "Shares"). If two-thirds (2/3)
of the Trustees determine that ownership of Shares has become,
or that there is a substantial possibility it may become,
concentrated to an extent which would prevent the Trust from
continuing to be qualified as a REIT, then the Trustees may
redeem (by lot or other manner deemed equitable by the Trustees)
a sufficient number of Shares to bring the ownership of the
Shares into conformity with the requirements of the Code, or
prohibit the transfer of Shares to prevent the ownership of
Shares from being concentrated to an extent which may not allow
the Trust to qualify as a REIT under the Code. The redemption
price to be paid will be (i) the last reported sale price of the
applicable Shares on the last business day prior to the
redemption date on the principal national securities exchange on
which such Shares are listed, or (ii) if the applicable Shares
are not so listed, the average of the highest bid and lowest
asked prices on such last business day as reported by the
National Quotation Bureau Incorporated or a similar organization
selected from time to time by the Trustees for the purpose, or
(iii) if not determinable as aforesaid, as determined in good
faith by the Trustees. From and after the date fixed for
redemption by the Trustees, the holder of any Shares so called
for redemption shall cease to be entitled to any distributions,
voting rights and other benefits with respect to the Shares
called for redemption, except the right to payment of the
applicable redemption price. Under certain circumstances the
proceeds of redemption might be taxed as a dividend to the
recipient.
In order to insure that the Trust remains qualified as a
REIT for federal income tax purposes, the Declaration of Trust,
as amended, also provides that any transfer of Shares that would
prevent the Trust from continuing to be so qualified shall be
void ab initio, and the intended transferee of such Shares shall
be deemed never to have had an interest therein. If the
foregoing provision is determined to be void or invalid by
virtue of any legal decision, statute, rule or regulation, then
the transferee of such Shares shall be deemed to have acted as
agent on behalf of the Trustees in acquiring such Shares, and to
hold such Shares on behalf of the Trustees.
All certificates representing Common Shares will bear a
legend referring to these restrictions.
If a shareholder has knowledge that he owns, directly or
indirectly, together with certain related persons, 5,000 or more
Shares (including Shares into which convertible securities,
options and warrants may be converted or purchased pursuant
thereto), within 10 days of becoming aware of such ownership,
whether or not connected with any acquisition of Shares, he must
notify the Trust in writing of such fact and must similarly
notify the Trust of any subsequent acquisition of Shares (or
convertible securities, options or warrants) by himself or
related persons of which he has knowledge within 10 days of
becoming aware of such acquisition. In addition, each
shareholder shall upon demand be required to disclose to the
Trust in writing such information with respect to the direct,
indirect and constructive ownership of Shares as the Board of
Trustees deems necessary to comply with the provisions of the
Code applicable to a REIT or to comply with the requirements of
any taxing authority or governmental agency.
The Registrar and Transfer Agent for the Trust's Common
Shares is The First National Bank of Boston.
DESCRIPTION OF WARRANTS
The Trust may issue Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares or Common
Shares. Warrants may be issued independently or together with
any Offered Securities and may be attached to or separate from
such securities. Each series of Warrants will be issued under a
separate warrant agreement (each, a "Warrant Agreement") to be
entered into between the Trust and a warrant agent ("Warrant
Agent"). The Warrant Agent will act solely as an agent of the
Trust in connection with the Warrants of such series and will
not assume any obligation or relationship of agency or trust for
or with any holders or beneficial owners of Warrants. The
following sets forth certain general terms and provisions of the
Warrants offered hereby. Further terms of the Warrants and the
applicable Warrant Agreement will be set forth in the applicable
Prospectus Supplement.
The applicable Prospectus Supplement will describe the
following terms, where applicable, of the Warrants in respect of
which this Prospectus is being delivered: (1) the title of such
Warrants; (2) the aggregate number of such Warrants; (3) the
price or prices at which such Warrants will be issued; (4) the
currencies in which the price of such Warrants may be payable;
(5) the designation, aggregate principal amount and terms of the
securities purchasable upon exercise of such Warrants; (6) the
designation and terms of the Offered Securities with which such
Warrants are issued and the number of such Warrants issued with
each such security; (7) the currency or currencies, including
composite currencies, in which the principal of or any premium
or interest on the securities purchasable upon exercise of such
Warrants will be payable; (8) if applicable, the date on and
after which such Warrants and the related securities will be
separately transferable; (9) the price at which and currency or
currencies, including composite currencies, in which the
securities purchasable upon exercise of such Warrants may be
purchased; (10) the date on which the right to exercise such
Warrants shall commence and the date on which such right shall
expire; (11) the minimum or maximum amount of such Warrants
which may be exercised at any one time; (12) information with
respect to book-entry procedures, if any; (13) a discussion of
certain Federal income tax considerations; and (14) any other
terms of such Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such
Warrants.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
TO THE TRUST OF ITS REIT ELECTION
The following summary of certain federal income tax
considerations to the Trust is based on current law, is for
general information only, and is not tax advice. The tax
treatment of a holder of any of the Offered Securities will vary
depending upon the terms of the specific securities acquired by
such holder, as well as his particular situation, and this
discussion does not attempt to address any aspects of federal
income taxation relating to holders of Offered Securities.
Certain federal income tax considerations relevant to holders of
the Offered Securities will be provided in the applicable
Prospectus Supplement relating thereto.
EACH INVESTOR IS ADVISED TO CONSULT THE APPLICABLE
PROSPECTUS SUPPLEMENT, AS WELL AS HIS OWN TAX ADVISOR, REGARDING
THE TAX CONSEQUENCES TO HIM OF THE ACQUISITION, OWNERSHIP AND
SALE OF THE OFFERED SECURITIES, INCLUDING THE FEDERAL, STATE,
LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH ACQUISITION,
OWNERSHIP AND SALE AND OF POTENTIAL CHANGES IN APPLICABLE TAX
LAWS.
Taxation of the Trust as a REIT
General. The Trust has elected to be taxed as a real
estate investment trust under Sections 856 through 860 of the
Code, commencing with its taxable year ended July 31, 1972. The
Trust believes that, commencing with its taxable year ended July
31, 1972, it was organized and has been operating in such a
manner as to qualify for taxation as a REIT under the Code and
the Trust intends to continue to operate in such a manner, but
no assurance can be given that it will operate in a manner so as
to qualify or remain qualified.
These sections of the Code are highly technical and
complex. The following sets forth the material aspects of the
sections that govern the federal income tax treatment of a REIT.
This summary is qualified in its entirety by the applicable Code
provisions, rules and regulations promulgated thereunder, and
administrative and judicial interpretations thereof.
In the opinion of Altheimer & Gray, commencing with the
Trust's taxable year which ended July 31, 1972, the Trust has
been organized in conformity with the requirements for
qualification as a REIT, and its method of operation enabled it
to meet the requirements for qualification and taxation as a
REIT under the Code. It must be emphasized that this opinion is
based on various assumptions and is conditioned upon certain
representations made by the Trust as to factual matters. In
addition, this opinion is based upon the factual representations
of the Trust concerning its business and properties as set forth
in this Prospectus. Moreover, such qualification and taxation
as a REIT depends upon the Trust's ability to meet, through
actual annual operating results, distribution levels, diversity
of stock ownership, and the various qualification tests imposed
under the Code discussed below, the results of which have not
been and will not be reviewed by Altheimer & Gray. Accordingly,
no assurance can be given that the actual results of the Trust's
operation in any particular taxable year will satisfy such
requirements. See "--Failure to Qualify."
If the Trust qualifies for taxation as a REIT, it generally
will not be subject to federal corporate income taxes on its net
income that is currently distributed to shareholders. This
treatment substantially eliminates the "double taxation" (at
both the corporate and shareholder levels) that generally
results from investment in a regular corporation. However, the
Trust will be subject to federal income tax as follows: First,
the Trust will be taxed at regular corporate rates on any
undistributed real estate investment trust taxable income,
including undistributed net capital gains. Second, under
certain circumstances, the Trust may be subject to the
"alternative minimum tax" on its items of tax preference.
Third, if the Trust has (i) net income from the sale or other
disposition of "foreclosure property" which is held primarily
for sale to customers in the ordinary course of business or (ii)
other non-qualifying income from foreclosure property, it will
be subject to tax at the highest corporate rate on such income.
Fourth, if the Trust has net income from prohibited transactions
(which are, in general, certain sales or other dispositions of
property held primarily for sale to customers in the ordinary
course of business other than foreclosure property), such income
will be subject to a 100% tax. Fifth, if the Trust should fail
to satisfy the 75% gross income test or the 95% gross income
test (as discussed below), but has nonetheless maintained its
qualification as a REIT because certain other requirements have
been met, it will be subject to a 100% tax on an amount equal to
(a) the gross income attributable to the greater of the amount
by which the Trust fails the 75% or 95% test, multiplied by (b)
a fraction intended to reflect the Trust's profitability.
Sixth, if the Trust should fail to distribute during each
calendar year at least the sum of (i) 85% of its REIT ordinary
income for such year, (ii) 95% of its REIT capital gain net
income for such year, and (iii) any undistributed taxable income
from prior periods, the Trust would be subject to a 4% excise
tax on the excess of such required distribution over the amounts
actually distributed. Seventh, if the Trust acquires any asset
from a C Corporation (i.e., generally a corporation subject to
full corporate-level tax) in certain transactions in which the
basis of the asset in the hands of the Trust is determined by
reference to the basis of the asset (or any other property) in
the hands of the C corporation, and the Trust recognizes gain on
the disposition of such asset during the 10-year period (the
"Recognition Period") beginning on the date on which such asset
was acquired by the Trust, then, to the extent of the excess, if
any, of the fair market value over the adjusted basis of any
such asset as of the beginning of the Recognition Period (the
"Built-in Gain"), such gain will be subject to tax at the
highest regular corporate rate pursuant to Internal Revenue
Service ("IRS") regulations that have not yet been promulgated.
Requirements for Qualification. The Code defines a REIT as
a corporation, trust or association (1) which is managed by one
or more trustees or directors, (2) the beneficial ownership of
which is evidenced by transferable shares, or by transferable
certificates of beneficial interest, (3) which would be taxable
as a domestic corporation, but for Section 856 through 859 of
the Code, (4) which is neither a financial institution nor an
insurance company subject to certain provisions of the Code, (5)
the beneficial ownership of which is held by 100 or more
persons, (6) during the last half of each taxable year, not more
than 50% in value of the outstanding stock of which is owned,
directly or constructively, by five or fewer individuals (as
defined in the Code) and (7) which meets certain other tests,
described below, regarding the nature of its income and assets.
The Code provides that conditions (1) to (4) must be met during
the entire taxable year and that condition (5) must be met
during at least 335 days of a taxable year of 12 months, or
during a proportionate part of a taxable year of less than 12
months. Conditions (5) and (6) will not apply until after the
first taxable year for which an election is made to be taxed as
a REIT.
The Trust has satisfied condition (5) and believes that it
has issued sufficient shares to allow it to satisfy condition
(6). In addition, the Trust's Declaration of Trust, as amended,
provides for restrictions regarding ownership and transfer of
the Trust's capital stock, which restrictions are intended to
assist the Trust in continuing to satisfy the share ownership
requirements described in (5) and (6) above. The ownership and
transfer restrictions pertaining to a particular series of
Preferred Shares are described in "Description of Preferred
Shares -- Restrictions on Ownership."
The Trust owns and operates a number of properties through
subsidiaries. Code Section 856(i) provides that a corporation
which is a "qualified REIT subsidiary" shall not be treated as a
separate corporation, and all assets, liabilities, and items of
income, deduction, and credit of a "qualified REIT subsidiary"
shall be treated as assets, liabilities and such items (as the
case may be) of the REIT. Thus, in applying the requirements
described herein, the Trust's "qualified REIT subsidiaries" will
be ignored, and all assets, liabilities and items of income,
deduction, and credit of such subsidiaries will be treated as
assets, liabilities and items of the Trust.
Income Tests. In order to maintain qualification as a
REIT, the Trust annually must satisfy three gross income
requirements. First, at least 75% of the Trust's gross income
(excluding gross income from prohibited transactions) for each
taxable year must be derived directly or indirectly from
investments relating to real property or mortgages on real
property (including "rents from real property" and, in certain
circumstances, interest) or from certain types of temporary
investments. Second, at least 95% of the Trust's gross income
(excluding gross income from prohibited transactions) for each
taxable year must be derived from such real property
investments, dividends, interest and gain from the sale or
disposition of stock or securities (or from any combination of
the foregoing). Third, short-term gain from the sale or other
disposition of stock or securities, gain from prohibited
transactions and gain on the sale or other disposition of real
property held for less than four years (apart from involuntary
conversions and sales of foreclosure property) must represent
less than 30% of the Trust's gross income (including gross
income from prohibited transactions) for each taxable year.
Rents received by the Trust will qualify as "rents from
real property" in satisfying the gross income requirements for a
REIT described above only if several conditions are met. First,
the amount of rent must not be based in whole or in part on the
income or profits of any person. However, an amount received or
accrued generally will not be excluded from the term "rents from
real property" solely by reason of being based on a fixed
percentage or percentages of receipts or sales. Second, the
Code provides that rents received from a tenant will not qualify
as "rents from real property" in satisfying the gross income
tests if the real estate investment trust, or an owner of 10% or
more of the REIT, directly or constructively owns 10% or more of
such tenant (a "Related Party Tenant"). Third, if rent
attributable to personal property leased in connection with a
lease of real property is greater than 15% of the total rent
received under the lease, then the portion of rent attributable
to such personal property will not qualify as "rents from real
property." Finally, for rents received to qualify as "rents
from real property," the REIT generally must not operate or
manage the property or furnish or render services to the tenants
of such property, other than through an independent contractor
from whom the REIT derives no revenue; provided, however, the
Trust may directly perform certain services that are "usually or
customarily rendered" in connection with the rental of space for
occupancy only and are not otherwise considered "rendered to the
occupant" of the property. The Trust does not and will not
charge rent for any property that is based in whole or in part
on the income or profits of any person (except by reason of
being based on a percentage of receipts of sales, as described
above), the Trust does not and will not rent any property to a
Related Party Tenant, and the Trust does not and will not derive
rental income attributable to personal property (other than
personal property leased in connection with the lease of real
property, the amount of which is less than 15% of the total rent
received under the lease). The Trust directly performs services
under certain of its leases.
The term "interest" generally does not include any amount
received or accrued (directly or indirectly) if the
determination of such amount depends in whole or in part on the
income or profits of any person. However, an amount received or
accrued generally will not be excluded from the term "interest"
solely by reason of being based on a fixed percentage or
percentages of receipts or sales.
If the Trust fails to satisfy one or both of the 75% or 95%
gross income tests for any taxable year, it may nevertheless
qualify as a REIT for such year if it is entitled to relief
under certain provisions of the Code. These relief provisions
will generally be available if the Trust's failure to meet such
tests was due to reasonable cause and not due to willful
neglect, the Trust attaches a schedule of the sources of its
income to its federal income tax return, and any incorrect
information on the schedule was not due to fraud with intent to
evade tax. It is not possible, however, to state whether in all
circumstances the Trust would be entitled to the benefit of
these relief provisions. As discussed above under "-- General,"
even if these relief provisions apply, a tax would be imposed
with respect to the excess net income.
Asset Tests. The Trust, at the close of each quarter of
its taxable year, must also satisfy three tests relating to the
nature of its assets. First, at least 75% of the value of the
Trust's total assets must be represented by real estate assets
(including (i) assets held by the Trust's qualified REIT
subsidiaries and the Trust's allocable share of real estate
assets held by partnerships in which the Trust owns an interest
and (ii) stock or debt instruments held for not more than one
year purchased with the proceeds of a stock offering or long-
term (at least five years) debt offering of the Trust), cash,
cash items and government securities. Second, not more than 25%
of the Trust's total assets may be represented by securities
other than those in the 75% asset class. Third, of the
investments included in the 25% asset class, the value of any
one issuer's securities owned by the Trust may not exceed 5% of
the value of the Trust's total assets and the Trust may not own
more than 10% of any one issuer's outstanding voting securities.
The Trust currently has numerous wholly-owned subsidiaries.
As set forth above, the ownership of more than 10% of the voting
securities of any one issuer by a REIT is prohibited by the
asset tests. However, if the Trust's subsidiaries are
"qualified REIT subsidiaries" as defined in the Code, such
subsidiaries will not be treated as separate corporations for
federal income tax purposes. Thus, the Trust's ownership of
stock of a "qualified REIT subsidiary" will not cause the Trust
to fail the asset tests.
Annual Distribution Requirements. The Trust, in order to
qualify as a REIT, is required to distribute dividends (other
than capital gain dividends) to its shareholders in an amount at
least equal to (A) the sum of (i) 95% of the Trust's "REIT
taxable income" (computed without regard to the dividends paid
deduction and the Trust's net capital gain) and (ii) 95% of the
net income (after tax), if any, from foreclosure property, minus
(B) the sum of certain items of non-cash income. In addition,
if the Trust disposes of any asset during a Recognition Period,
the Trust will be required, pursuant to IRS regulations which
have not yet been promulgated, to distribute at least 95% of the
Built-in Gain (after tax), if any, recognized on the disposition
of such asset. Such distributions must be paid in the taxable
year to which they relate, or in the following taxable year if
declared before the Trust timely files its tax return for such
year and if paid on or before the first regular dividend payment
after such declaration. To the extent that the Trust does not
distribute all of its net capital gain or distributes at least
95%, but less than 100%, of its "real estate investment trust
taxable income," as adjusted, it will be subject to tax thereon
at regular ordinary and capital gain corporate tax rates.
Furthermore, if the Trust should fail to distribute during each
calendar year at least the sum of (i) 85% of its REIT ordinary
income for such year, (ii) 95% of its REIT capital gain income
for such year, and (iii) any undistributed taxable income from
prior periods, the Trust would be subject to a 4% excise tax on
the excess of such required distribution over the amounts
actually distributed. The Trust intends to make timely
distributions sufficient to satisfy this annual distribution
requirement.
It is possible that the Trust, from time to time, may not
have sufficient cash or other liquid assets to meet the above
distribution requirements due to timing differences between (i)
the actual receipt of income and actual payment of deductible
expenses and (ii) the inclusion of such income and deduction of
such expenses in arriving at taxable income of the Trust. In
the event that such timing differences occur, in order to meet
the 95% distribution requirement, the Trust may find it
necessary to arrange for short-term, or possibly long-term
borrowings or to pay dividends in the form of taxable stock
dividends.
Under certain circumstances, the Trust may be able to
rectify a failure to meet the distribution requirement for a
year by paying "deficiency dividends" to stockholders in a later
year, which may be included in the Trust's deduction for
dividends paid for the earlier year. Thus, the Trust may be
able to avoid being taxed on amounts distributed as deficiency
dividends; however, the Trust will be required to pay interest
based upon the amount of any deduction taken for deficiency
dividends.
Failure to Qualify
If the Trust fails to qualify for taxation as a REIT in any
taxable year, and the relief provisions do not apply, the Trust
will be subject to tax (including any applicable alternative
minimum tax) on its taxable income at regular corporate rates.
Distributions to shareholders in any year in which the Trust
fails to qualify will not be deductible by the Trust nor will
they be required to be made. In such event, to the extent of
current and accumulated earnings and profits, all distributions
to shareholders will be taxable as ordinary income and, subject
to certain limitations of the Code, corporate distributees may
be eligible for the dividends received deduction. Unless
entitled to relief under specific statutory provisions, the
Trust will also be disqualified from taxation as a REIT for the
four taxable years following the year during which qualification
was lost. It is not possible to state whether in all
circumstances the Trust would be entitled to such statutory
relief.
PLAN OF DISTRIBUTION
The Trust may sell the Offered Securities to one or more
underwriters for public offering and sale by them or may sell
the Offered Securities to investors directly or through agents.
Any such underwriter or agent involved in the offer and sale of
the Offered Securities will be named in the applicable
Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a
fixed price or prices, which may be changed, at prices related
to the prevailing market prices at the time of sale or at
negotiated prices. The Trust also may offer and sell the
Offered Securities in exchange for one or more of its then
outstanding issues of debt or convertible debt securities. The
Trust also may, from time to time, authorize underwriters acting
as the Trust's agents to offer and sell the Offered Securities
upon the terms and conditions as are set forth in the applicable
Prospectus Supplement. In connection with the sale of Offered
Securities, underwriters may be deemed to have received
compensation from the Trust in the form of underwriting
discounts or commissions and may also receive commissions from
purchasers of Offered Securities for whom they may act as agent.
Underwriters may sell Offered Securities to or through dealers,
and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as
agent.
Any underwriting compensation paid by the Trust to
underwriters or agents in connection with the offering of
Offered Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement.
Underwriters, dealers and agents participating in the
distribution of the Offered Securities may be deemed to be
underwriters, and any discounts and commissions received by them
and any profit realized by them on resale of the Offered
Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters, dealers
and agents may be entitled, under agreements entered into with
the Trust, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the
Securities Act.
If so indicated in a Prospectus Supplement, the Trust will
authorize agents, underwriters or dealers to solicit offers by
certain institutional investors to purchase Offered Securities
of the series to which such Prospectus Supplement relates
providing for payment and delivery on a future date specified in
such Prospectus Supplement. There may be limitations on the
minimum amount which may be purchased by any such institutional
investor or on the portion of the aggregate principal amount of
the particular Offered Securities which may be sold pursuant to
such arrangements. Institutional investors to which such offers
may be made, when authorized, include commercial and savings
banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and such other
institutions as may be approved by the Trust. The obligations
of any such purchasers pursuant to such delayed delivery and
payment arrangements will not be subject to any conditions
except that (i) the purchase by an institution of the particular
Offered Securities shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the
particular Offered Securities are being sold to underwriters,
the Trust shall have sold to such underwriters the total
principal amount of such Offered Securities or number of
Warrants less the principal amount or number thereof, as the
case may be, covered by such arrangements. Underwriters will
not have any responsibility in respect of the validity of such
arrangements or the performance of the Trust or such
institutional investors thereunder.
Certain of the underwriters and their affiliates may be
customers of, engage in transactions with and perform services
for the Trust and its subsidiaries in the ordinary course of
business.
ERISA MATTERS
The Trust may be considered a "party in interest" within
the meaning of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and a "disqualified person" under
corresponding provisions of the Code with respect to certain
employee benefit plans. Certain transactions between an
employee benefit plan and a party in interest or disqualified
person may result in "prohibited transactions" within the
meaning of ERISA and the Code, unless such transactions are
effected pursuant to an applicable exemption. Any employee
benefit plan or other entity subject to such provisions of ERISA
or the Code proposing to invest in the Offered Securities should
consult with its legal counsel.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon
for the Trust by Robinson Silverman Pearce Aronsohn & Berman,
New York, New York. Robinson Silverman Pearce Aronsohn & Berman
will rely on Fordham & Starrett, P.C., Boston, Massachusetts, as
to matters of Massachusetts law, including the legal
authorization and issuance of the Offered Securities. Certain
legal matters in connection with the Offered Securities will be
passed upon for any underwriters, dealers or agents by Brown &
Wood, New York, New York. Altheimer & Gray, Chicago, Illinois,
has acted as counsel to the Trust on tax and certain other
matters. Norman Gold, a member of Altheimer & Gray, is a
Trustee. Mr. Gold beneficially owns 10,899 Common Shares.
EXPERTS
The consolidated balance sheets as of July 31, 1993 and
1992 and the consolidated statements of income, changes in
shareholders' equity, and cash flows and the consolidated
financial statement schedules of the Trust for each of the three
years in the period ended July 31, 1993, which appear in the
Annual Report on the Form 10-K incorporated by reference in this
Prospectus, have been incorporated herein in reliance on the
report of Coopers & Lybrand, independent accountants, given on
the authority of that firm as experts in accounting and
auditing. The historical summary of revenues and certain
operating expenses of certain properties acquired by the Trust
for the year ended December 31, 1992 appearing in the Trust's
Reports on Form 8-K/A dated October 6, 1993 and January 13,
1994, respectively, and the historical summary of revenues and
certain operating expenses of certain properties acquired by the
Trust for the year ended July 31, 1993 appearing in the Trust's
Report on Form 8-K dated February 10, 1994, have been audited by
Eichler, Bergsman, Belonsky & Co., independent accountants, as
set forth in their reports thereon, included therein and
incorporated herein by reference. Such financial statements are
incorporated herein by reference in reliance upon such reports
given the authority of such firm as experts in accounting and
auditing.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the expenses incurred by the
Trust in connection with the offering of the Offered Securities.
All the amounts shown are estimates except the Securities and
Exchange Commission registration fee.
Item Amount
____ ______
Registration Fee -- Securities and
Exchange Commission . . . . . . . . . $86,207
Fees of Rating Agencies . . . . . . . . *
Legal Fees and Expenses . . . . . . . . *
Accounting Fees and Expenses. . . . . . *
Printing and Engraving Expenses . . . . *
Blue Sky Fee and Expenses . . . . . . . *
Trustee's Fees (including counsel fees) *
Miscellaneous Expenses. . . . . . . . . *
_________
Total. . . . . . . . . . . . . . . $ *
_________
________________________
* To be furnished by amendment.
Item 15. Indemnification of Trustees and Officers.
The Declaration of Trust provides in substance that no
Trustee or officer is liable to the Trust, to a shareholder or to
third persons except for his own willful misconduct, bad faith,
gross negligence or reckless disregard of his duties. The
Declaration of Trust further provides in substance that, with the
exceptions stated above, a Trustee or officer is entitled to be
indemnified against all liability incurred in connection with the
affairs of the Trust. The Declaration of Trust also provides
that no Trustee will be personally liable to the Trust or its
shareholders for monetary damages for breach of fiduciary duty as
a Trustee notwithstanding any provision of law imposing such
liability, except for liability (i) for any breach of the
Trustee's duty of loyalty to the Trust or its shareholders, (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for
obtaining an improper benefit, or (iv) for paying a dividend or
making a distribution to shareholders or a loan to officers or
Trustees which is illegal under the Massachusetts Business
Corporation Law. In addition, the Declaration of Trust
authorizes the Trustees to purchase and pay for liability
insurance to indemnify the Trustees and officers against certain
claims and liabilities.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to Trustees, officers, or
persons controlling the Trust pursuant to the foregoing
provisions, the Trust has been informed 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 Trust of
expenses incurred or paid by a Trustee, officer or controlling
person of the Trust in the successful defense of any action, suit
or proceeding) is asserted by such Trustee, officer or
controlling person in connection with the securities being
registered, the Trust, unless in the opinion of its counsel the
matter has been settled by controlling precedent, will 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.
ITEM 16. Exhibits.
Exhibit
Number
_______
**(1.1) Form of Underwriting Agreement Basic Provisions for
Debt Securities and Warrants to Purchase Debt
Securities.
**(1.2) Form of Underwriting Agreement Basic Provisions for
Preferred Shares, Depositary Shares, Common Shares
and Warrants.
*(3.1) Declaration of Trust, dated July 31, 1972, filed as
Exhibit 3.1 to Registration Statement No. 2-45633,
together with the following amendments:
*(a) Amendment #1, dated July 31, 1972, filed as
Exhibit 3.1(a) to Registration Statement No.
2-45633.
*(b) Amendment #2, dated August 1, 1972, filed as
Exhibit 3.1(b) to Registration Statement No.
2-45633.
*(c) Amendment #3, dated November 15, 1972, filed
as Exhibit 3.1(c) to Registration Statement
No. 2-45633.
*(d) Amendment #4, dated December 6, 1972, filed
as Exhibit 3.1(d) to Registration Statement
No. 2-45633.
*(e) Amendment #5, dated December 12, 1972, filed
as Exhibit 1 to Registrant's Form 10-K for
the fiscal year ended July 31, 1973.
*(f) Amendment #6, dated December 13, 1979, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 13, 1979.
*(g) Amendment #7, dated July 9, 1981, filed as
Appendix to Proxy Statement relating to
Special Meeting of Shareholders held on
July 9, 1981.
*(h) Amendment #8, dated December 15, 1982, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 15, 1982.
*(i) Amendment #9, dated December 10, 1985, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 10, 1985.
*(j) Amendment #10, dated December 14, 1987, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 14, 1987.
*(4.1) Declaration of Trust (see Exhibit 3.1 above).
(4.2) Form of Indenture relating to Senior Securities to
be entered into by the Trust and a banking
institution organized under the laws of the United
States of America or a particular State thereof.
**(4.3) Form of Senior Securities.
**(4.4) Form of Indenture relating to Subordinated
Securities to be entered into by the Trust and a
banking institution organized under the laws of the
United States of America or a particular State
thereof.
**(4.5) Form of Subordinated Securities.
**(4.6) Resolutions adopted by the Board of Trustees of the
Trust authorizing the issuance and establishing the
terms of the Preferred Shares.
**(4.7) Form of Preferred Shares Certificate.
**(4.8) Form of Deposit Agreement (including Form of
Depositary Receipt).
**(4.9) Form of Common Shares Certificate.
**(4.10) Form of Warrants Agreement.
**(5) Opinion of Robinson Silverman Pearce Aronsohn &
Berman re legality.
**(8) Opinion of Altheimer & Gray re tax matters.
(12) Statements re computation of ratios.
**(23.1) Consent of Counsel (contained in Exhibit 5).
**(23.2) Consent of Tax Counsel (contained in Exhibit 8).
(23.3) Consent of Coopers & Lybrand.
(23.4) Consent of Eichler, Bergsman, Belonsky & Co.
(24) Powers of Attorney (included on signature pages).
**(25.1) Statement of Eligibility of Senior Securities
Trustee on Form T-1.
**(25.2) Statement of Eligibility of Subordinated Securities
Trustee on Form T-1.
____________________
* Incorporated herein by reference as above indicated.
** To be filed by amendment or incorporated by reference in
connection with the offering of Offered Securities.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that subparagraphs (i) and (ii) do not
apply if the information required to be included in a post-
effective amendment by those subparagraphs is contained in
the periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
The undersigned Registrant hereby further undertakes that,
for the purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in 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.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to Trustees,
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 such Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a Trustee, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Trustee, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
such Act and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby further undertakes to file
applications for the purpose of determining the eligibility of
the Senior Securities Trustee and the Subordinated Securities
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of New York, State of New York on 28th day of April, 1994.
NEW PLAN REALTY TRUST
By /s/ William Newman
_________________________
William Newman,
Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints William
Newman or Arnold Laubich his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to
do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or either of them, or their
or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
_________ _____ ____
/s/ William Newman Chief Executive Officer April 28, 1994
__________________ and Trustee
William Newman
/s/ Michael Brown Chief Financial and April 28, 1994
_________________ Accounting Officer, Controller
Michael Brown
/s/ Arnold Laubich President, Chief
Operating April 28, 1994
__________________ Officer and Trustee
Arnold Laubich
/s/ Norman Gold Trustee April 28, 1994
_______________
Norman Gold
/s/ Melvin D. Newman Trustee April 28, 1994
____________________
Melvin D. Newman
/s/ Raymond H. Bottorf Trustee April 28, 1994
______________________
Raymond H. Bottorf
/s/ James M. Steuterman Senior Vice President-- April 28, 1994
_______________________ Acquisitions and Trustee
James M. Steuterman
/s/ Dean Bernstein Vice President April 28, 1994
__________________ and Trustee
Dean Bernstein
EXHIBIT INDEX
Exhibit No. Description Page No.
___________ ___________ ________
**(1.1) Form of Underwriting Agreement Basic Provisions
for Debt Securities and Warrants to Purchase Debt
Securities.
**(1.2) Form of Underwriting Agreement Basic Provisions for
Preferred Shares, Depositary Shares, Common Shares
and Warrants.
*(3.1) Declaration of Trust, dated July 31, 1972, filed as
Exhibit 3.1 to Registration Statement No. 2-45633,
together with the following amendments:
*(a) Amendment #1, dated July 31, 1972, filed
as Exhibit 3.1(a) to Registration Statement
No. 2-45633.
*(b) Amendment #2, dated August 1, 1972, filed
as Exhibit 3.1(b) to Registration Statement
No. 2-45633.
*(c) Amendment #3, dated November 15, 1972, filed
as Exhibit 3.1(c) to Registration Statement
No. 2-45633.
*(d) Amendment #4, dated December 6, 1972, filed
as Exhibit 3.1(d) to Registration Statement
No. 2-45633.
*(e) Amendment #5, dated December 12, 1972, filed
as Exhibit 1 to Registrant's Form 10-K for
the fiscal year ended July 31, 1973.
*(f) Amendment #6, dated December 13, 1979, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 13, 1979.
*(g) Amendment #7, dated July 9, 1981, filed as
Appendix to Proxy Statement relating to
Special Meeting of Shareholders held on
July 9, 1981.
*(h) Amendment #8, dated December 15, 1982, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 15, 1982.
*(i) Amendment #9, dated December 10, 1985, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 10, 1985.
*(j) Amendment #10, dated December 14, 1987, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 14, 1987.
*(4.1) Declaration of Trust (see Exhibit 3.1 above).
(4.2) Form of Indenture relating to Senior Securities to
be entered into by the Trust and a banking
institution organized under the laws of the United
States of America or a particular
State thereof.
**(4.3) Form of Senior Securities.
Exhibit No. Description Page No.
___________ ___________ ________
**(4.4) Form of Indenture relating to Subordinated
Securities
to be entered into by the Trust and a banking
institution organized under the laws of the United
States of America or a particular State thereof.
**(4.5) Form of Subordinated Securities.
**(4.6) Resolutions adopted by the Board of Trustees of the
Trust authorizing the issuance and establishing the
terms of the Preferred Shares.
**(4.7) Form of Preferred Shares Certificate.
**(4.8) Form of Deposit Agreement (including Form of
Depositary Receipt).
**(4.9) Form of Common Shares Certificate.
**(4.10) Form of Warrants Agreement.
**(5) Opinion of Robinson Silverman Pearce Aronsohn &
Berman re legality.
**(8) Opinion of Altheimer & Gray re tax status.
(12) Statements re computation of ratios.
**(23.1) Consent of Counsel (contained in Exhibit 5).
**(23.2) Consent of Tax Counsel (contained in Exhibit 8).
(23.3) Consent of Coopers & Lybrand.
(23.4) Consent of Eichler, Bergsman, Belonsky & Co.
(24) Powers of Attorney (included on signature pages).
**(25.1) Statement of Eligibility of Senior Securities
Trustee on Form T-1.
**(25.2) State of Eligibility of Subordinated Securities
Trustee on Form T-1.
____________________
* Incorporated herein by reference as above indicated.
** To be filed by amendment or incorporated by reference in
connection with the offering of Offered Securities.