As filed with the Securities and Exchange Commission
on May 20, 1994
Registration No. 33-53311
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
Amendment No. 1 to
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
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted 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.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS, DATED MAY 20, 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.
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. The Trust's Report on Form 8-K dated May 20, 1994,
filed May 20, 1994 pursuant to the Exchange Act.
11. 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 92 shopping centers,
with approximately 11,735,000 gross rentable square feet, five
factory outlet centers with approximately 1,535,000 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);
\FIS 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 May
20, 1994, the Trust had outstanding 49,424,090 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.