As filed with the Securities and Exchange Commission on November 6, 1996
===============================================================================
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
NEW PLAN REALTY TRUST
(Exact name of registrant as specified in its declaration of trust)
Massachusetts 13-1995781
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
__________________
William Newman
Chief Executive Officer
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
__________________
Copies to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Alan S. Pearce, Esq.
Steven G. Scheinfeld, 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/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: /__/
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering: /__/
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: /__/
CALCULATION OF REGISTRATION FEE
Title of
Each Class Proposed Proposed
of Amount Maximum Maximum Amount
Securities to be Offering Aggregate of
to be Regis- Price Per Offering Registration
Registered(1) tered(2) Unit(2)(3) Price(2)(3) Fee
_____________________ __________ __________ ___________ _______________
Debt Securities(4). . . (11) (11) (11)
Preferred Shares
$1.00 par value(5) . . (11) (11) (11)
Depositary Shares
representing Preferred
Shares $1.00 par
value (6) . . . . . . (11) (11) (11)
Common Shares of
Beneficial
Interest without
par value (7). . . . . (11) (11) (11)
Warrants (8). . . . . . (11) (11) (11)
Rights (9). . . . . . . (11) (11) (11)
Total (10). . . . . . . $350,000,000 $350,000,000 $105,811(12)(13)
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.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
PROSPECTUS WHICH CONSTITUTES PART OF THIS REGISTRATION STATEMENT ALSO RELATES
TO AND INCLUDES AN AGGREGATE INITIAL PUBLIC OFFERING PRICE OF $725,000 OF
OFFERED SECURITIES REGISTERED ON FORM S-3, REGISTRATION NO. 33-61383.
(Footnotes on next page)
(Footnotes for previous page)
(1) This Registration Statement also covers Debt Securities, Preferred Shares,
Depositary Shares, Common Shares of Beneficial Interest, Warrants or
Rights which may be issued by the Registrant under delayed delivery
contracts pursuant to which the counterparty may be required to purchase
such securities.
(2) In U.S. dollars or the equivalent thereof denominated in one or more
foreign currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(3) Estimated solely for purposes of calculating the registration fee. No
separate consideration will be received for Preferred Shares or Common
Shares of Beneficial Interest that are issued upon conversion of Debt
Securities, Preferred Shares or Depositary Shares registered hereunder or
upon exercise of the Warrants registered hereunder, as the case may be.
Similarly, no separate consideration will be received for Debt Securities
that are issued upon the exercise of Warrants registered hereunder.
(4) Subject to note (10) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities. If any Debt Securities
are being issued at an original issue discount, then the offering price
shall be in such greater principal amount as shall result in an aggregated
initial offering price not to exceed $350,000,000 less the dollar amount
of any securities previously issued hereunder.
(5) Subject to note (10) below, there is being registered hereunder an
indeterminate number of Preferred Shares as may be sold, from time to
time, by the Registrant. There is also being registered hereunder an
indeterminate number of Preferred Shares as shall be issuable upon
conversion or redemption of Debt Securities registered hereby and upon
exercise of Warrants registered hereby.
(6) Subject to note (10) below, there is being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event the
Registrant elects to offer to the public fractional interests in Preferred
Shares registered hereunder, Depositary Receipts will be distributed to
those persons purchasing such fractional interests, and the Preferred
Shares will be issued to the depositary under the Deposit Agreement.
(7) Subject to note (10) below, there is being registered hereunder an
indeterminate number of Common Shares of Beneficial Interest as may be
sold, from time to time, by the Registrant. There is also being
registered hereunder an indeterminate number of Common Shares of
Beneficial Interest as shall be issuable upon conversion or redemption of
Debt Securities or Preferred Shares registered hereby or upon exercise of
Warrants registered hereby.
(8) Subject to note (10) below, there are being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase Debt Securities, Preferred Shares or Common Shares of Beneficial
Interest registered hereby.
(9) Subject to note (10) below, there is being registered hereunder an
indeterminate number of Rights representing rights to purchase Common
Shares of Beneficial Interest registered hereby.
(10) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$350,000,000. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
(11) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(12) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
(13) Does not include the registration fee of $250 pertaining to the aggregate
initial public offering price of $725,000 of Offered Securities previously
registered on Form S-3, Registration No. 33-61383 and carried over to this
Registration Statement.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS, DATED NOVEMBER 6, 1996
PROSPECTUS
NEW PLAN REALTY TRUST
$350,000,000
Debt Securities, Preferred Shares,
Depositary Shares, Common Shares, Warrants and Rights
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"), (v) warrants to purchase Debt
Securities, Preferred Shares or Common Shares (collectively, "Warrants"), or
(vi) rights to purchase Common Shares ("Rights"), with an aggregate initial
public offering price of up to $350,000,000 on terms to be determined at the
time of offering. Debt Securities, Preferred Shares, Depositary Shares, Common
Shares, Warrants and Rights (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, certain covenants, other
terms and conditions, and the initial public offering price; (ii) in the case
of Preferred Shares, the number, specific title and stated value, any dividend,
liquidation, redemption, conversion, voting and other terms and conditions, and
the 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;
(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; and (vi) in the case of Rights, the duration, exercise
price and transferability 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 ____________.
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 or to previous filings made by the Trust with the
Commission, each such statement being qualified in all respects by such
reference. For further information regarding the Trust and the Offered
Securities, reference is hereby made to the Registration Statement and the
previous filings made by the Company with the Commission, which may be obtained
from the Commission (i) at its principal office in Washington, D.C., upon
payment of the fees prescribed by the Commission or (ii) by consulting the
Commission's Web site at the address of http://www.sec.gov.
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,
1996, filed October 16, 1996, pursuant to the Exchange Act.
2. 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.
3. The Trust's Current Report on Form 8-K dated November 4, 1996
pursuant to the Exchange Act.
All other 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 trusts
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 and apartment complexes.
The Trust's present equity investments consist principally of 118 shopping
centers, with approximately 16,446,500 gross rentable square feet, five factory
outlet centers with approximately 1,561,000 gross rentable square feet and 44
apartment complexes containing 9,659 apartment units. In addition, the Trust is
currently developing a sixth factory outlet center in Jackson Township, New
Jersey. Phase I of the center is expected to contain approximately 195,000
gross rentable square feet. These properties are located in 23 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 $1.395 per Common Share in fiscal
1996. 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 69 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
apartment complexes. The Trust's primary investment strategy is to identify
and purchase well-located shopping centers, including factory outlet centers,
and apartment complexes 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 of its shopping
centers and factory outlets. 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:
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
28.5 23.6 17.0 8.1 4.9
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 trust purposes, which may include the
acquisition of shopping centers, factory outlet centers and apartment complexes
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, dated as of
March 29, 1995, as amended or supplemented from time to time (the "Senior
Securities Indenture"), between the Trust and State Street Bank and Trust
Company (as successor to The First National Bank of Boston), as trustee (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." The Senior Securities Indenture and a form of the Subordinated
Securities Indenture have been filed as exhibits to the Registration Statement
of which this Prospectus is a part and will be available for inspection,
respectively, at the corporate trust office of the Senior Securities Trustee
and at the corporate trust office of the Subordinated Securities Trustee or as
described above under "Available Information." The Senior Securities Indenture
is, and the Subordinated Securities Indenture will be, subject to and governed
by the Trust Indenture Act of 1939, as amended (the "TIA"). The description of
the Subordinated Securities Indenture set forth below assumes that the Trust
has entered into the Subordinated Securities Indenture. The Trust will execute
the Subordinated Securities Indenture when and if the Trust issues Subordinated
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.
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. Subordinated
Securities will be subordinated in right of payment to the prior payment in
full of the Senior Debt of the Company, as described under "Subordination."
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 of each Indenture).
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 shall be appointed by the Trust, by or
pursuant to a resolution adopted by the Board of Trustees, to act with respect
to such series (Section 608 of each Indenture). 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 thereunder, and, except as otherwise indicated herein or therein,
any action described herein or therein 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 (Section 609 of each 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 and Additional Amounts, 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 the principal of (and premium, if any) or interest or
Additional Amounts, if any, on such Debt Securities are to be payable,
at the election of the Trust or a Holder, in one or more currencies other
than that in which such Debt Securities are denominated or stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies in which such Debt
Securities are denominated or stated to be payable and the currency or
currencies in which such Debt Securities are to be so payable;
(17) whether such Debt Securities will be issued in certificated or book-
entry form;
(18) 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;
(19) the applicability, if any, of the defeasance and covenant defeasance
provisions of Article Fourteen of the applicable Indenture;
(20) 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;
(21) 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;
(22) 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;
(23) the name of the applicable Trustee and the address of its corporate
trust office; and
(24) any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture (Section 301 of each Indenture).
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-Senior Securities
Indenture 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 and those in bearer form will be issuable in
denominations of $5,000 (Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest or any Additional Amounts on
any series of Debt Securities will be payable at the corporate trust office of
the applicable Trustee or an office or agency established by the Company in
accordance with the Indenture, 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 of each Indenture).
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 of each Indenture).
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 or at
an office or agency established by the Company in accordance with the
Indenture. 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 or at an office or agency established by
the Company in accordance with the Indenture. 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 of each
Indenture). 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 of each Indenture).
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 of
each Indenture).
Certain Covenants
Senior Securities Indenture 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 fiscal 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 fiscal 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 fiscal
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 of
Senior Securities Indenture).
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 fiscal 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 fiscal 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 fiscal
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 of
Senior Securities Indenture).
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 of Senior Securities
Indenture).
The Trust will at all times maintain an Unencumbered Total Asset Value in
an amount not less than 100% of the aggregate principal amount of all
outstanding Debt of the Trust and its Subsidiaries that is unsecured (Section
1004 of Senior Securities Indenture).
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.
"Unencumbered Total Asset Value" as of any date means the sum of the
Trust's Total Assets which are unencumbered by any mortgage, lien, charge,
pledge or security interest.
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 will 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 of each Indenture).
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 of each Indenture).
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 of each Indenture).
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 of each Indenture).
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 of each Indenture).
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 of each
Indenture).
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 or Additional Amounts 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 when due; (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 of
each Indenture). 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 either 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 Outstanding 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, and any Additional Amounts, 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 of each
Indenture). Each Indenture also provides that the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of any series
(or of all Debt Securities then Outstanding under the applicable Indenture, as
the case may be) may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of the principal of (or
premium, if any) or interest or Additional Amounts 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 Holders
of all Outstanding Debt Securities affected thereby (Section 513 of each
Indenture).
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 payable 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 of each Indenture).
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 of each Indenture). 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, and Additional Amounts payable with respect to, such Debt Securities at the
respective due dates thereof (Section 508 of each Indenture).
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 of each Indenture). 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 of each Indenture).
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 of each Indenture).
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
premium, if any), or any installment of principal of or interest on, any such
Debt Security; (b) reduce the principal amount of, or the rate or amount of
interest on, or any Additional Amounts payable in respect of, or any premium
payable on redemption of, or change any obligation of the Company to pay any
Additional Amounts set forth in the Indenture relating to, 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, or any Additional Amounts payable with respect
to, 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; or (f)
modify any of the foregoing provisions or any of the provisions relating to the
waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the Holder of
each such Debt Security affected thereby (Section 902 of each Indenture).
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities issued under either Indenture have the right to waive
compliance by the Trust with certain covenants in the applicable Indenture
(Section 1012 of each Indenture).
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 issued thereunder
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
will 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 will not adversely affect the interests of the Holders of the Debt
Securities of any series in any material respect (Section 901 of each
Indenture).
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 will 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 will 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 will be deemed outstanding will 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 applicable 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 will be disregarded (Section 101 of each Indenture).
Each Indenture contains provisions for convening meetings of the Holders
of Debt Securities of a series (Section 1501 of each Indenture). A meeting may
be called at any time by the applicable Trustee, and also, upon request, by the
Trust, pursuant to a resolution adopted by the Board of Trustees, 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 of each Indenture). 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 of each Indenture).
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 of each Indenture).
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 and Additional Amounts payable 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 of each
Indenture).
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 of each Indenture) 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 will not constitute a default or an
Event of Default with respect to such Debt Securities ("covenant defeasance")
(Section 1403 of each Indenture), 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 (Section 1404 of each Indenture).
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 of each Indenture).
"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 will 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 of each
Indenture).
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 converting 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 of each Indenture). "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 of each
Indenture). 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 in 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 Sections 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 fully registered global securities (the "Global
Securities") that will be deposited with, or on behalf of, a depository (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, will immediately 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.
Subordination
Upon any distribution to creditors of the Trust in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
the Subordinated Securities will be subordinated to the extent provided in the
Subordinated Securities Indenture in right of payment to the prior payment in
full of all Senior Debt (Sections 1601 and 1602 of the Subordinated Securities
Indenture), but the obligation of the Trust to make payment of the principal
and interest on the Subordinated Securities will not otherwise be affected
(Section 1608 of the Subordinated Securities Indenture). No payment of
principal or interest may be made on the Subordinated Securities at any time if
a default on Senior Debt exists that permits the holders of such Senior Debt to
accelerate its maturity and the default is the subject of judicial proceedings
or the Trust receives notice of the default (Section 1603 of the Subordinated
Securities Indenture). After all Senior Debt is paid in full and until the
Subordinated Securities are paid in full, holders will be subrogated to the
rights of holders of Senior Debt to the extent that distributions otherwise
payable to holders have been applied to the payment of Senior Debt (Section
1607 of the Subordinated Securities Indenture). By reason of such
subordination, in the event of a distribution of assets upon insolvency,
certain general creditors of the Trust may recover more, ratably, than holders
of the Subordinated Securities.
Senior Debt is defined in the Subordinated Securities Indenture as the
principal of and interest on, or substantially similar payments to be made by
the Trust in respect of, the following, whether outstanding at the date of
execution of the Subordinated Securities Indenture or thereafter incurred,
created or assumed: (a) indebtedness of the Trust for money borrowed or
represented by purchase-money obligations, (b) indebtedness of the Trust
evidenced by notes, debentures, or bonds, or other securities issued under the
provisions of an indenture, fiscal agency agreement or other instrument, (c)
obligations of the Trust as lessee under leases of property either made as part
of any sale and leaseback transaction to which the Trust is a party or
otherwise, (d) indebtedness of partnerships and joint ventures that is included
in the consolidated financial statements of the Trust, (e) indebtedness,
obligations and liabilities of others in respect of which the Trust is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Trust has agreed to purchase or otherwise
acquire, and (f) any binding commitment of the Trust to fund any real estate
investment or to fund any investment in any entity making such real estate
investment, in each case other than (1) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the Subordinated Securities or ranks pari
passu with the Subordinated Securities, (2) any such indebtedness, obligation
or liability which is subordinated to indebtedness of the Trust to
substantially the same extent as or to a greater extent than the Subordinated
Securities are subordinated, (3) any trade accounts payable and (4) the
Subordinated Securities (Section 101 of the Subordinated Securities Indenture).
There are no restrictions in the Subordinated Securities Indenture upon the
creation of additional Senior Debt. However, the Senior Securities Indenture
contains limitations on incurrence of indebtedness by the Trust. See " -
Certain Covenants - Senior Securities Indenture Limitations on Incurrence of
Debt."
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 respects
subject to and qualified in their entirety by reference to the applicable
provisions of the Trust's Amended and Restated Declaration of Trust (the
"Declaration of Trust").
General
The Declaration of Trust authorizes the Board of Trustees to issue
Preferred Shares in series, and to establish the number of shares to be
included in each series and to fix the designation and relative rights,
preferences and limitations of the shares of each series, including, but not
limited to, the determination of the following: any dividend and distribution
rights; any terms on which Preferred Shares may be redeemed; any voting rights;
any rights in the event of the dissolution, liquidation or winding up of the
Trust; any conversion rights; and any other rights, preferences and
limitations. The Preferred Shares will, when issued, be fully paid and
nonassessable and will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to the Preferred
Shares offered thereby for specific terms, including:
(1) The title and stated value of such Preferred Shares;
(2) The number of shares of such Preferred Shares being offered, the
liquidation preference per share and the offering price of such
Preferred Shares;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Shares;
(4) The date from which dividends on such Preferred Shares shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Shares;
(6) The provision for a sinking fund, if any, for such Preferred Shares;
(7) The provisions for redemption, if applicable, of such Preferred
Shares;
(8) Any listing of such Preferred Shares on any securities exchange;
(9) The terms and conditions, if applicable, upon which such Preferred
Shares will be convertible into Common Shares of the Trust, including
the conversion price (or manner of calculation thereof);
(10) Whether interests in such Preferred Shares will be represented by
Depositary Shares;
(11) A discussion of federal income tax considerations applicable to such
Preferred Shares;
(12) The relative ranking and preferences of such Preferred Shares as to
dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Trust;
(13) Any limitations on issuance of any series of preferred shares ranking
senior to or on a parity with such series of Preferred Shares as to
dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Trust;
(14) Any limitations on direct or beneficial ownership and restrictions on
transfer of such Preferred Shares, in each case as may be appropriate
to preserve the status of the Trust as a REIT; and
(15) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Shares.
Rank
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Shares will, with respect to dividend rights and/or rights upon
liquidation, dissolution or winding up of the Trust, rank (i) senior to all
classes or series of Common Shares of the Trust, and to all equity securities
ranking junior to such Preferred Shares with respect to dividend rights and/or
rights upon liquidation, dissolution or winding up of the Trust, as the case
may be; (ii) on a parity with all equity securities issued by the Trust the
terms of which specifically provide that such equity securities rank on a
parity with the Preferred Shares with respect to dividend rights and/or rights
upon liquidation, dissolution or winding up of the Trust, as the case may be;
and (iii) junior to all equity securities issued by the Trust the terms of
which specifically provide that such equity securities rank senior to the
Preferred Shares with respect to dividend rights and/or rights upon
liquidation, dissolution or winding up of the Trust, as the case may be. As
used in the Declaration of Trust 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 shares of
beneficial interest of the Trust 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
shares of beneficial interest 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 shares of beneficial interest 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 shares of beneficial interest
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 do 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 shares of beneficial interest of the Trust, the
terms of such Preferred Shares may provide that, if no such shares of
beneficial interest 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 shares of beneficial interest 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 shares of beneficial
interest 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 shares
of beneficial interest 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 shares of beneficial interest 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 shares of beneficial interest 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 shares
of beneficial interest 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 organization of another entity 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 entity; provided that, in each case, effective
provision is made in the charter of the resulting and surviving entity 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. The Declaration of Trust
provides that no holders of Preferred Shares shall have the right to elect one
or more separate trustees. However, if the Trust elects to issue a series of
Preferred Shares, it may amend the Declaration of Trust to provide for certain
additional voting rights to holders of Preferred Shares.
So long as any Preferred Shares remain outstanding, the Trust will not,
without the affirmative vote or consent of the holders of two-thirds (2/3) 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 shares of beneficial interest 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 shares of beneficial interest 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,
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.
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 shares of beneficial interest 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 shares of beneficial interest 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 imposes certain restrictions on the
ownership and transferability of Preferred Shares. All certificates
representing Preferred Shares will bear a legend referring to these
restrictions. For a general description of such restrictions, see "Description
of Common Shares-Restrictions on Ownership."
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 beneficial interest, 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 October 16, 1996, the Trust had
outstanding 58,254,051 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.
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 trust matters, each share entitling the holder
thereof to one vote. Trustees are elected in classes for terms expiring at the
third succeeding annual meeting. Holders of Common Shares do not have
cumulative voting rights in the election of trustees, which means that holders
of more than 50% of all of the Trust's Common Shares voting for the election of
trustees at any annual meeting can elect all of the trustees to be elected at
such meeting if they choose to do so and the holders of the remaining shares
cannot elect any trustees at such meeting. 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,
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, and the removal of any trustee by the
shareholders. 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 shares of beneficial interest 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 shares of beneficial interest 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 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 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.
In addition, except as set forth below, any issuance or transfer of Shares
that would create a direct or indirect owner of more than 7.5% of the lesser of
the number or the value of the total Shares outstanding ("Excess Shares") shall
be void ab initio and the would-be transferee of such Shares shall be deemed
never to have had any interest in the Shares purportedly transferred. The
Trustees may waive such restriction unless the ownership of Excess Shares would
result in the termination of the status of the Trust as a REIT under the Code.
Any person who could, as a result of any transfer and/or registration of
transfer on the books of the Trust of any Shares, or securities convertible
into Shares, become a direct or indirect owner of Excess Shares shall give
written notice to the Trust of the proposed transfer and any information as may
be required by the Trustees no later than the 15th day prior to any transfer
which, if consummated, would result in such ownership.
If a shareholder has knowledge that he owns, directly or indirectly,
together with certain related persons, 500,000 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 Boston
Equiserve.
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.
DESCRIPTION OF RIGHTS
The Trust may issue Rights to its shareholders for the purchase of Common
Shares. Each series of Rights will be issued under a separate rights agreement
(a "Rights Agreement") to be entered into between the Trust and a bank or trust
company, as Rights agent, all as set forth in the Prospectus Supplement
relating to the particular issue of Rights. The Rights agent will act solely
as an agent of the Trust in connection with the certificates relating to the
Rights and will not assume any obligation or relationship of agency or trust
for or with any holders of Rights certificates or beneficial owners of Rights.
The Rights Agreement and the Rights certificates relating to each series of
Rights will be filed with the Commission and incorporated by reference as an
exhibit to the Registration Statement of which this Prospectus is a part at or
prior to the time of the issuance of such series of Rights.
The applicable Prospectus Supplement will describe the terms of the Rights
to be issued, including the following where applicable: (i) the date for
determining the shareholders entitled to the Rights distribution; (ii) the
aggregate number of Common Shares purchasable upon exercise of such Rights and
the exercise price; (iii) the aggregate number of Rights being issued; (iv) the
date, if any, on and after which such Rights may be transferable separately;
(v) the date on which the right to exercise such Rights shall commence and the
date on which such right shall expire; (vi) any special United States federal
income tax consequences; and (vii) any other terms of such Rights, including
terms, procedures and limitations relating to the distribution, exchange and
exercise of such Rights.
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 Sections 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 provides for restrictions regarding ownership and
transfer of the Trust's shares of beneficial interest, 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, 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
Certain legal matters will be passed upon for the Trust by Steven F.
Siegel, General Counsel and Secretary of the Trust, and by Robinson Silverman
Pearce Aronsohn & Berman LLP, New York, New York. The legal authorization and
issuance of the Offered Securities, as well as certain other legal matters
concerning Massachusetts law, will be passed upon for the Trust by Goodwin,
Procter & Hoar LLP, Boston, Massachusetts. 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, 1996 and 1995 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, 1996, 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
L.L.P., independent accountants, given on the authority of that firm as experts
in accounting and auditing.
The historical summary of combined revenues and certain operating expenses
of certain properties acquired by the Trust for the year ended July 31, 1996
appearing in the Trust's Current Report on Form 8-K dated November 4, 1996
have been audited by Eichler Bergsman & Co., LLP, independent accountants, as
set forth in their report thereon, included therein and incorporated herein by
reference. Such historical summaries of combined revenues and certain
operating expenses are incorporated herein by reference in reliance upon
such report given on the authority of that firm as experts in accounting and
auditing.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the expenses incurred by the Trust in
connection with the offering of the Offered Securities. All the amounts shown
are estimates except the Securities and Exchange Commission registration fee.
Item Amount
---- ------
Registration Fee -- Securities and
Exchange Commission. . . . . . . . . . $105,811
Fees of Rating Agencies . . . . . . . . 150,000
Legal Fees and Expenses. . . . . . . . . 250,000
Accounting Fees and Expenses . . . . . . 100,000
Printing and Engraving Expenses. . . . . 200,000
Blue Sky Fee and Expenses. . . . . . . . 35,000
Trustee's Fees (including counsel fees). 20,000
Miscellaneous Expenses . . . . . . . . . 39,189
--------
Total . . . . . . . . . . . $900,000
========
Item 15. Indemnification of Trustees and Officers.
The Declaration of Trust provides in substance that no Trustee or officer
is liable to the Trust, to a shareholder or to third persons except for his own
willful misconduct, bad faith, gross negligence or reckless disregard of his
duties. The Declaration of Trust further provides in substance that, with the
exceptions stated above, a Trustee or officer is entitled to be indemnified
against all liability incurred in connection with the affairs of the Trust.
The Declaration of Trust also provides that no Trustee will be personally
liable to the Trust or its shareholders for monetary damages for breach of
fiduciary duty as a Trustee notwithstanding any provision of law imposing such
liability, except for liability (i) for any breach of the Trustee's duty of
loyalty to the Trust or its shareholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for obtaining an improper benefit, or (iv) for paying a dividend or
making a distribution to shareholders or a loan to officers or Trustees which
is illegal under the Massachusetts Business Corporation Law. In addition, the
Declaration of Trust authorizes the Trustees to purchase and pay for liability
insurance to indemnify the Trustees and officers against certain claims and
liabilities.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to Trustees, officers, or persons controlling the
Trust pursuant to the foregoing provisions, the Trust has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Trust of expenses incurred or paid by a Trustee,
officer or controlling person of the Trust in the successful defense of any
action, suit or proceeding) is asserted by such Trustee, officer or controlling
person in connection with the securities being registered, the Trust, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, will submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
ITEM 16. Exhibits.
Exhibit
Number
**(1.1) Form of Underwriting Agreement Basic Provisions for Debt
Securities and Warrants to Purchase Debt Securities.
**(1.2) Form of Underwriting Agreement Basic Provisions for Preferred
Shares, Depositary Shares, Common Shares and Warrants.
*(3.1) Amended and Restated Declaration of Trust of New Plan Realty
Trust filed as Exhibit 99.3 to the Trust's Form 8-K dated May
24, 1996.
*(4.1) Amended and Restated Declaration of Trust (see Exhibit 3.1
above).
(4.2) Indenture relating to Senior Securities entered into by the
Trust and The First National Bank of Boston, as Trustee, dated
as of March 29, 1995.
**(4.3) Form of Senior Securities.
(4.4) Form of Indenture relating to Subordinated Securities to be
entered into by the Trust and a banking institution organized
under the laws of the United States of America or a particular
State thereof.
**(4.5) Form of Subordinated Securities.
**(4.6) Resolutions adopted by the Board of Trustees of the Trust
authorizing the issuance and establishing the terms of the
Preferred Shares.
**(4.7) Form of Preferred Shares Certificate.
**(4.8) Form of Deposit Agreement (including Form of Depositary
Receipt).
**(4.9) Form of Common Shares Certificate.
**(4.10) Form of Warrants Agreement.
(5) Opinion of Goodwin, Procter & Hoar LLP regarding legality.
(8) Opinion of Altheimer & Gray regarding tax status.
(12) Statements regarding computation of ratios.
(23.1) Consent of Counsel (contained in Exhibit 5).
(23.2) Consent of Tax Counsel (contained in Exhibit 8).
(23.3) Consent of Coopers & Lybrand L.L.P.
(23.4) Consent of Eichler, Bergsman & Co., LLP
(24) Powers of Attorney (included on signature pages).
(25.1) Statement of Eligibility of Senior Securities Trustee on Form
T-1.
**(25.2) Statement of Eligibility of Subordinated Securities Trustee on
Form T-1.
____________________
* Incorporated herein by reference as above indicated.
** To be filed by amendment or incorporated by reference in connection with
the offering of Offered Securities.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in the periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to Trustees, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a Trustee, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Trustee, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby further undertakes to file applications
for the purpose of determining the eligibility of the Senior Securities Trustee
and the Subordinated Securities Trustee to act under subsection (a) of Section
310 of the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on the 6th day of
November, 1996.
NEW PLAN REALTY TRUST
By /s/ William Newman
----------------------------------
William Newman,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints William Newman or Arnold Laubich his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ William Newman
- ----------------------- Chief Executive Officer November 6, 1996
William Newman and Trustee
/s/ Arnold Laubich
- ----------------------- President, Chief Operating November 6, 1996
Arnold Laubich Officer and Trustee
/s/ Michael Brown
- ----------------------- Chief Financial and November 6, 1996
Michael Brown Accounting Officer,
Controller
/s/ James M. Steuterman
- ------------------------- Executive Vice President November 6, 1996
James M. Steuterman and Trustee
/s/ Dean Bernstein
- ------------------------- Vice President-Administration November 6, 1996
Dean Bernstein and Finance and Trustee
/s/ Melvin D. Newman
- ------------------------- Trustee November 6, 1996
Melvin D. Newman
/s/ Norman Gold
- ------------------------- Trustee November 6, 1996
Norman Gold
/s/ Raymond H. Bottorf
- ------------------------- Trustee November 6, 1996
Raymond H. Bottorf
/s/ John Wetzler
- ------------------------- Trustee November 6, 1996
John Wetzler
/s/ Gregory White
- ------------------------- Trustee November 6, 1996
Gregory White
EXHIBIT INDEX
Exhibit
Number
**(1.1) Form of Underwriting Agreement Basic Provisions for Debt
Securities and Warrants to Purchase Debt Securities.
**(1.2) Form of Underwriting Agreement Basic Provisions for Preferred
Shares, Depositary Shares, Common Shares and Warrants.
*(3.1) Amended and Restated Declaration of Trust of New Plan Realty
Trust filed as Exhibit 99.3 to the Trust's Form 8-K dated May
24, 1996.
*(4.1) Amended and Restated Declaration of Trust (see Exhibit 3.1
above).
(4.2) Indenture relating to Senior Securities entered into by the
Trust and The First National Bank of Boston, as Trustee, dated
as of March 29, 1995.
**(4.3) Form of Senior Securities.
(4.4) Form of Indenture relating to Subordinated Securities to be
entered into by the Trust and a banking institution organized
under the laws of the United States of America or a particular
State thereof.
**(4.5) Form of Subordinated Securities.
**(4.6) Resolutions adopted by the Board of Trustees of the Trust
authorizing the issuance and establishing the terms of the
Preferred Shares.
**(4.7) Form of Preferred Shares Certificate.
**(4.8) Form of Deposit Agreement (including Form of Depositary
Receipt).
**(4.9) Form of Common Shares Certificate.
**(4.10) Form of Warrants Agreement.
(5) Opinion of Goodwin, Procter & Hoar LLP regarding legality.
(8) Opinion of Altheimer & Gray regarding tax status.
(12) Statements regarding computation of ratios.
(23.1) Consent of Counsel (contained in Exhibit 5).
(23.2) Consent of Tax Counsel (contained in Exhibit 8).
(23.3) Consent of Coopers & Lybrand L.L.P.
(23.4) Consent of Eichler, Bergsman & Co., LLP
(24) Powers of Attorney (included on signature pages).
(25.1) Statement of Eligibility of Senior Securities Trustee on Form T-
1.
**(25.2) Statement of Eligibility of Subordinated Securities Trustee on
Form T-1.
____________________
* Incorporated herein by reference as above indicated.
** To be filed by amendment or incorporated by reference in connection with
the offering of Offered Securities.