AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 1, 1996.
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BASIC U.S. REIT, INC.
(Exact name of registrant as specified in governing instruments)
7850 NORTHWEST 146TH STREET
SUITE 308
MIAMI, FLORIDA 33016
(Address of principal executive office)
CARL MAYNARD
PRESIDENT
BASIC U.S. REIT, INC.
7850 NORTHWEST 146TH STREET
SUITE 308
MIAMI, FLORIDA 33016
305-556-7162
(Name and address of agent for service)
------------------------
COPIES OF COMMUNICATIONS TO:
CLINTON A. STUNTEBECK
Schnader Harrison Segal & Lewis
Suite 3600, 1600 Market Street
Philadelphia, PA 19103
215-751-2034
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT HAS BECOME EFFECTIVE.
------------------------
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 statement 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
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT BEING OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES BEING REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE REGISTRATION FEE
Common Stock, $.01 par value......... 2,740,000 $10.00 $27,400,000 $9,448.27
(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(a) promulgated under the Securities Act of 1933, as
amended.
------------------------
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 BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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BASIC U.S. REIT, INC.
CROSS-REFERENCE SHEET SHOWING LOCATION IN PROSPECTUS
OF INFORMATION REQUIRED BY ITEMS OF FORM S-11
REGISTRATION STATEMENT
ITEM NUMBER AND HEADING LOCATION IN PROSPECTUS
- ---------------------------------------------------------------- -----------------------------------------------------
1. Forepart of the Registration Statement and Outside
Front Cover Page of Prospectus..................... Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus......................................... Inside Front and Outside Back Cover Pages of
Prospectus
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges.......................... Outside Front Cover Page; Prospectus Summary; Risk
Factors
4. Determination of Offering Price...................... Plan of Distribution
5. Dilution............................................. **
6. Selling Security Holders............................. Not Applicable
7. Plan of Distribution................................. Outside Front Cover Page; Plan of Distribution
8. Use of Proceeds...................................... Prospectus Summary: Use of Proceeds
9. Selected Financial Data.............................. Pro Forma Selected Financial Information
10. Management's Discussion and Analysis of Financial
Condition and Results of Operations................ Management's Discussion and Analysis of Pro Forma
Results of Operations and Pro Forma Financial
Condition
11. General Information as to Registrant................. Prospectus Summary; Business; Certain Provisions of
Maryland Law and of the Corporation's Amended and
Restated Articles of Incorporation; Additional
Information
12. Policy With Respect to Certain Activities............ Prospectus Summary; Policies With Respect to Certain
Activities; Description of Capital of the
Corporation; Additional Information
13. Investment Policies of Registrant.................... Prospectus Summary; Business; Policies With Respect
to Certain Activities
14. Description of Real Estate........................... Prospectus Summary; The Properties
15. Operating Data....................................... Prospectus Summary; The Properties
16. Tax Treatment of Registrant and Its Security
Holders............................................ Prospectus Summary; U.S. Federal Income Tax
Considerations; Canadian Federal Income Tax
Considerations
17. Market Price of and Dividends on the Registrant's
Common Equity and Related Stockholder Matters...... Prospectus Summary; Risk Factors; Policies With
Respect to Certain Activities; U.S. Federal Income
Tax Considerations; Distribution Policy
ITEM NUMBER AND HEADING LOCATION IN PROSPECTUS
- ---------------------------------------------------------------- -----------------------------------------------------
18. Description of Registrant's Securities............... Description of Capital of the Corporation
19. Legal Proceedings.................................... Legal Proceedings
20. Security Ownership of Certain Beneficial Owners and
Management......................................... Security Ownership of Certain Beneficial Owners and
Management
21. Directors and Executive Officers..................... Management
22. Executive Compensation............................... Management
23. Certain Relationships and Related Transactions....... Management
24. Selection, Management and Custody of Registrant's
Investments Management............................. Outside Front Cover Page of Prospectus; Prospectus
Summary; Policies with Respect to Certain
Activities; Management
25. Policies With Respect to Certain Transactions........ Conflicts of Interest; Certain Provisions of Maryland
Law and of the Corporation's Amended and Restated
Articles of Incorporation and Bylaws
26. Limitations of Liability............................. Risk Factors; Certain Provisions of Maryland Law and
of the Corporation's Amended and Restated Articles
of Incorporation and Bylaws
27. Financial Statements and Information................. Pro Forma Selected Financial Information; Financial
Statements
28. Interests of Named Experts and Counsel............... Experts; Legal Matters
29. Disclosure of Commission Position on indemnification
of Securities Act Liabilities...................... Certain Provisions of Maryland Law and of the
Corporation's Amended and Restated Articles of
Incorporation and Bylaws
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 30, 1996
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
2,740,000 SHARES
BASIC U.S. REIT, INC.
COMMON STOCK
------------------
Basic U.S. REIT, Inc., a Maryland corporation (the "Corporation"), intends
to qualify as a real estate investment trust ("REIT") under United States
federal income tax laws. The Corporation will sell 2,740,000 shares (the
"Offering") of its common stock (the "Common Stock") for $27,400,000.
ALL REFERENCES TO DOLLAR AMOUNTS IN THIS PROSPECTUS SHALL BE TO UNITED
STATES DOLLARS UNLESS OTHERWISE INDICATED.
The Corporation has been formed to engage in the business of investing in a
diversified portfolio of income-producing commercial real property throughout
the United States, focusing initially on neighborhood and community shopping
centers with nationally recognized anchor tenants. The Corporation intends to
continue to acquire only shopping centers until the aggregate of the acquisition
prices of all properties owned by the Corporation exceeds $100 million. Basic
Advisors, Inc. (the "Advisor") will provide the day-to-day management for the
Corporation. Basic Acquisitions, Inc., as nominee for the Corporation, has
entered into acquisition agreements to purchase a community shopping center
located in Chico, California and a neighborhood shopping center located in Dade
County, Florida (the "Properties"). Upon closing of the Offering (the "Closing")
and application of the net proceeds therefrom, the Corporation will own the
Properties with an aggregate gross leasable area of approximately 358,000 square
feet. The Corporation will acquire these Properties by assuming the mortgage on
one property, and paying the balance of the purchase price on a cash basis and
acquiring the second property by paying the purchase price on a cash basis. The
Corporation intends to hold the Properties for an indefinite length of time. See
"Prospectus Summary."
All of the shares of Common Stock of the Corporation offered hereby are
being offered by the Corporation. Prior to this Offering, there has been no
public trading market for the Common Stock. It is a condition to the closing of
the Offering that the Common Stock be listed on a United States Stock Exchange
which is a "prescribed stock exchange" for the purposes of the Income Tax Act
(Canada), and which is either registered under the Securities Exchange Act of
1934, as amended or is listed on an "over-the-counter market" within the meaning
of applicable United States federal income tax regulations, and that the
Properties be acquired contemporaneously with the completion of this Offering.
The Corporation's Articles of Amendment and Restatement (the "Amended and
Restated Articles of Incorporation") limit the number of shares of Common Stock
that may be owned by any single person or affiliated group to 9.5% of the lesser
of the aggregate number or value of the outstanding shares of Common Stock. See
"Description of Capital of the Corporation--Excess Stock--Restrictions on
Transfer." The minimum required purchase of Common Stock is 250 shares ($2,500).
This Offering involves certain risks, including:
- Lack of prior market for the Common Stock and effect of interest rates on
the price of the Common Stock.
- The Corporation has limited diversification.
- The Corporation has no operating history.
- The Advisor will receive fees based upon a fixed percentage of assets of
the Corporation. See "Management--The Advisor." Such compensation will be
payable to the Advisor regardless of Corporation profitability.
- Market risks associated with investments in real estate, including the
potential for a decrease in the value of the Properties and adverse
changes to the financial status of tenants.
- The Advisor and various entities related to it will be subject to various
conflicts of interest with the Corporation.
- Adverse tax consequences of failure to qualify as a REIT under the U.S.
Internal Revenue Code.
- Potential amendment to tax legislation or the Canada-U.S. Income Tax
Convention, as amended by a revised protocol entered into force November
9, 1995.
SEE "RISK FACTORS" BEGINNING ON PAGE 12 FOR A COMPLETE DISCUSSION OF CERTAIN
MATERIAL FACTORS RELEVANT TO AN INVESTMENT IN THE COMMON STOCK.
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.
PRICE TO THE AGENTS' PROCEEDS TO THE
PUBLIC (1) COMMISSIONS (2) CORPORATION (3)
Per Share.................................................... $10 $.75 $9.25
Total........................................................ $27,400,000 $2,055,000 $25,345,000
(1) The price of the Common Stock was determined by negotiation between the
Corporation and the Agents.
(2) The Corporation has agreed to indemnify the Agents against certain
liabilities. See "Plan of Distribution."
(3) Before deducting estimated expenses of $440,000 payable by the Corporation,
including the Agents' expense allowance not to exceed $175,000 (CDN).
------------------------------
The Common Stock is being offered conditionally, on a best efforts basis, in
the provinces of Ontario, British Columbia and Alberta, Canada by Porthmeor
Securities Inc., Octagon Capital Canada Corporation and First Marathon
Securities Limited (the "Agents"), as agents of the Corporation subject to prior
sale, when, if and as issued by the Corporation in accordance with the Agency
Agreement referred to under "Plan of Distribution," and subject to approval of
certain legal matters on behalf of the Corporation by Chaiton & Chaiton,
Barristers and Solicitors, Toronto, and Schnader Harrison Segal & Lewis,
Philadelphia, and as to Canadian taxation matters by Smith Lyons, Barristers and
Solicitors, and subject to approval of certain legal matters on behalf of the
Agents by Fogler, Rubinoff, Barristers & Solicitors, Toronto and Skadden, Arps,
Slate, Meagher and Flom, New York and Toronto.
Subscriptions will be received subject to rejection or allotment, in whole
or in part and the right is reserved to close the subscription books at any time
without notice. It is expected that the closing of this Offering will occur on
January 3, 1997 or on another date acceptable to the Corporation and the Agents,
but not later than January 31, 1997. The Closing of this Offering of Common
Stock is subject to certain conditions precedent. See "Prospectus Summary."
------------------------------
PORTHMEOR SECURITIES INC. OCTAGON CAPITAL CANADA CORPORATION
FIRST MARATHON SECURITIES LIMITED
The date of this Prospectus is , 1996.
INSIDE FRONT COVER OF PROSPECTUS
The inside front cover of the prospectus contains a graphical depiction of the
lease expiration summary for the Properties on an aggregate basis and three
photographical depictions of the Gardens Square shopping center showing the
entrance to the center including its parking lot and two views of the pedestrian
walkways and tenant storefronts.
2
TABLE OF CONTENTS
PAGE
NO.
----
PROSPECTUS SUMMARY........................................................ 6
RISK FACTORS.............................................................. 12
General Risks........................................................... 12
General Real Estate Investment Risks.................................... 13
Risk of Leverage and Default............................................ 15
Potential Borrowings to Make Distributions to Qualify as a REIT......... 16
Joint Venture Investments--Risks of Conflicting Interests and Impasse... 16
U.S. Federal Income Tax Risks........................................... 16
Limitations on Changes in Control....................................... 17
Responsibilities of Directors and Advisor--Possible Inadequacy of
Remedies.............................................................. 18
Advisor May Purchase Shares............................................. 18
Dilution................................................................ 19
Benefits from Formation of Corporation and the Offering................. 19
Compensation To Affiliates.............................................. 19
Conflicts of Interest................................................... 19
Restrictions on Transfer and Limitation on Ownership of Common Stock.... 20
Shares of Common Stock Available for Future Sale........................ 20
No Prior Market for Common Stock........................................ 20
Effect of Market Interest Rates on Price of Common Stock................ 20
Enforcing Rights Against Foreign Corporation, Directors and Officers.... 21
USE OF PROCEEDS........................................................... 21
CAPITALIZATION............................................................ 22
PRO FORMA SELECTED FINANCIAL INFORMATION.................................. 23
MANAGEMENT'S DISCUSSION AND ANALYSIS OF THE PRO FORMA RESULTS OF
OPERATIONS AND PRO FORMA FINANCIAL CONDITION............................ 31
BUSINESS.................................................................. 34
The Corporation......................................................... 34
Investment Objectives................................................... 34
POLICIES WITH RESPECT TO CERTAIN ACTIVITIES............................... 35
Investment Policies..................................................... 35
Investment Restrictions................................................. 36
Financing Policies...................................................... 37
THE PROPERTIES............................................................ 37
Chico Crossroads Center................................................. 38
Description of Property................................................. 39
Key Factors in Corporation's Decision to Acquire........................ 42
3
PAGE
NO.
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Chico, California....................................................... 42
Gardens Square.......................................................... 43
Description of Property................................................. 44
Key Factors in Corporation's Decision to Acquire........................ 46
Dade County, Florida.................................................... 47
MANAGEMENT................................................................ 48
Directors and Executive Officers of the Corporation..................... 48
Compensation............................................................ 50
Stock Option Plan....................................................... 50
The Promoters........................................................... 50
The Advisor............................................................. 51
Term of the Advisory Agreement.......................................... 52
Fees and Expenses....................................................... 53
Other Activities........................................................ 54
Property Management and Other Services.................................. 55
Directors and Executive Officers of the Advisor......................... 55
Interest of Management and Others in Material Transactions.............. 55
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT............ 56
LEGAL PROCEEDINGS......................................................... 57
DESCRIPTION OF CAPITAL OF THE CORPORATION................................. 57
General................................................................. 57
Common Stock............................................................ 57
Preferred Stock......................................................... 58
Power to Issue Additional Common Stock and Preferred Stock.............. 58
Excess Stock--Restrictions on Transfer.................................. 58
Dividend Reinvestment Program........................................... 60
Transfer Agent and Registrar............................................ 61
CERTAIN PROVISIONS OF MARYLAND LAW AND THE CORPORATION'S AMENDED AND
RESTATED ARTICLES OF INCORPORATION AND BYLAWS........................... 61
Number of Directors..................................................... 61
Business Combinations................................................... 61
Control Share Acquisitions.............................................. 62
Amendment to the Amended and Restated Articles of Incorporation......... 62
Dissolution of the Corporation.......................................... 62
Advance Notice of Directors Nominations and New Business................ 62
Meetings of Stockholders................................................ 62
Limitation of Liability and Indemnification............................. 63
4
PAGE
NO.
----
SEC Position on Indemnification......................................... 64
Insurance............................................................... 64
U.S. FEDERAL INCOME TAX CONSIDERATIONS.................................... 64
General................................................................. 64
Taxation of the Corporation............................................. 65
Investments Through Partnerships........................................ 68
Taxation of Non-U.S. Stockholders....................................... 69
Taxation of U.S. Stockholders........................................... 73
Other Tax Consequences.................................................. 74
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS................................ 74
Taxation of Dividends................................................... 75
Dispositions............................................................ 75
Qualification for Investment............................................ 76
DISTRIBUTION POLICY....................................................... 76
PLAN OF DISTRIBUTION...................................................... 76
EXPERTS................................................................... 77
LEGAL MATTERS............................................................. 77
ADDITIONAL INFORMATION.................................................... 77
GLOSSARY.................................................................. 78
INDEX TO FINANCIAL STATEMENTS............................................. F-1
5
PROSPECTUS SUMMARY
This summary is qualified in its entirety by the more detailed information
appearing elsewhere in this Prospectus. Certain terms used in this Prospectus
are defined in the Glossary.
ALL REFERENCES TO DOLLAR AMOUNTS IN THIS PROSPECTUS SHALL BE TO UNITED
STATES DOLLARS UNLESS OTHERWISE INDICATED.
OFFERING: 2,740,000 shares of Common Stock
PRICE: $10.00 per share of Common Stock
MINIMUM SUBSCRIPTION: $2,500 (250 shares of Common Stock)
THE CORPORATION: Basic U.S. REIT, Inc. is a corporation incorporated under
the laws of the State of Maryland for the purposes of making equity investments
in income-producing commercial real property in the United States. An objective
of the Corporation is to provide investors with a favorable yield on their
investment in Common Stock. The Corporation intends to qualify as a real estate
investment trust ("REIT") for the purposes of the U.S. Internal Revenue Code of
1986, as amended (the "Code") (see "U.S. Federal Income Tax Considerations").
The executive office of the Corporation is at 7850 Northwest 146th Street, Suite
308, Miami, Florida 33106, telephone number 305-556-7162.
PROMOTERS: Basic Capital Funds, an Ontario limited partnership, and Maynard
Rich/Abraham Inc., a Florida corporation, have taken the initiative in
structuring this Offering and may therefore be viewed as the promoters. The sole
director and officer of Basic Capital Funds Inc., the general partner of Basic
Capital Funds, is Ronald L. Bernbaum. Maynard Rich/Abraham Inc. is controlled by
Carl Maynard and Richard Schwartz.
INVESTMENT OBJECTIVES: The Corporation intends to make equity investments
in income-producing commercial real property. The Corporation's objectives in
acquiring properties are:
a) to own and operate such real property;
b) to generate income for distribution;
c) to preserve and increase the Corporation's equity through appreciation
of the value of its assets; and
d) to increase the Corporation's equity through amortization of mortgage
financing.
The Corporation will initially implement these objectives by purchasing
neighborhood and community shopping centers. The Corporation intends to
continually enhance returns through an ongoing acquisition program designed to
provide economies of scale and to reduce risk through geographic and property
diversification. The Corporation also intends to manage its portfolio to
maintain and over time enhance the value of its properties.
INVESTMENT POLICIES AND RESTRICTIONS: The bylaws of the Corporation contain
certain restrictions on the investments of the Corporation, which may only be
amended with the majority approval of the Board of Directors of the Corporation,
such majority to include a majority of the independent directors, and by the
majority of the votes cast at a meeting of holders of the Common Stock of the
Corporation. The Advisory Agreement contains certain general investment policies
which are guidelines for the Advisor in presenting investment prospects for the
Corporation. Such investment policies may be amended from time to time by the
majority approval of the Board of Directors of the Corporation, such majority to
include a majority of independent directors. Initially, the Corporation intends
to acquire income producing shopping centers anchored by national retailers,
dominant regional retailers or other quality creditworthy anchor tenants (see
"Business--Investment Objectives" and "Policies With Respect to Certain
Activities").
6
USE OF PROCEEDS: The Corporation will use the net proceeds of this
Offering, after deducting Agents' commissions and expenses of this Offering, to
acquire the Properties on Closing (including the repayment of deposits advanced
by the Promoters or the Advisor and the payment of acquisition costs), to pay
mortgage assumption and financing fees, acquisition fees (in the amount of
$455,438) to the Advisor, and for working capital. The following table sets
forth an allocation of the use of net proceeds. The principal amount of the
mortgage and the acquisition expenses are estimated and any increase or
reduction will result in an increase or reduction in the proceeds available for
working capital. Until required, proceeds allocated to working capital will be
invested by the Corporation in Authorized Investments.
ESTIMATED
ACQUISITION
FEES AND
PROPERTIES PURCHASE PRICE MORTGAGE EXPENSES USE OF PROCEEDS
- --------------------------------------------------- -------------- ---------- --------------- ---------------
Chico Crossroads Center............................ $ 20,912,500 -- $ 420,000 $ 21,332,500
Gardens Square..................................... 9,450,000 6,710,000 216,000 2,956,000
Estimated Mortgage Assumption and Financing Fees... 68,000
Working Capital.................................... 548,500
---------------
NET PROCEEDS..................................... $ 24,905,000
---------------
---------------
PROPERTIES: Basic Acquisitions, Inc. (the "Nominee"), a corporation
controlled by the Advisor, as nominee for the Corporation, has entered into
agreements to acquire interests in real property which will be assigned to the
Corporation prior to the Closing for nominal consideration. Upon assignment, the
Corporation shall reimburse the Nominee for all deposits paid under the
acquisition agreement assigned.
a) The Nominee has entered into an agreement with Chico Crossroads Center,
Ltd., a California limited partnership, to acquire the Chico Crossroads
Center, an approximately 267,000 square foot shopping center in northern
California, between Sacramento and Redding for the purchase price of
$20,912,500. The Corporation will pay the purchase price in cash. The
center has five anchor tenants who have signed long term leases which
expire in the years 2008 to 2014, accounting for approximately 85% of the
gross leasable area of the center. These anchors are Home Base, Office
Depot, Food 4 Less, Circuit City and Barnes & Noble. In addition to these
anchor tenants, the center has national tenants who account for an
additional 11.5% of the gross leasable area of the center including
Hometown Buffet, Blockbuster Video, Petco, Nevada Bob's Golf, Play It
Again Sports and Avco Financial. Chico Crossroads Center is approximately
99% leased as of the date of this Prospectus.
b) The Nominee has entered into an agreement with Miami Gardens Associates,
a New Jersey general partnership, to acquire Gardens Square, an
approximately 90,000 square foot shopping center located in Dade County,
Florida, for the purchase price of $9,450,000. The purchase price will be
paid by the assumption of a mortgage in the principal amount of
approximately $6,710,000 with the balance in cash. The mortgage bears
interest at the rate of 7.94% per annum and is due on December 21, 2002
with payments based upon a 25 year amortization. The anchor tenants are
Publix Super Markets, Inc. and Eckerd Drug Store who account for
approximately 57% of the gross leasable area of the center. Gardens
Square is approximately 96% leased as of the date of this Prospectus.
TAX STATUS: The Corporation will elect to be taxed as a real estate
investment trust ("REIT") under Sections 856 through 859 of the Code, commencing
with the taxable year ending December 31, 1997. As a REIT, the Corporation
generally will not be subject to federal income tax at the corporate level to
the extent it annually distributes its net income and capital gains to its
stockholders. REITs are subject to a number of organizational and operational
requirements. If the Corporation fails to qualify as a REIT in any taxable year,
the Corporation may be subject to U.S. Federal income tax (including any
applicable
7
alternative minimum tax) on its taxable income at regular corporate rates. Even
if the Corporation qualifies for taxation as a REIT, the Corporation may still
be subject to certain state and local taxes on its income and property and
federal income and excise tax on its undistributed income. It is the intention
of the Corporation not to conduct business in any state in which the income tax
treatment of a REIT, does not conform to the U.S. Federal income tax treatment
of a REIT. Once listed on a stock exchange that is a "prescribed stock exchange"
for the purposes of the INCOME TAX ACT (Canada), the Common Stock will be
qualified investments for Registered Retirement Savings Plans, Registered
Retirement Income Funds and Deferred Profit Sharing Plans. However, the Common
Stock will be considered to be foreign property for such plans and for other
taxpayers subject to the foreign property limitations in Part XI of the INCOME
TAX ACT (Canada). The closing of this Offering is conditional upon the
Corporation listing the Common Stock for trading on a United States Stock
Exchange that is a "prescribed stock exchange" for the purposes of the INCOME
TAX ACT (Canada) and which is either registered under the Securities Exchange
Act of 1934 or is listed on an "over-the-counter market" within the meaning of
applicable United States Federal income tax regulations. See "Canadian Federal
Income Tax Considerations," "U.S. Federal Income Tax Considerations" and "Risk
Factors."
DISTRIBUTIONS: The Corporation intends to pay regular quarterly dividends
to its stockholders and more frequently if the Board of Directors of the
Corporation so determines. To qualify as a REIT, the Corporation generally must
distribute at least 95% of its REIT taxable income (as defined in the Code) each
year, even if such amount is in excess of cash flow. Unless the Board of
Directors otherwise decides, the Corporation intends to distribute a minimum of
100% of its taxable income. The Corporation intends to implement a dividend
reinvestment program under which its stockholders may elect automatically to
reinvest their dividends in additional shares of Common Stock.
ADVISOR: Basic Advisors, Inc., a corporation incorporated under the laws of
the State of Delaware, will be the advisor of the Corporation pursuant to the
Advisory Agreement. The Advisor will act as investment advisor to the
Corporation with respect to real property investments and will provide or
arrange for the provision of research, accounting, transfer agency and
management services. The Advisor is entitled to the following fees under the
Advisory Agreement:
a) an asset management fee:
an annual fee based upon the aggregate of the net proceeds received
by the Corporation for its issued and outstanding shares after the
payment of any commission and direct expenses paid by the Corporation
for the issuance of such shares ("Share Capital") payable monthly and
calculated at the following rates:
SHARE CAPITAL RATE
- ----------------------------------------------------------------- -----------
Up to $35 million................................................ 1.50%
On the amount over $35 million and up to $125 million............ 1.25%
On the amount over $125 million and up to $200 million........... 1.00%
On the amount in excess of of $200 million....................... 0.75%
Each of the foregoing annual rates is applicable to the portion of
the Share Capital which falls within the rate attributable to such
capital. Assuming the Offering closes on or about January 1997, the
annual fee payable under the Advisory Agreement for the year ending
December 31, 1997 will be approximately $374,000 if no other shares
are issued through December 31, 1997;
8
b) an acquisition fee:
a fee of 1.5% of the cost of any real property payable upon the
purchase of any real property;
c) a disposition fee:
a fee of 0.25% of the sale proceeds from the disposition of any real
property payable upon the disposition of such real property; and
d) a financing fee:
a fee of 0.25% of the principal amount of any financing or
refinancing arranged, renewed, extended or increased in respect of
any real property payable upon completion of such financing or
refinancing.
If and to the extent that the Advisor or any person affiliated with the
Advisor provides services to the Corporation in addition to those
specifically required under the Advisory Agreement, such services will be
compensated separately on the basis of industry standard rates for
comparable services and activities.
The outstanding and issued stock of the Advisor are owned directly or
indirectly 75% by Knightsbridge Financial Services, Ltd. ("Knightsbridge"), an
affiliate of Basic Capital Funds, an Ontario limited partnership, of which
Ronald L. Bernbaum is the sole director and President of the corporate general
partner; 12.5% by Carl Maynard; and 12.5% by Richard Schwartz. Knightsbridge is
an investment holding company with the same beneficial owners as Basic Capital
Funds.
Basic Capital Funds and Maynard Rich/Abraham Inc., a Florida corporation,
are the promoters of this Offering. Basic Capital Funds in its capacity as
principal or promotor, identifies, structures and funds capital projects and
start-up companies and has been responsible for the funding, acquisition and
management of over $100 million of real estate assets and the funding of $150
million of software development and numerous software companies. Its staff of
chartered accountants and lawyers have considerable expertise and experience in
tax, real estate, intellectual property, securities and corporate commercial
transactions. Since 1988, Maynard Rich/Abraham, Inc. and its affiliate
companies, Maynard Rich Management Corp., a California corporation, and Maynard
Rich Properties Corp., a Florida corporation (Maynard Rich/Abraham Inc., Maynard
Rich Management Corp. and Maynard Rich Properties Corp. are collectively
hereinafter referred to as "The Maynard Rich Companies"), have performed various
real estate services for foreign and domestic institutional and individual
investors including initiating mortgage debt financing for shopping centers,
office buildings and net leased properties, performing workout services for both
retail and residential properties, representing owners in bankruptcy
proceedings, managing portfolios totaling in excess of $100 million in value and
engaging in real estate brokerage transactions totaling in excess of $150
million in value. See "Management--The Promoters, the Advisor, Term of Advisory
Agreement and Fees and Expenses."
U.S. REIT STATUS: The Code sets out specific organizational, investment,
income and distribution requirements in order for an entity to qualify as a
REIT. In general:
ORGANIZATIONAL
- The REIT must be a corporation, business trust or association which would
otherwise be taxable as a corporation.
- The REIT must be managed by a board of trustees or directors.
- The REIT's shares must be transferable.
- There must be at least 100 beneficial stockholders during at least 335
days of a taxable year of 12 months, or during a proportionate part of a
shorter taxable year.
9
- Not more than 50% of the shares may be held directly or indirectly by any
group of five or fewer individuals during the last half of the REIT's
taxable year.
- The REIT must have a taxable year which is a calendar year.
INVESTMENT
- The REIT must invest at least 75% of the value of its total assets in real
estate assets (including mortgages and shares in other REITs), cash and
government securities. For purposes of this test, a REIT is treated as
holding directly a proportionate share of any real estate assets of a
partnership in which it holds an interest.
- The REIT must not own more than 10% of the outstanding voting shares of
any one issuer (other than a qualified REIT subsidiary).
- Not more than 25% of the value of the REIT's total assets may be invested
in securities and no more than 5% of the value of its total assets may
consist of securities of one issuer (other than certain government
securities and stock of a qualified REIT subsidiary).
INCOME
- The REIT must derive at least 75% of its gross income from rents from real
property, interest on obligations secured by mortgages on real property,
gains from the sale of real property, dividends or gains from investments
in other qualified REITs, abatements and refunds of property taxes and
mortgage or purchase commitment fees ("The 75% Income Test").
- The REIT must derive at least 95% of its gross income from sources
qualifying under The 75% Income Test, gains from sales of securities,
dividends and interest.
- The REIT must derive less than 30% of its gross income from the sale or
disposition of securities held for less than one year, from the sale of
property in a prohibited transaction, or from the sale of real property
held for less than four years.
DISTRIBUTION
- The REIT must distribute at least 95% of REIT taxable income annually,
excluding net capital gains.
The Corporation must file with its U.S. tax return an election to be treated
as a REIT for tax purposes and comply with the foregoing qualification
requirements.
CROSS BORDER TAX TREATMENT: The Corporation has been structured with a view
to minimizing the U.S. and Canadian taxes that will be payable on the income of
the Corporation, distributions made to Canadian holders of Common Stock, and any
gains realized by Canadian holders on the disposition of Common Stock. The use
of a corporation that qualifies as a REIT for U.S. tax purposes should
substantially eliminate U.S. tax at the corporate level. In addition, investors
who are resident in Canada for the purposes of the Canada--U.S. Income Tax
Convention (the "Treaty"), as amended by a revised protocol that entered into
force November 9, 1995 (the "Protocol") may benefit from the reduction or
elimination of U.S. tax on distributions from the Corporation and, in
appropriate circumstances, will not be taxed in the U.S. on gains realized on
the disposition of Common Stock. See "U.S. Federal Income Tax Considerations."
PRO FORMA SELECTED FINANCIAL INFORMATION: The following table sets forth
pro forma selected financial information of the Corporation and should be read
in conjunction with the audited and unaudited statements of Revenue and Certain
Expenses for the year ended December 31, 1995 and the six months ended June 30,
1996 and 1995, respectively, for Chico Crossroads Center, Ltd. and Miami Gardens
10
Associates and the notes thereto, and of the unaudited pro forma financial
information of the Corporation contained herein. The following pro forma
selected financial information is based on the unaudited pro forma statements of
income for the six months ended June 30, 1996 and for the year ended December
31, 1995 respectively, and the unaudited pro forma balance sheet as of June 30,
1996 giving effect to the adjustments referred to in the notes to the unaudited
pro forma statements of income and balance sheet. The data for the six months
ended June 30, 1996 includes, in the opinion of management, all adjustments,
consisting only of normal recurring adjustments, necessary for a fair statement
of the results for the unaudited interim period. See "Management's Discussion
and Analysis of the Pro Forma Results of Operations and Pro Forma Financial
Condition."
The pro forma financial data has been prepared giving effect to the
acquisition of the Properties, the assumption of the mortgage secured by the
Gardens Square property and the issuance of common stock as described elsewhere
in this Prospectus (see Note 1 to the pro forma financial data).
SIX MONTHS
ENDED JUNE YEAR ENDED
30, 1996 DECEMBER 31, 1995
------------- -----------------
(UNAUDITED)
PRO FORMA OPERATING DATA
Rental Income (excluding operating expense reimbursement).................... $ 1,525,432 $ 2,928,727
Pro Forma Net Income
U.S. GAAP.................................................................. 536,164 930,764
CDN GAAP................................................................... 725,694 1,309,829
Pro Forma Funds From Operations (1).......................................... 859,888 1,578,212
Pro Forma Net Income Per Share (2)...........................................
U.S. GAAP.................................................................. $.20 $.34
CDN GAAP................................................................... $.26 $.48
PRO FORMA BALANCE SHEET DATA
Rental Properties............................................................ $ 30,998,500
Total Debt................................................................... 6,710,000
Stockholders' Equity......................................................... 24,906,000
- ------------------------
(1) Industry analysts generally consider funds from operations to be an
appropriate measure of the performance of an equity REIT. Funds from
operations is defined by the National Association of Real Estate Investment
Trusts ("NAREIT") as net income (computed in accordance with generally
accepted accounting principles) excluding gains (or losses) from debt
restructuring and sales of property plus amortization of real estate assets.
Amortization of deferred financing costs and amortization of non real estate
assets are not added back to net income to arrive at funds from operations.
Funds from operations should not be considered as an alternative to net
income as a measure of profitability nor is it comparable to cash flow
provided by operating activities determined in accordance with generally
accepted accounting principles.
(2) The Pro Forma Net Income Per Share calculation assumes that no additional
Common Stock was issued during the periods under the Corporation's intended
dividend reinvestment plan or by the exercise of options to purchase 20,000
shares of Common Stock of the Corporation by Mr. Bernbaum or the exercise of
options to purchase 10,000 shares of Common Stock by each of Messrs.
Maynard, Thrall, Witterick, Peterson, Schwartz, McCrae, Kwinta and
Dickerson. "See Management--Stock Option Plan."
11
RISK FACTORS
This Prospectus contains forward looking statements which involve risks and
uncertainties. The Corporation's actual results may differ significantly from
the results discussed in the forward looking statements. Factors that might
cause such a difference include, but are not limited to, those discussed below.
An investment in the Common Stock involves various risks. Prospective investors
should carefully consider the following information in conjunction with the
other information contained in this Prospectus before purchasing Common Stock in
the Offering.
GENERAL RISKS
LACK OF OPERATING HISTORY--Neither the Corporation nor the Advisor has any
operating history. Except for the Properties the Corporation indicates it
intends to acquire and describes in this Prospectus or in a supplement to this
Prospectus, purchasers of Common Stock will not have an opportunity to evaluate
the terms of any future transaction or the relevant economic or financial data
affecting the future investments to be acquired by the Corporation. Moreover,
the ability of the Corporation to accomplish its stated objectives and the
timing of the receipt by stockholders of dividends are dependent upon the
success and timing of management's acquisition of investments for the
Corporation. There can be no assurance that the Properties will increase in
value, or that income-producing properties will be available or can be acquired
on economically attractive terms.
DEPENDENCE ON TENANTS--The financial failure of a tenant could result in the
termination of its lease which, in turn, might cause a reduction of the cash
flow of the Corporation and/or decrease the value of the applicable property. If
a tenant defaults on its lease payments, the Corporation would lose the net cash
flow from such tenant, but might be able to use cash generated from other
properties to meet the mortgage payments, if any, on the applicable property in
order to prevent a foreclosure. If a lease is terminated, there can be no
assurance that the Corporation will be able to re-lease the property (or portion
thereof) for the rent previously received or sell the property without incurring
a loss. The Corporation could also experience delays in enforcing its rights
against tenants.
The financial failure of a tenant could cause the tenant to become the
subject of bankruptcy proceedings. Under bankruptcy law, a tenant has the option
of continuing or terminating any unexpired lease. If the tenant terminates the
lease, the Corporation's claim for damages resulting from the termination
(absent collateral securing the claim) would be treated as a general unsecured
claim. The amount of that claim would be capped at the amount owed for unpaid
pre-petition lease payments unrelated to the termination, plus the greater of
one year's lease payments or 15% of the remaining lease payments payable under
the lease (but not to exceed the amount of three year's lease payments).
INVESTMENT COMPANY ACT OF 1940--The Board of Directors intends to conduct
the operations of the Corporation so that it will not be subject to regulation
under the Investment Company Act of 1940, as amended. As a result, the
Corporation may have to forego certain investments which could produce a more
favorable return to the Corporation. If the Corporation fails to qualify for an
exemption from registration as an investment company, it will be subject to
numerous restrictions under the Investment Company Act. A failure to qualify for
an exemption under the Investment Company Act could have a material adverse
affect on the Corporation and its stockholders.
RELIANCE ON MANAGEMENT--Stockholders will not have any active participation
in the management of the Corporation or the investment of the proceeds of this
Offering; rather, they must rely on the management and acquisition expertise
provided by the Board of Directors of the Corporation and by the Advisor. Thus,
no person should purchase any of the Common Stock offered hereby unless he is
willing to entrust all aspects of the management of the Corporation to the Board
of Directors and the Advisor.
POSSIBLE CHANGES IN INVESTMENT OBJECTIVES AND POLICIES--Subject to limited
restrictions in the Corporation's bylaws, the Amended and Restated Articles of
Incorporation and applicable law, the Board of
12
Directors has significant discretion to modify the investment objectives and
policies of the Corporation, as stated in this Prospectus. The exercise of such
discretion could result in the Corporation adopting new investment objectives
and policies which differ materially from those described in this Prospectus.
FOREIGN INVESTMENT--An investment in the Common Stock by a non-U.S. investor
will be subject to the risks associated with carrying on business in a foreign
country, including the possibility of future changes in foreign control
legislation, possible limitations on the amount of foreign currency that can be
taken out of the country, possible currency exchange rate fluctuations or
devaluations, possible changes in tax and rental laws and regulations, the
possible expropriation of private property, war, riot, insurrection and acts of
terrorism.
GENERAL REAL ESTATE INVESTMENT RISKS
Real property investments are subject to varying degrees of risk. Real
estate values and the income generated from real estate investments may be
affected by a number of factors, including changes in the general economic
climate, local conditions (such as an oversupply of or a reduction in demand for
certain types of real property in an area), the quality and philosophy of
management, competition from other available space, the ability of the owner to
provide adequate maintenance and insurance, and variable operating costs
(including real estate taxes). Real estate values and the income from real
properties are also affected by such factors as the costs associated with
government regulations, interest rate levels, the availability of financing and
potential liability under and changes in environmental and other laws. Since
substantially all of the Corporation's income will be derived from rental income
from real property, the Corporation's income would be adversely affected if the
Corporation's tenants were unable to meet their obligations to the Corporation,
or if the Corporation were unable to lease on economically favorable terms a
significant amount of space in its properties. In the event of default by a
tenant, the Corporation may experience delays in enforcing, and incur
substantial costs to enforce, its rights as landlord. In addition, certain
significant expenditures associated with ownership of real estate (such as
mortgage payments, real estate taxes and maintenance costs) are generally not
reduced when circumstances cause a reduction in income from the investment.
Upon the expiration of leases, such leases may not be renewed, the space not
relet or the terms of renewal or reletting (including rental rates, the costs of
leasing commissions, required renovations or concessions to tenants) may be less
favorable than current lease terms. If any or all of these events occur, the
Corporation's cash flow from operations and ability to make expected
distributions to stockholders could be adversely affected. The Corporation's
cash flow from operations also would be adversely affected if tenants leasing a
significant amount of space fail to pay rent if for any other reason, such rents
could not be collected. Moreover, to the extent a tenant defaults on a lease,
the Corporation may experience delays and costs in enforcing its rights as
landlord. Further, the Corporation may be adversely affected by various facts
and events over which the Corporation will have no control, such as a change in
the demand in the markets in which the properties are located, the possible
unavailability of prospective tenants and the possibility of economic or
physical decline of the areas in which the properties are located or physical
damage to the properties that would make them less attractive to tenants.
OPERATING RISKS--The Properties will be subject to all operating risks
common to shopping centers. Such risks include: competition from other shopping
centers; excessive building of comparable properties or increases in
unemployment in the areas in which the properties are located, either of which
might adversely affect occupancy and/or rental rates; increases in operating
costs due to inflation, increases in property taxes, increases in casualty
insurance premiums and other factors, which increases may not necessarily be
offset by increased rents; inability or unwillingness of lessees to pay rent
increases; and future enactment of laws regulating public places, including
present and possible future laws relating to access by disabled persons. If
operating expenses increase, the local rental market may limit the extent to
which rents may be increased to meet increased expenses without decreasing
occupancy rates. If any of the
13
above occurred, the Corporation's ability to make distributions to holders of
the Common Stock could be adversely affected.
SIZE/LACK OF DIVERSITY OF INITIAL PORTFOLIO--At the conclusion of this
Offering, the Corporation will have only the two Properties in its portfolio.
Consequently, any event which negatively effects either of the Properties may
have a negative impact on the Corporation and may adversely affect its ability
to make distributions to holders of the Common Stock.
ILLIQUIDITY OF REAL ESTATE--Equity real estate investments are relatively
illiquid and therefore may tend to limit the ability of the Corporation to react
promptly in response to changes in economic or other conditions. Further, the
Code places limits on a REIT's ability to sell properties held for fewer than
four years, which may affect the Corporation's ability to sell properties
without adversely affecting returns to holders of the Common Stock. The
Corporation intends to hold its properties as long-term investments and does not
have any present intent to sell any of the Properties.
EFFECT OF UNINSURED LOSS ON PERFORMANCE--The Corporation will carry
comprehensive liability, fire, extended coverage and rental loss insurance with
respect to its properties with policy specifications and insured limits
customarily carried for similar properties. There are, however, certain types of
losses (such as from wars, earthquakes, floods or windstorms, including without
limitation, hurricanes) which may be either uninsurable or insurable only at
costs which are not economically justifiable. Should an uninsured loss occur,
the Corporation could lose both its invested capital in, and anticipated profits
from, the property and would continue to be obligated to repay any recourse
mortgage indebtedness on the property.
RISKS OF ACQUISITION ACTIVITIES--The Corporation intends to pursue
acquisitions of additional shopping centers. Acquisitions of additional
properties and development activities entail risks that investments will fail to
perform in accordance with expectations, as well as general risks associated
with any new real estate investment. In addition, the fact that the Corporation
must distribute 95% of its REIT taxable income in order to maintain its
qualification as a REIT will limit its ability to rely upon lease income from
the Properties to finance acquisitions.
The Corporation anticipates that future acquisitions will be financed, in
whole or in part, through equity issues and forms of secured or unsecured debt
financing. Such financing may be available only on disadvantageous terms, if at
all. If financing is not available on acceptable terms for new acquisitions,
further acquisitions might be curtailed, cash available for distribution might
be adversely affected and foreclosures on acquired properties could occur.
Further, if any particular property is not successful, the Corporation's losses
could exceed its investment in the property.
COMPETITION--There are numerous developers and real estate companies that
compete with the Corporation in seeking properties for acquisition and tenants
for properties. The Corporation may be adversely affected by the fact that the
availability of high quality properties for acquisition may diminish within the
Corporation's markets and elsewhere. There can be no assurance that the
Corporation will continue to acquire properties. In connection with the making
of investments, the Corporation may experience significant competition from
banks, insurance companies, savings and loan associations, mortgage bankers,
pension funds, limited partnerships, other REITs and other entities with
objectives similar to those of the Corporation and which may have greater
financial resources or experience. An increase in the availability of funds for
real estate investment may increase competition in the making of investments and
may reduce the yields available to the Corporation.
POSSIBLE ENVIRONMENTAL LIABILITIES--Under various U.S. Federal, state and
local laws, ordinances and regulations relating to the protection of the
environment (collectively, "Environmental Laws"), a current or previous owner or
operator of real property may be liable for the cost of removal or remediation
of certain hazardous or toxic substances disposed, stored, released, generated,
manufactured or discharged from, on, at, onto, under or in such property.
Environmental Laws often impose such liability without regard to whether the
owner or operator knew of, or was responsible for, the presence or release of
such
14
hazardous or toxic substances. In addition, the presence of any such substances
or the failure to properly remediate such substances when present, released or
discharged, may adversely affect the owner's ability to sell or rent such
property or to borrow using such property as collateral. The cost of any
required remediation and the liability of the owner or operator therefor as to
any property is generally not limited under such Environmental Laws and could
exceed the value of the property and/or the aggregate assets of the owner or
operator. In addition to any action required by federal, state or local
authorities, the presence of hazardous or toxic substances on any of the
properties of the Corporation, or on any properties acquired hereafter, could
result in plaintiffs bringing claims for personal injury or other causes of
action. In connection with the ownership and operation of the properties of the
Corporation, and on any properties acquired hereafter, the Corporation may be
potentially liable for remediation, release or injury. Further, various
Environmental Laws impose on owners or operators the requirement of on-going
compliance with rules and regulations regarding business-related activities that
may affect the environment. Failure to comply with such requirements could
result in difficulty in the lease or sale of any affected property or the
imposition of monetary penalties and fines in addition to the costs required to
attain compliance.
The Properties have been the subject of Phase I Environmental Assessments
("Phase I Assessments"). The Phase I Assessments did not reveal, nor is the
Corporation aware of, any noncompliance with Environmental Laws, environmental
liability or other environmental claim that the Corporation believes would
likely have a material adverse affect on the Corporation's financial condition
or results of operations. No assurance can be given that the Phase I Assessments
revealed all potential environmental liabilities, that no prior owner or
operator created any material adverse environmental condition not known to the
Corporation or that no environmental liabilities have developed since the Phase
I Assessments were prepared.
AMERICANS WITH DISABILITIES ACT--The Properties and any additional
acquisitions must comply with Title III of the Americans with Disabilities Act
of 1990, as amended (the "ADA"). Compliance with ADA requirements could require
removal of structural, architectural or communication barriers to disabled
access and utilization in certain public areas of the Corporation's properties.
Noncompliance could result in injunctive relief, imposition of fines or an award
of damages to private litigants. The Corporation has not been notified by any
regulatory authority of any noncompliance, claim or liability under the ADA or
applicable state laws, nor has the Corporation been notified of any claim by a
private litigant in connection with conditions at the Properties. The
Corporation is not aware of any failure to comply with the ADA or applicable
state law with respect to any of the Properties that management believes would
have a material adverse effect on the Corporation's financial condition or
results of operations. If changes are required to bring any of the Properties
into compliance with the ADA, the Corporation's ability to make expected
distributions could be adversely affected. The Corporation believes that its
competitors face similar costs to comply with the requirements of the ADA.
RISK OF LEVERAGE AND DEFAULT
The Corporation will be subject to the risks normally associated with debt
financing, including the risk that the Corporation's funds from operations will
be insufficient to meet required payments of principal and interest, the risk
that the Corporation will not be able to pay or refinance indebtedness on the
Properties or that the terms of a refinancing will not be as favorable as the
terms of existing indebtedness.
If prevailing interest rates or other factors at the time of refinancing
result in higher interest rates on refinancing, the Corporation's interest
expense would increase, which would adversely affect the Corporation's funds
from operations and its ability to make distributions to holders of the Common
Stock. In addition, in the event the Corporation was unable to secure
refinancing of such indebtedness on acceptable terms, the Corporation might be
forced to dispose of properties upon disadvantageous terms, which might result
in losses to the Corporation and might adversely affect the Corporation's funds
from operations. In addition, if a property or properties are mortgaged to
secure payment of indebtedness and the Corporation
15
is unable to meet mortgage payments, the property could be foreclosed upon by or
otherwise transferred to the mortgagee with a consequent loss of income and
asset value to the Corporation.
POTENTIAL BORROWINGS TO MAKE DISTRIBUTIONS TO QUALIFY AS A REIT
In order to qualify as a REIT, the Corporation generally will be required
each year to distribute to its stockholders at least 95% of its net taxable
income (excluding any net capital gain.) In addition, the Corporation shall be
subject to a four percent non-deductible excise tax on the amount, if any, by
which certain distributions paid by it with respect to any calendar year are
less than the sum of (i) 85% of its ordinary income, (ii) 95% of its capital
gains net income for that year and (iii) 100% of its undistributed taxable
income from prior years.
The Corporation intends to make distributions to stockholders to comply with
the distribution provisions of the Code necessary to maintain qualification as a
REIT and to avoid U.S. Federal income taxes and the non-deductible excise tax.
Timing fluctuations in the receipt of income and the payment of expenses and the
effect of required debt amortization payments, if any, may require the
Corporation to borrow funds to meet the distribution requirements necessary to
achieve the tax benefits associated with qualifying as a REIT, even if the
Corporation's management believes that then prevailing market conditions are not
generally favorable for such borrowings or that such borrowings would not be
advisable in the absence of such tax considerations.
JOINT VENTURE INVESTMENTS--RISKS OF CONFLICTING INTERESTS AND IMPASSE
Under certain circumstances, the Corporation may participate with an entity
in jointly acquiring an investment property. In every instance such joint
ventures will be arm's-length transactions. Any joint venture investment of the
Corporation would be subject to the same conditions, limitations and
restrictions applicable to a Corporation investment not undertaken as a joint
venture, and the use of a joint venture structure would not itself be designed
to alter or expand the investment objectives and policies of the Corporation.
However, investment through a joint venture could, for example, permit the
Corporation to invest in a property which is too large for the Corporation to
acquire by itself.
The investment by the Corporation through a joint venture could subject the
Corporation to risks not otherwise present, including: (i) the possibility that
the joint venture participant will have economic interests different from the
Corporation and that the participant might be in a position to take actions
contrary to the instructions of the Corporation and contrary to the interests of
the Corporation; and (ii) special tax risks (see "U.S. Federal Income Tax
Considerations--Investments through Partnerships"). In addition, in joint
venture investments there is a potential risk of impasse on decisions if neither
joint venture partner controls the venture and a potential risk that if the
Corporation has a right of first refusal to purchase the joint venture partner's
interest, it may not have the resources to do so.
U.S. FEDERAL INCOME TAX RISKS
FAILURE TO ACHIEVE OR MAINTAIN REIT STATUS. The Corporation intends to
conduct its operations in a manner that will permit it to qualify as a REIT for
U.S. Federal income tax purposes, commencing with its taxable year ending
December 31, 1997. The Corporation has not requested, and does not expect to
request, a ruling from the IRS that it will qualify as a REIT. Qualification as
a REIT involves the application of technical and complex provisions of the Code
for which there are only limited judicial or administrative interpretations. The
determination of various factual matters and circumstances not entirely within
the Corporation's control may affect its ability to qualify as a REIT, including
default by a lessee under, and a termination of, a lease. In addition, no
assurance can be given that new legislation, regulations, administrative
interpretations or court decisions will not significantly change the rules
applicable to the Corporation with respect to its qualification as a REIT, the
U.S. Federal income tax consequences of such qualification or the treatment of
Canadian residents under the Treaty and Protocol.
16
The Corporation believes that based upon an opinion of Schnader Harrison
Segal & Lewis it will so qualify. The REIT qualification opinion represents only
the view of counsel to the Corporation based on counsel's review and analysis of
existing law, and upon certain assumptions and representations described in
"U.S. Federal Income Tax Considerations," that the Corporation will qualify as a
REIT under the Code commencing with its taxable year ending December 31, 1997.
Investors should be aware, however, that opinions of counsel are not binding on
the IRS or the courts. Both the opinion and the continued qualification of the
Corporation as a REIT will depend on the Corporation's continuing ability to
meet various requirements (some on an annual and quarterly basis) concerning,
among other things, the ownership of its outstanding shares of Common Stock, the
nature of its assets, the sources of its income and the amount of its
distributions to stockholders.
If in any taxable year the Corporation were to fail to qualify as a REIT,
the Corporation would not be allowed a deduction for distributions to
stockholders in computing its taxable income and would be subject to U.S.
Federal income tax (including any applicable minimum tax) on its taxable income
at regular corporate rates. Moreover, unless entitled to relief under certain
Code provisions, the Corporation also would be disqualified from treatment as a
REIT for the four taxable years following the year in which such qualification
was lost, and if the Corporation subsequently requalified as a REIT, it might be
required to pay a full corporate-level tax on any unrealized gain in its assets
as of the date of requalification and to make distributions at the time equal to
any earnings accumulated during the period of non-REIT status. As a result, such
additional taxes would reduce the funds available for distribution to
stockholders for each of the years involved. In addition, during the period in
which the Corporation has lost its REIT status, the Corporation would no longer
be required by the Code to make any distributions to stockholders. Although the
Corporation intends to operate in a manner designed to qualify as a REIT, it is
possible that: (i) future economic, market, legal, tax or other considerations
may cause the Corporation, with the consent of the holders of a majority of the
votes cast at a meeting of the holders of Common Stock of the Corporation, to
revoke the election for the Corporation to be taxed as a REIT; or (ii) the
Corporation will fail to qualify as a REIT and its election to be taxed as a
REIT will be terminated by such failure. See "U.S. Federal Income Tax
Consequences--Taxation of the Corporation--General."
LIMITATIONS ON CHANGES IN CONTROL
OWNERSHIP LIMIT--In order to protect its status as a REIT, the Corporation
must satisfy certain conditions including the condition that no more than 50% in
value of the outstanding Common Stock may be owned, directly or indirectly, by
five or fewer individuals during the last half of a taxable year (other than the
first year) or during a proportionate part of a shorter taxable year (the "Five
or Fewer Test"). The Five or Fewer Test is applied using certain constructive
ownership and attribution rules of the Code. To this end, the Corporation's
Amended and Restated Articles of Incorporation, among other things, prohibit any
holder from owning more than 9.5% of the Corporation's outstanding Common Stock
without the consent of the Board of Directors of the Corporation. This
limitation may have the effect of precluding acquisition of control of the
Corporation by a third party without the consent of the Board of Directors of
the Corporation even when such a change in control could be beneficial to the
Corporation's stockholders.
PREFERRED STOCK--The Amended and Restated Articles of Incorporation
authorize the Board of Directors to issue preferred stock and to establish the
preferences and rights of any shares issued. The issuance of preferred stock
could have the effect of delaying or preventing a change of control of the
Corporation, even if a change in control were in the stockholders' interest. No
such shares will be issued or outstanding as of the closing of the Offering.
CONTROL SHARE ACQUISITIONS--Under the Maryland General Corporation Law (the
"MGCL"), "control shares" acquired in a "control share acquisition" have no
voting rights except to the extent approved by a vote of two-thirds of the votes
entitled to be cast on the matter. The bylaws of the Corporation provide that
the Corporation has elected not to be governed by the control share acquisition
provisions of the MGCL.
17
MARYLAND BUSINESS COMBINATION STATUTE--Under the MGCL, certain business
combinations between a Maryland corporation and any person or affiliate thereof
who is the beneficial owner of ten percent or more of the voting power of the
Corporation's shares (an "Interested Shareholder") are prohibited for five years
after the most recent date on which the Interested Shareholder became an
Interested Shareholder. Thereafter, the business combination must be approved by
the affirmative vote of at least (i) 80% of the votes entitled to be cast by
holders of outstanding voting shares of the Company and (ii) 66 2/3% of the vote
entitled to be cast by holders of outstanding voting shares held by persons
other than the Interested Shareholder with whom the business combination is to
be effected, subject to certain exceptions. The Amended and Restated Articles of
Incorporation of the Corporation provide that the Maryland Business Combination
provisions of the MGCL do not apply to the Corporation.
RESPONSIBILITIES OF DIRECTORS AND ADVISOR--POSSIBLE INADEQUACY OF REMEDIES
The Advisor and the directors of the Corporation are accountable to the
Corporation and its stockholders as fiduciaries and consequently must exercise
good faith and integrity in handling the Corporation's affairs. However, the
MGCL and the Amended and Restated Articles of Incorporation of the Corporation
exculpate each director in certain actions by or in the right of the Corporation
from liability unless the director has (i) breached his duty of loyalty to the
Corporation; (ii) has engaged in an act or omission not in good faith or which
involved intentional misconduct or a knowing violation of law; or (iii) has
engaged in any transaction from which the director derived an improper personal
benefit. Further, the Advisory Agreement exculpates the Advisor from liability
unless the Advisor has engaged in gross negligence or willful misconduct. The
Advisory Agreement also provides that the Corporation will indemnify a present
or former director and the Advisor against expense or liability in an action if
the directors (other than the indemnified party) determine in good faith that
the person to be indemnified was acting in good faith within what he or it
reasonably believed to be the scope of his or its authority and for a purpose
which is or reasonably believed to be in the best interests of the Corporation
or its stockholders and that such liability was not the result of reckless
disregard of duties or a violation of the criminal law on the part of the person
to be indemnified.
As a result of the exculpation and indemnification provisions of the
Corporation's Amended and Restated Articles of Incorporation and the Advisory
Agreement, a stockholder may have a more limited right of action than he would
otherwise have had in the absence of such provisions. The exculpation and
indemnification provisions in the Amended and Restated Articles of Incorporation
and the Advisory Agreement have been adopted to help induce the beneficiaries of
such provisions to agree to serve on behalf of the Corporation or the Advisor by
providing a degree of protection from liability for alleged mistakes in making
decisions and taking actions. Such exculpation and indemnification provisions
have been adopted, in part, in response to a perceived increase generally in
stockholders' litigation alleging director misconduct.
The Corporation intends to purchase insurance policies under which
directors, officers and other agents of the Corporation will be insured against
liability or loss arising out of actual or asserted misfeasance or nonfeasance
in the performance of their duties, to the extent such insurance is available at
reasonable rates.
ADVISOR MAY PURCHASE SHARES
The Advisor, the Promoters, their principals and officers may purchase
shares in the Offering, subject to the restrictions on accumulation of Common
Stock contained in the Corporation's Amended and Restated Articles of
Incorporation, which generally prohibit accumulation by any person or entity of
more than 9.5% of all of the Corporation's outstanding Common Stock.
In addition to the foregoing, the Corporation has adopted a stock option
plan for the benefit of the directors and officers of the Corporation (see
"Management - Stock Option Plan"). The aggregate number
18
of shares of Common Stock of the Corporation reserved for issuance under the
plan is 250,000 shares of Common Stock.
DILUTION
The Board of Directors is authorized, without stockholder approval, to issue
additional Common Stock of the Corporation or to raise capital through the
issuance of shares, options, warrants and other rights, on such terms and at
such prices as the Board of Directors in its sole discretion may in good faith
determine. Any such issuance could result in dilution of the equity of the
stockholders of the Corporation.
The Corporation has adopted a stock option plan for the benefit of the
directors and officers of the Corporation (see "Management--Stock Option Plan").
The effect of the exercise of such options could be to dilute the value of the
stockholders' investments to the extent of any difference between the exercise
price of an option and the value of the Common Stock purchased at the time of
the exercise of the option.
Further, the Corporation may in the future seek to raise additional capital
to acquire additional properties. Issuance of securities for this purpose may
also result in dilution of the equity of the stockholders.
BENEFITS FROM FORMATION OF CORPORATION AND THE OFFERING
Ronald L. Bernbaum will realize certain benefits from the formation of the
Corporation and the Offering. He owns 100 shares of Common Stock of the
Corporation prior to completion of the Offering, for which he paid $1,000.
COMPENSATION TO AFFILIATES
The Advisor will receive substantial compensation from the Corporation in
exchange for various services it has agreed to render to the Corporation. (See
"Management--The Advisor--Fees and Expenses"). This compensation has been
established without the benefit of arm's-length negotiation, and the payment of
such compensation from proceeds of the Offering and property revenues will
reduce the amount of proceeds available for investment in properties or the cash
available for dividends, and will therefore reduce the return on stockholders'
investments. In addition, such compensation is generally payable regardless of
Corporation profitability, and is generally payable prior to, and without regard
to whether the Corporation has sufficient cash for, distribution of dividends.
CONFLICTS OF INTEREST
The affiliates of the Advisor and the Promoters will be subject to various
conflicts of interest in their dealings with the Corporation. Generally, such
conflicts of interest arise because certain directors and officers of the
Corporation (i) are also principals in other companies which will enter into
contracts with the Corporation (principally for asset management and property
management, acquisition and disposition services); and (ii) are, and will in the
future be, principals in other real estate investment programs which may compete
with the Corporation. Other possible transactions involving conflicts of
interest would include the Corporation's acquisition of properties from any of
the affiliates (or any of their affiliates) and the Corporation borrowing from
any of the affiliates (or any of their affiliates).
Although the Advisory Agreement contains certain policies and procedures
designed to eliminate or ameliorate the effects of potential conflicts of
interest, certain potential conflicts of interest are not easily susceptible to
resolution, and stockholders will bear the risks associated with such potential
conflicts. In general, if a person with responsibilities both to the Corporation
and to an entity contracting with the Corporation, or both to the Corporation
and to a program in competition with the Corporation, were to resolve a
potential conflict of interest in such dual capacity against the interest of the
Corporation, the operation of the Corporation could be adversely affected.
19
RESTRICTIONS ON TRANSFER AND LIMITATION ON OWNERSHIP OF COMMON STOCK
For the Corporation to qualify as a REIT in any taxable year (other than the
first year for which the Corporation elects to be taxed as a REIT), no more than
50% in value of its outstanding capital stock may be owned directly, or
indirectly by attribution, by five or fewer stockholders at any time during the
second half of the Corporation's taxable year. As a result of the Revenue
Reconciliation Act of 1993 (U.S.), under certain circumstances the owners of
U.S. pension funds and certain other tax exempt entities are deemed to be the
stockholders of the REIT for purposes of this ownership test. In addition (other
than the first year for which the Corporation elects to be treated as a REIT),
the outstanding stock must be owned by 100 or more persons during at least 335
days of a taxable year of 12 months or during a proportional part of a shorter
taxable year.
To help ensure compliance with the share ownership requirements applicable
to REITs, the Corporation's Amended and Restated Articles of Incorporation
contains restrictions on transfer of its Common Stock and certain specific
exceptions to these restrictions. These restrictions require the Board of
Directors to refuse to transfer Common Stock to any person or entity if as a
result of a transfer such person or entity would beneficially own Common Stock
in excess of 9.5% of the lesser of the aggregate number or value of the
outstanding Common Stock ("Excess Stock"), or to hold the Excess Stock in trust
without dividends or voting rights, until the Excess Stock is acquired by an
eligible person for the lesser of the transfer price or the market price. These
provisions may inhibit market activity and the resulting opportunity for holders
of the Common Stock to realize a premium for their Common Stock that might
otherwise exist if a holder of the Common Stock were attempting to assemble a
block of Common Stock in excess of 9.5% of the lesser of the aggregate number or
value of the outstanding Common Stock. Also, there can be no assurance that
these provisions will in fact prevent the Corporation from failing to meet the
share ownership requirements. These provisions would also make the Common Stock
an unsuitable investment for any person or entity seeking to obtain ownership of
more than 9.5% of the lesser of the aggregate number or value of the outstanding
Common Stock.
SHARES OF COMMON STOCK AVAILABLE FOR FUTURE SALE
Sales of substantial amounts of Common Stock of the Corporation (including
shares issued upon the exercise of stock options), or the perception that sales
could occur, could adversely affect the prevailing market price for the Common
Stock. The Corporation and its directors and officers have agreed, subject to
certain limited exceptions, not to offer, sell, contract to sell or otherwise
dispose of any Common Stock for a period of ninety days after the date of this
Prospectus.
NO PRIOR MARKET FOR COMMON STOCK
Prior to the Offering, there has been no public market for the Common Stock.
Although it is a condition to the Closing that the Common Stock be listed on an
United States Stock Exchange which is a "prescribed stock exchange" for the
purposes of the Income Tax Act (Canada) and which is either registered under the
Securities Exchange Act or is listed on an "over-the-counter market" within the
meaning of applicable United States federal income tax regulations, there can be
no assurance that an active trading market will develop. There also can be no
assurances that, upon listing on an United States Stock Exchange, the
Corporation will continue to meet the criteria for continued listing of the
Common Stock on such Exchange. In addition, the initial public offering price
may not be indicative of the market price for the Common Stock after the
Offering. The initial public offering price of the Common Stock was determined
by negotiation between the Agents and the Corporation.
EFFECT OF MARKET INTEREST RATES ON PRICE OF COMMON STOCK
One of the factors that may influence the price of the Corporation's Common
Stock in public markets will be the annual yield on the price paid for shares
from distributions by the Corporation. Thus, an
20
increase in market interest rates may lead purchasers of Common Stock to demand
a higher annual yield, which could adversely affect the market price of the
Common Stock.
ENFORCING RIGHTS AGAINST FOREIGN CORPORATION, DIRECTORS AND OFFICERS
Certain directors and officers of the Corporation and certain other persons,
who may be subject to the civil liability provisions of the Securities Act
(Ontario), the Securities Act (Alberta) and the Securities Act (British
Columbia) for a misrepresentation contained in this Prospectus will be resident
or located outside Canada and it may not be possible to effect service of
process upon such persons in Canada. All or a substantial portion of the assets
of the Corporation and certain of its directors and officers and certain other
persons, which parties may be subject to the civil liability provisions of the
Securities Act (Ontario), the Securities Act (Alberta) and the Securities Act
(British Columbia) for a misrepresentation contained in the Prospectus, will be
located outside Canada and there may be difficulties in enforcing against the
Corporation and the said directors and officers and other certain persons the
civil liability provisions of the Securities Act (Ontario), the Securities Act
(Alberta) and the Securities Act (British Columbia) for any misrepresentation
that may be contained in this Prospectus. Ronald Bernbaum has been appointed
agent for the Corporation for service of process in Canada at 2235 Sheppard
Avenue East, Suite 904, Willowdale, Ontario.
USE OF PROCEEDS
The net proceeds to the Corporation from the sale of the 2,740,000 shares
offered hereby are estimated to be $24,905,000 after deduction of the Agents'
commissions ($2,055,000) and estimated expenses of the Offering ($440,000).
The Corporation will use the net proceeds of the Offering, after deducting
Agents' commissions and expenses of the Offering, to acquire the Properties on
Closing (including the repayment of deposits advanced by the Promoters or the
Advisor and the payment of acquisition costs) to pay mortgage assumption and
financing fees, the acquisition fees to the Advisor (in the amount of $455,438),
and for working capital. The following table sets forth an allocation of the use
of net proceeds. The principal amount of the mortgage and the acquisition
expenses are estimates and any increase or reduction will result in an increase
or reduction in the proceeds available for working capital. Until required,
proceeds allocated to working capital will be invested by the Corporation in
Authorized Investments.
ESTIMATED
ACQUISITION
FEES
PROPERTIES PURCHASE PRICE MORTGAGE AND EXPENSES USE OF PROCEEDS
- --------------------------------------------------- -------------- ---------- --------------- ---------------
Chico Crossroads
Center........................................... $ 20,912,500 -- $ 420,000 $ 21,332,500
Gardens Square..................................... 9,450,000 6,710,000 216,000 2,956,000
Estimated Mortgage
Assumption and
Financing Fees................................... 68,000
Working Capital.................................... 548,500
---------------
NET PROCEEDS....................................... $ 24,905,000
---------------
---------------
21
CAPITALIZATION
The pro forma capitalization of the Corporation as at September 30, 1996,
and as adjusted to reflect the purchase of the Properties, the assumption of the
mortgage secured by the Gardens Square property, the issuance and sale of the
Common Stock pursuant to an assumed public offering price of $10.00 per share,
after deducting the estimated Agents' commissions and offering expenses payable
by the Corporation, is as follows:
ACTUAL PRO FORMA
SEPTEMBER 30, 1996 AS ADJUSTED
------------------- -------------
Mortgage Payable............................................................... $ 6,710,000
-------------
STOCKHOLDERS' EQUITY
Common Stock, $.01 par value per share;
100 million shares authorized; 100 shares issued
and outstanding (immediately prior to the Offering)
2,740,100 shares issued and outstanding as
adjusted (1)................................................................. $ 1 27,401
Excess Stock, $.01 par value per share,
50 million shares authorized, none issued or
outstanding..................................................................
Preferred Stock, $.01 par value per share,
1,500,000 shares authorized, none
issued or outstanding........................................................
Additional paid in capital (2)................................................. 999 24,878,599
------ -------------
TOTAL STOCKHOLDERS' EQUITY 1,000 24,906,000
------ -------------
Total.......................................................................... $ 1,000 $ 31,616,000
------ -------------
------ -------------
- ------------------------
(1) Excludes 250,000 shares of Common Stock reserved for issuance under the
Corporation's 1996 Stock Option Plan, of which 100,000 shares were subject
to outstanding options as of September 25, 1996 at an exercise price of $10
per share.
(2) Agents' commissions and expenses of the issuance of $2,495,000 have been
deducted from additional paid in capital.
22
PRO FORMA SELECTED FINANCIAL INFORMATION
The following table sets forth pro forma selected financial information of
the Corporation and should be read in conjunction with the audited and unaudited
statements of Revenue and Certain Expenses for the year ended December 31, 1995
and the six months ended June 30, 1996 and 1995 respectively, for Chico
Crossroads Center, Ltd. and Miami Gardens Associates and the notes thereto, and
of the unaudited pro forma financial information of the Corporation contained
herein. The following pro forma selected financial information is based on the
unaudited pro forma statements of income for the six months ended June 30, 1996
and for the year ended December 31, 1995 and the unaudited pro forma balance
sheet as of June 30, 1996 giving effect to the adjustments referred to in the
notes to the unaudited pro forma statements of income and balance sheet. The
data for the six months ended June 30, 1996 includes, in the opinion of
management, all adjustments, consisting only of normal recurring adjustments,
necessary for a fair statement of the results for the unaudited interim period.
See "Management's Discussion and Analysis of the Pro Forma Results of Operations
and Pro Forma Financial Condition."
The pro forma financial data has been prepared giving effect to the
acquisition of the Properties, the assumption of the mortgage secured by the
Gardens Square property and the issuance of Common Stock as described elsewhere
in this Prospectus (see note 1 to the pro forma financial data).
SIX MONTHS
ENDED YEAR ENDED
JUNE 30, 1996 DECEMBER 31, 1995
------------- -----------------
(UNAUDITED)
PRO FORMA OPERATING DATA
Rental Income (excluding operating
expense reimbursement)..................................................... $ 1,525,432 $ 2,928,727
Pro Forma Net Income
U.S. GAAP.................................................................. 536,164 930,764
CDN GAAP................................................................... 725,694 1,309,829
Pro Forma Funds From Operations (1).......................................... 859,888 1,578,212
Pro Forma Net Income Per Share (2)
U.S. GAAP.................................................................. $ .20 $ .34
CDN GAAP................................................................... $ .26 $ .48
PRO FORMA BALANCE SHEET DATA
Rental Properties............................................................ $ 30,998,500
Total Debt................................................................... 6,710,000
Stockholders' Equity......................................................... $ 24,906,000
- ------------------------
(1) Industry analysts generally consider funds from operations to be an
appropriate measure of the performance of an equity REIT. Funds from
operations is defined by the National Association of Real Estate Investment
Trusts ("NAREIT") as net income (computed in accordance with generally
accepted accounting principles) excluding gains (or losses) from debt
restructuring and sales of property plus amortization of real estate assets.
Amortization of deferred financing costs and amortization of non real estate
assets are not added back to net income to arrive at funds from operations.
Funds from operations should not be considered as an alternative to net
income as a measure of profitability nor is it comparable to cash flow
provided by operating activities determined in accordance with generally
accepted accounting principles.
(2) The Pro Forma Net Income Per Share calculation assumes that no additional
Common Stock was issued during the periods under the Corporation's intended
dividend reinvestment plan or by the exercise of options to purchase 20,000
shares of Common Stock of the Corporation by Mr. Bernbaum or the exercise of
options to purchase 10,000 shares of Common Stock by each of Messrs.
Maynard, Thrall, Witterick, Peterson, Schwartz, McCrae, Kwinta and
Dickerson. "See Management--Stock Option Plan."
23
UNAUDITED PRO FORMA FINANCIAL DATA
BASIC U.S. REIT, INC.
PRO FORMA STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1995
(UNAUDITED)
HISTORICAL
-------------------------- PRO FORMA
CHICO GARDENS PRO FORMA BASIC U.S.
CROSSROADS SQUARE ADJUSTMENTS NOTES REIT, INC.
------------ ------------ ------------ ----- ------------
Revenue
Rental........................................ $ 2,014,435 $ 904,292 $ 10,000 2(a) $ 2,928,727
Operating expense reimbursement............... 377,749 316,745 54,000 2(b) 748,494
Other......................................... 5,500 10,542 15,000 2(c) 31,042
------------ ------------ ------------ ------------
2,397,684 1,231,579 79,000 3,708,263
------------ ------------ ------------ ------------
Operating Expenses
Rental........................................ 186,136 235,534 21,000 2(d) 442,670
Real estate taxes............................. 248,214 139,711 107,000 2(e) 494,925
Amortization.................................. 647,448 2(f) 647,448
Asset management fees......................... 373,575 2(g) 373,575
General and administration.................... 280,000 2(h) 280,000
------------ ------------ ------------ ------------
434,350 375,245 1,429,023 2,238,618
------------ ------------ ------------ ------------
Excess of revenue over certain expenses......... $ 1,963,334 $ 856,334 1,350,023 1,469,645
------------ ------------
------------ ------------
Interest expense................................ 538,881 2(i) 538,881
------------ ------------
Net Income...................................... $ 1,888,904 $ 930,764
------------ ------------
------------ ------------
Pro forma net income per share.................. 2(j) $ 0.34
------------
------------
Weighted average number of shares............... 2,740,100
------------
------------
24
BASIC U.S. REIT, INC.
PRO FORMA STATEMENT OF INCOME
SIX MONTHS ENDED JUNE 30, 1996
(UNAUDITED)
HISTORICAL
------------------------ PRO FORMA
CHICO GARDENS PRO FORMA BASIC U.S.
CROSSROADS SQUARE ADJUSTMENTS NOTES REIT, INC.
------------ ---------- ----------- ----- ------------
Revenue
Rental.......................................... $ 1,053,744 $ 466,688 $ 5,000 2(a) $ 1,525,432
Operating expense reimbursement................. 209,000 159,400 27,000 2(b) 395,400
Other........................................... 1,820 7,500 2(c) 9,320
------------ ---------- ----------- ------------
1,262,744 627,908 39,500 1,930,152
------------ ---------- ----------- ------------
Operating Expenses
Rental.......................................... 94,000 111,000 10,500 2(d) 215,500
Real estate taxes............................... 138,000 70,000 53,500 2(e) 261,500
Amortization.................................... 323,724 2(f) 323,724
Asset management fees........................... 186,788 2(g) 186,788
General and administration...................... 140,000 2(h) 140,000
------------ ---------- ----------- ------------
232,000 181,000 714,512 1,127,512
------------ ---------- ----------- ------------
Excess of revenue over certain expenses........... $ 1,030,744 $ 446,908 675,012 802,640
------------ ----------
------------ ----------
Interest expense.................................. 266,476 2(i) 266,476
----------- ------------
Net Income........................................ $ 941,488 $ 536,164
----------- ------------
----------- ------------
Pro forma net income per share.................... 2(j) $ 0.20
------------
------------
Weighted average number of shares................. 2,740,100
------------
------------
25
BASIC U.S. REIT, INC.
PRO FORMA BALANCE SHEET
AS AT JUNE 30, 1996
(UNAUDITED)
ASSETS
Cash........................................................................... $ 549,500
Rental properties (Note 3(a)).................................................. 30,998,500
Deferred financing costs (Note 3(b))........................................... 68,000
----------
$31,616,000
----------
----------
LIABILITIES AND STOCKHOLDERS' EQUITY
Mortgage payable (Note 3(b))................................................... $6,710,000
----------
Stockholders' Equity (Note 3(c))
Preferred Stock $0.01 par value
Authorized 1,500,000
Issued None
Excess Stock $0.01 par value
Authorized 50,000,000
Issued None
Common Stock, $0.01 par value
Authorized 100,000,000
Issued 2,740,100........................................................... 27,401
Additional paid in capital................................................... 24,878,599
----------
24,906,000
----------
$31,616,000
----------
----------
26
BASIC U.S. REIT, INC.
NOTES TO PRO FORMA STATEMENTS OF INCOME
AND PRO FORMA BALANCE SHEET
(UNAUDITED)
1. BASIS OF PRESENTATION
The pro forma statements of income have been prepared in U.S. dollars by
management from the separate audited statements of revenue and certain expenses
for the properties to be acquired from Chico Crossroads Center, Ltd. and Miami
Gardens Associates known as Chico Crossroads and Gardens Square, respectively
(the "Properties") for the year ended December 31, 1995 and the unaudited
statements of revenue and certain expenses for the six months ended June 30,
1996 giving effect to the acquisition of the Properties, the assumption of the
mortgage secured by the Gardens Square property and the issuance of Common Stock
as though these transactions had been completed on January 1, 1995 and January
1, 1996, respectively. The Corporation had no operations during the periods.
The pro forma balance sheet has been prepared in U.S. dollars giving effect
to the acquisition of the Properties, the assumption of the mortgage secured by
the Gardens Square property and the issuance of Common Stock as though these
transactions had been completed on June 30, 1996. The Corporation's cash of
$1,000 and stockholder's equity of $1,000 at the date of incorporation have also
been included.
The pro forma financial statements are not necessarily indicative of what
the Corporation's financial position or results of operations would have been
assuming the completion of the transactions on such date or at the beginning of
the periods indicated, nor do they purport to project the Corporation's
financial position or results of operations at any future date or for any future
period. These statements should also be read in conjunction with the description
of the transactions and financial statements appearing elsewhere in this
Prospectus.
It is the intention of the Corporation to distribute a minimum of 100% of
its taxable income to stockholders and to qualify as a REIT for U.S. tax
purposes.
2. PRO FORMA STATEMENTS OF INCOME
The pro forma statements of income include the following adjustments:
a) rental revenue has been increased to reflect the calculation of straight
line rents as though the acquisitions were completed on January 1, 1995
and January 1, 1996, respectively;
b) operating expense reimbursement has been increased by the portion of the
realty tax increase (resulting from the acquisitions of the Properties by
the Corporation) that can be collected from existing tenants (see note
2(e));
c) other income has been increased to reflect interest the Corporation
would have earned during the period through the investment of available
cash;
d) rental expense has been increased by the proposed increase in property
management fees;
e) real estate taxes have been increased to reflect the maximum increase
resulting from the acquisitions of the Properties by the Corporation;
f) amortization expense includes (i) amortization of the buildings acquired
calculated on a straight line basis over the estimated useful lives of 40
years; and (ii) amortization of land improvements acquired calculated on
a straight line basis over the estimated useful lives of 20 years;
27
BASIC U.S. REIT, INC.
NOTES TO PRO FORMA STATEMENTS OF INCOME (CONTINUED)
AND PRO FORMA BALANCE SHEET
(UNAUDITED)
2. PRO FORMA STATEMENTS OF INCOME (CONTINUED)
g) asset management fees have been calculated in accordance with the
Advisory Agreement at 1.5% of the net proceeds received by the
Corporation from the Offering;
h) general and administration costs include the estimated costs of
operating the Corporation, including legal, accounting, reporting and
directors' expenses. Management has obtained quotations from service
providers with respect to these services;
i) interest expense includes interest related to the mortgage financing and
amortization of deferred financing costs referred to in Note 3b; and
j) pro forma net income per share has been calculated on the assumption
that additional Common Stock was not issued during the periods. The
issuance of Common Stock under the dividend reinvestment plan or by
exercising options granted to certain individuals to purchase common
stock would not have had a material impact on the calculation of pro
forma net income per share.
3. PRO FORMA BALANCE SHEET
The pro forma balance sheet gives effect to the acquisition of the
Properties, the assumption of the mortgage secured by the Gardens Square
property and the issuance of Common Stock as follows:
a) ACQUISITIONS OF PROPERTIES
The Properties will be purchased at a total cost of $30,998,500
including acquisition fees and expenses of $636,000 of which $455,438 is
payable to Basic Advisors, Inc. in accordance with the Advisory
Agreement;
b) ASSUMPTION OF MORTGAGE
The Corporation will assume the mortgage payable secured by the Gardens
Square property in the amount of $6,710,000. The mortgage bears interest
at a rate of 7.94% per annum, which is assumed to approximate current
market rates at the Closing of the Offering, and is due on December 21,
2002 with monthly payments based on a 25 year amortization. The
Corporation will be required to pay a mortgage assumption fee of
approximately $68,000 which will be amortized over the remaining term of
the mortgage; and
c) ISSUANCE OF COMMON STOCK
Upon completion of the Offering Stockholders' Equity will consist of the
following:
NUMBER
OF SHARES PROCEEDS
---------- -------------
At date of incorporation.......................................... 100 $ 1,000
Completion of offering............................................ 2,740,000 27,400,000
Agents' fees and costs of issue................................... (2,495,000)
---------- -------------
2,740,100 $ 24,906,000
---------- -------------
---------- -------------
28
BASIC U.S. REIT, INC.
NOTES TO PRO FORMA STATEMENTS OF INCOME (CONTINUED)
AND PRO FORMA BALANCE SHEET
(UNAUDITED)
4. RECONCILIATION TO CANADIAN GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
The pro forma statements have been prepared in accordance with generally
accepted accounting principles ("GAAP") in the United States ("U.S.") which are,
in all material respects, consistent with Canadian GAAP except that amortization
of the buildings over the useful lives of 40 years would be calculated on a
sinking fund basis under Canadian GAAP using a compound rate of 5% per annum.
This difference would have resulted in a reduction of amortization expense and
an increase in pro forma net income in the amount of $379,065 for the year ended
December 31, 1995 ($189,530 for the six months ended June 30, 1996). Pro forma
net income per share under Canadian GAAP would have been $.48 for the year ended
December 31, 1995 ($.26 for the six months ended June 30, 1996).
29
BASIC U.S. REIT, INC.
ESTIMATED TWELVE MONTH PRO FORMA STATEMENT
OF TAXABLE NET OPERATING INCOME AND OPERATING FUNDS AVAILABLE
YEAR ENDED DECEMBER 31, 1995
(UNAUDITED)
The following unaudited statement is a pro forma estimate for a twelve month
period of taxable income and funds available from operation of the Corporation.
This statement does not purport to forecast actual operating results for any
period in the future. This statement is based on the pro forma statements
previously presented and should be read in conjunction with the audited
statements of Revenue and Certain Expenses for the year ended December 31, 1995
for Chico Crossroads Center, Ltd. and Miami Gardens Associates and the notes
thereto.
ESTIMATE OF TAXABLE NET OPERATING INCOME:
Pro forma net income.......................................................... $ 930,764
Net adjustment for tax basis rental revenue recognition (Note 1).............. (36,600)
---------
Pro forma taxable income before allocation for dividends deduction............ 894,164
Estimated dividends deduction................................................. (894,164)
---------
Pro forma taxable net operating income........................................ $ 0
---------
---------
ESTIMATE OF OPERATING FUNDS AVAILABLE:
Pro forma taxable income before allocation for dividends deduction............ $ 894,164
Add pro forma amortization of real estate assets and deferred financing
costs....................................................................... 657,034
---------
Estimated pro forma operating funds available (Note 2)........................ $1,551,198
---------
---------
- ------------------------
(1) Represents the net adjustment to reverse the effect of rental revenue
recognition on a straight line basis.
(2) Operating funds available does not represent cash generated from operating
activities in accordance with generally accepted accounting principles and
is not necessarily indicative of cash available to fund cash needs.
30
MANAGEMENT'S DISCUSSION AND ANALYSIS OF THE PRO FORMA RESULTS
OF OPERATIONS AND PRO FORMA FINANCIAL CONDITION
OVERVIEW
The Corporation was incorporated on July 30, 1996 under the laws of the
State of Maryland and intends to qualify as a real estate investment trust under
the United States federal tax laws. The Corporation has been formed to engage in
the business of investing in a diversified portfolio of income producing
commercial real property throughout the United States, focusing initially on
neighborhood and community shopping centers with nationally recognized anchor
tenants. The Corporation has not conducted operations prior to the closing of
the Offering and the acquisition of the Properties and accordingly had no
revenues during the last two fiscal years. See "Business" for a general
discussion of the plan of operation of the Corporation, including without
limitation, discussion of the Properties, acquisition of the Properties and the
Corporation's relationship with the Advisor. Management believes that the
Corporation, after receiving the net proceeds from the Offering, will be able to
satisfy its cash requirements for the next twelve months without having to raise
additional funds.
The following discussions are based on the unaudited Pro Forma Statements of
Income for the six months ended June 30, 1996 and for the year ended December
31, 1995 and the unaudited Pro Forma Balance Sheet, as at June 30, 1996 giving
effect to the adjustments referred to in the Notes to the unaudited Pro Forma
Statements of Income and Pro Forma Balance Sheet. As at June 30, 1996, Chico
Crossroads Center and Gardens Square (the "Properties") on a combined average
basis were 98.3% leased, essentially unchanged from December 31, 1995. Over 83%
of the gross leasable area of the Properties is leased to tenants whose leases
expire between the years 2007 and 2015. As of January 1, 1996, minimum future
rental payments exclusive of percentage rents, operating expense reimbursements,
Consumer Price Index ("CPI") increases and assuming that none of the lease
renewal options are exercised, are in excess of $36,195,000.
RESULTS OF OPERATIONS
The retail leases for the Properties provide for minimum rents with periodic
increases. The retail tenants at the Properties pay a majority of the on-site
operating expenses. The following is an analysis of operating expenses which
were not recovered at Chico Crossroads Center and Gardens Square during the six
months ended June 30, 1996 and the year ended December 31, 1995.
SIX MONTHS ENDED YEAR ENDED
JUNE 30, 1996 DECEMBER 31, 1995
----------------- -----------------
CHICO CROSSROADS CENTER
Management Fees....................................... $ 14,500 $ 36,000
Municipal Assessment.................................. 7,700 15,460
Operating expenses related to vacant space............ 800 5,141
------- --------
23,000 56,601
------- --------
GARDENS SQUARE
Management Fees....................................... 2,800 5,400
Expenses absorbed by Landlord......................... 8,000 23,300
Operating expenses related to vacant space............ 10,800 29,800
------- --------
21,600 58,500
------- --------
$ 44,600 $ 115,101
------- --------
------- --------
31
Real estate tax authorities are expected to reassess the Properties as a
result of the acquisition by the Corporation. Management has calculated the
maximum impact of a reassessment based on the purchase price of each property.
Over 50% of the increase will be passed through to the tenants in accordance
with their leases. The following is a summary of the maximum increase in real
estate taxes and the portion which can be recovered as a result of the
acquisition of the Properties by the Corporation:
ANNUAL INCREASE RECOVERABLE
IN REAL ESTATE PORTION OF
TAXES (1) INCREASE
--------------- -----------------
Chico Crossroads Center.................................. $ 60,000 $ 29,000
Gardens Square........................................... 47,000 25,000
--------------- -------
$ 107,000 $ 54,000
--------------- -------
--------------- -------
- ------------------------
(1) Pertaining to reassessment resulting from the acquisition by the
Corporation.
The pro forma statements of income have been adjusted to reflect both the
increase in real estate taxes and the recoverable portion of the increase. The
nonrecoverable portion of the increase in real estate taxes at the Chico
Crossroads Center relates to a tenant whose lease specifies that they are not
required to pay any increase in real estate taxes which result from the sale of
the property for the first five years after a sale of the Property. The pro
forma statements of income have also been adjusted for the proposed increase in
property management fees in the amount of $21,000 per annum. This increase will
not be recoverable from tenants.
Over 39% of the gross leasable area of the Properties is leased to tenants
whose leases contain percentage rent clauses which call for additional rents
based on tenant sales. Chico Crossroads Center has two tenants who have paid
percentage rent for several years. Rental revenue for the six months ended June
30, 1996 includes $50,000 of percentage rent and rental income for the year
ended December 31, 1995 includes approximately $134,000 of percentage rent. Over
$112,000 of the percentage rent for the year ended December 31, 1995 was
received from a tenant who benefitted from the closure of a competitor in 1995.
In 1994 this tenant paid $78,000 in percentage rent and its percentage rent for
1996 is expected to decline with the introduction of a new competitor in 1996.
Aside from the two tenants currently paying percentage rent, none of the other
tenants with percentage rent clauses are expected to attain sales sufficient to
generate percentage rent in 1996 or 1997.
Amortization is based on the Corporation's acquisition price calculated as
if the Corporation had purchased the Properties at the beginning of the periods.
Amortization includes (i) amortization of the buildings acquired calculated on a
straight line basis over the estimated useful lives of 40 years, and (ii)
amortization of land improvements calculated on a straight line basis over the
estimated useful lives of 20 years. Interest expense is based on the Mortgage
the Corporation will assume on the acquisition of the Properties. The interest
rate on this mortgage is fixed at 7.94% through to December 21, 2002. Interest
expense includes the amortization of the mortgage assumption fee over the
remaining term of the mortgage. General and administration expense reflects the
estimated general and administration expense of the Corporation based upon fee
quotations obtained from various service providers. Asset management fees are
based on the Advisory Agreement. Pro forma net income per share was $.34 for the
year ended December 31, 1995 and $.20 for the six months ended June 30, 1996.
CALCULATION OF FUNDS FROM OPERATIONS
Industry analysts generally consider funds from operations to be an
appropriate measure of the performance of an equity REIT. Funds from operations
is defined by the National Association of Real Estate Investment Trusts
("NAREIT") as net income (computed in accordance with generally accepted
accounting principles) excluding gains (or losses) from debt restructuring and
sales of property plus amortization of real estate assets. Amortization of
deferred financing costs and amortization of non real estate assets are not
added back to net income to arrive at funds from operations. Funds from
operations should not be considered an alternative to net income as a measure of
profitability nor is it comparable to cash flows provided by operating
activities determined in accordance with generally accepted accounting
32
principles. The reconciliation of pro forma net income to pro forma funds from
operations under NAREIT is as follows:
FOR THE SIX MONTHS ENDED JUNE 30, 1996:
Pro forma net income.................................. $ 536,164
Amortization of real estate assets.................... 323,724
---------
Pro forma funds from operations....................... $ 859,888
---------
---------
FOR THE YEAR ENDED DECEMBER 31, 1995:
Pro forma net income.................................. $ 930,764
Amortization of real estate assets.................... 647,448
---------
Pro forma funds from operations....................... $1,578,212
---------
---------
LIQUIDITY AND CAPITAL RESOURCES
The Corporation will acquire the Properties with a combination of equity
raised through this Offering and mortgage financing. Upon completion of the
offering, the Corporation expects to have acquired rental properties with a
total cost of approximately $30,998,500, and assumed a mortgage payable in the
amount of $6,710,000. The Corporation's debt immediately following the closing
of the Offering will be approximately 21% of total debt plus stockholders'
equity. The Corporation may increase the level of debt to as high as 60% of
total debt plus equity. The proceeds from any additional debt would be used to
acquire additional properties. In addition, the Corporation may make additional
acquisitions through a combination of equity and mortgage and other debt
financing.
A significant portion of the Corporation's net cash provided by operating
activities will be distributed to stockholders. Accordingly capital outlays for
major repairs, and debt repayments may require funding from borrowings or equity
offerings to the extent that cash reserves are insufficient. The Corporation is
expected to have cash balances of approximately $549,500 after the closing of
the Offering.
The Corporation will assume the mortgage financing on Gardens Square. Under
the terms of the mortgage the Corporation will be required to pay real estate
taxes into an escrow account with the lender. Real estate taxes on Gardens
Square are payable annually in November. Although shop tenants are required to
escrow real estate taxes with the landlord two anchor tenants are not required
to pay their real estate taxes until they receive proof of payment from the
landlord. Gardens Square real estate taxes for 1997 are estimated to be $187,000
and the Corporation will escrow 8.3% of this amount each month. The Corporation
will receive less than 3% of this amount each month from shop tenants.
The Corporation has had engineering studies performed on the Properties as
part of its acquisition due diligence. These studies concluded that the
buildings and sites are in good condition and that any immediate repairs
required are immaterial.
The Corporation recognizes minimum base rents on a straight line basis over
the terms of the leases. Rental income for the six months ended June 30, 1996
includes approximately $18,000 of rent in excess of amounts currently owed under
the leases. Rental income for the year ended December 31, 1995 includes
approximately $37,000 of such rent. The Corporation also recognizes lease
termination revenue in the period that the tenant terminates its rights and
benefits under the terms of the lease and vacates the premises. Under the terms
of a lease termination agreement signed in March 1996 a tenant was required to
make regular minimum lease payments through to September 1, 1996. Rental revenue
for the six months ended June 30, 1996 includes lease termination revenue which
is collectable subsequent to June 30, 1996 in the amount of approximately
$55,000. The related space has been re-leased.
INFLATION
The Corporation believes that inflation should not have a material adverse
effect on the Corporation. Although increases in the rate of inflation may
increase interest rates which the Corporation may be required to pay on borrowed
funds, the Corporation intends to stagger the maturity of mortgage financing to
limit the impact of such increases in any one year.
33
BUSINESS
THE CORPORATION
Basic U.S. REIT, Inc. is a corporation incorporated under the laws of the
State of Maryland on July 30, 1996. The Corporation has been incorporated to
invest in a diversified portfolio of income producing commercial real property
in the United States with the objective of maximizing the yield to its
stockholders while providing for long-term stability and growth. The Advisor has
identified the Properties as opportunities for the Corporation and the
Corporation intends to acquire additional properties with a view to enhancing
the income yield of the Corporation to its stockholders. Initially the
Corporation will focus on community and neighborhood shopping centers. During
this phase, the Corporation will look for properties with a significant
percentage of national and regional tenants, with reputation and marketing clout
that will attract significant traffic to the center, providing business for
itself and also to smaller tenants. The Corporation will seek properties with
anchor tenants who are among the leaders in their respective fields or whose
operations are national or regional in scope. The Corporation intends to utilize
as sources for its future acquisitions available working capital, proceeds from
future equity financing and mortgage or debt financing. See "Policies With
Respect To Certain Activities--Financing Policies."
A purpose of the Corporation is to provide investors with a favorable yield
on their investment in the Common Stock through participation in a diversified
portfolio of income producing real property investments in the United States. To
the extent that the funds of the Corporation are not invested by the Corporation
in real property investments from time to time, they will be invested in
Authorized Investments. The Corporation intends to qualify as a REIT for the
purposes of the Code commencing with its taxable year ending December 31, 1997.
A corporation which qualifies as a REIT under the Code will be entitled to
deduct dividends paid in calculating taxable income for U.S. purposes so that
the REIT may be able to reduce or eliminate taxable income and flow through to
investors in the REIT the pre-tax income derived from the underlying investment
assets.
The Corporation has no operating history, has no material net worth, has not
declared dividends on its outstanding shares and has not paid any cash
remuneration to its directors or officers as of the date of this Prospectus. The
Board of Directors is responsible for the general control and direction of the
Corporation, including decisions regarding the acquisition and disposition of
the Corporation's assets (subject to certain restrictions contained in the
Amended and Restated Articles of Incorporation and the bylaws of the
Corporation). See "Management" and "Certain Provisions of Maryland Law and the
Corporation's Amended and Restated Articles of Incorporation and Bylaws." The
Corporation may retain affiliated property managers of the Properties who will
be responsible for the on-site and property specific aspects of the management
of the Corporation's real properties. The Advisor will, on a continuing basis,
present investment opportunities to the Corporation, act as investment advisor
to the Corporation and administer certain of the day-to-day operations of the
Corporation. See "Management--The Advisor."
The executive office of the Corporation is located at 7850 Northwest 146th
Street, Suite 308, Miami, Florida 33016, telephone number 305-556-7162.
INVESTMENT OBJECTIVES
The Corporation has been created to provide investors with the opportunity
to make equity investments in income producing real property in the U.S.
The types of real property which the Corporation intends to acquire have
traditionally been acquired by institutional investors due to the large
financial commitments which are necessary to acquire such properties. The
benefit offered by the Corporation is that it provides the individual investor
with an opportunity to invest in such real estate as a result of the pooling of
investment funds with other investors.
The Corporation will utilize the services of the Advisor. The Board of
Directors and the Advisor are responsible for the supervision of the management
and operation of the Corporation and its properties,
34
thereby providing a convenience to the investors not normally found in direct
property investments. The Advisor will provide, retain and supervise property
managers who will provide day-to-day management of the properties of the
Corporation.
The Corporation's objectives are:
- to own and operate income producing real property;
- to generate income for distribution;
- to preserve and increase the Corporation's equity through appreciation of
the value of its assets; and
- to increase the Corporation's equity through amortization of mortgage
financing.
The Corporation intends to continually enhance returns through an ongoing
acquisition program designed to provide economies of scale through the decline
of general and administrative expenses and fees as a percentage of assets and
revenues and to reduce risk through geographic and portfolio diversification.
The Corporation believes that the diversification inherent in the pooling of
real estate assets in a REIT should result in significant risk reduction
relevant to direct ownership of specific real estate. The Corporation will seek
additional properties which are expected to have long-term predictability of
income, where credit-worthy tenants with net leases will be a majority of the
occupants. The Corporation's assets are expected to appreciate through scheduled
increases in rental income and the Corporation intends to manage its portfolio
to maintain and enhance the value of its properties.
POLICIES WITH RESPECT TO CERTAIN ACTIVITIES
INVESTMENT POLICIES
The Corporation intends to acquire controlling interests (possibly with
joint venture partners) in income producing commercial real properties located
in the United States utilizing a combination of funds derived from available
working capital, proceeds from future equity financing and mortgage and other
debt financing if available. These acquisitions are intended to be completed in
phases, with the initial phase consisting of the acquisition of neighborhood and
community shopping centers. The portfolio of properties will offer as much
geographic diversification as practical, given the size of the REIT.
The Advisory Agreement contains certain general investment policies which
are guidelines for the Advisor in presenting investment prospects for the
Corporation. Such investment policies may be amended from time to time by a
majority of the Board of Directors, such majority to include a majority of the
independent directors. The bylaws of the Corporation set forth restrictions on
the Corporation's investments which may only be amended with the majority
approval of the Board of Directors of the Corporation, such majority to include
a majority of the independent directors, and by the majority of the votes cast
at a meeting of the holders of the Common Stock of the Corporation. Initially,
the Corporation will focus on neighborhood and community shopping centers. These
properties will offer the advantage of a basic minimum rent, substantially net
of such expenses as maintenance and taxes and potentially the percentage share
of sales volume of the retail outlets.
The Corporation will consider acquiring shopping centers that satisfy a
combination of some or all of the following eight factors in making its initial
property analysis. Priority will be given to centers: (1) with anchor tenants,
such as department stores, supermarkets and national retail chains, to ensure
the quality of retail services offered by the center, the quality of its tenants
and the desired return on sales; (2) which, if combined with the other real
property investments of the Corporation, provide the Corporation with a
diversified tenant base with the anchor tenants accounting for a minimum of
sixty percent (60%) of the gross leasable area of the Corporation's portfolio of
shopping centers; The anchor tenants should be dominant enough to establish the
shopping center as a destination center; (3) where the average anchor lease
extends for a minimum of ten (10) years from the date of acquisition by the
Corporation; (4) in a
35
strategic location in a strong market area with convenient access and visibility
to a high traffic area; (5) with construction materials which are of
sufficiently high quality to require no more than industry standard levels of
maintenance; (6) with convenient access for both shoppers and tenants; (7) where
rental rates are on average at or lower than comparable market rates in the area
(to reduce the possibility of losing tenants to other sites and to create the
potential to increase rates in the future); and (8) in a location experiencing
above average growth in retail sales provided that the growth in the retail
sector for that area will not outpace economic growth in the area.
The Corporation will obtain an independent third party appraisal, an
environmental assessment and an engineering report for each center. It may
participate with other entities (not including affiliates) in property
ownership, through joint ventures or other types of ownership. The Corporation
may seek mortgage financing for its real estate investments and other debt
financing which is non-recourse to the Corporation (other than obligations
relating to environmental matters, waste to property, frauds or
misrepresentations, taxes or other assessments, tenant prepayments, condemnation
and insurance proceeds, grossly negligent violations of law and net revenue
obligations and other obligations customarily retained in non-recourse
financing). The Corporation may consider cross-collateralized loans to reduce
borrowing costs and may also take on recourse obligations such as lines of
credit and loans for property expansion. The Corporation intends to continue to
acquire only shopping centers until the aggregate of the acquisition prices of
all properties owned by the Corporation exceeds $100 million.
Although the Corporation will emphasize direct wholly owned investments in
its properties, it may, subject to the restrictions set forth below, in its
discretion invest in joint ventures, mortgages and other real estate securities
or interests, consistent with its qualification as a REIT. The Corporation may
invest in real estate joint ventures if it concludes that by doing so it may
benefit from the participation of coventurers or that the opportunity of the
Corporation to participate in the investment is contingent on the use of a joint
venture structure. The Corporation may not invest in hotels, nursing homes or
similar real estate which includes the operation of a business separate and
distinct from the operation of income producing property.
The Board of Directors will review the investment policies before any new
acquisition phase is commenced and modify the policy as necessary to maximize
stockholder value. The Board of Directors is authorized to amend the investment
policies to include industrial, office, residential rental and mixed-use
properties. However, any amendment of the investment policies will require the
approval of a majority of the Board, such majority to include a majority of the
independent directors.
INVESTMENT RESTRICTIONS
In accordance with the objectives of the Corporation and to limit financial
and other risks, the Corporation intends to comply with the following
restrictions which are set out in the bylaws of the Corporation and which may
only be amended, revised or terminated with the majority approval of the Board
of Directors of the Corporation, such majority to include a majority of the
independent directors, and by the majority of the votes cast at a meeting of the
holders of the Common Stock of the Corporation:
- the Corporation will not make any investment that would result in its
ceasing to qualify as a REIT under the Code;
- the Corporation may not incur indebtedness if the aggregate outstanding
principal amount of all indebtedness of the Corporation exceeds sixty
percent (60%) of the greater of the aggregate acquisition prices or the
current fair market value of all properties of the Corporation. For
purposes of the foregoing determination, the fair market value of all
properties of the Corporation is required to be determined by an
independent third party appraisal;
36
- the Corporation may not engage in construction or development of real
property except to the extent to maintain its properties in good repair,
for expansion of an existing property or to otherwise enhance the
income-producing ability of the properties;
- except as otherwise permitted by the Code for investments from proceeds of
financings, pending investment or reinvestment, cash on hand will be
invested in Authorized Investments;
- the Corporation may not invest in mortgages, unless the underlying
security is income-producing property or is in the process of being
developed as income-producing property, all such mortgages in the
aggregate do not exceed 10% of the aggregate cost of assets of the
Corporation, the mortgage is a first mortgage and the term of the mortgage
is five (5) years or less and the amortization period is thirty (30) years
or less;
- after the acquisition of the Properties, the Corporation may not acquire
any single investment in real property if the cost to the Corporation of
such acquisition will exceed (1) $25 million until the aggregate
acquisition prices of all properties owned by the Corporation inclusive of
the proposed investment exceeds $100 million and (2) after the aggregate
acquisition prices of all properties owned by the Corporation exceeds $100
million, twenty-five percent (25%) of the aggregate acquisition prices of
all properties inclusive of the proposed investment; and
- the Corporation may not grant or assume a mortgage on any office property
if the aggregate outstanding principal amount of the mortgage and of all
other mortgages granted or assumed by the Corporation secured against its
office properties or any part thereof exceeds fifty percent (50%) of the
aggregate acquisition prices of all office properties of the Corporation.
FINANCING POLICIES
While one of the Corporation's objectives will be the acquisition of
additional shopping centers and other properties, the number of different
properties the Corporation can acquire will be affected by future equity and
forms of mortgage and other debt financing. Such financing may be available only
on disadvantageous terms, if at all. If financing is not available on acceptable
terms for new acquisitions, further acquisitions might be curtailed and cash
available for distribution might be adversely affected. The net proceeds to the
Corporation after application of all Offering expenses and costs and the cash
purchase prices of the Properties will be approximately $549,000. The
Corporation currently intends to employ financing policies in pursuit of its
growth strategies consistent with limitations imposed in the Corporation's
organizational documents. The Corporation currently intends to pursue its growth
strategies while maintaining a capital structure whereby its debt will not
exceed 60% of its total debt and equity. The Corporation may from time to time
reevaluate and modify its current borrowing policies in light of then current
economic conditions, relative costs of debt and equity capital, market values of
properties, growth and acquisition opportunities and other factors and may
decrease its ratio of debt to equity accordingly.
THE PROPERTIES
Basic Acquisitions, Inc. (the "Nominee"), a Delaware corporation controlled
by the Advisor, has entered into agreements to acquire the Properties, which
will be assigned to the Corporation prior to the Closing for nominal
consideration. Upon assignment, the Corporation will reimburse the Nominee for
all
37
deposits paid under the acquisition agreements assigned. The following table
sets forth aggregate lease and rental information concerning the Properties.
GROSS AVERAGE
LEASABLE ANNUAL BASE RENT PURCHASE
PERCENTAGE AREA ANNUAL BASE PERCENTAGE PER SQ. PRICE PER
CENTER LEASED (1) ("GLA") RENT (2) RENT (3) FT. (4) SQ. FT. (5)
- ------------------------------------------- ----------- --------- ------------ ----------- --------- -----------
Chico Crossroads Center ................... 99.6% 267,496 $ 1,980,559 $ 133,856 $ 7.43 $ 79.75
Chico, California
Gardens Square ............................ 96.5% 90,258 $ 946,883 -- $ 10.87 $ 107.09
Dade County, Florida
Weighted Average........................... $ 8.28 $ 86.65
- ------------------------
(1) As of September 30, 1996.
(2) Annualized base rent is calculated based on the minimum base rent payable
under the leases in place as of September 1, 1996 and excludes percentage
rents, CPI increases and reimbursement of operating expenses.
(3) For the year ended December 31, 1995.
(4) Calculated on gross leased area.
(5) Purchase price includes acquisition fees and expenses.
CHICO CROSSROADS CENTER
ACQUISITION AGREEMENT
The Nominee has entered into an agreement with Chico Crossroads Center,
Ltd., a California limited partnership, to acquire the Chico Crossroads Center,
an approximately 267,000 square foot community shopping center in northern
California, between Sacramento and Redding for the purchase price of
$20,912,500. The Advisor has paid the deposits under the acquisition agreement
aggregating $500,000 and the balance of the purchase price is payable in cash on
the date of acquisition.
Prior to closing, the Nominee will assign its rights and obligations under
the Chico Acquisition Agreement to the Corporation. On closing, the Corporation
will reimburse the Advisor for the deposits paid.
The Chico Acquisition Agreement provides the purchaser with the right to
inspect the property and to conduct various investigations including the
compliance with zoning requirements, analysis of tenants and environmental
matters prior to closing. The Nominee has given notice to Chico Crossroads
Center, Ltd., that it is satisfied with its investigations and accordingly the
Corporation will be obligated to complete the acquisition upon:
a) receipt of the proper deed, bill of sale, assignment of leases and other
similar documentation;
b) receipt of a title insurance policy with coverage equal to the
acquisition price of $20,912,500 showing title vested in the purchaser
subject to encumbrances or exceptions permitted in the Chico Acquisition
Agreement;
c) the representations and warranties of Chico Crossroads Center, Ltd.
being true as of the date of acquisition; and
d) receipt of estoppel certificates executed by certain of the tenants.
There are various representations and warranties of the seller contained in
the Chico Acquisition Agreement which are usual in a transaction of this nature.
However, it is uncertain whether Chico Crossroads Center, Ltd., will retain
significant assets after the completion of the transaction to satisfy any
38
action by the Corporation for misrepresentation. The Corporation has performed
an investigation of the property and believes that any misrepresentation by the
seller would not require any material capital expenditure by the Corporation,
but no assurance can be given that such a capital expenditure will not be
necessary.
The total cost of the property (purchase price and acquisition fees and
expenses) will be allocated for Federal tax purposes as follows:
FEDERAL TAX DEPRECIATION FOR TAX
BASIS PURPOSE
---------------- ---------------------------
Land........................................... $ 4,500,000 Nil
Land improvements.............................. 1,200,000 20 year straight line
Building....................................... 15,632,500 40 year straight line
----------------
$ 21,332,500
----------------
----------------
The Corporation will elect to use the depreciation methods provided for
earnings and profits purposes for regular tax purposes.
DESCRIPTION OF PROPERTY
VICINITY
Chico Crossroads Center is located in the southeast section of Chico on the
southwest corner of the major interchange of Route 99 and East 20th Street. The
center was built in 1989 on the 20.75 acre site and has parking for
approximately 1,000 vehicles. The center backs onto and is clearly visible from
Route 99 and the center has four entrances off Whitman Avenue which runs
parallel to Route 99. Whitman Avenue is easily accessed from East 20th Street or
Park Avenue, both of which are accessible from Route 99 off ramps. The core of
the retail market in Chico is the Route 99 and East 20th Street interchange.
Most of the nationally recognized retailers operating in Butte County are
represented within a few miles of the interchange thereby attracting consumers
to the area. On the southeast corner of Route 99 and East 20th Street is an
approximately 225,000 square foot strip center anchored by Toys 'R' Us and
Target with a free-standing Wal-Mart store adjacent to it along Route 99. On the
northeast corner of the interchange is the Chico Mall, an enclosed mall of
approximately 435,000 square feet anchored by J.C. Penney, Sears, Gottschalks
and Troutman's. The Chico Mall has a tenant mix including Copeland Sporting
Goods, The Limited, GAP, Payless Shoes, Hallmark and B. Dalton Books. Next to
the Chico Mall is a free-standing Waremart Food Store. On the west side of
Whitman Avenue diagonally across from Chico Crossroads Center is a free-standing
Costco store, with an 8 acre parcel of land zoned industrial. Next to the Chico
Crossroads Center is a 12 acre parcel of vacant land zoned commercial, which has
not been developed. The rent per square foot in the vicinity for community
shopping centers ranges from approximately $7.00 to $15.00 and occupancy rates
for community shopping centers range from 88% to 100%.
39
OCCUPANCY
The table below sets forth certain information with respect to the occupancy
rate at the Chico Crossroads Center for the time an unaffiliated third party had
owned the property and the annual rent per square foot received for the period.
The information, supplied by the seller of Chico Crossroads Center to the
Corporation, is unaudited.
ANNUAL RENTS RECEIVED PER
YEAR ENDED DECEMBER 31 OCCUPANCY RATE SQUARE FOOT*
- --------------------------------------------------- ------------------ ---------------------------
1995............................................... 99.2% $ 7.03
1994............................................... 99.6% $ 7.01
1993............................................... 92.2% $ 5.20
1992............................................... 92.0% $ 5.47
1991............................................... 90.7% $ 5.55
- ------------------------
* Based on minimum base rents payable under the leases and excludes percentage
rents received and reimbursement of operating expenses.
LEASE EXPIRATION SUMMARY
The following lease expiration summary is based on leases in place as of
September 30, 1996.
AVERAGE PERCENT OF PERCENT OF
APPROX. BASE RENT TOTAL BUILDING ANNUAL BASE
GLA OF EXP. ANNUAL BASE PER SQUARE GLA RENT
LEASES RENT OF FOOT UNDER REPRESENTED BY REPRESENTED BY
NUMBER OF (SQUARE EXPIRING EXPIRING EXPIRING EXPIRING
YEAR ENDED DEC. 31 LEASES EXP. FEET) LEASES* LEASES LEASES LEASES
- --------------------------- --------------- ----------- ------------ ----------- ---------------- ---------------
1996....................... 0 0 $ 0 $ 0.00 0.00% 0.00%
1997....................... 2 4,800 50,476 10.52 1.79% 2.55%
1998....................... 3 3,600 39,715 11.03 1.35% 2.00%
1999....................... 3 4,200 47,448 11.30 1.57% 2.40%
2000....................... 0 0 0 0 0.00% 0.00%
2001....................... 1 1,200 13,680 11.40 0.45% 0.69%
2002-2005.................. 0 0 0 0 0.00% 0.00%
2006....................... 1 6,681 80,172 12.00 2.50% 4.05%
2007-2010.................. 4 189,743 1,164,178 6.14 70.93% 58.78%
2011-2015.................. 3 56,272 584,890 10.39 21.04% 29.53%
----------- ------------ ----------- ----- ------
Leased..................... 17 266,496 $ 1,980,559 $ 7.43 99.63% 100.00%
----------- ------------ ----------- ----- ------
------------ -----------
Vacant..................... 1,000 0.37%
----------- -----
Total...................... 267,496 100.0%
----------- -----
----------- -----
- ------------------------
* Annual base rent includes minimum base rents payable under the leases and
excludes percentage rents, CPI increases and operating expense reimbursement
and assumes that none of the renewal options are exercised.
40
LEASE SUMMARY
The following lease summary is based on base rent payable under the leases
in place as of September 30, 1996.
(SQUARE CURRENT RENT PER LEASE
FEET) ANNUAL SQUARE EXPIRY RENEWAL
TENANTS LEASED BASE RENT FOOT DATE OPTIONS***
- -------------------------------------------------- ------------ ------------ ----------- --------- -------------
Waban Corp. (operating as Home Base)**............ 103,904 $ 537,210 $ 5.17 11/30/08 4X5
Office Depot Inc.................................. 22,000 141,460 6.43 10/30/09 3X5
Netco Foods Inc. (Food 4 Less).................... 54,239 379,668 7.00 2/28/09 3X5
Circuit City...................................... 23,014 230,131 10.00 10/31/14 5X5
Barnes & Noble Superstore Inc..................... 24,660 239,202 9.70 8/1/11 3X5
Blockbuster Video**............................... 6,681 80,172 12.00 9/1/06 3X5
Hometown Buffet................................... 9,600 105,840 11.03 12/31/08 2X5
Petco............................................. 8,598 115,557 13.44 11/30/14 3X5
Norwest Financial................................. 1,500 15,300 10.20 11/7/99 1X5
Avco Financial.................................... 1,200 12,096 10.08 4/30/98 1X5
Check X Change (Rowan Management Inc.)............ 1,200 14,400 12.00 11/30/98 1X3
Fantastic Sam's................................... 1,200 13,248 11.04 4/1/99 1X5
Nevada Bob's Golf*................................ 2,400 23,904 9.96 9/30/97 1X6
Play It Again Sports*............................. 2,400 26,572 11.07 7/20/97 1X5
Patty Tang Chinese................................ 1,200 13,219 11.02 4/1/98 1X5
Dry Cleaners...................................... 1,500 18,900 12.60 10/1/99 1X5
Vacant............................................ 1,000 0 0
TCBY Yogurt*...................................... 1,200 13,680 11.40 4/28/01 1X5
------------ ------------
TOTAL......................................... 267,496 $ 1,980,559
------------ ------------
------------ ------------
- ------------------------
* These tenants are franchisees and the franchisor is not a party to the
lease.
** Several of these leases are guaranteed by parent companies as follows: Home
Base is guaranteed by TJX Inc. Blockbuster Video is guaranteed by Viacom
Inc.
*** Number of renewal options times renewal period.
The leases are substantially net leases and tenants pay a majority of the
operating expenses. Real estate taxes are passed through to tenants with the
exception of a portion of the real estate taxes allocated to one of the tenants.
This tenant is not required to pay:
a) real estate tax increases due to reassessment on the sale of the property
for the first five years following the sale. The cost to the Corporation is
expected to be approximately $31,000 for each of the next five years; and
b) a portion of the realty taxes relating to a special assessment for road
expansion. The Corporation is responsible for the portion of this assessment
allocated to this tenant in excess of $20,000. The cost to the Corporation
will be approximately $15,500 annually.
Real estate taxes are currently $275,000 and are expected to increase, as a
result of the anticipated reassessment of the property on acquisition, to
$335,000.
Property management fees are currently set at $39,000 per year. The property
management fees are expected to increase to $60,000 per annum in 1997. Only
$3,000 of the property management fees were recovered from tenants in 1995. The
leases however provide for the recovery of over $10,000 of the property
management fees.
41
KEY FACTORS IN CORPORATION'S DECISION TO ACQUIRE
The Corporation's decision to acquire Chico Crossroads Center was based on a
variety of factors including the following:
a) STRONG GROWTH IN CHICO RETAIL SALES:
According to the City of Chico, Chico retail sales have grown 130% from
1985 to 1995. Chico is a university town as well as the retail center for
the local agricultural area.
b) TENANT MIX:
Over 96% of the center is occupied by national or regional retailers.
These anchors include Home Base, Office Depot, Food 4 Less, Circuit City,
Barnes and Noble, Blockbuster Video, Petco and Hometown Buffet.
c) LONG TERM LEASES:
Over 90% of the building area is leased to tenants whose leases expire
between the years 2007 - 2015. As at January 1, 1997, future minimum
rental payments excluding CPI increases, percentage rents, operating
expense reimbursement and lease renewals total $25,724,000.
d) LEASE TERMS:
The leases provide for regular increases in base rental payments which
over a 10 year period should result in an increase in base rental
payments of over 17%. In addition, two of the tenants have been paying
percentage rent under percentage rent clauses.
e) LOCATION OF THE CENTER:
The property is located next to the major intersection of Route 99 and
East 20th Street in the middle of the area in the city with the largest
number of nationally and regionally recognized retailers. The proximity
to the Chico Mall and other retailers in the area assists in attracting
traffic to this location.
f) RENTAL RATES:
Lease rental rates for the property vary from approximately $5 per square
foot to over $13 per square foot currently averaging $7.43 per square
foot. These rates are in the low end of the range of $7 to $15 in the
vicinity.
g) LOCAL OCCUPANCY RATES:
Local occupancy rates range from 88% in some centers in the northern part
of the city to closer to 100% in the immediate vicinity.
CHICO, CALIFORNIA
The City of Chico is located in Butte County, which is located in northern
California. Chico is approximately 90 miles north of Sacramento. Chico is a
major commercial center between Sacramento and Redding. Chico has a growing
population which has sparked growth in retail sales. Chico has a population of
approximately 47,000 which increased over 55% between 1985 and 1995. During that
same period retail sales increased over 130% from approximately $300 million to
approximately $700 million. Chico also has become a regional service center for
Butte County which has a population in excess of 200,000. The long-term
demographic trends of Chico indicate continued retail growth as the population
of Chico is becoming more mature. Chico is home to a California State University
campus, with approximately 16,000 students enrolled, and to Butte College, with
approximately 12,000 students enrolled. Manufacturing employers in the Chico
area include 3M Corporation, Aero Union Corporation, Chico Nut Corporation, Dole
Nut Corporation and Quaker Oats.
42
GARDENS SQUARE
ACQUISITION AGREEMENT
The Nominee has entered into an agreement with Miami Gardens Associates, a
New Jersey general partnership, to acquire Gardens Square, an approximately
90,000 square foot neighborhood shopping center located in Dade County, Florida.
The Advisor has paid deposits of $200,000 towards the purchase price of
$9,450,000. The balance of the purchase price will be paid by the payment of
$2,540,000 on acquisition and the assumption of the first mortgage loan in the
amount of $6,710,000 currently payable to Life Investors Insurance Corporation
of America. The first mortgage loan bears interest at a rate of 7.94% per annum
and requires monthly payments of principal and interest in the amount of
$52,214, based on a twenty-five year amortization. The loan is secured by a
first mortgage on the property and is due on December 21, 2002.
One hundred fifty thousand dollars of the purchase price will be paid into
an interest bearing escrow account. The funds in the escrow account will be
released to the purchaser 90 days after closing if the seller is not successful
in obtaining a five year option and lease agreement for a transmission tower on
the property with Bell South Mobility, Inc. or Majorco, L.P. ("Sprint") for a
minimum net rent of $16,000 per year. If the seller is successful in obtaining
the lease, it will have 455 days from closing of the purchase to obtain all
necessary regulatory approvals. If it is successful in obtaining the regulatory
approvals and Bell South or Sprint exercises the option, the escrowed funds
together with interest thereon will be released to the seller; otherwise the
escrowed funds together with interest thereon will be released to the purchaser.
Prior to closing, the Nominee will assign its rights and obligations under
the Gardens Square Acquisition Agreement to the Corporation. On closing, the
Corporation will reimburse the Advisor for the deposits paid.
The Gardens Square Acquisition Agreement provides the purchaser with the
right to inspect the property and to conduct various investigations including
the compliance with zoning requirements, analysis of tenants and environmental
matters prior to closing. The Nominee has given notice to Miami Gardens
Associates that it is satisfied with its investigations and accordingly the
Corporation will be obligated to complete the acquisition upon:
a) receipt of the proper deed, bill of sale, assignment of leases and other
similar documentation;
b) receipt of a title insurance policy with coverage equal to the
acquisition price of $9,450,000 showing title vested in the purchaser
subject to encumbrances or exceptions permitted in the Gardens Square
Agreement;
c) the representations and warranties of Miami Gardens Associates being
true as of the date of acquisition; and
d) receipt of estoppel certificates executed by certain of the tenants.
There are various representations and warranties of the seller contained in
the Gardens Square Acquisition Agreement which are usual in a transaction of
this nature. However, it is uncertain whether Miami Gardens Associates will
retain significant assets after the completion of the transaction to satisfy any
action by the Corporation for misrepresentation. The Corporation has performed
an investigation of the property and believes that any misrepresentation by the
seller would not require any material capital expenditure by the Corporation,
but no assurance can be given that such a capital expenditure will not be
necessary.
43
The total cost of the property (purchase price and acquisition fees and
expenses) will be allocated for Federal tax purposes as follows:
FEDERAL TAX DEPRECIATION FOR TAX
BASIS PURPOSE
---------------- --------------------------
Land............................................ $ 2,400,000 Nil
Land Improvements............................... 600,000 20 year straight line
Building........................................ 6,666,000 40 year straight line
----------------
$ 9,666,000
----------------
----------------
The Corporation will elect to use the depreciation methods provided for
earnings and profits purposes for regular tax purposes.
DESCRIPTION OF PROPERTY
VICINITY
Gardens Square is a neighborhood shopping center located at the northeast
corner of Miami Gardens Drive and N.W. 87th Avenue, approximately one mile east
of Interstate 75. The neighborhood is bounded on the north by the Florida
Turnpike and the Broward County line, on the south by the Palmetto Expressway
(S.R. 826), to the east by N.W. 57th Avenue and on the west by I-75. The east
portion of the neighborhood is almost fully developed while the western half of
the neighborhood is currently used for agricultural purposes.
The site consists of approximately 8.7 acres and has parking for 423
vehicles. It has approximately 300 feet of frontage along the north side of
Miami Gardens Drive and 436 feet of frontage on N.W. 87th Avenue. The site
includes two parcels which are not being acquired, one on the southwest corner
which is operating as a Chevron station and the other on the southeast corner
which is operating as a McDonald's restaurant. The site is accessible from two
entrances on Miami Gardens Drive and from two entrances on N.W. 87th Avenue. The
intersection of Miami Gardens Drive and N.W. 87th Avenue is signalized and Miami
Gardens Drive is a four lane divided highway.
The neighborhood is experiencing a significant amount of low and medium
density residential development. Two nearby parcels totaling 116 acres are
scheduled for residential development. The neighborhood is predominantly middle
and upper middle income class. The neighborhood has a population of 49,000 which
increased from 43,500 to 49,000 between 1990 and 1995. The median household
income is $47,138.
There are five other neighborhood shopping centers within a five mile radius
of Gardens Square. These centers account for approximately 717,000 square feet
of retail space and are each anchored by a grocery store. There is one community
center located three miles from Gardens Square. That community center consists
of approximately 244,000 square feet and is anchored by K-Mart. The rent per
square foot in the vicinity ranges from $14.00 to $18.00 and occupancy rates for
neighborhood and community shopping centers range from 92% to 96%.
44
OCCUPANCY
The table below sets forth certain information with respect to the occupancy
rate at the Gardens Square property for the time an unaffiliated third party had
owned the property and the annual rent per square foot received for the period.
The information, supplied by the seller of Miami Gardens Center to the
Corporation, is unaudited.
ANNUAL RENTS RECEIVED PER
YEAR ENDED DECEMBER 31 OCCUPANCY RATE SQUARE FOOT**
- --------------------------------------------------- ----------------- -------------------------
1995............................................... 95% $ 10.54
1994............................................... 95% $ 10.32
1993............................................... 84% $ 10.12
1992............................................... 84% $ 9.94
1991*.............................................. 77% $ 9.30
- ------------------------
* Year of completion.
** Based on minimum base rents payable under the leases and excludes percentage
rents and reimbursement of operating expenses.
LEASE EXPIRATION SUMMARY
The following lease expiration is based on leases in place as of September
30, 1996.
AVERAGE
APPROX . BASE RENT PERCENT OF PERCENT OF
GLA OF EXP. ANNUAL PER SQUARE TOTAL BUILDING ANNUAL BASE
LEASES BASE RENT FOOT UNDER GLA REPRESENTED RENT
NUMBER OF (SQUARE EXPIRING EXPIRING BY EXPIRING REPRESENTED BY
YEAR ENDED DEC. 31 LEASES EXP. FEET) LEASES* LEASES LEASES EXPIRING LEASES
- -------------------------------- ------------- ----------- ---------- ----------- --------------- ---------------
1996............................ 0 0 $ 0 $ 0 0% 0%
1997............................ 3 4,068 69,890 17.18 4.51% 7.38%
1998............................ 4 7,750 132,141 17.05 8.59% 13.96%
1999............................ 2 2,709 43,236 15.96 3.00% 4.56%
2000............................ 2 5,058 66,945 13.24 5.60% 7.07%
2001............................ 10 13,750 238,427 17.34 15.23% 25.18%
2002-2005....................... 0 0 0 0 0.00% 0.00%
2006............................ 1 1,900 28,500 15.00 2.11% 3.01%
2007-2010....................... 0 0 0 0 0.00% 0.00%
2011-2015....................... 2 51,873 367,744 7.09 57.47% 38.84%
--
----------- ---------- ----------- ------ ------
Leased.......................... 24 87,108 $ 946,883 $ 10.87 96.51% 100.00%
--
--
----------- ---------- ----------- ------ ------
---------- ----------- ------
Vacant.......................... 3,150 3.49%
----------- ------
Total........................... 90,258 100.00%
----------- ------
----------- ------
- ------------------------
* Annual base rent includes minimum base rents payable under the leases and
excludes percentage rents, CPI increases and operating expense
reimbursements and assumes that none of the renewal options are exercised.
45
LEASE SUMMARY
The following lease summary is based on base rent payable under the leases
in place as of September 30, 1996.
(SQUARE CURRENT LEASE
FEET) ANNUAL RENT PER EXPIRY RENEWAL
TENANTS LEASED BASE RENT SQUARE FOOT DATE OPTIONS*
- ----------------------------------------------------- ----------- ---------- ----------- --------- --------------
Publix Super Markets, Inc............................ 42,112 $ 263,200 $ 6.25 8/30/11 4X5
Jack Eckerd Corporation.............................. 9,761 104,544 10.71 7/17/11 4X5
Lakes Preschool...................................... 4,800 82,272 17.14 7/24/98 1X3 & 1X5
Blockbuster Video.................................... 3,850 65,450 17.00 6/30/01 2X5
Lady of America...................................... 3,858 48,225 12.50 11/3/00 1X5
Vacant............................................... 3,150 0 0 -- --
Pak Mail............................................. 1,200 18,720 15.60 3/19/00 1X5
Hair Cuttery......................................... 1,200 20,400 17.00 12/13/01
Dryclean USA......................................... 1,200 21,573 17.98 7/14/01 1X5
Gardens Square Liquors............................... 1,200 23,363 19.47 7/14/01 1X5
Lakes Nutrition, Inc................................. 1,268 21,826 17.21 1/26/97 1X5
Dollar Show Corp..................................... 1,574 25,530 16.22 5/5/99 1X5
Tomlinson Ins. Group/Alls............................ 1,600 25,600 16.00 11/30/97 1X3
Jon B. Gallinatti, DPM/Podiatrist.................... 1,200 22,464 18.72 3/29/97 1X5
Eric Pantaleon MD/Pediatrics......................... 1,135 17,706 15.60 8/11/99 1X5
Gardens Sq. Animal Hospital.......................... 1,900 31,977 16.83 8/28/98
Garden Sq Restaurant Inc............................. 1,900 28,500 15.00 12/31/06
Delux Framing........................................ 1,050 15,750 15.00 4/30/01 1X5
Hair Discovery....................................... 1,050 18,136 17.27 6/24/01 1X5
Country General Insurance............................ 1,050 18,171 17.31 8/22/01
Sunshine Chiropractic................................ 1,050 18,712 17.82 12/11/01
Georgia Hernandez, Dentist........................... 1,050 17,892 17.04 12/31/98 1X3
Enchanted Travel..................................... 1,050 17,814 16.97 9/16/01
Subway Restaurant.................................... 1,050 19,058 18.15 6/2/01 1X5
----------- ----------
TOTAL................................................ 90,258 $ 946,883 -- -- --
----------- ----------
----------- ----------
- ------------------------
* Number of renewal options times renewal period.
The leases are substantially net leases and the tenants pay a majority of
the operating expenses. Realty taxes are passed through to tenants. The only
exception to this is any realty tax increase attributed to the space leased by
Publix Super Markets resulting from the acquisition of the property. Realty
taxes are currently $140,000 per annum and are expected to increase to $187,000
per annum. The Corporation anticipates it will be required to pay approximately
$22,000 per annum relating to the Publix Super Markets space.
KEY FACTORS IN CORPORATION'S DECISION TO ACQUIRE
The Corporation's decision to acquire Gardens Square was based on a variety
of factors including the following:
a) TENANT MIX
Publix Super Markets is the largest regional grocery chain, Eckerd is a
regionally recognized drug store and Blockbuster Video is a nationally
recognized video and entertainment store. Publix, Eckerd and Blockbuster account
for over 60% of the gross leasable area of the center. The remainder of the
tenants
46
provide a service center for the neighborhood community. These tenants include a
liquor store, doctors, a dentist, a chiropractor, a nursery, restaurants,
insurance companies and hair salons.
b) LOCAL DEVELOPMENT
The key to a neighborhood center is the status and future development in the
three to five mile radius of the center. The population in the three mile radius
is approximately 49,000 and the Corporation expects that the immediate area will
see strong growth over the next few years as the available residential land
around the center is either presently zoned for or designated in the Dade County
Master Plan for an additional 11,000 residential units.
c) ANCHORS PERFORMANCE
Although anchors do not yet pay percentage rent both anchors report strong
sales which exceed national average sales per square foot for comparable
operations.
d) LONG TERM LEASES
The Publix Super Markets and Eckerd Corporation leases expire in 2011. As at
January 1, 1997 future minimum rental payments excluding CPI increases,
percentage rents, operating expense reimbursements and lease renewals total
$7,647,000. The non-anchor tenants traditionally have shorter term leases which
range from three to ten years. All of the leases of the non-anchor tenants
provide for annual CPI increases or minimum annual increases.
e) FINANCING
The property has an assumable mortgage which bears interest at a rate of
7.94%. The mortgage is due December 21, 2002.
DADE COUNTY, FLORIDA
Dade County is located along the southeastern tip of Florida. The primary
cities in Dade County include Miami, Hialeah, Miami Beach and Coral Gables. Dade
County has a population in excess of two million people and accounts for over
14% of Florida's population.
Dade County's employment base is broad; however, the service sector and
international trade still dominate. Major private employers include American
Airlines, Jackson Memorial Hospital, University of Miami, Southern Bell, Bell
South Telecommunications, Burger King Corporation, Florida Power & Light
Corporation, Business Department Store, Columbia/HCA Healthcare Corp., K-Mart,
Publix Super Markets and Winn Dixie.
47
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS OF THE CORPORATION
The initial Board of Directors will consist of five members, the majority of
whom will be independent and will not be affiliated with the Advisor.
The names and municipalities of residence of the directors and officers of
the Corporation, the offices held by them with the Corporation and their
principal occupations are as follows:
NAME AND MUNICIPALITY AGE OFFICE PRINCIPAL OCCUPATION
- ------------------------------------ --- -------------------------- -----------------------------------------
Ronald L. Bernbaum ................. 45 Chairman of Board President, Basic Capital Funds
North York, Ontario
Carl Maynard ....................... 61 Director, President and Principal, The Maynard Rich Companies;
Miami, Florida Chief Executive Officer President, Basic Advisors, Inc.
Larry Thrall * ..................... 55 Director Chairman, Monterrey Partners
Los Angeles, California
Robert G. Witterick, Q.C.* ......... 53 Director Partner, Smith Lyons, Toronto
North York, Ontario
Nils Peterson * .................... 60 Director President, Hygate Management
Marblehead, Massachusetts
Richard Schwartz ................... 46 Vice President Principal, The Maynard Rich Companies
Miami, Florida
Terry McCrae ....................... 44 Treasurer, Chief Financial Vice President, Investments Basic Capital
Mississauga, Ontario Officer and Vice Funds; Vice President, Basic Advisors,
President, Finance Inc.
Aran Kwinta ........................ 38 Secretary Lawyer, Chaiton & Chaiton
Toronto, Ontario
Richard Dickerson .................. 40 Vice President President, Maynard Rich Management Corp.
Pasadena, California
- ------------------------
* Messrs. Thrall, Witterick and Peterson are independent of the Advisor and
its affiliates.
Each of the directors and officers of the Corporation has held the principal
occupations set out above for the last five years except with respect to the
Corporation and the Advisor which were organized in 1996 and except as set forth
below:
Ronald L. Bernbaum has been the President of Basic Capital Funds and its
predecessor Medstar Properties Inc. since 1989. Basic Capital Funds provides
funding and management to companies in the real estate and software development
industries. In this capacity he has been responsible for the funding,
acquisition and management of over $100 million of real estate assets and $150
million of software development and the funding of numerous start-up companies.
Mr. Bernbaum is a graduate of Osgoode Hall Law School, North York, Ontario.
Carl Maynard has been a principal of The Maynard Rich Companies since 1988.
The Maynard Rich Companies provide real estate asset management, property
identification and evaluation, and property management services to foreign and
domestic institutional and individual investors. Mr. Maynard has over 34 years
of real estate experience and served as Executive Vice President and Chief
Operating Officer from 1980 to 1984 of HMG Property Investors Corp., a U.S. Real
Estate Investment Trust listed on The
48
American Stock Exchange. Mr. Maynard has a Bachelor Degree in Electrical
Engineering from Union College.
Larry Thrall has been the Chairman of Monterrey Partners, a California real
estate developer, since 1990. Prior to joining Monterrey Partners Mr. Thrall was
President, Chief Executive Officer and a Director of a private real estate
company. Mr. Thrall continues to serve on the Board of this real estate company
and is a member of the Board of Directors of several other private companies.
Mr. Thrall also served as Vice-Chairman of the Board for Hon Fed Savings Bank,
Southern California Savings and Loan, and Western Savings and Loan.
Robert Witterick has been a partner of Smith Lyons, Barristers and
Solicitors, specializing in taxation and corporate/commercial law, with
particular emphasis on the taxation and structuring of real estate syndications.
Mr. Witterick is currently a Director of a REIT listed on the Toronto Stock
Exchange which invests primarily in Canadian real estate. Mr. Witterick is a
graduate of Osgoode Hall Law School, North York, Ontario.
Nils Peterson has been the President of Hygate Management, an investment
management company, since 1991. From 1974 to 1990, Mr. Peterson was the Chief
Investment Officer of Harvard Management Corporation, the investment advisor of
the Harvard University endowment fund. Mr. Peterson is currently a Director of
Eastern Bank, Boston Mutual Life Insurance Corporation and Edge Petroleum
Corporation.
Richard Schwartz has been a Principal of The Maynard Rich Companies since
1988. Prior to joining The Maynard Rich Companies, Mr. Schwartz served as Chief
Executive Officer of the Courtrust Companies, a real estate investment firm, and
as Executive Vice President of First Capital Financial Corp., a NASDAQ listed
sponsor of public real estate partnerships with over $400 million of real estate
assets. Mr. Schwartz has a M.B.A. from New York University and has over 18 years
of real estate experience.
Terry McCrae joined Basic Capital Funds as Vice President, Investments in
November, 1995. Prior to joining Basic Capital Funds, Mr. McCrae served from
May, 1994 to November, 1995 as the Chief Financial Officer of Advanced Material
Resources Limited, a Canadian public corporation listed on the Toronto Stock
Exchange with manufacturing plants in China and distribution facilities in the
United States, Japan, and Europe. Mr. McCrae was President of T J McCrae &
Associates Inc., which provided management consulting services, from August,
1993 to May, 1994 and was the Chief Financial Officer and Vice President of
Finance of a private real estate corporation, Martin Atkins Limited, and its
related development, management and investment companies from May, 1987 to
August, 1993. Mr. McCrae is a Canadian Chartered Accountant.
Aran Kwinta is a lawyer with the law firm of Chaiton & Chaiton, Barristers &
Solicitors, practicing primarily corporate and commercial law. Prior to joining
Chaiton & Chaiton in 1996, Mr. Kwinta was a partner with the law firm of Gordon
Traub, Barristers & Solicitors, from February 1, 1990 to August 31, 1996. Mr.
Kwinta is currently a director of Dimensional Media, Inc. Mr. Kwinta is a
graduate of Osgoode Hall Law School, North York, Ontario.
Richard Dickerson has been President of Maynard Rich Management Corporation,
a GNMA and HUD approved property management company since 1994. Prior to that,
Mr. Dickerson was President of Greenfield Management, Inc. from 1992-1994 and
President of T.O.P. Manager, Inc. from 1987-1992. In his capacity as President
of three property management companies, he was responsible for the management of
over 1,300 apartment units, 300,000 square feet of office space and 600,000
square feet of retail space. He also served on the Board of Directors of Century
City Savings and Loan from 1986 to 1989. Prior to 1987, Mr. Dickerson was a
partner in a C.P.A. firm which specialized in real estate syndication and tax
work. He has a B.A. in Accounting from the University of Southern California,
where he also taught as a Lecturer of Accounting for 2 years.
49
COMPENSATION
The independent directors will receive annual compensation of $7,500. In
addition, they will receive $350 for each board meeting or committee meeting
they attend, together with reasonable travel costs incurred.
The officers of the Corporation are not paid cash compensation by the
Corporation. Such officers are officers of the Advisor, and its affiliates,
which entities are entitled to certain fees for services rendered by them to the
Corporation. See "Management--The Advisor, Terms of the Advisory Agreement, Fees
and Expenses."
STOCK OPTION PLAN
The Corporation has reserved 250,000 shares of common stock of the
Corporation to be granted to officers, directors and employees of the
Corporation and the Advisor for issuance under a stock option plan. Under the
terms of the stock option plan, the maximum number of options granted and
outstanding cannot exceed 10% of the issued and outstanding Common Stock. The
stock option plan allows for the grant of options that are exercisable at fair
market value of the Common Stock at the date of grant as established by the
Board of Directors. The Board of Directors has the authority under the stock
option plan to determine the terms of options granted including, among other
things, the individuals who will receive options, the times when they will
receive them, whether an incentive stock option will be granted, the number of
shares to be subject to each option and the date or dates each option will
become exercisable. The Board of Directors also has the authority to grant
options upon the condition that the individual agrees to cancel all or a part of
a previously granted option.
The exercise price and term of each option are fixed by the Board of
Directors provided, however, that the exercise price must be at least equal to
the fair market value of the Common Stock on the date of grant and the term
cannot exceed five years. There is no limit on the number of options that may be
granted to any one individual, provided that the grant of the options may not
cause the Corporation to fail to qualify as a REIT for U.S. Federal income tax
purposes. On September 25, 1996, the Corporation granted to Mr. Bernbaum options
to purchase 20,000 shares of Common Stock and to each of Messrs. Maynard,
Thrall, Witterick, Peterson, Schwartz, McCrae, Kwinta and Dickerson, options to
purchase 10,000 shares of Common Stock of the Corporation. Such options will be
exercisable at the initial public offering price and may not be exercised prior
to the sixth month anniversary of the closing of the Offering.
THE PROMOTERS
The promoters of this Offering are Basic Capital Funds, a limited
partnership formed under the laws of the Province of Ontario on December 29,
1993, and Maynard Rich/Abraham Inc., a corporation incorporated under the laws
of the State of Florida in 1995 (collectively, the "Promoters"). Basic Capital
Funds Inc., the general partner of Basic Capital Funds, is a corporation
incorporated under the laws of the Province of Ontario. Basic Capital Funds in
its capacity as principal or promoter, identifies, structures and funds capital
projects and start up companies. In many instances, Basic Capital Funds'
investments include those which attract enhanced tax benefits pursuant to the
Income Tax Act of Canada. Its staff of chartered accountants and lawyers have
considerable experience in, tax, real estate, intellectual property, securities
and corporate commercial transactions. For the start up company, Basic Capital
Funds provides "turn-key" assistance from finance to accounting and marketing.
It seeks to bridge the gap between venture capital and hands on management
assistance in operations.
Ronald L. Bernbaum is the sole director and President of the general partner
of Basic Capital Funds. Mr. Bernbaum has been the President of Basic Capital
Funds and its predecessor Medstar Properties Inc. since 1989. In this capacity,
he has been responsible for the funding, acquisition and management of over
50
$100 million of real estate assets and the funding of $150 million of software
development and the funding of numerous software companies. Mr. Bernbaum is a
graduate of Osgoode Hall Law School 1977.
Maynard Rich/Abraham Inc. and its affiliate companies were formed in 1988.
They have performed various real estate services for institutional and
individual investors, both foreign and domestic. They have initiated mortgage
debt financing for shopping centers, office buildings and net leased properties,
performed workout services for both retail and residential (apartment and
townhouse) properties, represented owners in Chapter 11 proceedings, managed
portfolios totaling in excess of $100 million in value and been engaged in real
estate brokerage transactions in excess of $150 million in value involving both
improved and unimproved properties. Maynard Rich/Abraham's primary office is in
South Florida, with other corporate or affiliate offices in Los Angeles, San
Francisco and Boston.
Carl Maynard and Richard Schwartz are directors, officers and controlling
stockholders of Maynard Rich/Abraham Inc. Mr. Maynard, an engineer with a
Bachelors Degree in Electrical Engineering from Union College, has served as
managing partner in the design and development of office and industrial parks
and as chief operating officer of HMG Properties, Inc., an American Stock
Exchange listed REIT with approximately $75 million in assets. Previously Mr.
Maynard was President of Westminster Properties Corp., a subsidiary of
Industrial National Corp. (now Fleet/Norstar). Westminster acted as investment
advisor to Realty Income Trust, a publicly owned REIT. Mr. Maynard also served
as a Real Estate Investment Officer with New England Mutual Life Insurance
Corporation (The New England).
Richard Schwartz has a B.A. in Accounting from Lehigh University where he
graduated Phi Beta Kappa. He also has an M.B.A. in Finance from New York
University. After serving with L.F. Rothschild, a NYSE member firm, as an
arbitrage trader, he entered the real estate securities field. He has served as
Executive Vice President of First Capital Financial, a NASDAQ listed sponsor of
public real estate limited partnerships. Mr. Schwartz was directly involved with
the acquisition of over 65 commercial properties with a total value of $400
million. Mr. Schwartz has also served as Chief Executive Officer of the
Courtrust Companies, a real estate investment firm.
The Promoters will benefit from the Advisor receiving fees under the
Advisory Agreement. In addition, Maynard Rich/Abraham Inc. and its affiliates
will receive approximately $192,000 in commissions from the sellers of the
Properties that the Corporation will acquire.
THE ADVISOR
Pursuant to the Advisory Agreement, the Advisor, which was incorporated on
March 27, 1996 under the laws of the State of Delaware, will on a continuing
basis present investment opportunities to the Corporation, act as investment and
financial advisor to the Corporation and administer the day-to-day operations of
the Corporation. The day to day operations include the purchase and disposition
of real property, the arranging of mortgage financing for such real properties
and the supervision of property management, leasing and operation of the
Corporation's real property investments.
The specific services to be performed by the Advisor are summarized below.
This summary is qualified in its entirety by reference to the copy of the form
of Advisory Agreement filed as an exhibit to the Registration Statement of which
this Prospectus is a part. In performing such services, the Advisor will, at all
times, be subject to the continuing and exclusive authority and direction of the
Board of Directors of the Corporation. The Advisor will:
a) provide or arrange for the provision of research and other data in
connection with the Corporation's investments and investment policies;
b) act as the Corporation's real property investment manager and
consultant, and in so doing make recommendations to the Board of
Directors of the Corporation with respect to the acquisition and
disposition of investments, perform or arrange for the performance of
such inspections and
51
investigations in connection therewith as are deemed appropriate and,
upon request of the Board of Directors of the Corporation, supervise
closings in respect thereof;
c) from time to time arrange for mortgage financing on behalf of the
Corporation for its real property investments, provided the Advisor may
retain mortgage brokers at the expense of the Corporation to assist in
the arrangement of such mortgage financing;
d) obtain and review appraisal reports and title opinions or reports from
counsel in connection with real property investments made or proposed to
be made by the Corporation, review property location, the building and
its physical characteristics, the relevant rental market, financial and
character data relating to the property and the vendor or purchaser,
applicable environmental, zoning and other governmental regulations, the
character of tenant mix and quality of tenants, insurance coverage, the
long term anticipated total return to the Corporation and other factors
in connection with the Corporation's investments;
e) supervise the performance of all property management, maintenance and
other customary services related to the ownership of the Corporation's
real estate investments;
f) manage the Corporation's short-term investments;
g) supervise the performance of the day-to-day administrative functions in
connection with the management of the Corporation;
h) deal with, retain or employ other persons on behalf of the Corporation
in connection with its investments, including solicitors, consultants,
property managers, leasing agents, finders, lenders, brokers, insurers,
banks, builders, developers and other investment participants;
i) arrange for the provision to the Corporation of any information required
in order to report to stockholders;
j) arrange for the preparation of budgets;
k) arrange for the provision to the Corporation of such services by others,
as the Board of Directors may reasonably request in connection with the
activities of the Corporation; and
l) from time to time, report to the Board of Directors with respect to its
performance of the foregoing services.
TERM OF THE ADVISORY AGREEMENT
The Advisory Agreement has an initial term of five years and, subject to
early termination, will be renewed thereafter for further periods of five years
upon the majority approval of the Board of Directors of the Corporation, such
majority to include a majority of the independent directors, and the approval of
a majority of the votes cast at a meeting of the holders of the Common Stock of
the Corporation held prior to the termination date of the applicable term. The
Advisory Agreement is non-assignable except with the consent of both parties
thereto.
The Advisor may be removed as advisor to the Corporation in the event of a
material default by the Advisor in the performance of any of its obligations or
duties under the Advisory Agreement if such default is not rectified within 30
days after the giving of notice thereof to the Advisor. In addition, the Advisor
will cease to be entitled to act as Advisor in the event that it becomes
bankrupt or insolvent, passes a resolution for its winding-up or dissolution or
is ordered dissolved or makes a general assignment for the benefit of its
creditors. If the Advisor is removed by the Corporation for the foregoing
causes, the Advisor will only be entitled to usual fees payable under the
Advisory Agreement to the date of termination. In addition, the Corporation may,
without cause, remove the Advisor at any time upon the payment of all amounts
owing by the Corporation to the Advisor to the date of termination, together
with an amount equal to triple the asset management fees for the last twelve
months prior to termination plus an amount
52
equal to the average annual acquisition and disposition fees paid by the
Corporation during the three year period prior to termination. Such termination
will only be effective upon approval of such termination and alternative
management arrangements by two-thirds of the outstanding shares of the Common
Stock of the Corporation at a meeting of stockholders called for such purpose.
Upon removal, the Advisor will thereupon be released from all obligations under
the Advisory Agreement (but without prejudice to any liability existing on such
date) and the Corporation will indemnify it against all actions, claims, costs,
demands, losses and expenses with respect to events which occur in relation to
the Corporation after the effective date of such removal. The Advisor is only
liable to the Corporation by reason of acts constituting bad faith, wilful
malfeasance, gross negligence or reckless disregard of its duties.
FEES AND EXPENSES
The Advisor will be entitled to the following fees for its services under
the Advisory Agreement:
a) an asset management fee:
an annual fee based up on the aggregate of the net proceeds received
by the Corporation for its issued and outstanding shares after the
payment of any commission and direct expenses paid by the Corporation
for the issuance of such shares ("Share Capital"), payable monthly
and calculated at the following rates:
SHARE CAPITAL RATE
- ----------------------------------------------------------------- -----------
Up to $35 Million................................................ 1.50%
On the amount over $35 Million and up to $125 Million............ 1.25%
On the amount over $125 Million and up to $200 Million........... 1.00%
On the amount in excess of of $200 Million....................... 0.75%
Each of the foregoing annual rates is applicable to the portion of the
Share Capital which falls within the rate attributable to such capital.
Assuming the Offering closes on or about January, 1997, the annual fee
payable under the Advisory Agreement for the year ending December 31,
1997 will be approximately $374,000 if no other shares are issued
through December 31, 1997;
b) an acquisition fee:
a fee of 1.5% of the cost of any real property upon the purchase of
any real property;
c) a disposition fee:
a fee of 0.25% of the sale proceeds from the disposition of any real
property upon the disposition of such real property; and
d) a financing fee:
a fee of 0.25% of the principal amount of any financing or
refinancing arranged, renewed, extended or increased in respect of
any real property upon condition of such financing or refinancing.
The Corporation is required to reimburse the Advisor for the fees and
expenses directly incurred by the Advisor in performing any of the services
required of it under the Advisory Agreement, including all expenses incurred and
fees payable to third parties in connection with the acquisition, disposition,
improvement and management of investments of the Corporation, but excluding the
Advisor's overhead, including without limitation administrative expenses and
salaries.
In addition to the fees and expenses payable to the Advisor, the Corporation
is responsible for all of the expenses of the Corporation including the
following:
a) interest and other costs of borrowed money;
53
b) taxes and assessments on real property and income, if applicable;
c) fees and expenses of lawyers, accountants, appraisers, property managers
and other agents or consultants employed by or on behalf of the
Corporation;
d) expenses of managing, leasing and maintaining real property;
e) expenses of servicing mortgages;
f) insurance as required;
g) expenses in connection with distributions to the stockholders;
h) expenses in connection with communications to stockholders and other
bookkeeping and clerical work necessary in maintaining relations with
stockholders;
i) expenses of maintaining books and records;
j) registration, custodial, administrative and other fees and expenses in
connection with the securities of the Corporation;
k) all fees and expenses in connection with the acquisition, disposition
and ownership of its investments, including property management fees;
l) all fees and expenses of listing and maintaining the listing of the
securities of the Corporation on any exchange;
m) all fees and expenses of the registrar and transfer agent appointed by
the Corporation for its securities; and
n) all fees and expenses of the Corporation complying with applicable
securities legislation.
If and to the extent that the Advisor or any affiliate of the Advisor
renders services to the Corporation in addition to those specifically required
to be rendered under the Advisory Agreement, the Advisor or such affiliate will
be compensated on the basis of fees no less favorable to the Corporation than
fees competitive with those generally charged for comparable services and
activities. Neither the Advisor nor any of its affiliates will be entitled to
charge the Corporation any fee in connection with real estate purchases, sales
or mortgage financing transactions undertaken by the Corporation other than as
approved unanimously by the Board of Directors. The Advisor or its affiliates
may without such approval receive commissions from vendors in connection with
real estate purchases by the Corporation and any commission in excess of 1% of
the acquisition price to the Corporation will reduce the fee otherwise payable
by the Corporation to the Advisor for the purchase of such real property. The
majority of the Corporation's independent directors must approve every listing
broker for the sale of any real property of the Corporation.
The Advisor is responsible for the employment expenses of its personnel,
rent and other office expenses and miscellaneous administrative expenses
relating to the performance of its functions under the Advisory Agreement.
OTHER ACTIVITIES
The Advisor, its affiliates and associates may engage in real estate
activities for their own account and for the account of others, however they
have agreed in the Advisory Agreement not to form or directly or indirectly act
as advisors or managers of another REIT without the consent of a majority of the
votes cast at a meeting of the holders of the Common Stock of the Corporation.
The Advisor, its affiliates and associates are also obligated to present all
investment opportunities which fall within the Corporation's then applicable
investment policies to the Corporation prior to presenting such opportunities to
others or investing in such property for their own account.
54
PROPERTY MANAGEMENT AND OTHER SERVICES
If approved by the Board of Directors in any particular case, property
management services may be performed by an affiliate of the Advisor, including
without limitation Maynard Rich Management Corp. Subject to the supervision of
the Advisor, the Corporation is responsible for the payment of all fees and
expenses incurred in connection with the ownership of its investments, including
property management fees. Such fees, if paid to the Advisor or its affiliates,
will be set at commercially competitive rates. Property management fees vary
depending on the type, size and location of a property.
DIRECTORS AND EXECUTIVE OFFICERS OF THE ADVISOR
The names and municipalities of residence of the directors and officers of
the Advisor, the offices held by them with the Advisor and their principal
occupations are set forth in the following table. See "Management--Directors and
Executive Officers of the Corporation and the Promoters."
NAME AND MUNICIPALITIES OFFICE PRINCIPAL OCCUPATION
- ------------------------------------- ------------------------------------ -------------------------------------
Ronald L. Bernbaum .................. Chairman of the Board President, Basic Capital Funds
North York, Ontario
Carl Maynard ........................ Director, President and Chief Principal, The Maynard Rich
Miami, Florida Executive Officer Companies; President, Basic
Advisors, Inc.
Richard Schwartz .................... Director, Vice President Principal, The Maynard Rich Companies
Miami, Florida
Terry McCrae ........................ Director, Chief Financial Officer Vice President, Investments Basic
Mississauga, Ontario and Vice President Finance Capital Funds; Vice President, Basic
Advisors, Inc.
Aran Kwinta ......................... Secretary Lawyer, Chaiton & Chaiton
Toronto, Ontario
Richard Dickerson ................... Vice President President, Maynard Rich Management
Pasadena, California Corp.
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS
Except for the Advisory Agreement and as described below, there have been no
material transactions within the three (3) years prior to the date hereof and
there are no proposed transactions which in either case have materially affected
or will materially affect the Corporation in which the Advisor or any director
or officer of the Advisor or any director or officer of the Corporation or any
associate or affiliate of any of the foregoing had or has any material interest,
direct or indirect.
Various conflicts of interest exist between the Corporation and the Advisor
and its affiliates. Some of these conflicts arise as a result of the commonality
of directorship and management of these entities. The Advisor is expected to
benefit and profit from the Advisory Agreement described herein. As well,
directors, officers and affiliates of the Corporation and the Advisor are
engaged in a wide range of real estate and other business activities and it is
unlikely that the Corporation will explore investment opportunities beyond those
presented directly or indirectly to the Board of Directors of the Corporation by
the Advisor. However, the Advisor has agreed in the Advisory Agreement that it
will not form or directly or indirectly act as an advisor or manager of a REIT
while it is the advisor to the Corporation without the consent of a majority of
the votes cast at a meeting of the holders of the Common Stock of the
Corporation. Associates or affiliates of the Advisor, including The Maynard Rich
Companies, may receive or have an indirect interest in brokerage commissions or
other fees paid by a vendor of real property purchased by the Corporation and
may receive or have an indirect interest in brokerage commissions paid
55
by the Corporation if and when the Corporation should determine to sell its real
property. The Advisory Agreement provides that the brokerage fees paid to the
Advisor or its affiliates by a vendor of real property purchased by the
Corporation may only exceed 1% if there is a reduction in the fee payable to the
Advisor for the transaction for the excess, and that a majority of the
Corporation's independent directors must approve every listing broker for the
sale of any real property of the Corporation.
The Advisor or its associates or affiliates may derive income from the
Corporation for property management services rendered to properties owned by the
Corporation or for other real estate business services not included in the
services provided under the Advisory Agreement.
Maryland corporate law requires directors and officers of the Corporation to
disclose to the Corporation any interest in a material contract or proposed
material contract.
The directors, officers and employees of the Corporation and the Advisor
will devote so much of their time to the Corporation as in their judgment is
reasonably required and they may have conflicts of interest in allocating time,
services and functions among the Corporation and their other activities.
Investment in the Corporation will not carry with it the right for the
Corporation or any stockholder to invest in any other property or venture of the
Promoters or the Advisor or their respective associates or affiliates or to
share in any profit therefrom or any interest therein. See "Management--The
Promoters, The Advisor and Directors and Executive Officers of the Corporation."
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the number and percentage of shares of Common
Stock which, according to information supplied to the Corporation, are
beneficially owned by: (i) each person who is the beneficial owner of more than
5% of the Common Stock; (ii) each of the directors, and named executive officers
of the Corporation individually; and (iii) all current directors and executive
officers of the Corporation as a group. Under rules adopted by the Securities
and Exchange Commission, a person is deemed to be a beneficial owner of Common
Stock with respect to which he has or shares voting power (which includes the
power to vote or to direct the voting of the security), or investment power
(which includes the power to dispose of, or to direct the disposition of, the
security). A person is also deemed to be the beneficial owner of shares with
respect to which he could obtain voting or investment power within 60 days of
the date of this Prospectus, such as upon the exercise of options or warrants.
NUMBER OF SHARES PERCENTAGE OF
NAME OF BENEFICIAL OWNER (1) BENEFICIALLY OWNED BENEFICIAL OWNERSHIP
- ------------------------------------------------------------------------- --------------------- -----------------------
Ronald L. Bernbaum....................................................... 100 100%
All Directors and Executive Officers as a Group.......................... 100 100%
- ------------------------
(1) The address of Mr. Bernbaum is c/o Basic U.S. REIT, Inc., 7850 Northwest
146th Street, Suite 308, Miami, Florida 33016.
The following table sets forth all options to purchase shares of Common
Stock currently held by the directors and executive officers of the Corporation.
All of the options are exercisable at a price per share
56
equal to the initial public offering price and may not be exercised prior to the
six month anniversary of the closing of the Offering. Such options expire on
September 25, 2001.
NUMBER OF SHARES
DIRECTOR/EXECUTIVE OFFICER UNDERLYING OPTIONS
- ---------------------------------------------------------------- -------------------
Ronald L. Bernbaum.............................................. 20,000
Carl Maynard.................................................... 10,000
Larry Thrall.................................................... 10,000
Robert G. Witterick............................................. 10,000
Nils Peterson................................................... 10,000
Richard Schwartz................................................ 10,000
Terry McCrae.................................................... 10,000
Aran Kwinta..................................................... 10,000
Richard Dickerson............................................... 10,000
LEGAL PROCEEDINGS
The Corporation and the Properties are not presently subject to any material
litigation. Nor, to the Corporation's knowledge, is any material litigation
threatened against the Corporation or the Properties, other than routine
litigation arising in the ordinary course of business and which is expected to
be covered by liability insurance.
DESCRIPTION OF CAPITAL OF THE CORPORATION
The following summary of the terms of the Corporation's stock does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Corporation's Amended and Restated Articles of Incorporation
and bylaws. See "Additional Information."
GENERAL
The Amended and Restated Articles of Incorporation provides that the
Corporation may issue up to 100,000,000 shares of common stock, $0.01 par value
per share ("Common Stock"), 1,500,000 shares of preferred stock, $0.01 par value
per share ("Preferred Stock"), and 50,000,000 shares of excess stock, $0.01 par
value per share ("Excess Stock"). As of September 30, 1996, 100 shares of Common
Stock were issued and outstanding to Ronald L. Bernbaum and no Preferred Stock
or Excess Stock was issued and outstanding. Upon completion of this Offering,
2,740,100 shares of Common Stock will be issued and outstanding and there will
be no Preferred Stock or Excess Stock outstanding. Except as otherwise may be
determined by the Board of Directors with respect to any series of Preferred
Stock, no shares will have preference, conversion, exchange, sinking fund,
redemption or preemptive rights.
COMMON STOCK
All Common Stock offered hereby have been duly authorized, and will be fully
paid and non-assessable. Subject to the preferential rights of any other shares
or series of stock and to the provisions of the Amended and Restated Articles of
Incorporation regarding Excess Stock, holders of Common Stock are entitled to
receive dividends on such stock if and when authorized and declared by the Board
of Directors out of assets legally available therefor and to share ratably in
the assets of the Corporation legally available for distribution to its
stockholders in the event of its liquidation, dissolution or winding up after
payment of or adequate provision for all known debts and liabilities of the
Corporation. The Corporation intends to make regular quarterly distributions.
See "Distribution Policy."
Subject to the provisions of the Amended and Restated Articles of
Incorporation regarding Excess Stock, each share of outstanding Common Stock
entitles the holder to one vote on all matters submitted to a vote of
stockholders, including the election of directors, and, except as provided with
respect to any other
57
class or series of stock, the holders of such shares will possess the exclusive
voting power. There is no cumulative voting in the election of directors, which
means that the holders of a majority of outstanding shares of Common Stock can
elect all of the directors then standing for election and the holders of the
remaining shares will not be able to elect any directors. Any nominee for
director must have been selected pursuant to the nominating provisions contained
in the bylaws.
Holders of Common Stock have no preference, conversion, exchange, sinking
fund, redemption or appraisal rights and have no preemptive rights to subscribe
for any securities of the Corporation. Subject to the provisions of the Amended
and Restated Articles of Incorporation regarding Excess Stock, Common Stock will
have equal dividend, liquidation and other rights.
The Amended and Restated Articles of Incorporation provides that the
Corporation may not dissolve, amend its charter, merge, sell all or
substantially all of its assets, engage in a share exchange or engage in similar
transactions outside the ordinary course of business unless approved by the
affirmative vote of stockholders holding at least two-thirds of the shares
entitled to vote on the matter, except in the case of provisions in the Amended
and Restated Articles of Incorporation regarding the nomination and election of
directors, which must be approved by the affirmative vote of stockholders
holding at least 80% of the shares entitled to vote thereon.
PREFERRED STOCK
The Amended and Restated Articles of Incorporation authorizes the Board of
Directors to classify any unissued Preferred Stock and to reclassify any
previously classified but unissued Preferred Stock of any series. Prior to
issuance of shares of each series, the Board is required to designate the terms,
preferences, conversion or other rights, voting powers, restrictions,
limitations and restrictions on ownership, limitations as to dividends or other
distributions, qualifications and terms or conditions of redemption for each
such series. Accordingly, the Board of Directors could authorize the issuance of
Preferred Stock with terms and conditions which could have the effect of
delaying, deferring or preventing a transaction or a change in control of the
Corporation that might involve a premium price for holders of Common Stock or
otherwise be in their best interest. As of the date hereof, no shares of
Preferred Stock are outstanding and the Corporation has no present plans to
issue any Preferred Stock.
POWER TO ISSUE ADDITIONAL COMMON STOCK AND PREFERRED STOCK
The Corporation believes that the power of the Board of Directors to issue
additional authorized but unissued Common Stock or Preferred Stock and to
reclassify any unissued Common Stock and classify or reclassify any unissued
Preferred Stock and thereafter cause the Corporation to issue such classified or
reclassified shares will provide the Corporation with increased flexibility in
structuring possible future financings and acquisitions and in meeting other
corporate objectives. The additional classes or series, as well as the Common
Stock, will be available for issuance without further action by the
Corporation's stockholders, unless such action is required by applicable law or
the rules of any stock exchange or automated quotation system on which the
Corporation's securities may be listed or traded. Although the Board of
Directors has no intention at the present time of doing so, it could authorize
the Corporation to issue a class or series that could, depending upon the terms
of such class or series, delay, defer or prevent a transaction or a change of
control of the Corporation that might involve a premium price for holders of
Common Stock or otherwise be in their best interests.
EXCESS STOCK--RESTRICTIONS ON TRANSFER
For the Corporation to qualify as a REIT under the Code, among other things,
not more than 50% in value of its outstanding capital stock may be owned,
directly or indirectly, by five or fewer individuals during the last half of a
taxable year (other than the first year) or during a proportionate part of a
shorter taxable year (the "Five or Fewer Test"), and such capital stock must be
beneficially owned by 100 or more
58
persons during at least 335 days of a taxable year of 12 months (other than the
first year) or during a proportionate part of a shorter taxable year. The Five
or Fewer Test is applied using certain constructive ownership and attribution
rules of the Code. In order to protect the Corporation against the risk of
losing its status as a REIT due to concentration of ownership among its
stockholders, the Amended and Restated Articles of Incorporation, subject to
certain exceptions, provide that no stockholder may own, or be deemed to own by
virtue of the attribution provisions of the Code, more than 9.5% (the "Ownership
Limit") of the lesser of the aggregate number or value of the Corporation's
outstanding Common Stock. In the event the Corporation issues Preferred Stock,
it may, in the certificate of designation creating such Preferred Stock,
determine a limit on the ownership of such shares. Any direct or indirect
ownership of shares in excess of the Ownership Limit or that would result in the
disqualification of the Corporation as a REIT, including any transfer that
results in capital stock being owned by fewer than 100 persons or results in the
Corporation being "closely held" within the meaning of Section 856(h) of the
Code, shall be null and void, and the intended transferee will acquire no rights
to the capital stock. The foregoing restrictions on transferability and
ownership will not apply if the Board of Directors determines that it is no
longer in the best interests of the Corporation to attempt to qualify, or to
continue to qualify, as a REIT and a majority of the Corporation's voting
stockholders approve such determination by the Board. The Board of Directors
may, in its sole discretion, waive the Ownership Limit if evidence satisfactory
to the Board of Directors and the Corporation's tax counsel is presented that
the changes in ownership will not then or in the future jeopardize the
Corporation's REIT status and the Board of Directors otherwise decides that such
action is in the best interests of the Corporation.
Any person who acquires or attempts to acquire any capital stock of the
Corporation in violation of the Ownership Limit or which would result in the
disqualification of the Corporation as a REIT, and any person who is or attempts
to become a transferee of capital stock of the Corporation such that Excess
Stock results, must immediately give written notice, or, in the event of a
proposed or attempted transfer, at least 15 days prior written notice, to the
Corporation of such event and must provide the Corporation with such other
information as the Corporation may request in order to determine the effect, if
any, of such acquisition or transfer, whether consummated or attempted, on the
Corporation's status as a REIT.
Shares owned, or deemed to be owned, or transferred to a stockholder in
excess of the Ownership Limit will automatically be converted into Excess Stock
that will be transferred, by operation of law, to the trustee of a trust for the
exclusive benefit of one or more charitable organizations described in Section
170(b)(1)(A), 170(c) and 501(c)(3) of the Code (the "Charitable Beneficiary").
The trustee of the trust will be deemed to own the Excess Stock for the benefit
of the Charitable Beneficiary on the date of the violative transfer to the
original transferee-stockholder. Any dividend or distribution paid to the
original transferee-stockholder of Excess Stock prior to discovery by the
Corporation that shares have been transferred in violation of the provisions of
the Corporation's Amended and Restated Articles of Incorporation shall be repaid
to the trustee upon demand. Any dividend or distribution authorized and declared
but unpaid shall be rescinded as void ab initio with respect to the original
transferee-stockholder and shall instead be paid to the trustee of the trust for
the benefit of the Charitable Beneficiary. Any vote cast by an original
transferee-stockholder of shares constituting Excess Stock prior to the
discovery by the Corporation that shares of capital stock have been transferred
in violation of the provisions of the Corporation's Amended and Restated
Articles of Incorporation shall be void ab initio. While the Excess Stock is
held in trust, the original transferee-stockholder will be deemed to have given
an irrevocable proxy to the trustee to vote the capital stock for the benefit of
the Charitable Beneficiary. The trustee of the trust may transfer the interest
in the trust representing the Excess Stock to any person whose ownership of the
shares converted into such Excess Stock would be permitted under the Ownership
Limit. If such transfer is made, the interest of the Charitable Beneficiary
shall terminate and the proceeds of the sale shall be payable to the original
transferee-stockholder and to the Charitable Beneficiary. The original
transferee-stockholder shall receive the lesser of (i) the price paid by the
original transferee-stockholder for the shares that were converted into Excess
Stock or, if the original transferee-stockholder did not give value for such
shares (e.g., the shares were received through a gift or other transaction), the
average closing price
59
on the principal U.S. or foreign securities exchange on which the class of
shares from which such shares were converted is then listed or admitted to
trading for the ten trading days immediately preceding such sale or gift; and
(ii) the price received by the trustee from the sale or other disposition of the
Excess Stock held in trust. The trustee may reduce the amount payable to the
original transferee-stockholder by the amount of dividends and distributions
relating to the shares of Excess Stock which have been paid to the original
transferee-stockholder and are owed by the original transferee-stockholder to
the trustee. Any proceeds in excess of the amount payable to the original
transferee-stockholder shall be paid by the trustee to the Charitable
Beneficiary. Any liquidation distributions relating to the Excess Stock shall be
distributed in the same manner as proceeds of a sale of Excess Stock. If the
foregoing transfer restrictions are determined to be void or invalid by virtue
of any legal decision, statute, rule or regulation, then the original
transferee-stockholder of any shares of Excess Stock may be deemed, at the
option of the Corporation, to have acted as an agent on behalf of the
Corporation in acquiring the shares of Excess Stock and to hold the shares of
Excess Stock on behalf of the Corporation.
In addition, the Corporation will have the right, for a period of 90 days
during the time any shares of Excess Stock are held in trust, to purchase all or
any portion of the shares of Excess Stock at the lesser of (i) the price
initially paid for such shares by the original transferee-stockholder, or if the
original transferee-stockholder did not give value for such shares (e.g., the
shares were received through a gift or other transaction), the average closing
price for the class of shares from which such shares of Excess Stock were
converted for the ten trading days immediately preceding such sale or gift and
(ii) the average of the last reported closing sales price on the principal U.S.
or foreign securities exchange on or over which the class of capital stock from
which such shares of Excess Stock were converted is listed or admitted to
trading for the ten trading days immediately preceding the date the Corporation
elects to purchase such shares. The Corporation may reduce the amount payable to
the original transferee-stockholder by the amount of dividends and distributions
relating to the shares of Excess Stock which have been paid to the original
transferee-stockholder and are owed by the original transferee-stockholder to
the trustee. The Corporation may pay the amount of such reductions to the
trustee for the benefit of the Charitable Beneficiary. The 90 day period begins
on the later date of which notice is received of the violative transfer if the
original transferee-stockholder gives notice to the Corporation of the transfer
or, if no such notice is given, the date the Board of Directors determines that
a violative transfer has been made.
These restrictions will not preclude settlement of transactions through any
U.S. or foreign securities exchange or quotation system on which the
Corporation's stock is listed or admitted for trading. The fact that settlement
of a transaction may so occur will negate the effect of any of these
transactions and any transferee in such a transaction will be subject to all of
these restrictions.
All certificates representing capital stock will bear a legend referring to
the restrictions described above.
Each stockholder shall upon demand be required to disclose to the
Corporation in writing any information with respect to the direct, indirect and
constructive ownership of capital stock of the Corporation that the Board of
Directors deems necessary to comply with the provisions of the Code applicable
to REITs, to comply with the requirements of any taxing authority or
governmental agency or to determine any such compliance.
The Ownership Limit may have the effect of delaying, deferring or preventing
a change in control of the Corporation unless the Board of Directors determines
that maintenance of REIT status is no longer in the best interest of the
Corporation.
DIVIDEND REINVESTMENT PROGRAM
The Corporation intends to implement a dividend reinvestment program under
which stockholders may elect automatically to reinvest their dividends in Common
Stock. The Corporation may from time to time repurchase Common Stock in the open
market for the purpose of fulfilling its obligations under this
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dividend reinvestment program or may elect to issue additional Common Stock. The
Corporation may reserve 500,000 shares of Common Stock for issuance under the
dividend reinvestment program and may purchase up to 250,000 Common Stock on the
open market in 1997 to issue to stockholders under the dividend reinvestment
program. The Corporation intends to use a combination of sources obtained from
its working capital and proceeds from future equity financings and debt
financings to fund such purchases.
TRANSFER AGENT AND REGISTRAR.
The transfer agent and registrar is American Stock Transfer & Trust Company.
CERTAIN PROVISIONS OF MARYLAND LAW AND THE CORPORATION'S AMENDED AND RESTATED
ARTICLES OF INCORPORATION AND BYLAWS
The following summary of certain provisions of Maryland law and of the
Corporation's Amended and Restated Articles of Incorporation and bylaws does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Corporation's Amended and Restated Articles of Incorporation
and bylaws. See "Additional Information."
NUMBER OF DIRECTORS
The Amended and Restated Articles of Incorporation and bylaws of the
Corporation provide that the number of directors of the Corporation may be no
less than three and no more than ten but may not be fewer than the minimum
number required by Maryland law. The number of directors may be determined by
the affirmative vote of a majority of the Board of Directors or by the
stockholders at the Corporation's annual meeting. Any vacancy will be filled, at
any regular meeting or at any special meeting called for that purpose, by a
majority of the remaining directors, except that a vacancy resulting from an
increase in the number of directors must be filled by a majority of the entire
Board of Directors.
BUSINESS COMBINATIONS
Under the General Corporation Law of the State of Maryland ("MGCL"), certain
"business combinations" (including a merger, consolidation, share exchange or,
in certain circumstances, an asset transfer or issuance or reclassification of
equity securities) between a Maryland corporation and any person who
beneficially owns 10% or more of the voting power of the corporation's shares or
an affiliate of the corporation, who at any time within the two-year period
prior to the date in question, was the beneficial owner of 10% or more of the
voting power of the then-outstanding voting stock of the corporation (an
"Interested Stockholder") or an affiliate thereof are prohibited for five years
after the most recent date on which the Interested Stockholder became an
Interested Stockholder. Thereafter, any such business combination must be
recommended by the board of directors of such corporation and approved by the
affirmative vote of at least (a) 80% of the votes entitled to be cast by holders
of outstanding shares of voting stock of the corporation and (b) two-thirds of
the votes entitled to be cast by holders of voting stock of the corporation
other than shares held by the Interested Stockholder with whom (or with whose
affiliate) the business combination is to be effected, unless, among other
conditions, the corporation's common stockholders receive a minimum price (as
defined in the MGCL) for their shares and the consideration is received in cash
or in the same form as previously paid by the Interested Stockholder for its
shares. These provisions of Maryland law do not apply, however, to business
combinations that are approved or exempted by the board of directors of the
corporation prior to the time that the Interested Stockholder becomes an
Interested Stockholder.
The Amended and Restated Articles of Incorporation of the Corporation
provide that the Maryland business combination provision of the MGCL do not
apply to the Corporation. As a result, Interested Stockholders and affiliates
thereof may be able to enter into a business combination with the Corporation,
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which may not be in the best interests of the Corporation, without compliance by
the Corporation with the super-majority vote requirements or other provisions of
the MGCL.
CONTROL SHARE ACQUISITIONS
The MGCL provides that "control shares" of a Maryland corporation acquired
in a "control share acquisition" have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares of stock owned by the acquiror, by officers or by directors who
are employees of the corporation. "Control shares" are voting shares of stock
which, if aggregated with all other such shares of stock previously acquired by
the acquiror, or in respect of which the acquiror is able to exercise or direct
the exercise of voting power (except solely by virtue of a revocable proxy),
would entitle the acquiror to exercise voting power in electing directors within
any one of the following ranges of voting power: (i) one-fifth or more but less
than one-third; (ii) one-third or more but less than a majority; or (iii) a
majority or more of all voting power. Control shares do not include shares the
acquiring person is then entitled to vote as a result of having previously
obtained stockholder approval. A "control share acquisition" means the direct or
indirect acquisition of ownership of, or power to direct the exercise of voting
power with respect to, control shares, subject to certain exceptions.
The bylaws of the Corporation provide that the Corporation has elected not
to be governed by the control share acquisition provisions of the MGCL. There
can be no assurance that such provision will not be amended or eliminated at any
time in the future.
AMENDMENT TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION
The Amended and Restated Articles of Incorporation may be amended only by
the affirmative vote of the holders of not less than two-thirds of all of the
votes entitled to be cast on the matter; provided, however, that certain
provisions of the Amended and Restated Articles of Incorporation, such as those
relating to the nomination and election of the Board of Directors, may be
amended only by the affirmative vote of the holders of not less than 80% of all
votes entitled to be cast on the matter.
DISSOLUTION OF THE CORPORATION
The dissolution of the Corporation must be approved by the affirmative vote
of the holders of not less than two-thirds of all of the votes entitled to be
cast on the matter.
ADVANCE NOTICE OF DIRECTORS NOMINATIONS AND NEW BUSINESS
The bylaws of the Corporation provide that (a) with respect to an annual
meeting of stockholders, nominations of persons for election to the Board of
Directors and proposal of business to be considered by stockholders may be made
only (i) pursuant to the Corporation's notice of the meeting; (ii) by the Board
of Directors; or (iii) by a stockholder who is entitled to vote at the meeting
and has complied with advance notice procedures set forth in the bylaws and (b)
with respect to a special meeting of stockholders, only the business specified
in the Corporation's notice of meeting may be brought before the meeting of
stockholders and nominations of persons for election to the Board of Directors
may be made only (i) pursuant to the Corporation's notice of the meeting; (ii)
by the Board of Directors; or (iii) provided that the Board of Directors has
determined that the directors shall be elected at such meeting, by a stockholder
who is entitled to vote at the meeting and has complied with the advance notice
provisions set forth in the bylaws of the Corporation.
MEETINGS OF STOCKHOLDERS
The bylaws of the Corporation provide that annual meetings of stockholders
shall be held on such date and at such time as the Board of Directors may set.
Special meetings of the stockholders may be called by (i) the President of the
Corporation; or (ii) the Board of Directors. Under the MGCL, the
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Secretary of the Corporation must call a special meeting upon the written
request of the holders of shares entitled to cast not less than 25% of all the
votes entitled to be cast at the meeting.
The Corporation's bylaws provide that any stockholder of record wishing to
nominate a director or have a stockholder proposal considered at an annual
meeting (except for stockholder proposals included in the Corporation's proxy
materials pursuant to Rule 14a-8 under the Securities Exchange Act) must provide
written notice and certain supporting documentation to the Corporation relating
to the nomination or proposal not less than 60 days nor more than 90 days prior
to the anniversary date of the prior year's annual meeting or special meeting in
lieu thereof (the "Anniversary Date"). In the event that the annual meeting is
called for a date more than seven calendar days before or delayed more than 60
days from the Anniversary Date, stockholders generally must provide written
notice within 20 calendar days after the date on which notice of the meeting is
mailed to stockholders.
The purpose of requiring stockholders to give the Corporation advance notice
of nominations and other business is to afford the Board of Directors a
meaningful opportunity to consider the qualifications of the proposed nominee(s)
or the advisability of the other proposed business and, to the extent deemed
necessary or desirable by the Board of Directors, to inform stockholders and
make recommendations about the qualifications or business, as well as to provide
a more orderly procedure for conducting meetings of stockholders. Although the
bylaws of the Corporation do not give the Board of Directors any power to
disapprove stockholder nominations for the election of directors or proposals
for action, they may have the effect of precluding a contest for the election of
directors or the consideration of stockholder proposals if the proper procedures
are not followed, and of discouraging or deferring a third party from conducting
a solicitation of proxies to elect its own slate of directors or to approve its
own proposal, without regard to whether consideration of the nominees or
proposals might be harmful or beneficial to the Corporation and its
stockholders.
LIMITATION OF LIABILITY AND INDEMNIFICATION
The MGCL permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services; or (b) active and deliberate dishonesty established by a
final judgment as being material to the cause of action adjudicated in the
proceeding. The Amended and Restated Articles of Incorporation contain such a
provision which eliminates such liability to the maximum extent permitted by
Maryland law.
The Amended and Restated Articles of Incorporation authorize the
Corporation, to the maximum extent permitted by Maryland law, to indemnify and
to pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any present or former director or officer or (b) any
individual who, while a director of the Corporation and at the request of the
Corporation, serves or has served as a director, officer, partner or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, who is or was a party to such a proceeding by reason of
serving in such capacity. The Amended and Restated Articles of Incorporation and
bylaws of the Corporation obligate it, to the maximum extent permitted by
Maryland law, to indemnify and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to (a) any present or former
director or officer who is made a party to the proceeding by reason of his
service in that capacity or (b) any individual who, while a director of the
Corporation and at the request of the Corporation, serves or has served another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise as a director, officer, partner or trustee of such corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and
who is made a party to the proceeding by reason of his service in that capacity.
The Amended and Restated Articles of Incorporation and bylaws of the Corporation
also permit the Corporation to indemnify and advance or reimburse expenses to
any person who served a predecessor of the Corporation in any of the capacities
described above and to any employee or agent of the Corporation or a predecessor
of the Corporation.
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The MGCL requires a corporation (unless its charter provides otherwise,
which the Amended and Restated Articles of Incorporation do not) to indemnify a
director or officer who has been successful, on the merits or otherwise, in the
defense of any proceeding to which he is made a party by reason of his service
in that capacity. The MGCL permits a corporation to indemnify its present and
former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that (a) the
act or omission of the director was material to the matter giving rise to the
proceeding and (i) was committed in bad faith or (ii) was the result of active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services or (c) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
the act or omission was unlawful. However, a Maryland corporation may not
indemnify for (a) an adverse judgment in a suit by or in the right of the
corporation or (b) any proceeding charging an improper personal benefit to the
director or officer, whether or not involving action in an official capacity, in
which the director or officer is adjudged liable on the basis that personal
benefit was improperly received. In addition, the MGCL requires the Corporation
to, as a condition to advancing expenses, to obtain (a) a written affirmation by
the director or officer of his good faith belief that he has met the standard of
conduct necessary for indemnification by the Corporation as authorized by the
Amended and Restated Articles of Incorporation and bylaws and (b) a written
undertaking by or on his behalf to repay the amount paid or reimbursed by the
Corporation if it shall be ultimately be determined that the standard of conduct
was not met.
Indemnification under the provisions of the MGCL is not deemed exclusive of
any other rights, by indemnification or otherwise, to which a director or
officer may be entitled under the Corporation's Amended and Restated Articles of
Incorporation or bylaws, or under resolutions of stockholders or directors,
contract or otherwise.
SEC POSITION ON INDEMNIFICATION
It is the position of the SEC that indemnification of directors and officers
for liabilities arising under the Securities Act is against public policy and
thus unenforceable pursuant to Section 14 of the Securities Act.
INSURANCE
The Corporation intends to purchase and maintain insurance on behalf of all
of its directors and executive officers against liability asserted against or
incurred by them in their official capacities with the Corporation, whether or
not the Corporation is required or has the power to indemnify them against the
same liability.
U.S. FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
In the opinion of Schnader Harrison Segal & Lewis the following summary
presents the principal U.S. Federal income tax consequences to the Corporation
and the holders of Common Stock of the treatment of the Corporation as a REIT
under the applicable provisions of the Code, and under the Canada-U.S. Income
Tax Convention (the "Treaty"), as amended by a revised protocol that entered
into force November 9, 1995 (the "Protocol"), but does not discuss all of the
aspects of U.S. Federal income taxation that may be relevant to a prospective
stockholder in light of his or her particular circumstances or to certain types
of stockholders (including insurance companies, tax-exempt entities, financial
institutions or broker-dealers) who are subject to special treatment under the
U.S. Federal income tax laws. The following discussion, which is not exhaustive
of all possible tax considerations, does not give a detailed discussion of any
state, local or non-U.S. tax considerations.
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EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT WITH HIS OR HER TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OR HER OF THE PURCHASE, OWNERSHIP
AND SALE OF SHARES IN AN ENTITY ELECTING TO BE TAXED AS A REIT, INCLUDING THE
U.S. FEDERAL, STATE, LOCAL, NON-U.S. AND OTHER TAX CONSEQUENCES OF SUCH
PURCHASE, OWNERSHIP, SALE AND ELECTION AND OF POTENTIAL CHANGES IN APPLICABLE
TAX LAWS
TAXATION OF THE CORPORATION
GENERAL--The Corporation will elect to be taxed as a REIT under Sections 856
through 859 of the Code, commencing with its taxable year ending December 31,
1997. The Corporation expects that it will be organized and operated in such a
manner as to qualify for taxation as a REIT under the Code commencing with its
taxable year ending December 31, 1997, and the Corporation intends to continue
to operate in such a manner. No assurance, however, can be given that the
Corporation will be organized and operated in such a manner. Qualification and
taxation as a REIT depends upon the Corporation's ability to meet on a
continuing basis, through actual annual operating results, distribution levels
and diversity of stock ownership, the various qualification tests imposed under
the Code on REITs, some of which are summarized below. While the Corporation
intends to operate so that it qualifies as a REIT, given the highly complex
nature of the rules governing REITs, the ongoing importance of factual
determinations and the possibility of future changes in circumstances of the
Corporation, no assurance can be given that the Corporation satisfies such tests
or will continue to do so. (See "Failure to Qualify" below.) The Corporation
expects to acquire the Properties in January, 1997 and accordingly will not
elect to be taxed as a REIT, or qualify to make such an election, for its
taxable year ending December 31, 1996. The Corporation generally will be subject
to tax on net built-in gains, if any, existing immediately before the REIT
election becomes effective. It is not anticipated, however, that the Corporation
will have any significant amount of net built-in gains immediately before
January 1, 1997, when the Corporation's REIT election is expected to be
effective. In addition, the Corporation generally would not qualify as a REIT
unless it distributed its accumulated earnings and profits for any year in which
it was not a REIT. It is not anticipated, however, that the Corporation will
have any significant amount of earnings and profits accumulated prior to January
1, 1997.
The following is a general summary of the Code provisions that govern the
U.S. Federal income tax treatment of a REIT and its stockholders. These
provisions of the Code are highly technical and complex. This summary is
qualified in its entirety by the applicable Code provisions, Treasury
Regulations and administrative and judicial interpretations thereof.
If the Corporation qualifies for taxation as a REIT, it generally will not
be subject to U.S. Federal corporate income taxes on net income or capital gain
that it currently distributes to stockholders. Such treatment substantially
eliminates the federal "double taxation" on earnings (tax at both the corporate
and the stockholder level) that generally results from investment in a
corporation.
Despite the REIT election, the Corporation may be subject to U.S. Federal
income and excise tax as follows: (i) the Corporation will be taxed at regular
corporate rates on any undistributed REIT taxable income, including
undistributed net capital gains, (ii) under certain circumstances, the
Corporation may be subject to the "alternative minimum tax" on certain of its
items of tax preferences, if any, (iii) if the Corporation has (a) net income
from the sale or other disposition of "foreclosure property" that is held
primarily for sale to customers in the ordinary course of business or (b) other
nonqualifying net income from foreclosure property, it will be subject to tax at
the highest corporate rate on such income, (iv) if the Corporation 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 sales of foreclosure property and sales
that qualify for a statutory safe harbor), such income will be subject to a 100%
tax, (v) if the Corporation 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
65
certain other requirements have been met, it will be subject to a 100% tax on
the net income attributable to the greater of the amount by which the
Corporation fails the 75% or 95% test, multiplied by a fraction intended to
reflect the Corporation's profitability, and (vi) if the Corporation should fail
to distribute, or fail to be treated as having distributed, with respect to each
calendar year at least the sum of (a) 85% of its REIT ordinary income for such
year, (b) 95% of its REIT capital gain net income for such year, and (c) any
undistributed taxable income from prior periods, the Corporation would be
subject to a 4% excise tax on the excess of such required distribution over the
amounts actually distributed. The Corporation does not now intend to acquire any
appreciated assets from a corporation generally subject to full corporate-level
tax in a transaction in which any gain on the transfer is not fully recognized.
However, in the event of such an acquisition, the Corporation could, under
certain circumstances, be subject to tax upon disposition of such assets.
REQUIREMENTS FOR QUALIFICATION--The Code defines a REIT as a corporation,
trust or association (1) that is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by transferable stock, or by
transferable certificates of beneficial interest; (3) that would be taxable as a
domestic corporation, but for Sections 856 through 859 of the Code; (4) that 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) that during the last half of each taxable year not more than
50% in value of the outstanding stock of which is owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities); and (7) that meets certain other tests, described below, regarding
the nature of its income and assets. The Code provides that conditions (1)
through (4), inclusive, 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.
The Corporation expects to issue sufficient shares pursuant to this offering
to allow it to ultimately meet the requirements set forth in (5) and (6) above.
Requirements (5) and (6) need not be met in the first taxable year in which an
election to be taxed as a REIT is made. In addition, the Corporation's Amended
and Restated Articles of Incorporation contain restrictions regarding the
transfer of its Common Stock that are intended to assist the Corporation in
continuing to satisfy the share ownership requirements described in (5) and (6)
above. (See "Description of Capital Stock of the Corporation" and "Excess
Stock--Restrictions on Transfer")
In addition, a corporation may not elect to become a REIT unless its taxable
year is the calendar year. The Corporation satisfies this requirement.
INCOME TESTS--In order to qualify as a REIT, the Corporation annually must
satisfy three gross income requirements. First, at least 75% of the
Corporation'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 (as interest on
obligations secured by mortgages on real property, certain "rents from real
property" or as gain on the sale or exchange of such property and certain fees
with respect to agreements to make or acquire mortgage loans) or from certain
types of temporary investments (the "75% Income Test"). Second, at least 95% of
the Corporation's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived from income which satisfies
the 75% Income Test, 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 Corporation's
gross income (including gross income from prohibited transactions) for each
taxable year.
Rents received by the Corporation will qualify as "rents from real property"
satisfying the gross income requirements described above only if several
conditions are met. First, the amount of rent must not
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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 Corporation, or an owner of 10% of more of the
Corporation, directly or constructively owns 10% or more of the tenant or the
assets or net profits 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 Corporation 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 that is adequately compensated from whom
the Corporation derives no revenue; provided, however, the Corporation 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 Corporation 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 fixed percentage or
percentages of receipts or sales, as described above); the Corporation will not
rent any property to a Related Party Tenant; the Corporation 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); and any activities
that the Corporation believes may not be provided without jeopardizing the
qualification of rent as "rents from real property" will be performed by an
independent contractor.
If the Corporation 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 Corporation's failure
to meet such tests was due to reasonable cause and not due to wilful neglect,
the Corporation attaches a schedule of the sources of its income to its U.S.
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 Corporation would be entitled to the benefit of
these relief provisions. As discussed above, even if these relief provisions
apply, the Corporation will, however, still be subject to a special tax based
upon the greater of the amount by which it fails either the 75% or 95% gross
income test for that year. See "Federal Income Tax Considerations--Taxation of
the Corporation--General."
ASSET TESTS--The Corporation, at the close of each quarter of its taxable
year, must satisfy two tests relating to the nature of its assets. First, at
least 75% of the value of the Corporation's total assets must be represented by
real estate assets (including (i) assets held by the Corporation's "qualified
REIT subsidiaries" and the Corporation's allocable share of real estate assets
held by partnerships in which the Corporation 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) public debt offering of the
Corporation), cash, cash items and government securities. Second, not more than
25% of the value of the Corporation's total assets may be represented by
securities other than those in the 75% asset class and (i) the value of any one
issuer's securities owned by the Corporation may not exceed 5% of the value of
the Corporation's total assets and (ii) the Corporation may not own more than
10% of any one issuer's outstanding voting securities.
The Corporation expects to have direct and indirect 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 Corporation's subsidiaries are "qualified REIT subsidiaries" as
defined in the Code, such subsidiaries will not be treated as separate
corporations for U.S. Federal income tax purposes. Thus, the Corporation's
ownership of stock of a "qualified REIT subsidiary" will not cause the
Corporation to fail the asset tests.
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After initially meeting the asset tests at the close of any quarter, the
Corporation will not lose its status as a REIT if it fails to satisfy the asset
tests at the end of a later quarter solely by reason of changes in asset values.
If the failure to satisfy the asset tests results from an acquisition of
securities or other property during a quarter, the failure can be cured by
disposition of sufficient nonqualifying assets within 30 days after the close of
that quarter. The Corporation intends to maintain adequate records of the value
of its assets to ensure compliance with the asset tests, and to take such action
within 30 days after the close of any quarter as may be required to cure any
noncompliance but no assurance can be given that such asset tests will be met.
ANNUAL DISTRIBUTION REQUIREMENTS--To qualify as a REIT, the Corporation
generally must distribute annually to its stockholders an amount equal to (A)
the sum of (i) 95% of the Corporation's REIT taxable income (which is defined
generally as the taxable income of the Corporation computed without regard to
the dividends paid deduction and the Corporation's net capital gain) plus (ii)
95% of the net income (after tax), if any, from foreclosure property, minus (B)
the sum of certain items of noncash income. Such distributions must be paid in
the taxable year to which they relate or in the following taxable year if
declared before the Corporation 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 Corporation does not distribute (or is not treated as having
distributed) all of its net capital gain or distributes (or is treated as having
distributed) at least 95%, but less than 100% of its REIT taxable income, as
adjusted, it will be subject to tax thereon at regular ordinary and capital
gains corporate tax rates, as the case may be. Furthermore, if the Corporation
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 Corporation would be subject to a 4% excise tax on the excess of
such required distribution over the amounts actually distributed.
The Corporation expects to make timely distributions sufficient to satisfy
the annual distribution requirements. It is possible, however, that the
Corporation, from time to time, may not have sufficient cash or other liquid
assets to meet the distribution requirements. In that event, the Corporation may
arrange for short-term, or possibly long-term, borrowing to permit the payments
of required dividends, or may pay dividends in the form of taxable stock
dividends.
Under certain circumstances, the Corporation 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
Corporation's deduction for dividends paid for the earlier year. Thus, the
Corporation may be able to avoid being taxed on amounts distributed as
deficiency dividends; however, the Corporation will be required to pay interest
based upon the amount of any deduction taken for deficiency dividends.
FAILURE TO QUALIFY--If the Corporation's election to be taxed as a REIT is
terminated, because the Corporation fails to qualify for taxation as a REIT in
any taxable year, the Corporation will be subject to tax (including any
applicable alternative minimum tax) on its taxable income at regular corporate
rates. Unless entitled to relief under specific statutory provisions, the
Corporation also will 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 Corporation would be entitled
to such statutory relief. As noted above, the Corporation expects to acquire the
Properties in January 1997 and will qualify for taxation as a REIT in its
taxable year ending December 31, 1997. (See "Taxation of the Corporation--
General," concerning the Corporation's failure to qualify as a REIT in its
taxable year ending December 31, 1996).
INVESTMENTS THROUGH PARTNERSHIPS
Certain of the Corporation's investments may be through partnerships, which
may involve special tax risks. Such risks include possible challenge by the IRS
of (a) allocations of income and expense items, which could affect the
computation of income of the Corporation, and (b) the status of the partnerships
as
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partnerships (as opposed to associations taxable as corporations) for income tax
purposes. If any of the partnerships is treated as an association, it would be
taxable as a corporation. In such a situation, if the Corporation's ownership in
any of the partnerships exceeded 10% of the partnership's voting interest or the
value of such interest exceeded 5% of the value of the Corporation's assets, the
Corporation would cease to qualify as a REIT. Furthermore, in such a situation,
distributions from any of the partnerships to the Corporation would be treated
as dividends, which are not taken into account in satisfying the 75% gross
income test described above and which could therefore make it more difficult for
the Corporation to qualify as a REIT for the taxable year in which such
distribution was received. In addition, in such a situation, the interest in any
of the partnerships held by the Corporation would not qualify as a "real estate
asset", which could make it more difficult for the Corporation to meet the 75%
asset test described above. Finally, in such a situation, the Corporation would
not be able to deduct its share of losses generated by the partnerships in
computing its taxable income. (See "Failure to Qualify" above for a discussion
of the effect of the Corporation's failure to meet such tests for a taxable
year). The Corporation expects that each of the partnerships through which it
invests will be treated for tax purposes as a partnership (and not as an
association taxable as a corporation). However, no assurance can be given that
the IRS may not successfully challenge the tax status of any of the
partnerships.
TAXATION OF NON-U.S. STOCKHOLDERS
The rules governing U.S. Federal income and estate taxation of the ownership
and disposition of shares by persons that are, for purposes of such taxation,
non-resident alien individuals, non-U.S. corporations, non-U.S. partnerships or
non-U.S. estates or trusts (collectively, "Non-U.S. Stockholders") are complex.
The following discussion does not address all aspects of U.S. Federal income tax
and does not address state, local or non-U.S. tax consequences that may be
relevant to a Non-U.S. Stockholder in light of its particular circumstances. In
addition, this discussion is based on current law, which is subject to change,
and assumes that the Corporation qualifies for taxation as a REIT. Prospective
Non-U.S. Stockholders should consult their own tax Advisors to determine the
impact of U.S. Federal, state, local and non-U.S. income tax laws with regard to
an investment in Common Stock, including any reporting requirements.
DISTRIBUTIONS IN GENERAL. Distributions by the Corporation to a Non-U.S.
Stockholder that are neither attributable to gain from sales or exchanges by the
Corporation of United States real property interests nor designated by the
Corporation as capital gains dividends will be treated as dividends of ordinary
income to the extent that they are made out of current or accumulated earnings
and profits of the Corporation. Such distributions ordinarily will be subject to
withholding of U.S. Federal income tax on a gross basis (that is, without
allowance of deductions) at a 30% rate, or such lower rate as may be specified
by an applicable income tax treaty, unless the dividends are treated as
effectively connected with the conduct by the Non-U.S. Stockholder of a United
States trade or business.
Dividends that are effectively connected with such a trade or business will
be subject to tax on a net basis (that is, after allowance of deductions) at
graduated rates, in the same manner as dividends to domestic stockholders are
taxed. Any such dividends received by a Non-U.S. Stockholder that is a
corporation may also be subject to an additional branch profits tax at a 30%
rate or such lower rate as may be specified by an applicable income tax treaty.
The following discussion generally applies to Non-U.S. Stockholders whose
investment in the Corporation is not effectively connected with the conduct by
such Non-U.S. Stockholders of a United States trade or business.
Pursuant to current Treasury Regulations, dividends paid to an address in a
country outside the United States are generally presumed to be paid to a
resident of such country for purposes of determining the applicability of
withholding discussed above and the applicability of a tax treaty rate. Under
proposed Treasury Regulations published April 22, 1996, however, a Non-U.S.
Stockholder who wished to claim the benefit of an applicable treaty rate would
be required to satisfy certain certification and other requirements including
the requirement to provide a taxpayer identification number unless the stock of
the
69
Corporation is traded on a U.S. established financial market. The proposed
regulations, if they become final in their present form, generally would be
effective for payments made after December 31, 1997. Under certain treaties,
lower withholding rates generally applicable to dividends do not apply to
dividends from a REIT, such as the Corporation. Certain certification and
disclosure requirements must be satisfied to be exempt from withholding under
the effectively connected income exemption discussed above.
Dividends in excess of current or accumulated earnings and profits of the
Corporation will not be taxable to a Non-U.S. Stockholder to the extent that
they do not exceed the adjusted basis of the stockholder's shares, but rather
will reduce the adjusted basis of such shares. To the extent that such
distributions exceed the adjusted basis of a Non-U.S. Stockholder's shares, they
will give rise to gain from the sale or exchange of his shares, the tax
treatment of which is described below. For withholding purposes, the Corporation
is required to treat all distributions as if made out of current or accumulated
earnings and profits. However, amounts thus withheld are generally refundable if
it is subsequently determined that such distribution was, in fact, in excess of
current or accumulated earnings and profits of the Corporation. Proposed
Treasury Regulations, published on April 22, 1996, may, if finalized in their
present form, permit the Corporation, at its option to treat only a portion of
the distribution as a dividend if, prior to, and at a time reasonably close to,
the date of payment, the Corporation makes a reasonable estimate of the portion
of the distribution that is not a dividend based upon expected earnings and
profits as relevant facts and circumstances shall indicate. Under U.S.
legislation enacted in August 1996, distributions to Non-U.S. Stockholders, in
excess of the Corporation's current or accumulated earnings and profits, would
generally be subject to withholding under the Foreign Investment in U.S. Real
Property Tax Act ("FIRPTA"). However, pending further guidance concerning this
new legislation from the U.S. taxing authorities, the Corporation intends to
take the position that such withholding is not required, provided that the sale
or exchange of shares of the Corporation would not be subject to taxation under
FIRPTA. See "Sale of Stock" below. Even if amounts are not subject to
withholding under this new legislation, those amounts may be subject to
withholding under the rule, described above, which requires the Corporation to
treat all distributions as if made out of current or accumulated earnings and
profits.
Distributions to a Non-U.S. Stockholder that are attributable to gain from
sales or exchanges by the Corporation of United States real property interests
will cause the Non-U.S. Stockholder to be treated as recognizing such gain as
income effectively connected with a United States trade or business. Non-U.S.
Stockholders would thus generally be taxed at the same rates applicable to
domestic stockholders (subject to a special alternative minimum tax in the case
of nonresident alien individuals). Also, such gain may be subject to a 30%
branch profits tax in the hands of a Non-U.S. Stockholder that is a corporation,
as discussed above. The Corporation is required to withhold 35% of any such
distribution. That amount is creditable against the Non-U.S. Stockholder's U.S.
Federal income tax liability.
Distributions to a Non-U.S. Stockholder that are designated by the
Corporation at the time of distribution as capital gains dividends (other that
those arising from the disposition of a United States real property interest)
generally will not be subject to U.S. Federal income taxation, unless (i)
investment in the stock is effectively connected with the Non-U.S. Stockholder's
United States trade or business, in which case the Non-U.S. Stockholder will be
subject to the same treatment as domestic stockholders with respect to such gain
(except that a stockholder that is a non-U.S. corporation may also be subject to
the 30% branch profits tax, as discussed above), or (ii) the Non-U.S.
Stockholder is a nonresident alien individual who is present in the United
States for 183 days or more during the taxable year and has a "tax home" in the
United States, in which case the nonresident alien individual will be subject to
a 30% tax on the individual's capital gains.
DISTRIBUTIONS TO CANADIAN RESIDENTS--Certain distributions to Canadian
residents may be entitled under the Treaty and Protocol to more favorable
treatment than are distributions to Non-U.S. Stockholders in general. U.S. tax
benefits under the Treaty and Protocol are subject, however, to a general "anti-
abuse" rule, under which the U.S. may deny such benefits where it can be
reasonably concluded that to do otherwise would result in an abuse of the
provisions of the Treaty and Protocol.
70
Individual stockholders of the Corporation who reside in Canada may be
eligible for withholding at a rate less than the generally applicable 30% rate
described above. Under the Treaty and Protocol, dividends paid by a REIT, such
as the Corporation, to an individual resident of Canada are subject to
withholding of U.S. Federal income tax on a gross basis at the rate of 15%, if
such individual holds an interest of less than 10% in such REIT. Where an estate
or testamentary trust acquires its interest in a REIT as a consequence of an
individual's death, dividends paid to such estate or testamentary trust are also
subject to withholding at the rate of 15% for five years after the individual's
death, if such estate or testamentary trust holds an interest of less than 10%
in the REIT. As described under "Distributions in General", proposed Treasury
Regulations would, if adopted, require certain certification and other
requirements to be met if a stockholder claims reduced withholding under the
terms of the Treaty and Protocol.
Under the Treaty and Protocol, a Canadian resident stockholder of the
Corporation is not subject to U.S. tax on dividends from the Corporation if such
stockholder is a trust, corporation, organization or other arrangement that is
generally exempt from income taxation in a taxable year in Canada and is
operated exclusively to administer or provide pension, retirement or employee
benefits ("Exempt Benefits Plan"). The U.S. Treasury Department Technical
Explanation of the Protocol indicates that Canadian registered retirement
savings plans ("RRSPs") and Canadian registered retirement income funds
("RRIFs") are eligible for this exemption from U.S. tax on dividends. Moreover,
the Internal Revenue Service's position, as stated in Notice 96-31, is that
RRSPs and RRIFs qualify for the Treaty benefits relating to dividends.
Notwithstanding the preceding paragraph, income of an Exempt Benefits Plan
may be subject to tax in the U.S. if such income derives from: (1) carrying on a
trade or business; or (2) a "related person" (other than an Exempt Benefits Plan
or other person that is generally exempt from income taxation in Canada).
Dividends from a REIT generally should not be income from carrying on a trade or
business. However, if the Corporation would not have qualified as a REIT but for
the fact that stock held by certain trusts is treated as being held directly by
the beneficiaries of the trusts, then in some circumstances dividends from a
REIT would be considered income from carrying on a trade or business. "Related
person" is not defined by the Treaty and Protocol for present purposes. In
certain contexts, U.S. tax law defines "related persons" to include
organizations, trades, or businesses (whether or not incorporated, whether or
not organized in the U.S., and whether or not affiliated) owned or controlled
directly or indirectly by the same interests. In addition, an Exempt Benefits
Plan may be denied benefits under the Treaty and Protocol, and therefore may be
subject to U.S. tax on distributions from the Corporation, unless such Exempt
Benefits Plan is established for the purpose of providing benefits primarily to
individuals who were residents of Canada within the preceding five years, or
residents or citizens of the U. S.
Dividends paid by a REIT to Canadian stockholders, other than those
stockholders described above as entitled either to withholding at the rate of
15%, or to exemption from U.S tax are generally subject to withholding at the
full U.S. rate of 30%, without any reduction under the Treaty and Protocol.
No benefits under the Treaty and Protocol are available with respect to
distributions attributable to gain from sales or exchanges by the Corporation of
United States real property interests. The benefits under the Treaty and
Protocol discussed above (including the reduction in withholding in the case of
certain individuals, estates and testamentary trusts, and the exemption from
U.S. tax in the case of certain Canadian tax-exempt stockholders) are
inapplicable to such distributions.
SALE OF STOCK--Gain recognized by a Non-U.S. Stockholder upon the sale or
exchange of shares generally will not be subject to United States taxation
unless the shares constitute a "United States real property interest" within the
meaning of FIRPTA. The Common Stock would not constitute a "United States real
property interest" if the Corporation were a "domestically controlled REIT". A
"domestically controlled REIT" is a REIT in which at all times during a
specified test period less than 50% in value of its stock is held directly or
indirectly by Non-U.S. Stockholders. It is anticipated that the Corporation will
not be a domestically controlled REIT.
71
Even if, as expected, the Corporation is not a "domestically-controlled
REIT", the sale or exchange by a Non-U.S. Stockholder of Common Stock would not
be subject to United States taxation under FIRPTA as a sale of a "United States
real property interest" provided that (i) the shares are "regularly traded" on
an "established securities market" (both as defined by applicable Treasury
Regulations) and (ii) the selling Non-U.S. Stockholder held 5% or less (applying
certain constructive ownership and attribution rules of the Code) of the
Corporation's outstanding stock at all times during the five year period ending
on the date of disposition.
Under applicable temporary Treasury Regulations, a class of interests that
is traded on an established securities market located in the United States is
considered to be regularly traded for any calendar quarter during which it is
regularly quoted by brokers or dealers making a market in such interests. A
broker or dealer makes a market in a class of interests only if the broker or
dealer holds himself out to buy or sell interests in such class at the quoted
price. Assuming that the stock traded on the applicable stock exchange is
regularly quoted by brokers or dealers making a market in such interests, shares
of the Corporation will be regularly traded. An "established securities market"
is defined by applicable Treasury Regulations to include either a national
securities exchange which is registered under section 6 of the Securities
Exchange Act of 1934 (15 U.S.C. 78f) or an "over-the-counter market". The
Closing of this Offering is conditional upon the Corporation listing the Common
Stock for trading on a stock exchange which has been registered under Section 6
of the Securities Exchange Act of 1934 or an over-the-counter market. Thus, if
the Common Stock of the Corporation are traded on such exchange, they will be
traded on an established securities market. An over-the-counter market is
defined by applicable Treasury Regulations as any market by the existence of an
interdealer quotation system. An interdealer quotation system is any system of
general circulation to brokers and dealers which regularly disseminates
quotations of stocks and securities by identified brokers or dealers, other than
by quotation sheets which are prepared and distributed by a broker or dealer in
the regular course of business and which contain only quotations of such broker
or dealer.
If the Common Stock of the Corporation is regularly traded on an established
securities market, as discussed above, then gain of a Non-U.S. Stockholder on
the sale or exchange of such shares will be subject to taxation under FIRPTA
only if the Non-U.S. Stockholder held more than 5% of the total fair market
value of that class of shares at some time during the five-year period ending
either on the date of disposition or other applicable determination date. In
determining whether a Non-U.S. Stockholder holds more than 5% of the total fair
market value of a class of shares, certain constructive ownership rules apply.
If gain on the sale or exchange of shares were subject to taxation under
FIRPTA, the Non-U.S. Stockholder would be subject to regular United States
income tax with respect to such gain in the same manner as a U.S. Stockholder
(subject to any applicable alternative minimum tax, a special alternative
minimum tax in the case of nonresident alien individuals and the possible
application of the 30% branch profits tax in the case of non-U.S. corporations),
and the purchaser of the shares could be required to withhold and remit to the
IRS 10% of the purchase price.
Notwithstanding the foregoing, gain from the sale or exchange of shares not
otherwise subject to FIRPTA would be taxable to a Non-U.S. Stockholder in two
cases: (i) if the Non-U.S. Stockholder's investment in the stock of the
Corporation is effectively connected with a U.S. trade or business conducted by
such Non-U.S. Stockholder, the Non-U.S. Stockholder will be subject to the same
treatment as a U.S. Stockholder with respect to such gain, or (ii) if the
Non-U.S. Stockholder is a nonresident alien individual who is present in the
United States for 183 days or more during the taxable year and has a "tax home"
in the United States. In such case, the nonresident alien individual would be
subject to a 30% United States withholding tax on the amount of such
individual's gain.
ESTATE TAX--Shares owned or treated as owned by an individual who is a
Non-U.S. Stockholder at the time of death will be includible in the individual's
gross estate for U.S. Federal estate tax purposes unless an applicable estate
tax treaty provides otherwise.
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TAXATION OF U.S. STOCKHOLDERS
For any taxable year for which the Corporation qualifies for taxation as a
REIT, amounts distributed to U.S. Stockholders will generally be taxed as
follows. Distributions to U.S. Stockholders, other than capital gain dividends
discussed below, will be taxable as ordinary income to such holders up to the
amount of the Corporation's current or accumulated earnings and profits. Such
distributions are not eligible for the dividends-received deduction for
corporations. To the extent that the Corporation makes distributions in excess
of its current or accumulated earnings and profits, such distributions will
first be treated as a tax-free return of capital, reducing the tax basis in the
U.S. Stockholders' shares, and distributions in excess of the U.S. Stockholders'
tax basis in their respective shares are taxable as gain realized from the sale
of such shares. Dividends declared by the Corporation in October, November, or
December of any year payable to a stockholder of record on a specified date in
any such month will be treated as both paid by the Corporation and received by
the stockholder on December 31 of such year, provided that the dividend is
actually paid by the Corporation during January of the following calendar year.
For purposes of the alternative minimum tax, the Corporation's U.S. Stockholders
must take into account their share of the Corporation's alternative minimum tax
preference items. Stockholders may not include on their own income tax returns
any tax losses of the Corporation.
The Corporation will be treated as having sufficient earnings and profits to
treat as a dividend any distribution by the Corporation up to the greater of its
current or accumulated earnings and profits. As a result, U.S. Stockholders may
be required to treat certain distributions that would otherwise result in a tax-
free return of capital as taxable dividends. Moreover, any "deficiency dividend"
will be treated as a "dividend" (an ordinary dividend or a capital gain
dividend, as the case may be), regardless of the Corporation's earnings and
profits.
Distributions to U.S. Stockholders that are properly designated by the
Corporation as capital gain dividends will be treated as long-term capital gain
(to the extent they do not exceed the Corporation's actual net capital gain for
the taxable year) without regard to the period for which the stockholder has
held his stock. Corporate stockholders, however, may be required to treat a
portion of certain capital gain dividends as ordinary income to reflect certain
Corporation level depreciation recapture. As in the case of ordinary dividends,
capital gain dividends are not eligible for the dividends-received deduction for
corporations.
Distributions from the Corporation and gain from the disposition of the
shares will not ordinarily be treated as passive activity income; however,
distributions from the Corporation (to the extent they do not constitute a
return of capital) and gain from the disposition of shares generally will be
treated as investment income for purposes of the investment interest limitation.
A U.S. Stockholder will recognize gain or loss on the sale or exchange of
shares to the extent of the difference between the amount realized on such sale
or exchange and the holder's tax basis in such shares. Such gain or loss
generally will constitute long-term capital gain or loss if the holder has held
such shares for more than one year. Losses incurred on the sale or exchange of
shares held for six months or less (after applying certain holding period
rules), however, will generally be deemed long-term capital loss to the extent
of any long-term capital gain dividends received by the U.S. Stockholder with
respect to such shares.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING--NON-U.S.
STOCKHOLDERS. Backup withholding tax (which generally is a withholding tax
imposed at the rate of 31% on certain payments to persons that fail to furnish
certain information under the United States information reporting requirements)
and information reporting will generally not apply to distributions paid to
Non-U.S. Stockholders outside the United States. As a general matter, backup
withholding and information reporting will not apply to a payment of the
proceeds of a sale of stock by or through a non-U.S. office of a non-U.S.
broker. Information reporting (but not backup withholding) will apply, however,
to a payment of the proceeds of a sale of stock by a non-U.S. office of a broker
that (a) is a United States person, (b) derives 50% or more of its gross income
for certain periods from the conduct of a trade or business in the United States
or (c) is a
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"controlled foreign corporation" (generally, a non-U.S. corporation controlled
by United States stockholders) for United States tax purposes, unless the broker
has documentary evidence in its records that the holder is a Non-U.S.
Stockholder and certain other conditions are met, or the stockholder otherwise
establishes an exemption. Payment to or through a United States office of a
broker of the proceeds of sale of shares is subject to both backup withholding
and information reporting unless the stockholder certifies under penalties of
perjury that the stockholder is a Non-U.S. Stockholder, or otherwise establishes
an exemption. A Non-U.S. Stockholder may obtain a refund of any amounts withheld
under the backup withholding rules by filing the appropriate claim for refund
with the IRS.
U.S. STOCKHOLDERS. Under certain circumstances, a U.S. Stockholder may be
subject to backup withholding at a rate of 31% on payments made with respect to,
or cash proceeds of a sale or exchange of the Corporation's stock. Backup
withholding will apply only if the holder (i) fails to furnish the person
required to withhold with its Taxpayer Identification Number ("TIN") which, for
an individual, would be his or her Social Security Number, (ii) furnishes an
incorrect TIN, (iii) is notified by the IRS that it has failed properly to
report payments of interest or dividends, or (iv) under certain circumstances,
fails to certify, under penalty of perjury, that it has furnished a correct TIN
and has not been notified by the IRS that the holder is subject to backup
withholding for failure to report interest or dividend payments. Backup
withholding will not apply with respect to payments made to certain exempt
recipients, such as corporations and tax-exempt organizations. A U.S.
Stockholder should consult with a tax advisor regarding qualification for
exemption from backup withholding and the procedure for obtaining such an
exemption. Backup withholding is not an additional tax. Rather, the amount of
any backup withholding with respect to a payment to a U.S. Stockholder will be
allowed as a credit against such U.S. Stockholder's United States federal income
tax liability and may entitle such U.S. Stockholder to a refund, provided that
the required information is furnished to the IRS.
In proposed Treasury Regulations published April 22, 1996, the U.S. Treasury
proposed certain changes to the backup withholding and information reporting
rules. These changes, if they become final in their present form, generally
would be effective for payments made after December 31, 1997.
OTHER TAX CONSEQUENCES
Prospective stockholders should consult their own advisors regarding the
effect of other tax laws on an investment in the Corporation. It is uncertain
whether the Corporation and its stockholders will be subject to state or local
income taxes in jurisdictions where the Corporation transacts business or where
the stockholder resides. A state or locality may generally conform to the
Federal income tax treatment of a REIT but not be bound by all Code provisions
relevant to REITs. Therefore, it is possible for a state or locality to subject
the REIT or its stockholders to income taxes. However, there may be
constitutional and statutory limitations on the power of a state or locality to
do so. It is the intention of the Corporation not to conduct business in any
state in which the income tax treatment of a REIT does not conform to the
Federal income tax treatment of a REIT. In addition, we are not aware of any
withholding tax on REIT distributions to non-U.S. residents that is imposed by
any of the jurisdictions in which the Corporation intends to conduct business.
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
In the opinion of Smith Lyons, Toronto, the following summary presents
fairly the principal Canadian federal income tax considerations generally
applicable to a person (a "Canadian Holder") who purchases Common Stock pursuant
to this Offering and who, for purposes of the Income Tax Act (Canada) (the
"Canadian Tax Act"), is resident in Canada, holds Common Stock as capital
property, deals at arm's length with the Corporation and who at all times does
not, together with related persons, directly or indirectly hold 10% or more of
the total outstanding shares of any class of the Corporation. Generally, Common
Stock will be considered capital property to a Canadian Holder provided that
such holder does not hold the Common Stock in the course of carrying on a
business and does not acquire the Common Stock in a
74
transaction considered to be an adventure in nature of trade. Under recently
enacted amendments to the Canadian Tax Act, a financial institution as defined
(including a bank, trust Corporation, credit union, insurance corporation, a
corporation the principal business of which is the lending of money, a
partnership or trust more than 50% of the interests of which are held by such a
corporation or a corporation controlled by such a corporation) is generally
precluded from treating most shares held by it as capital property for the
purposes of the Canadian Tax Act and will be required to recognize annually the
change in value of such properties. This summary does not deal with income tax
consideration to a Canadian Holder that is a partnership or trust.
This summary is based on the current provisions in the Canadian Tax Act, the
regulations thereunder, specific proposals to amend the Canadian Tax Act and the
regulations which have been publicly announced by the Minister of Finance prior
to the date hereof, and the current administrative practices of Revenue Canada
Customs, Excise and Taxation ("Revenue Canada") as published by Revenue Canada.
This summary does not take into account or anticipate any other changes in the
law, whether by legislative, governmental or judicial action, nor does it take
into account any provincial, territorial or foreign tax considerations.
THIS SUMMARY DOES NOT CONSTITUTE, AND SHOULD NOT BE CONSTRUED TO CONSTITUTE,
LEGAL OR TAX ADVICE TO ANY CANADIAN HOLDER. PROSPECTIVE PURCHASERS OF COMMON
STOCK ARE, THEREFORE, ADVISED TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO
THEIR PARTICULAR CIRCUMSTANCES.
TAXATION OF DIVIDENDS
A Canadian Holder who is an individual will be required to include in income
the Canadian dollar equivalent of any dividends paid to the holder of the Common
Stock. Such dividends will not be eligible for the gross-up and dividend tax
credit treatment generally accorded dividends received from taxable Canadian
corporations. A Canadian Holder which is a corporation will be required to
include in income the Canadian dollar equivalent of any dividends paid to it on
the Shares and will generally not be entitled to any deduction in respect
thereof in computing taxable income. A foreign tax credit will be available to a
Canadian Holder for U.S. income taxes paid by, or withheld on behalf of, the
holder on dividends received by the holder to the extent permitted under the
Canadian Tax Act. In the case of a Canadian Holder who is an individual, the
amount of the credit in respect of a dividend received on Common Stock may not
exceed 15% of the dividend. The balance of any U.S. income taxes paid by a
holder who is an individual on such a dividend may be deducted by the holder in
computing his or her income for Canadian income tax purposes.
DISPOSITIONS
A Canadian Holder who disposes of Common Stock or is deemed under the
Canadian Tax Act to have disposed of Common Stock will realize a capital gain
(or capital loss) to the extent that the proceeds of disposition of the Common
Stock, net of any costs of disposition, exceed (or are exceeded by) the adjusted
cost base thereof to the Canadian Holder immediately before the disposition.
Upon an acquisition of Common Stock, the adjusted cost base to a Canadian Holder
of his or her Common Stock will generally be determined by averaging the
Canadian dollar cost of Common Stock acquired by the Canadian Holder with the
adjusted cost base of any Common Stock held by the holder at that time.
The portion of capital gains (or capital losses) which is included in
taxable capital gains (or allowable capital losses) is three-quarters. Certain
corporations may be liable to pay an additional refundable tax of 6 2/3% on
their "aggregate investment income" for a year, which will include taxable
capital gains.
A foreign tax credit will be available to a Canadian Holder for U.S. income
taxes paid by the holder on capital gains realized by the holder to the extent
permitted under the Canadian Tax Act.
75
QUALIFICATION FOR INVESTMENT
Once listed on a stock exchange that is a "prescribed stock exchange" for
the purposes of the Canadian Tax Act, the Common Stock will be qualified
investments for Registered Retirement Savings Plans, Registered Retirement
Income Funds and Deferred Profit Sharing Plans. However, Common Stock will be
considered to be foreign property for such plans and for other taxpayers subject
to the foreign property limitations in Part XI of the Canadian Tax Act. The
closing of this Offering is conditional upon the Corporation listing the Common
Stock for trading on a stock exchange that is a "prescribed stock exchange" for
the purposes of the Canadian Tax Act.
DISTRIBUTION POLICY
Subsequent to this Offering, the Corporation intends to pay regular
quarterly dividends to its stockholders and more frequently if the Board of
Directors of the Corporation so determines. To qualify as a REIT, the
Corporation generally must distribute at least 95% of its taxable income each
year, even if such amount is in excess of cash flow. Unless the Board of
Directors otherwise decides, the Corporation intends to distribute a minimum of
100% of its taxable income. The Corporation currently estimates an initial
annual dividend at $.60 per share based upon an estimate of the annualized cash
flow from operations that will be available for dividends under current
conditions. The Corporation believes that its estimate of cash flow that will be
available for dividends constitutes a reasonable basis for setting the initial
dividend and the Corporation expects to maintain its initial dividend rate for
1997 unless actual results of operations, economic conditions or other factors
differ from the assumptions made, in which case the dividend may be increased or
decreased by the Board of Directors in its discretion. Based on the initial
public offering price set forth on the cover page of this Prospectus, the
initial distribution yield will be 6% per annum. Future distributions of
dividends will be at the discretion of the Board of Directors and will depend on
the actual cash flow of the Corporation, its financial condition, capital
requirements, the annual distribution requirements under the REIT provisions of
the Code (see "U.S. Federal Income Tax Considerations") and such other factors
as the Board of Directors deems relevant.
PLAN OF DISTRIBUTION
Under an agreement dated - 1996 (the "Agency Agreement") among
Porthmeor Securities Inc., Octagon Capital Canada Corporation and First Marathon
Securities Limited (collectively, the "Agents") and the Corporation and Basic
Capital Funds, the Corporation has agreed to issue and sell, and the Agents have
agreed to act as the Corporation's agents, on a best efforts basis, in
connection with this Offering, subject to compliance with all necessary legal
requirements and to the terms and conditions contained in the Agency Agreement,
2,740,000 shares of Common Stock at a price of $10.00 per share of Common Stock
for an aggregate price of $27,400,000. The Agency Agreement provides that the
Corporation will pay to the Agents at closing a fee of 7.5% of the proceeds of
this Offering in consideration for their services.
The Common Stock is being offered principally in the Provinces of Ontario,
British Columbia and Alberta. Any sales in the United States will be made only
through the U.S. broker-dealer affiliates of one of the Agents or through
another registered broker-dealer.
The obligations of the Agents under the Agency Agreement may be terminated
upon the occurrence of certain stated events.
Pursuant to a rule of the Ontario Securities Commission, the Agents may not,
throughout the period of distribution under this Prospectus, bid for or purchase
any Common Stock. The foregoing restriction is subject to certain exceptions, as
long as the bid or purchase is not engaged in for the purpose of creating actual
or apparent active trading in or raising the price of such securities. These
exceptions include a bid or purchase permitted under the by-laws and rules of
certain stock exchanges relating to market stabilization and passive market
making activities and a bid or purchase made for and on behalf of a customer
where the order was not solicited during the period of distribution. Pursuant to
the first mentioned exception, in
76
connection with this offering the Agents may over allot or effect transactions
which stabilize or maintain the market price of the Common Stock at levels other
than those which otherwise might prevail on the open market. Such transactions,
if commenced, may be discontinued at any time.
EXPERTS
The statements of revenue and certain expenses for the year ended December
31, 1995 for Chico Crossroads Center, Ltd. and Miami Gardens Associates and the
balance sheet of Basic U.S. REIT, Inc. as of July 30, 1996 included in this
Prospectus have been so included in reliance on the reports of Price Waterhouse
LLP, independent accountants, given on the authority of said firm, as experts in
auditing and accounting.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Corporation by Schnader, Harrison, Segal & Lewis, Philadelphia,
Pennsylvania. In addition, the description of U.S. federal income tax
considerations in the section of the Prospectus entitled "U.S. Federal Income
Tax Considerations" is based upon the opinion of Schnader, Harrison, Segal &
Lewis, Philadelphia, Pennsylvania. The description of Canadian Federal income
tax considerations in the section of the Prospectus entitled "Canadian Federal
Income Tax Considerations" is based upon the opinion of Smith Lyons, Barristers
& Solicitors, Toronto, Ontario, Canada. The Common Stock is being offered
subject to approval of certain legal matters on behalf of the Corporation by
Schnader, Harrison, Segal & Lewis, Philadelphia, Pennsylvania, and Chaiton &
Chaiton, Toronto, Ontario, Canada, and on behalf of the Agents by Fogler,
Rubinoff, Barristers & Solicitors, Toronto, Ontario, Canada, and Skadden, Arps,
Slate, Meagher and Flom, New York, New York and Toronto, Ontario, Canada.
ADDITIONAL INFORMATION
The Corporation has filed with the Securities and Exchange Commission (the
"SEC" or the "Commission") a Registration Statement on Form S-11 under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder, with respect to the Common Stock offered by
this Prospectus. This Prospectus, which is part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement
and the exhibits and financial statement schedules thereto. For further
information with respect to the Corporation and the Common Stock, reference is
made to the Registration Statement and such exhibits and financial statement
schedules, copies of which may be examined without charge at, or obtained upon
payment of prescribed fees from, the Public Reference Section of the Commission
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and which are also available for inspection and copying at the Regional Offices
of the Commission located at 13th Floor, 7 World Trade Center, New York, New
York 10048 and at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois, 60661-2511. The Commission also maintains a World Wide Web site that
contains reports, proxy and information statements and other information
regarding registrants, such as the Corporation, that file electronically with
the Commission. The address of the Commission's site is http://www.sec.gov.
Statements contained in this Prospectus concerning the provisions or contents of
any contract or other document referred to herein are not necessarily complete,
and in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference and the exhibits and schedules
hereto. For further information regarding the Corporation and the Common Stock
being offered hereby, reference is hereby made to the Registration Statement and
such exhibits and schedules.
As of the date of this Prospectus (which is also the date of the
effectiveness of the Corporation's Registration Statement on Form S-11 filed in
connection with this Prospectus), the Corporation will become subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended, and
in accordance therewith, will file reports, proxy statements and other
information with the SEC. The Corporation intends to furnish its stockholders
with annual reports containing audited financial statements and such other
periodic reports as the Corporation deems appropriate or as may be required by
law.
77
GLOSSARY
The following terms appear throughout this Prospectus. Care should be taken
to read each term in the context of the particular provision of the Prospectus
in which such term is used. The following represents a definition only of such
terms:
a) "ADVISOR" means Basic Advisors, Inc., a Delaware corporation which will
serve as the advisor to the Corporation pursuant to the Advisory
Agreement.
b) "ADVISORY AGREEMENT" means the agreement to be entered into on or prior
to the Date of Closing among the Corporation and the Advisor pursuant to
which the Corporation shall appoint the Advisor as the investment advisor
of the Corporation.
c) "AGENCY AGREEMENT" means the agency agreement between the Corporation
and the Agents referred to under the heading "PLAN OF DISTRIBUTION."
d) "AGENTS" means Porthmeor Securities Inc., Octagon Capital Canada
Corporation and First Marathon Securities Limited.
e) "AMENDED AND RESTATED ARTICLES OF INCORPORATION" means the Articles of
Amendment and Restatement of the Corporation, the instrument by which the
Corporation was incorporated under Maryland law, as amended.
f) "ANCHOR TENANT" means a retail tenant who by its size, regional or
national reputation or product lines attracts other merchants to a
shopping center or draws consumers to a shopping center or who can create
the primary image for a shopping center or whose presence is an essential
factor in securing institutional financing.
g) "AUTHORIZED INVESTMENTS" mean certificates of deposit with terms of less
than one year or U.S. government securities with terms of less than one
year (such as treasury obligations).
h) "BOARD OF DIRECTORS" means the board of directors of the Corporation.
i) "CHICO ACQUISITION AGREEMENT" means the Purchase and Sale Agreement and
Escrow Instructions between Basic Acquisitions, Inc. and Chico Crossroads
Center, Ltd. dated May 8, 1996 for the acquisition of the shopping center
known as "CHICO CROSSROADS CENTER" in Chico, California, as amended.
j) "CODE" means the U.S. Internal Revenue Code of 1986, as amended.
k) "CLOSING", "DATE OF CLOSING" or "CLOSING DATE" means the date of the
closing of this Offering.
l) "COMMUNITY SHOPPING CENTER" means a shopping center usually between
125,000 and 500,000 square feet, which typically provides for the sale of
convenience goods, apparel and home furnishings and may include banking,
professional services, recreational facilities and which typically has a
junior department store, variety store or discount department store as
its principal or anchor tenant. Such shopping center may also include
multiple anchor tenants such as superstores, category killers and
off-price stores.
m) "GARDENS SQUARE ACQUISITION AGREEMENT" means the Purchase and Sale
Agreement between Basic Acquisitions, Inc. and Miami Gardens Associates
dated July 24, 1996 for the acquisition of the shopping center known as
"GARDENS SQUARE" in Dade County, Florida, as amended.
n) "IRS" means the U.S. Internal Revenue Service.
o) "NEIGHBORHOOD SHOPPING CENTER" means a shopping center usually between
30,000 and 125,000 square feet, which typically provides for the sale of
daily living needs such as food, drugs, hardware and personal services,
and which typically has a supermarket or superstore as its principal or
anchor tenant.
78
p) "OFFERING" means the sale of 2,740,000 shares of Common Stock pursuant
to the terms of this Prospectus.
q) "PROPERTIES" means Chico Crossroads Center and Gardens Square, the
initial shopping centers to be acquired by the Corporation.
r) "REIT" means a real estate investment trust as defined in the Code.
s) "SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
t) "SECURITIES EXCHANGE ACT" means the U.S. Securities Exchange Act of
1934, as amended.
u) "U.S." means the United States of America.
79
INDEX TO FINANCIAL STATEMENTS
CHICO CROSSROADS CENTER, LTD. STATEMENTS OF REVENUE AND CERTAIN EXPENSES:
Report of Independent Accountants.................................................. F2
Statements of Revenue and Certain Expenses for the year ended December 31, 1995 and
the six months ended June 30, 1995 and June 30, 1996............................. F3
Notes of Statements of Revenue and Certain Expenses for the year ended December 31,
1995............................................................................. F4
MIAMI GARDENS ASSOCIATES STATEMENTS OF REVENUE AND CERTAIN EXPENSES:
Report of Independent Accountants.................................................. F6
Statements of Revenue and Certain Expenses for the year ended December 31, 1995 and
the six months ended June 30, 1995 and June 30, 1996............................. F7
Notes of Statements of Revenue and Certain Expenses for the year ended December 31,
1995............................................................................. F8
BASIC U.S. REIT, INC. BALANCE SHEET:
Report of Independent Accountants.................................................. F10
Balance Sheet as at July 30, 1996.................................................. F11
Notes for Balance Sheet at July 30, 1996........................................... F12
F-1
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Basic U.S. REIT, Inc.
We have audited the accompanying statement of revenue and certain expenses
of Chico Crossroads Center, Ltd. for the year ended December 31, 1995. This
statement is the responsibility of the property's manager. Our responsibility is
to express an opinion on this statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the statement is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the statement. An audit also includes assessing
the accounting principles used and significant estimates made by the property
manager, as well as evaluating the overall presentation of the statement. We
believe that our audit provides a reasonable basis for our opinion.
The accompanying statement of revenue and certain expenses was prepared on
the basis described in Note 1 for the purpose of complying with the rules and
regulations of the Securities and Exchange Commission (for inclusion in the
registration statement on Form S-11 of Basic U.S. REIT, Inc.) and is not
intended to be a complete presentation of the revenue and expenses of the
property.
In our opinion, the statement of revenue and certain expenses referred to
above presents fairly, in all material respects, the revenue and certain
expenses of Chico Crossroads Center, Ltd. on the basis described in Note 1 for
the year ended December 31, 1995 in conformity with generally accepted
accounting principles.
/s/ Price Waterhouse LLP
New York, New York
September 23, 1996
F-2
CHICO CROSSROADS CENTER, LTD.
STATEMENTS OF REVENUE AND CERTAIN EXPENSES
FOR THE SIX MONTHS ENDED
---------------------------- FOR THE YEAR ENDED
JUNE 30, 1996 JUNE 30, 1995 DECEMBER 31, 1995
------------- ------------- ------------------
(UNAUDITED)
Revenue
Rental (Note 2(a))............................................ $ 1,053,744 $ 1,002,000 $ 2,014,435
Operating expense reimbursement............................... 209,000 188,000 377,749
Other......................................................... -- 2,700 5,500
------------- ------------- ------------------
1,262,744 1,192,700 2,397,684
------------- ------------- ------------------
------------- ------------- ------------------
Certain Expenses
Rental........................................................ 94,000 93,000 186,136
Real estate taxes............................................. 138,000 124,000 248,214
------------- ------------- ------------------
232,000 217,000 434,350
------------- ------------- ------------------
Excess of revenue over certain expenses......................... $ 1,030,744 $ 975,700 $ 1,963,334
------------- ------------- ------------------
------------- ------------- ------------------
See accompanying notes to statements of revenue and certain expenses
F-3
CHICO CROSSROADS CENTER, LTD.
NOTES TO STATEMENTS OF REVENUE AND CERTAIN EXPENSES
FOR THE YEAR ENDED DECEMBER 31, 1995
1. BASIS OF PRESENTATION
These financial statements were prepared to comply with the rules and
regulations of the Securities and Exchange Commission for inclusion in the
registration statement on Form S-11.
The accompanying statements are not representative of the actual operations
for the periods presented as certain expenses that may not be comparable to the
expenses expected to be incurred by Basic U.S. REIT, Inc. in the future
operations of Chico Crossroads Center have been excluded. Excluded expenses
consist of interest, amortization and certain corporate costs not directly
comparable to the future operations. No provision has been made for income
taxes, the liability for which is the responsibility of the owner.
The statements of revenue and certain expenses have been prepared in U.S.
dollars in accordance with U.S. generally accepted accounting principles, which
are, in this circumstance, in all material respects, consistent with Canadian
generally accepted accounting principles.
The statements of revenue and certain expenses for the six month periods
ended June 30, 1996 and 1995 are unaudited. In the opinion of management, such
financial statements reflect all adjustments necessary for a fair presentation
of the results of the respective interim periods. All such adjustments are of a
normal, recurring nature.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) REVENUE RECOGNITION
Rental revenue is recognized on a straight-line basis over the terms of the
related leases. Lease termination revenue is recorded in the period that a
tenant commits to terminate its rights and benefits under the terms of the lease
and vacates the premises. Under the terms of a lease termination agreement
signed in March 1996, a tenant was required to make regular minimum lease
payments through to September 1, 1996 in the amount of approximately $18,000 per
month. These amounts were included in rental revenue in the six months ended
June 30, 1996. Lease termination revenue includes $55,000 which will be
collected subsequent to June 30, 1996. This space was subsequently re-leased.
Percentage rents were $133,856 in the year ended December 31, 1995 ($50,000 and
$66,000 for the six months ended June 30, 1996 and 1995, respectively).
(B) USE OF ESTIMATES
The preparation of financial statements, in conformity with generally
accepted accounting principles, requires management to make estimates and
assumptions that affect the reported amounts of revenue and expenses during the
reporting periods. Actual results could differ from those estimates.
F-4
CHICO CROSSROADS CENTER, LTD.
NOTES TO STATEMENTS OF REVENUE AND CERTAIN EXPENSES (CONTINUED)
FOR THE YEAR ENDED DECEMBER 31, 1995
3. RENTAL PROPERTIES
The future minimum lease payments to be received under existing operating
leases are as follows:
1996............. $1,905,700
1997............. $1,969,400
1998............. $1,913,800
1999............. $1,889,800
2000............. $1,887,900
thereafter....... $18,063,400
The above future minimum lease payments do not include payments for
operating expense reimbursement, percentage rent, or CPI increases.
4. SIGNIFICANT TENANTS
During the year ended December 31, 1995, three of the tenants accounted for
rental revenue amounting to $1,249,700 ($663,600 for the six months ended June
30, 1996; $624,800 for the six months ended June 30, 1995).
F-5
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Basic U.S. REIT, Inc.
We have audited the accompanying statement of revenue and certain expenses
of Miami Gardens Associates for the year ended December 31, 1995. This statement
is the responsibility of the property's manager. Our responsibility is to
express an opinion on this statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the statement is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the statement. An audit also includes assessing
the accounting principles used and significant estimates made by the property
manager, as well as evaluating the overall presentation of the statement. We
believe that our audit provides a reasonable basis for our opinion.
The accompanying statement of revenue and certain expenses was prepared on
the basis described in Note 1 for the purpose of complying with the rules and
regulations of the Securities and Exchange Commission (for inclusion in the
registration statement on Form S-11 of Basic U.S. REIT, Inc.) and is not
intended to be a complete presentation of the revenue and expenses of the
property.
In our opinion, the statement of revenue and certain expenses referred to
above presents fairly, in all material respects, the revenue and certain
expenses of Miami Gardens Associates on the basis described in Note 1 for the
year ended December 31, 1995 in conformity with generally accepted accounting
principles.
/s/ Price Waterhouse LLP
New York, New York
September 23, 1996
F-6
MIAMI GARDENS ASSOCIATES
STATEMENTS OF REVENUE AND CERTAIN EXPENSES
FOR THE SIX MONTHS ENDED FOR THE YEAR
---------------------------- ENDED DECEMBER
JUNE 30, 1996 JUNE 30, 1995 31, 1995
------------- ------------- -----------------
(UNAUDITED)
Revenue
Rental......................................................... $ 466,688 $ 450,000 $ 904,292
Operating expense reimbursement................................ 159,400 157,500 316,745
Other.......................................................... 1,820 5,000 10,542
------------- ------------- -----------------
627,908 612,500 1,231,579
------------- ------------- -----------------
Certain Expenses
Rental......................................................... 111,000 117,000 235,534
Real estate taxes.............................................. 70,000 69,000 139,711
------------- ------------- -----------------
181,000 186,000 375,245
------------- ------------- -----------------
Excess of revenue over certain expenses.......................... $ 446,908 $ 426,500 $ 856,334
------------- ------------- -----------------
------------- ------------- -----------------
See accompanying notes to statements of revenue and certain expenses.
F-7
MIAMI GARDENS ASSOCIATES
NOTES TO STATEMENTS OF REVENUE AND CERTAIN EXPENSES
FOR THE YEAR ENDED DECEMBER 31, 1995
1. BASIS OF PRESENTATION
These financial statements were prepared to comply with the rules and
regulations of the Securities and Exchange Commission for inclusion in the
registration statement on Form S-11.
The accompanying statements are not representative of the actual operations
for the periods presented as certain expenses that may not be comparable to the
expenses expected to be incurred by Basic U.S. REIT, Inc. in the future
operations of Gardens Square have been excluded. Excluded expenses consist of
interest, amortization and certain corporate costs not directly comparable to
the future operations. No provision has been made for income taxes, the
liability for which is the responsibility of the owner.
The statements of revenue and certain expenses have been prepared in U.S.
dollars in accordance with U.S. generally accepted accounting principles, which
are, in this circumstance, in all material respects, consistent with Canadian
generally accepted accounting principles.
The statements of revenue and certain expenses for the six month periods
ended June 30, 1996 and 1995 are unaudited. In the opinion of management, such
financial statements reflect all adjustments necessary for a fair presentation
of the results of the respective interim periods. All such adjustments are of a
normal, recurring nature.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) REVENUE RECOGNITION
Rental revenue is recognized on a straight-line basis over the terms of the
related leases. Lease termination revenue is recorded in the period that a
tenant commits to terminate its rights and benefits under the terms of the
lease.
(B) USE OF ESTIMATES
The preparation of financial statements, in conformity with generally
accepted accounting principles, requires management to make estimates and
assumptions that affect the reported amounts of revenue and expenses during the
reporting periods. Actual results could differ from those estimates.
3. RENTAL PROPERTIES
The future minimum lease payments to be received under existing operating
leases are as follows:
1996............................................................ $ 918,400
1997............................................................ $ 918,100
1998............................................................ $ 853,100
1999............................................................ $ 748,300
2000............................................................ $ 702,800
thereafter...................................................... $4,424,677
The above future minimum lease payments do not include payments for
operating expense reimbursement, percentage rent or CPI increases.
F-8
MIAMI GARDENS ASSOCIATES
NOTES TO STATEMENTS OF REVENUE AND CERTAIN EXPENSES (CONTINUED)
FOR THE YEAR ENDED DECEMBER 31, 1995
4. SIGNIFICANT TENANTS
During the year ended December 31, 1995, two tenants accounted for rental
income amounting to $367,750 ($183,875 for the six months ended June 30, 1996;
$183,800 for the six months ended June 30, 1995).
5. RELATED PARTY TRANSACTION
A portion of the $50,000 in property management fees, included in rental
expense, was paid to an individual related to Miami Gardens Associates.
F-9
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Basic U.S. REIT, Inc.
In our opinion, the accompanying balance sheet presents fairly, in all
material respects, the financial position of Basic U.S. REIT, Inc. at July 30,
1996 in conformity with generally accepted accounting principles. This financial
statement is the responsibility of the Company's management; our responsibility
is to express an opinion of this financial statement based on our audit. We
conducted our audit of this statement in accordance with generally accepted
auditing standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statement is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statement, assessing the accounting
principles used and significant estimates made by management, and evaluating the
overall financial statement presentation. We believe that our audit provides a
reasonable basis for the opinion expressed above.
/s/ Price Waterhouse LLP
New York, New York
September 30, 1996
F-10
BASIC U.S. REIT, INC.
BALANCE SHEET
AS AT JULY 30, 1996
ASSETS
Cash................................................................................ $ 1,000
---------
---------
LIABILITIES AND STOCKHOLDER'S EQUITY
Stockholder's Equity
Preferred Stock $.01 par value
Authorized 1,500,000
Issued None
Excess Stock $.01 par value
Authorized 50,000,000
Issued None
Common Stock $.01 par value
Authorized 100,000,000
Issued 100.................................................................. $ 1
Additional paid in capital........................................................ 999
---------
$ 1,000
---------
---------
Contingencies and commitments (Note 2)
Approved by Board Ronald Bernbaum
----------------------------
Director
Robert Witterick
----------------------------
Director
See accompanying notes to this balance sheet.
F-11
BASIC U.S. REIT, INC.
NOTES TO BALANCE SHEET
AS AT JULY 30, 1996
1. ORGANIZATION
The Corporation was incorporated in the State of Maryland on July 30, 1996.
The Corporation has issued 100 shares of Common Stock for cash consideration of
$1,000 which as at September 30, 1996 was held by Chaiton & Chaiton in trust for
the Corporation. The Corporation intends to qualify as a Real Estate Investment
Trust under United States tax laws and expects to distribute 100% of its taxable
income annually to stockholders starting in calendar year 1997.
2. SUBSEQUENT EVENTS
The Corporation has agreed to accept the assignment of two purchase and sale
agreements conditional on the Corporation closing its initial public offering.
The Corporation plans to raise $27,400,000 through the issuance of 2,740,000
shares of Common Stock. Net proceeds to the Corporation will be used as follows:
Offering............................................................... $27,400,000
Agents' commission and issue costs..................................... 2,495,000
----------
Net Proceeds........................................................... $24,905,000
----------
----------
Proceeds will be used as follows:
Acquisition of Rental Properties....................................... $30,998,500
Payment of Mortgage Assumption Fee..................................... 68,000
Working Capital........................................................ 548,500
----------
Total Assets........................................................... 31,615,000
Less Debt Assumed:
Mortgage Payable....................................................... 6,710,000
----------
Use of Proceeds........................................................ $24,905,000
----------
----------
Rental properties include an acquisition fee payable to Basic Advisors, Inc.
in the amount of $455,438.
The Corporation has also reserved 250,000 shares of Common Stock to be
granted under a Stock Option Plan. The number of shares granted under the plan
cannot exceed 10% of the issued and outstanding Common Stock of the Corporation
and the options will be exercisable at the fair value of the Common Stock at the
date of grant. The Corporation has issued options to directors and officers of
the Corporation to acquire an aggregate of 100,000 shares of Common Stock at a
price equal to the initial public offering price per share. These options expire
in the year 2001. The Corporation will adopt Statement of Financial Accounting
Standards No. 123 ("SFAS 123") and has not yet decided whether it will adopt
SFAS 123 through the income statement or through disclosure only.
F-12
INSIDE BACK COVER OF PROSPECTUS
The inside back cover of the prospectus contains six photographical
depictions of the Chico Crossroads Center showing six views of the pedestrian
walkways and tenant storefronts.
- ------------------------------------------------
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- ------------------------------------------------
------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS OR IN SUPPLEMENTS TO THIS PROSPECTUS OR IN LITERATURE ISSUED BY THE
CORPORATION, OR THE UNDERWRITER (WHICH SHALL NOT BE DEEMED TO BE PART OF THIS
PROSPECTUS) IN CONNECTION WITH THE OFFER CONTAINED HEREIN, AND IF GIVEN OR MADE
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON. THE STATEMENTS IN
THIS PROSPECTUS OR IN ANY SUPPLEMENT ARE MADE AS OF THE DATE HEREOF OR THEREOF,
UNLESS ANOTHER TIME IS SPECIFIED, AND NEITHER THE DELIVERY OF THIS PROSPECTUS OR
ANY SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH
HEREIN SINCE THE DATE HEREOF OR THEREOF. HOWEVER, IF ANY MATERIAL CHANGES OCCUR
DURING THE PERIOD WHEN A PROSPECTUS IS REQUIRED TO BE DELIVERED, THIS PROSPECTUS
OR ANY SUPPLEMENT WILL BE AMENDED OR SUPPLEMENTED ACCORDINGLY.
--------------------------
SUMMARY TABLE OF CONTENTS
PAGE
---------
Prospectus Summary............................. 6
Risk Factors................................... 12
Use of Proceeds................................ 21
Capitalization................................. 22
Pro Forma Selected Financial Information....... 23
Management's Discussion and Analysis of Pro
Forma Results of Operations and Pro Forma
Financial Condition.......................... 31
Business....................................... 34
Policies with Respect to Certain Activities.... 35
The Properties................................. 37
Management..................................... 48
Security Ownership of Certain Beneficial Owners
and Management............................... 56
Legal Proceedings.............................. 57
Description of Capital of the Corporation...... 57
Certain Provisions of Maryland Law and the
Corporation's Amended and Restated Articles
of Incorporation and Bylaws.................. 61
U.S. Federal Income Tax Considerations......... 64
Canadian Federal Income Tax Considerations..... 74
Distribution Policy............................ 76
Plan of Distribution........................... 76
Experts........................................ 77
Legal Matters.................................. 77
Additional Information......................... 77
Glossary....................................... 78
Index to Financial Statements.................. F-1
--------------------------
UNTIL , 1996 ( DAYS AFTER THE DATE OF THIS PROSPECTUS) ALL
DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
2,740,000 SHARES
BASIC U.S. REIT, INC.
COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 1996
- ------------------------------------------------
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- ------------------------------------------------
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 30. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be incurred in
connection with the issuance and distribution of the securities offered hereby.
The Corporation is responsible for the payment of all expenses in connection
with the Offering.
Registration fee under the Securities Act of 1933........................... $ 9,448
Exchange filing fee......................................................... *
NASD filing fee............................................................. *
Blue Sky fees & expenses.................................................... *
Printing expenses........................................................... *
Legal fees and disbursements................................................ *
Accounting fees............................................................. *
Fees of transfer agent...................................................... *
Miscellaneous............................................................... *
Total:.................................................................... $ *
- ------------------------
* To be filed by Amendment
ITEM 31. SALES TO SPECIAL PARTIES.
None
ITEM 32. RECENT SALES OF UNREGISTERED SECURITIES.
On July 30, 1996 at the time of the Registrant's initial capitalization, the
Registrant sold to Mr. Bernbaum at a cash purchase price of $10.00 per share,
100 shares of common stock. The Registrant did not pay any underwriting
discounts or commissions with respect to such sales.
Exemption from registration is claimed for the transaction described above
pursuant to Section 4(2) of the Securities Act as a transaction not involving a
public offering.
ITEM 33. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Articles of Incorporation authorize the
Corporation, to the maximum extent permitted by Maryland law, to obligate itself
to indemnify and to pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to (a) any present or former director or officer or
(b) any individual who, while a director of the Corporation and at the request
of the Corporation, serves or has served another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. The bylaws obligate
it, to the maximum extent permitted by Maryland law, to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(a) any present or former director of officer who is made a party to the
proceeding by reason of his service in that capacity of (b) any individual who,
while a director of the Corporation and at the request of the Corporation,
serves or has served another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise as a director, officer, partner or
trustee of such corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise and who is made a party to the proceeding by reason of
his service in that capacity. The Amended and Restated Articles of Incorporation
and bylaws also permit the Corporation to indemnify and advance expenses to any
person who served a predecessor of the Corporation in any of the
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capacities described above and to any employee or agent of the Corporation or a
predecessor of the Corporation.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Amended and Restated Articles of Incorporation do not) to indemnify a
director or officer who has been successful, on the merits or otherwise, in the
defense of any proceeding to which he is made a party by reason of his service
in that capacity. The MGCL permits a corporation to indemnify its present and
former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that (a) the
act or omission of the director was material to the matter giving rise to the
proceeding and (i) was committed in bad faith or (ii) was the result of active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services or (c) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
the act or omission was unlawful. However, a Maryland corporation may not
indemnify for (a) an adverse judgment in a suit by or in the right of the
corporation or (b) any proceeding charging an improper personal benefit to the
director or officer, whether or not involving action in an official capacity, in
which the director or officer is adjudged liable on the basis that personal
benefit was improperly received. In addition, the MGCL requires the Corporation
to, as a condition to advancing expenses, to obtain (a) a written affirmation by
the director or officer of his good faith belief that he has met the stand of
conduct necessary for indemnification by the Corporation as authorized by the
bylaws and (b) a written undertaking by or on his behalf to repay the amount
paid or reimbursed by the Corporation if it shall be ultimately determined that
the standard of conduct was not met.
ITEM 34. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
Not Applicable
ITEM 35. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS. See Index to Financial Statements for the
financial statements which are included in the Prospectus.
(b) EXHIBITS.
EXHIBIT NUMBER DESCRIPTION SEQUENTIAL PAGE NO.
- ----------------- ----------------------------------------------------------------------------- ---------------------
1.1 Form of Agency Agreement between the Registrant and Basic Capital Funds and
Porthmeor Securities Inc., Octagon Capital Canada Corporation and First
Marathon Securities Limited.
3.1 Articles of Amendment and Restatement of the Registrant
3.2 Bylaws of the Registrant
4.1 * Form of Share Certificate
5.1 * Opinion of Schnader, Harrison, Segal & Lewis re: Legality of
Shares
8.1 * Opinion of Schnader, Harrison, Segal & Lewis re: U.S. Federal
Income Tax Matters
8.2 * Opinion of Smith, Lyons re: Canadian Federal Income Tax
Matters.
10.1 Form of Advisory Agreement between the Registrant and Basic Advisors, Inc.
10.2 Purchase and Sale Agreement between Basic Acquisitions, Inc. and Chico
Crossroads Center, Ltd.
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EXHIBIT NUMBER DESCRIPTION SEQUENTIAL PAGE NO.
- ----------------- ----------------------------------------------------------------------------- ---------------------
10.3 First Amendment to Purchase and Sale Agreement between Basic Acquisitions,
Inc. and Chico Crossroads Center.
10.4 Real Estate Purchase and Sale Agreement between Basic Acquisitions, Inc. and
Miami Gardens Associates.
10.5 First Amendment to Real Estate Purchase and Sale Agreement between Basic
Acquisitions, Inc. and Miami Gardens Associates.
10.5.1 Second Amendment to Real Estate Purchase and Sale Agreement between Basic
Acquisitions, Inc. and Miami Gardens Associates.
10.6 Promissory Note by Miami Gardens Associates to Life Investors Insurance
Company of America.
10.7 Mortgage by Miami Gardens Associates to Life Investors Insurance Company of
America.
10.8 Lease between Centrum G.B. II Corporation and Publix Super Markets.
10.9 Lease between Centrum G.B. II Corporation and Jack Eckerd Corporation.
10.10 Lease between Chico Crossroads Center, Ltd., and Waban, Inc.
10.11 Lease between Chico Crossroads Center, Ltd., and Netco Foods, Inc.
10.12 Lease between Chico Crossroads Center, Ltd., and Circuit City Stores, Inc.
10.13 Lease between Chico Crossroads Center, Ltd., and Barnes & Noble Superstores,
Inc.
10.14 1996 Stock Option Plan of Registrant
23.1 * Consent of Schnader, Harrison, Segal & Lewis
23.2 * Consents of Smith Lyons
23.3 Consent of Price Waterhouse LLP, Independent Accountants
23.4 * Consent(s) of Proposed Trustee(s)
24.1 * Power of Attorney
- ------------------------
* To be filed by Amendment
ITEM 36. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements
certificates in such denominations and registered in such names as
required by the underwriter to permit prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to
Directors, officers and controlling persons of the Registrant, 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
Registrant of expenses incurred or paid by a Director, officer or
controlling person of Registrant in the successful defense of any action,
suit or proceeding) is asserted against Registrant by such Director,
officer or controlling person, Registrant will, unless in the opinion of
its counsel the matter had been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
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(c) The undersigned Registrant hereby undertakes:
(1) For the purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 30A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-11 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miami, State of Florida on this 30th day of
September, 1996.
BASIC U.S. REIT, INC.
By: /s/ CARL MAYNARD
-----------------------------------------
Carl Maynard,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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/ CARL
MAYNARD Director, President and
- ------------------------------ Chief Executive Officer September 30, 1996
Carl Maynard
/s/ RONALD
BERNBAUM
- ------------------------------ Director, Chairman September 30, 1996
Ronald L. Bernbaum
/s/ LARRY
THRALL
- ------------------------------ Director September 30, 1996
Larry Thrall
/s/ ROBERT
WITTERICK
- ------------------------------ Director September 30, 1996
Robert G. Witterick, Q.C.
/s/ NILS
PETERSON
- ------------------------------ Director September 30, 1996
Nils Peterson
/s/ TERRY
MCCRAE Treasurer, Chief Financial
- ------------------------------ Officer and Vice September 30, 1996
Terry McCrae President-Finance
II-5