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As filed with the Securities and Exchange Commission
on May 30, 1996
Registration No. 333-1843
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3/A
AMENDMENT NO. 2
TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MEDITRUST
(Exact name of registrant as specified in governing instruments)
Massachusetts 04-6532031
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
197 First Avenue
Needham Heights, Massachusetts 02194
(617) 433-6000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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ABRAHAM D. GOSMAN
Chairman and Chief Executive Officer
MEDITRUST
197 First Avenue
Needham Heights, Massachusetts 02194
(617) 433-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of communications to:
MICHAEL J. BOHNEN, ESQUIRE
NUTTER, McCLENNEN & FISH, LLP
One International Place
Boston, MA 02110-2699
(617) 439-2000
Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
reinvestment plans, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
==============================================================================================================
Title of Each Class Amount to Be Proposed Proposed Amount of
of Securities Being Registered Maximum Offering Maximum Registration Fee
Registered Price per Unit Aggregate Offering (2)
Price (1)
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Common and
Preferred Shares of
Beneficial Interest,
Debt Securities (6) (6) $500,000,000 $172,413.80
and Warrants for
Common and
Preferred Shares of
Beneficial Interest
and Debt
Securities, Issuable
in Series(3)(4)(5)
==============================================================================================================
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $500,000,000, or if
any Debt Securities are issued with an original issue discount, such
greater amount as shall result in an aggregate offering price of
$500,000,000. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
(2) Determined pursuant to Rule 457(o) under the Securities Act of 1933, as
amended.
(3) There is also being registered an indeterminate number of Shares of
Beneficial Interest as may be issued upon conversion of the Debt
Securities or exercise of the Securities Warrants registered hereby.
(4) There is also being registered hereunder an indeterimate number of Debt
Securities as may be issued upon exercise of the Securities Warrants
registered hereby.
(5) There is also being registered hereunder an indeterminate number of Debt
Securities Warrants and Share Warrants representing rights to purchase
Debt Securities and Shares of Beneficial Interest, respectively,
registered pursuant to this Registration Statement.
(6) Not applicable pursuant to General Instructions II.D of Form S-3 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 thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED__________
PROSPECTUS
MEDITRUST
Common and Preferred Shares of Beneficial Interest,
Debt Securities and/or Securities Warrants
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Meditrust, a Massachusetts business trust (together with its subsidiaries
unless the context otherwise requires, the "Company"), is a real estate
investment trust under the Internal Revenue Code of 1986, as amended, which may
offer from time to time, in one or more series, its debt securities (the "Debt
Securities"), warrants to purchase Debt Securities (the "Debt Securities
Warrants"), common shares of beneficial interest, without par value (the "Common
Shares"), preferred shares of beneficial interest (the "Preferred Shares" and
together with the Common Shares, the "Shares") and warrants to purchase Shares
(the "Share Warrants"). The Debt Securities Warrants and the Share Warrants are
collectively referred to herein as the "Securities Warrants." The Debt
Securities, Shares and Securities Warrants are collectively referred to herein
as the "Securities." The Securities will have an aggregate offering price of
$500,000,000 and will be offered in amounts, at prices and on terms to be
determined at the time of offering.
In the case of Debt Securities, the specific title, the aggregate principal
amount, the offering price, the maturity, the rate and time of payment of any
interest, any redemption or sinking fund provisions, any conversion provisions
and any other specific term of the Debt Securities will be set forth in an
accompanying supplement to this Prospectus (the "Prospectus Supplement"). In the
case of Shares, the specific number of Shares and offering price will be set
forth in an accompanying Prospectus Supplement. In the case of Preferred Shares,
the specific designation, any dividend, liquidation, redemption, conversion,
voting and other rights, the offering price and any other specific term of the
Preferred Shares will be set forth in an accompanying Prospectus Supplement. In
the case of Securities Warrants, the duration, offering price, exercise price
and detachability, if applicable, will be set forth in an accompanying
Prospectus Supplement. The Prospectus Supplement will also disclose whether the
Securities will be listed on a national securities exchange and if they are not
to be listed, the possible effects thereof on their marketability.
The Securities may be sold: (i) directly by the Company; (ii) through
underwriting syndicates represented by one or more managing underwriters, or by
one or more underwriters without a syndicate; and (iii) through agents
designated from time to time. The names of any underwriters or agents of the
Company involved in the sale of the Securities in respect of which this
Prospectus is being delivered and any applicable commissions or discounts will
be set forth in an accompanying Prospectus Supplement. See "Plan of
Distribution." The net proceeds to the Company from such sale also will be set
forth in the Prospectus Supplement.
The Company's shares are traded on the New York Stock Exchange under the
symbol "MT." On May 28, 1996, the closing sale price of the Shares on the
New York Stock Exchange was $33.375.
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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.
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THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
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The date of this Prospectus is May 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 SECURITIES LAWS OF ANY
SUCH STATE.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024 of the offices of
the Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
or at the regional offices of the Commission located at Seven World Trade
Center, 13th Floor, New York, New York 10048, Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained from the principal offices of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C. 20549, at prescribed
rates. Reports, proxy materials and other information concerning the Company can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, Room 1102, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act").
This Prospectus and any accompanying Prospectus Supplement do not contain all
the information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to the Registration Statement, copies of
which may be obtained upon payment of a fee prescribed by the Commission, or may
be examined free of charge at the principal office of the Commission in
Washington, D.C.
Statements made in this Prospectus and any accompanying Prospectus
Supplement as to the contents of any contract or other document referred to are
not necessarily complete, and 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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus its (i)
Annual Report on Form 10-K for the fiscal year ended December 31, 1995, as
amended by the Company's Form 10-K/A dated March 5, 1996, (ii) Quarterly Report
on Form 10-Q for the fiscal quarter ended March 31, 1996 and (iii) Current
Report on Form 8-K dated January 29, 1996, which shall be deemed to be a part
hereof.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the termination of the offering of the Securities offered hereby shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing
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such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in a subsequently filed document, as the case may be, which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
(without exhibits) of any or all documents incorporated by reference into this
Prospectus. Requests for such copies should be directed to Lisa P. McAlister,
Chief Financial Officer and Treasurer, Meditrust, 197 First Avenue, Needham
Heights, Massachusetts 02194, telephone (617) 433-6000.
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THE DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED AUGUST 6, 1985, AS
AMENDED (THE "DECLARATION"), A COPY OF WHICH IS DULY FILED IN THE OFFICE OF THE
SECRETARY OF STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME
"MEDITRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
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THE COMPANY
Meditrust, established in 1985, is the largest dedicated health care real
estate investment trust in the United States based on its gross real estate
investments of over $2 billion as of March 31, 1996. The Company invests in high
quality health care facilities managed by experienced operators and attempts to
achieve diversity in its property portfolio by sector of the health care
industry, geographic location, operator and form of investment.
As of March 31, 1996, the Company had investments in 333 facilities,
consisting of 265 long-term care facilities, 24 rehabilitation hospitals, 20
retirement and assisted living facilities, 13 medical office buildings, ten
alcohol and substance abuse and psychiatric facilities and one acute care
hospital campus. Included in the 333 facilities are 19 properties under
construction that are expected to be completed during the next three to 12
months. The properties are located in 35 states and are operated by 33 health
care companies. Of the 33 different operators, 13 are publicly-traded companies
(i.e., Sun Healthcare Group, Inc., Horizon/CMS Healthcare Corporation,
Geriatric and Medical Centers, Inc., OrNda Healthcorp., Integrated
Health Services, Inc., Emeritus Corporation, Tenet HealthCare Corporation,
Columbia/HCA Healthcare Corporation, HealthSouth Rehabilitation Corporation, The
Multicare Companies, Inc., Mariner Health Group, Inc., Youth Services
International, Inc. and Sterling House Corporation), and constitute
approximately 45% of the Company's real estate investments.
The Company's real estate investments are either owned by the Company or
secured by a mortgage lien. As of March 31, 1996, permanent mortgage loans
constituted 50%, sale/leaseback transactions constituted 43% and development
mortgage financing constituted 7% of the Company's portfolio as measured by
gross real estate investments. The leases and mortgages provide for rental or
interest rates which generally range from approximately 9% to 13% per annum of
the acquisition price or mortgage amount. The leases and mortgages generally
provide for an initial term of 10 years, with the leases having one or more
five-year renewal options. The leases and mortgages also provide for additional
rent and interest which are generally either based upon a percentage of
increased revenues over specific base period revenues of the related properties
or a fixed rent or interest escalation provision.
In addition, the Company usually obtains guarantees from the parent
corporation, if any, of the operator or affiliates or individual principals of
the operator. Many obligations are backed by letters of credit or pledges of
certificates of deposit which cover from three to 12 months of lease or mortgage
payments. In addition, the Company's permanent and development mortgage loans
and leases generally are cross-defaulted or where appropriate
cross-collateralized with other mortgage and development loans, leases or other
agreements between the Company and the same operator or any affiliated
operators. With respect to development mortgage loans, the Company generally
requires guaranteed maximum price construction contracts, performance completion
bonds or guarantees. The Company enters into a development mortgage loan when
the Company will also be the permanent owner or mortgage lender.
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In making its investment decisions, the Company reviews, among other
criteria, the operational viability of the facility, the experience and
competency of the operator and the financial strength of the guarantor. From
time to time, the Company enters into transactions with related parties. As of
March 31, 1996, the Company had total commitments of $167 million, $97 million
of which was funded, to companies in which Abraham D. Gosman, the Company's
Chairman and Chief Executive Officer, owns an equity interest. The Company
expects to enter into additional transactions with related parties in the
future. All of the terms and conditions of such transactions are subject to
approval by the independent Trustees of the Company. The Board of Trustees
believes that the terms of the transactions which the Company has entered into
with related parties are not less favorable to the Company than those prevailing
at the time for comparable transactions with unrelated persons.
The Company was organized to qualify, and intends to continue to operate, as
a real estate investment trust in accordance with Federal tax laws and
regulations. So long as the Company so complies, with limited exceptions, the
Company will not be taxed under Federal income tax laws on that portion of its
taxable income that it distributes to its shareholders. The Company has
distributed, and intends to continue to distribute, substantially all of its
real estate investment trust taxable income to shareholders. See "Federal Income
Tax Considerations."
In order to meet its ongoing capital requirements for additional
investments, the Company may raise additional capital through a variety of
sources, including the sale of Shares and debt securities and drawings against
its revolving bank lines of credit.
The Company is a self-administered real estate investment trust, with its
principal executive offices at 197 First Avenue, Needham Heights, Massachusetts
02194. Its telephone number is (617) 433-6000.
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HEALTH CARE REFORM AND REGULATION
Many of the operators with which the Company does business rely on
government reimbursement, primarily Medicare and Medicaid, for a significant
portion of their operating revenues. During the 1994 session of the United
States Congress, there was active consideration of various proposals for
national health care reform, including the administration's proposal to cap
national health care spending and the future growth of Medicare and Medicaid
funding. No such legislation was passed during the 1994 session of Congress.
Other recent proposals include replacement of the current Medicaid program with
block grants to the states and other limitations on Medicaid spending. Some of
these proposals, if enacted, could have an impact on operators doing business
with the Company. It is not possible to predict whether and when health care
reform legislation will be passed by Congress and, if passed, what features such
legislation will contain or the effect it may have on the nursing home, assisted
living or rehabilitation care industries, the reimbursements levels available to
health care providers or on the health care industry in general.
From time to time, Medicaid, Medicare and other governmental payors have
reviewed the billing practices of many health care facilities operators
including certain of the operators with which the Company does business. It is
unclear what impact such reviews may have on these operators. The Company does
not believe, however, that any adverse findings against these operators would
materially affect the Company's financial position.
RATIO OF EARNINGS TO FIXED CHARGES
Year Ended December 31,
----------------------- Three Months Ended
1991 1992 1993 1994 1995 March 31, 1996
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Ratio 1.60 1.88 2.02 2.19 2.35 3.21
For the purpose of calculating the ratio of earnings to fixed charges for
the years ended December 31, 1991, 1992, 1993, 1994 and 1995, and the
three-month period ended March 31, 1996, net income has been added to interest
expense and that sum has been divided by such interest expense. To date, the
Company has not issued Preferred Shares; therefore, the ratios of earnings to
fixed charges and preferred stock dividend requirements are the same as the
ratios of earnings to fixed charges set forth above.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities offered from
time to time hereby will be used for general business purposes, including the
repayment of bank lines of credit, if
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any, outstanding, and investments in health care facilities. As of May 29, 1996,
there were no loans outstanding under the Company's bank lines of credit. Any
drawings under the Company's bank lines of credit will mature on or before June
30, 1997 and bear interest at the lenders' respective prime rates or the London
Interbank Offering Rate plus 1.00% per annum. Pending such uses, the net
proceeds will be invested in short-term, interest-bearing, direct obligations
issued or guaranteed by the United States, certificates of deposit or accounts,
or investment grade commercial paper, consistent with the Company's
qualification as a real estate investment trust, the Company's Restated
Declaration of Trust (the "Declaration"), and the Company's agreements with its
lenders.
DESCRIPTION OF SHARES
There is no limit on the number of Shares the Company is authorized to
issue. Shares may be issued by the Board of Trustees without any vote of the
shareholders. The Shares are without par value. On the date hereof, the
outstanding Shares are of one class. The following description is qualified in
all respects by reference to the Declaration and the By-laws of the Company,
copies of which are incorporated by reference as exhibits to the Registration
Statement of which this Prospectus is a part.
Redemption. For the Company to qualify as a real estate investment trust
under the Internal Revenue Code of 1986, as amended (the "Code"), in any taxable
year, not more than 50% of its outstanding Shares may be owned by five or fewer
individuals and Shares must be owned by 100 or more persons during at least 335
days of a taxable year of 12 months or during a proportionate part of a shorter
taxable year. In order to meet these requirements, the Trustees have the power
to redeem or prohibit the transfer of a sufficient number of Shares selected in
a manner deemed appropriate to maintain or bring the ownership of the Shares
into conformity with such requirements. In connection with the foregoing, if the
Trustees shall, at any time and in good faith, be of the opinion that direct or
indirect ownership of at least 9.9% or more of the Shares has or may become
concentrated in the hands of one beneficial owner, the Trustees shall have the
power (i) by lot or other means deemed equitable by them to call for the
purchase from any shareholder of the Company of a number of Shares sufficient,
in the opinion of the Trustees, to maintain or bring the direct or indirect
ownership of Shares of such owner to a level of no more than 9.9% of the
outstanding Shares, and (ii) to refuse to transfer or issue Shares to any person
whose acquisition of such Shares would cause a beneficial holder to hold in
excess of 9.9% of the outstanding Shares. Further, any transfer of Shares that
would create a beneficial owner of more than 9.9% of the outstanding Shares
shall be deemed void and the intended transferee shall be deemed never to have
had an interest therein. The purchase price for any Shares so redeemed shall be
equal to the fair market value of the Shares reflected in the closing sales
price for the Shares, if then listed on a national securities exchange, or the
average of the closing sales price for the Shares if then listed on more than
one national securities exchange, or if the Shares are not then listed on a
national securities exchange, the latest bid quotation for the Shares if then
traded over-the-counter, on the last business day immediately preceding the day
on which notices of such acquisition are sent by the Company.
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From and after the date fixed for purchase by the Trustees, the holder of any
Shares so called for purchase shall cease to be entitled to distributions,
voting rights and other benefits with respect to such Shares, except the right
to payment of the purchase price for the Shares.
The foregoing provisions may have the effect of discouraging unilateral
tender offers or other takeover proposals which certain shareholders might deem
in their interest or in which they might receive a substantial premium. The
provisions could also have the effect of insulating current management against
the possibility of removal and could, by possibly reducing temporary
fluctuations in market price caused by accumulations of Shares, deprive
shareholders of opportunities to sell at a temporarily higher market price.
Additional Provisions. The Declaration provides that annual meetings of
shareholders are to be held within six months after the end of each fiscal year
and special meetings of the shareholders may be called by the President of the
Company, a majority of the Trustees or a majority of the Independent Trustees
(defined in the Declaration) and shall be called upon the written request of the
holders of 10% or more of the outstanding Shares.
Whenever any action is to be taken by the shareholders, it shall, except
as otherwise clearly indicated in the Declaration, be authorized by holders of a
majority of the Shares then outstanding and entitled to vote thereon. See
"Preferred Shares." Notwithstanding the foregoing, at all elections of Trustees,
voting by shareholders shall be conducted under the non-cumulative method and
the election of Trustees shall be by the affirmative vote of the holders of
Shares representing a plurality of the Shares then outstanding which are present
in person or by proxy at a meeting in which a quorum is present.
Whenever shareholders are required or permitted to take any action (unless
a vote at a meeting is specifically required, as with respect to termination or
amendment of the Declaration), such action may be taken without a meeting by
written consents setting forth the action so taken, signed by the holders of a
majority (or such higher percentage as may be specified) of the outstanding
Shares that would be entitled to vote thereon at a meeting.
Except with respect to matters on which a shareholders' vote is
specifically required by the Declaration, no action taken by the shareholders at
any meeting shall in any way bind the Trustees.
The Shares have no preemptive or appraisal rights.
The Declaration provides that shareholders of the Company shall not be
subject to any liability for the acts or obligations of the Company and that, as
far as is practicable, each written agreement of the Company is to contain a
provision to that effect. No personal liability will attach to the shareholders
for claims under any contract containing such a provision in writing where
adequate notice is given of such provision, except possibly in a few
jurisdictions. With respect to all types of claims in such jurisdictions and
with respect to tort claims, contract claims where the shareholder liability is
not disavowed as described above, claims for taxes and
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certain statutory liabilities in other jurisdictions, a shareholder may be held
personally liable to the extent claims are not satisfied by the Company.
However, the Declaration provides that, upon payment of any such liability, the
shareholder will be entitled to reimbursement from the general assets of the
Company. The Trustees intend to conduct the operations of the Company, with the
advice of counsel, in such a way as to avoid, as far as is practicable, the
ultimate liability of the shareholders of the Company. For example, almost all
of the real estate and all of the mortgages included in the assets of the
Company are held by corporate subsidiaries. The Trustees do not intend to
provide insurance covering such risks to shareholders.
COMMON SHARES
General. All Common Shares participate equally in dividends and in net
assets available for distribution to holders of Common Shares on liquidation or
termination of the Company, have one vote per Common Share on all matters
submitted to a vote of the shareholders and do not have cumulative voting rights
in the election of Trustees. The Common Shares offered hereby will be validly
issued, fully paid and nonassessable by the Company upon issuance. The Common
Shares have no conversion, exchange or sinking fund rights.
Transfer Agent and Registrar. Fleet National Bank, Providence, Rhode
Island, acts as transfer agent and registrar of the Common Shares.
PREFERRED SHARES
General. Under the Declaration, the Company has authority to issue an
unlimited number of Preferred Shares. No Preferred Shares were outstanding as of
May 29, 1996. Preferred Shares may be issued from time to time, in one or more
series, as authorized by the Board of Trustees of the Company. Prior to issuance
of shares of each series, the Board of Trustees is required by the Declaration
to fix for each series, the terms, preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends or other distributions,
qualifications and terms or conditions of redemption, of such series of
Preferred Shares. The Preferred Shares will, when issued, be fully paid and
nonassessable and will have no preemptive rights. The Board of Trustees could
authorize the issuance of Preferred Shares with terms and conditions that could
have the effect of discouraging a takeover or other transaction that holders of
Shares might believe to be in their best interests or in which holders of some,
or a majority, of the Shares might receive a premium for their Shares over the
then market price of such Shares.
Terms. The following description of the Preferred Shares sets forth
certain general terms and provisions of the Preferred Shares to which any
Prospectus Supplement may relate. The statements below describing the Preferred
Shares are in all respects subject to and qualified in their entirety by
reference to the applicable provisions of the Declaration and any applicable
amendment to the Declaration designating the terms of a series of Preferred
Shares (a "Designating Amendment").
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Reference is made to the Prospectus Supplement relating to any Preferred
Shares offered thereby for the specific terms of such securities, including:
(1) The title of such Preferred Shares;
(2) The number of such Preferred Shares offered, the liquidation
preference per Share and the offering price of such Preferred
Shares;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Shares;
(4) The date from which dividends on such Preferred Shares shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Shares;
(6) The provision for a sinking fund, if any, for such Preferred Shares;
(7) The provision for redemption, if applicable, of such Preferred
Shares;
(8) Any listing of such Preferred Shares on any securities exchange;
(9) The terms and conditions, if applicable, upon which such Preferred
Shares will be convertible into Common Shares, including the
conversion price (or manner of calculation thereof);
(10) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Shares;
(11) A discussion of federal income tax considerations applicable to such
Preferred Shares;
(12) The relative ranking and preference of such Preferred Shares as to
dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company;
(13) Any limitations on issuance of any series of Preferred Shares
ranking senior to or on a parity with such series of Preferred
Shares as to dividend rights and rights upon liquidation,
dissolutions or winding up of the affairs of the Company; and
(14) Any limitations, in addition to those imposed on Shares generally
under the Declaration, on direct or beneficial ownership and
restrictions on transfer, in each case as may be appropriate to
preserve the status of the Company as a REIT.
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Rank. Unless otherwise specified in the Prospectus Supplement, the
Preferred Shares will, with respect to dividend rights and rights upon
liquidation, dissolution or winding up of the Company, rank (i) senior to all
Common Shares of the Company, and to all equity securities ranking junior to
such Preferred Shares with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company; (ii) on a parity with all
equity securities issued by the Company the terms of which specifically provide
that such equity securities rank on a parity with the Preferred Shares with
respect to dividend rights or rights upon liquidation, dissolution or winding up
of the Company; and (iii) junior to all equity securities issued by the Company
the terms of which specifically provide that such equity securities rank senior
to the Preferred Shares with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company. The term "equity
securities" does not include convertible Debt Securities.
Dividends. Holders of the Preferred Shares of each series will be entitled
to receive, when, as and if declared by the Board of Trustees of the Company,
out of assets of the Company legally available for payment, cash dividends at
such rates and on such dates as will be set forth in the applicable Prospectus
Supplement. Each such dividend shall be payable to holders of record as they
appear on the share transfer books of the Company on such record dates as shall
be fixed by the Board of Trustees of the Company.
Dividends on any series of the Preferred Shares may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Trustees of the Company fails
to declare a dividend payable on a dividend payment date on any series of the
Preferred Shares for which dividends are non-cumulative, then the holders of
such series of the Preferred Shares will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Company will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment date.
Unless otherwise provided in the applicable Prospectus Supplement, if
Preferred Shares of any series are outstanding, no dividends will be declared or
paid or set apart for payment on any other equity securities of the Company of
any other series ranking, as to dividends, on a parity with or junior to the
Preferred Shares of such series for any period unless (i) if such series of
Preferred Shares has a cumulative dividend, full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof is set apart for such payment on the Preferred Shares of
such series for all past dividend periods and the then current dividend period
or (ii) if such series of Preferred Shares does not have a cumulative dividend,
full dividends for the then current dividend period have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for such payment on the Preferred Shares of such
series. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon Preferred Shares of any series and the shares
of any other series of Preferred Shares ranking on a parity as to dividends with
the Preferred Shares of such series, all dividends declared upon Preferred
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Shares of such series and any other series of Preferred Shares ranking on a
parity as to dividends with such Preferred Shares shall be declared pro rata so
that the amount of dividends declared per Preferred Share of such series and
such other series of Preferred Shares shall in all cases bear to each other the
same ratio that accrued dividends per Preferred Share of such series (which
shall not include any accumulation in respect of unpaid dividends for prior
dividend periods if such Preferred Shares do not have a cumulative dividend) and
such other series of Preferred Shares bear to each other. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on Preferred Shares of such series which may be in arrears.
Except as provided in the immediately preceding paragraph and unless
otherwise indicated in the applicable Prospectus Supplement, unless (i) if such
series of Preferred Shares has a cumulative dividend, full cumulative dividends
on the Preferred Shares of such series have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof is
set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends on the Preferred Shares of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof is set apart for payment for the then current dividend
period, no dividends (other than in Shares or other equity securities ranking
junior to the Preferred Shares of such series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment nor shall any
other distribution be declared or made upon the Shares, or any other equity
securities ranking junior to or on a parity with the Preferred Shares of such
series as to dividends or upon liquidation, nor shall any Shares or any other
equity securities of the Company ranking junior to or on a parity with the
Preferred Shares of such series as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such securities)
by the Company (except by conversion into or exchange for other equity
securities of the Company ranking junior to the Preferred Shares of such series
as to dividends and upon liquidation).
Redemption. If so provided in the applicable Prospectus Supplement, the
Preferred Shares will be subject to mandatory redemption or redemption at the
option of the Company, as a whole or in part, in each case upon the terms, at
the times and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Shares that is
subject to mandatory redemption will specify the number of such Preferred Shares
that shall be redeemed by the Company in each year commencing after a date to be
specified, at a redemption price per share to be specified, together with an
amount equal to all accrued and unpaid dividends thereon (which shall not, if
such Preferred Shares do not have a cumulative dividend, include any
accumulation in respect of unpaid dividends for prior dividend periods) to the
date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Shares of any series is payable only from the net
proceeds of the issuance of equity securities of the
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Company, the terms of such Preferred Shares may provide that, if no such equity
securities shall have been issued or to the extent the net proceeds from any
issuance are insufficient to pay in full the aggregate redemption price then
due, such Preferred Shares shall automatically and mandatorily be converted into
the applicable equity securities of the Company pursuant to conversion
provisions specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing and unless otherwise provided in the
applicable Prospectus Supplement, unless (i) if a series of Preferred Shares has
a cumulative dividend, full cumulative dividends on all shares of such series of
Preferred Shares shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, and (ii) if a
series of Preferred Shares does not have a cumulative dividend, full dividends
on all Preferred Shares of such series have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for the then current dividend period, no Preferred Shares
shall be redeemed unless all outstanding Preferred Shares of such series are
simultaneously redeemed; provided, however, that the foregoing shall not prevent
the purchase or acquisition of Preferred Shares of such series to preserve the
REIT status of the Company or pursuant to a purchase or exchange offer made on
the same terms to holders of all outstanding shares of Preferred Shares of such
series. In addition, unless (i) if such series of Preferred Shares has a
cumulative dividend, full cumulative dividends on all outstanding shares of such
series of Preferred Shares have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for payment
for all past dividend periods and the then current dividend period, the Company
shall not purchase or otherwise acquire directly or indirectly any Preferred
Shares of such series (except by conversion into or exchange for equity
securities of the Company ranking junior to the Preferred Shares of such series
as to dividends and upon liquidation); provided, however, that the foregoing
shall not prevent the purchase or acquisition of Preferred Shares of such series
to preserve the REIT status of the Company or pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding Preferred Shares of
such series.
Liquidation Preference. Unless otherwise provided in the applicable
Prospectus Supplement, upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, then, before any
distribution or payment shall be made to the holders of any Common Shares or any
other class or series of equity securities of the Company ranking junior to the
Preferred Shares in the distribution of assets upon any liquidation, dissolution
or winding up of the Company, the holders of each series of Preferred Shares
shall be entitled to receive out of assets of the Company legally available for
distribution to stockholders liquidating distributions in the amount of the
liquidation preference per share, if any, set forth in the applicable Prospectus
Supplement, plus an amount equal to all dividends accrued and unpaid thereon
(which shall not include any accumulation in respect of unpaid noncumulative
dividends for prior dividend periods). After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Preferred
Shares will have no right or claim to any of the remaining assets of the
Company. In the event that, upon any such voluntary or involuntary liquidation,
dissolution or winding up, the available assets of the
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Company are insufficient to pay the amount of the liquidating distributions on
all outstanding Preferred Shares and the corresponding amounts payable on all
shares of other classes or series of equity securities of the Company ranking on
a parity with the Preferred Shares in the distribution of assets, then the
holders of the Preferred Shares and all other such classes or series of equity
securities shall share ratably in any such distribution of assets in proportion
to the full liquidating distributions to which they would otherwise be
respectively entitled.
If liquidating distributions shall have been made in full to all holders
of Preferred Shares, the remaining assets of the Company shall be distributed
among the holders of any other classes or series of equity securities ranking
junior to the Preferred Shares upon liquidation, dissolution or winding up,
according to their respective rights and preferences and in each case according
to their respective number of shares.
Voting Rights. Holders of the Preferred Shares will have such voting
rights, if any, as indicated in the applicable Prospectus Supplement, or as from
time to time required by law.
Conversion Rights. The terms and conditions, if any, upon which any series
of Preferred Shares is convertible into Common Shares will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include the
number of Shares into which the Preferred Shares are convertible, the conversion
price (or manner of calculation thereof), the conversion period, provisions as
to whether conversion will be at the option of the holders of the Preferred
Shares or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of such
series of Preferred Shares.
Transfer Agent. The transfer agent and registrar for the Preferred Shares
will be set forth in the applicable Prospectus Supplement.
DESCRIPTION OF DEBT SECURITIES
The Prospectus Supplement will describe certain terms of any Debt
Securities offered hereby, including (i) the title of such Debt Securities; (ii)
any limit on the aggregate principal amount of such Debt Securities and their
purchase price; (iii) the date or dates on which such Debt Securities will
mature; (iv) the rate or rates per annum (or manner in which interest is to be
determined) at which such Debt Securities will bear interest, if any, and the
date from which such interest, if any, will accrue; (v) the dates on which such
interest, if any, on such Debt Securities will be payable and the regular record
dates for such interest payment dates; (vi) any mandatory or optional sinking
fund or analogous provisions; (vii) additional provisions, if any, for the
defeasance of such Debt Securities; (viii) the date, if any, after which and the
price or prices at which such Debt Securities may, pursuant to any optional or
mandatory redemption or repayment provisions, be redeemed and the other detailed
terms and provisions of any such optional or mandatory redemption or repayment
provisions; (ix) whether such Debt Securities are to be issued in whole or in
part in registered form represented by one or more registered
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global securities (a "Registered Global Security") and, if so, the identity of
the depository for such Registered Global Security or Securities; (x) certain
applicable United States Federal income tax consequences; (xi) any provisions
relating to security for payments due under such Debt Securities; (xii) any
provisions relating to the conversion or exchange of such Debt Securities into
or for Shares or Debt Securities of another series; (xiii) any provisions
relating to the ranking of such Debt Securities in right of payment as compared
to other obligations of the Company; (xiv) the denominations in which such Debt
Securities are authorized to be issued; (xv) the place or places where principal
of, premium, if any, and interest, if any, on such Debt Securities will be
payable; (xvi) whether such debt Securities are to be issued pursuant to an
indenture of trust; and (xvii) any other specific term of such Debt Securities,
including any additional events of default or covenants provided for with
respect to such Debt Securities, and any terms that may be required by or
advisable under applicable laws or regulations.
The Debt Securities may be issued in one or more series under an Indenture
to be executed by the Company and a trustee (the "Trustee"), a form of which is
included as an exhibit to the Registration Statement of which this Prospectus is
a part (the "Indenture"). The terms of the Debt Securities may include those
stated in the Indenture and those made a part of the Indenture (before any
supplements) by reference to the Trust Indenture Act of 1939, as amended.
The following is a summary of certain provisions of the Indenture and does
not purport to be complete and is qualified in its entirety by reference to the
detailed provisions of the Indenture, including the definitions of certain terms
therein to which reference is hereby made, for a complete statement of such
provisions. Wherever particular provisions or sections of the Indenture or terms
defined therein are referred to herein, such provisions or definitions are
incorporated herein by reference.
General. The Indenture does not limit the aggregate principal amount of
Debt Securities that may be issued thereunder and provides that Debt Securities
may be issued from time to time in one or more series.
Conversion Rights. The terms, if any, on which Debt Securities of any
series may be converted into Shares or Debt Securities of another series will be
set forth in the Prospectus Supplement relating thereto. To protect the
Company's status as a real estate investment trust ("REIT"), the holders of Debt
Securities of any series ("Holders") may not convert any Debt Security, and such
Debt Security shall not be convertible by any Holder, if as a result of such
conversion any person would then be deemed to beneficially own, directly or
indirectly, 9.9% or more of the then outstanding Shares.
The conversion price will be subject to adjustment under certain
conditions, including (i) the payment of dividends (and other distributions) in
Shares on any class of shares of the Company; (ii) subdivisions, combinations
and reclassifications of Shares; (iii) the issuance to all or substantially all
holders of Shares of rights or warrants entitling them to subscribe for or
purchase Shares at a price per Share (or having a conversion price per Share)
less than the then
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current market price; and (iv) distributions to all or substantially all holders
of Shares or shares of any other class, or evidences of indebtedness or assets
(including securities, but excluding those rights, warrants, dividends and
distributions referred to above and dividends and distributions not prohibited
under the terms of the Indenture) of the Company, subject to the limitation that
all adjustments by reason of any of the foregoing would not be made until they
result in a cumulative change in the conversion price of at least 1%. In the
event the Company shall effect any capital reorganization or reclassification of
its Shares or shall consolidate or merge with or into any trust or corporation
(other than a consolidation or merger in which the Company is the surviving
entity) or shall sell or transfer substantially all its assets to any other
trust or corporation, the Holders shall, if entitled to convert such Debt
Securities at any time after such transaction, receive upon conversion thereof,
in lieu of each Share into which the Debt Securities of such series would have
been convertible prior to such transaction, the same kind and amount of stock
and other securities, cash or property as shall have been issuable or
distributable in connection with such transaction with respect to each Share.
A conversion price adjustment made according to the provisions of the Debt
Securities of any series (or the absence of provision for such an adjustment)
might result in a constructive distribution to the Holders of Debt Securities of
such series or holders of Shares that would be subject to taxation as a
dividend. The Company may, at its option, make such reductions in the conversion
price, in addition to those set forth above, as the Board of Trustees of the
Company deems advisable to avoid or diminish any income tax to holders of Shares
resulting from any dividend or distribution of Shares (or rights to acquire
Shares) or from any event treated as such for income tax purposes or for any
other reason. The Board of Trustees will also have the power to resolve any
ambiguity or correct any error in the provisions relating to the adjustment of
the conversion price of the Debt Securities of such series and its actions in so
doing shall be final and conclusive.
Fractional Shares will not be issued upon conversion, but, in lieu
thereof, the Company will pay a cash adjustment based upon market price.
The Holders of Debt Securities of any series at the close of business on
an interest payment record date shall be entitled to receive the interest
payable on such Debt Securities on the corresponding interest payment date
notwithstanding the conversion thereof. However, Debt Securities surrendered for
conversion during the period from the close of business on any record date for
the payment of interest to the opening of business on the corresponding interest
payment date must be accompanied by payment of an amount equal to the interest
payable on such interest payment date. Holders of Debt Securities of any series
who convert Debt Securities of such series on an interest payment date will
receive the interest payable by the Company on such date and need not include
payment in the amount of such interest upon surrender of such Debt Securities
for conversion. Except as aforesaid, no payment or adjustment is to be made on
conversion for interest accrued on the Debt Securities of any series or for
dividends on Shares.
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Optional Redemption. The Debt Securities of any series that are
convertible into Shares will be subject to redemption, in whole or from time to
time in part, at any time for certain reasons intended to protect the Company's
status as a REIT at the option of the Company on at least 30 days' prior notice
by mail at a redemption price equal to 100% of the principal amount, plus
interest accrued to the date of redemption. Except as otherwise set forth in the
accompanying Prospectus Supplement, the Company may exercise its redemption
powers solely with respect to the securities of the security holder or holders
which pose a threat to the Company's REIT status and only to the extent deemed
necessary by the Company's Board of Trustees to preserve such status. (See
"Redemption" under "Description of Shares".)
Dividends, Distributions and Acquisitions of Shares of Beneficial
Interest. The Indenture provides that the Company will not (i) declare or pay
any dividend or make any distribution on its Shares or to holders of its Shares
(other than dividends or distributions payable in its Shares or other than as
the Company determines is necessary to maintain its status as a REIT) or (ii)
purchase, redeem or otherwise acquire or retire for value any of its Shares or
permit any subsidiary to do so, if at the time of such action an Event of
Default (as defined in the Indenture) has occurred and is continuing or would
exist immediately after giving effect to such action.
Additional Covenants. Any additional covenants of the Company with respect
to a series of the Debt Securities will be set forth in the Prospectus
Supplement relative thereto.
Modification of the Indenture. Under the Indenture, with certain
exceptions, the rights and obligations of the Company with respect to any series
of Debt Securities and the rights of Holders of such series may only be modified
by the Company and the Trustee with the consent of the Holders of at least a
majority in principal amount of the outstanding Debt Securities of such series.
However, without the consent of each Holder of any Debt Securities affected, an
amendment, waiver or supplement may not (i) reduce the principal of, or rate of
interest on, any Debt Securities; (ii) change the stated maturity date of the
principal of, or any installment of interest on, any Debt Securities; (iii)
waive a default in the payment of the principal amount of, or the interest on,
or any premium payable on redemption of, any Debt Securities; (iv) change the
currency for payment of the principal of, or premium or interest on, any Debt
Securities; (v) impair the right to institute suit for the enforcement of any
such payment when due; (vi) adversely affect any right to convert any Debt
Securities; (vii) reduce the amount of outstanding Debt Securities necessary to
consent to an amendment, supplement or waiver provided for in the Indenture; or
(viii) modify any provisions of the Indenture relating to the modification and
amendment of the Indenture or waivers of past defaults, except as otherwise
specified.
Events of Default, Notice and Waiver. Except as otherwise set forth in the
accompanying Prospectus Supplement, the following is a summary of certain
provisions of the Indenture relating to events of default, notice and waiver.
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The following are Events of Default under the Indenture with respect to
any series of Debt Securities: (i) default in the payment of interest on the
Debt Securities of such series when due and payable, which continues for 30
days; (ii) default in the payment of principal of (and premium, if any) on the
Debt Securities when due, at maturity, upon redemption or otherwise, which
continues for five Business Days; (iii) failure to perform any other covenant of
the Company contained in the Indenture or the Debt Securities of such series
which continues for 60 days after written notice as provided in the Indenture;
(iv) default under any bond, debenture or other Indebtedness (as defined in the
Indenture) of the Company or any subsidiary if (a) either (x) such event of
default results from the failure to pay any such Indebtedness at maturity or (y)
as a result of such event of default, the maturity of such Indebtedness has been
accelerated prior to its expressed maturity and such acceleration shall not be
rescinded or annulled or the accelerated amount paid within ten days after
notice to the Company of such acceleration, or such Indebtedness having been
discharged, and (b) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal or interest thereon, or the maturity of which has been so accelerated,
aggregates $10,000,000 or more; (v) certain events of bankruptcy, insolvency or
reorganization relating to the Company; and (vi) any other Event of Default
provided with respect to the Debt Securities of that series.
If an Event of Default occurs and is continuing with respect to the Debt
Securities of any series, either the Trustee or the Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of such series may
declare the Debt Securities due and payable immediately.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of any Default or Event of Default with respect to the Debt
Securities of any series, give to the Holders of Debt Securities notice of all
uncured Defaults and Events of Default known to it, but the Trustee will be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interest of such Holders, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on any of the Debt Securities of such series.
The Indenture provides that the Holders of a majority in aggregate
principal amount of the Debt Securities of any series then outstanding may
direct the time, method and place of conducting any proceedings for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series. The right of a
Holder to institute a proceeding with respect to the Indenture is subject to
certain conditions precedent including notice and indemnity to the Trustee, but
the Holder has an absolute right to receipt of principal of (and premium, if
any) and interest on such Holder's Debt Securities on or after the respective
due dates expressed in the Debt Securities, and to institute suit for the
enforcement of any such payments.
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series then outstanding may on behalf of the Holders of all
Debt Securities of such series waive
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certain past defaults, except a default in payment of the principal of (or
premium, if any) or interest on any Debt Securities of such series or in respect
of certain provisions of the Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Debt Securities of such
series affected thereby.
The Company will be required to furnish to the Trustee annually a
statement of certain officers of the Company stating whether or not they know of
any Default or Events of Default (as defined in the Indenture) and, if they have
knowledge of a Default or Event of Default, a description of the efforts to
remedy the same.
Consolidation, Merger, Sale or Conveyance. The Indenture provides that the
Company may merge or consolidate with, or sell or convey all or substantially
all of its assets to, any other trust or corporation, provided that (i) either
the Company shall be the continuing entity, or the successor entity (if other
than the Company) shall be an entity organized and existing under the laws of
the United States or a state thereof or the District of Columbia (although it
may, in turn, be owned by a foreign entity) and such entity shall expressly
assume by supplemental indenture all of the obligations of the Company under the
Debt Securities of any series and the Indenture, (ii) immediately after giving
effect to such transactions no Default or Event of Default shall have occurred
and be continuing, and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and opinion of counsel, stating that the transaction and
supplemental indenture comply with the Indenture. The Indenture does not contain
any provision requiring the Company to repurchase the Debt Securities of any
series at the option of the Holders thereof in the event of a leveraged buyout,
recapitalization or similar restructuring of the Company, even though the
Company's creditworthiness and the market value of the Debt Securities may
decline significantly as a result of such transaction. The Indenture does not
protect Holders of the Debt Securities of any series against any decline in
credit quality, whether resulting from any such transaction or from any other
cause.
Global Securities. The Debt Securities of a series may be issued in whole
or in part in global form (the "Global Securities"). The Global Securities will
be deposited with a depository (the "Depository"), or with a nominee for a
Depository, identified in the Prospectus Supplement. In such case, one or more
Global Securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in definitive form, a Global Security may not be transferred except
as a whole by the Depository for such Global Security to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor for such Depository or a nominee of such successor.
The specific material terms of the depository arrangement with respect to
any portion of a series of Debt Securities to be represented by a Global
Security will be described in the Prospectus Supplement. The Company anticipates
that the following provisions will apply to all depository arrangements.
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Upon the issuance of a Global Security, the Depository for such Global
Security will credit, on its book entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depository
("participants"). The accounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through records maintained
by the Depository for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participants). So long as the
Depository for a Global Security, or its nominee, is the registered owner of
such Global Security, such Depository or such nominee as the case may be, will
be considered the sole owner or Holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture; provided, however,
that for purposes of obtaining any consents or directions required to be given
by the Holders of the Debt Securities, the Company, the Trustee and its agents
will treat a person as the holder of such principal amount of Debt Securities as
specified in a written statement of the Depository.
Principal, premium, if any, and interest payments, if any, on Debt
Securities represented by a Global Security registered in the name of a
Depository or its nominee will be made to such Depository or its nominee, as the
case may be, as the registered owner of such Global Security. None of the
Company, the Trustee or any Paying Agent for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in such Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that the Depository for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal,
premium, if any, or interest will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depository. The Company also expects that payments by participants will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
names," and will be the responsibility of such participants.
If the Depository for any Debt Securities represented by a Global Security
is at any time unwilling or unable to continue as Depository and a successor
Depository is not appointed by the Company within 90 days, the Company will
issue each Debt Security in definitive form to the beneficial owners thereof in
exchange for such Global Security. In addition, the Company may at any time and
in its sole discretion determine not to have any of the Debt Securities of a
series represented by one or more Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for all of
the Global Security or Securities representing such Debt Securities.
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The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in Debt Securities represented by
Global Securities.
Governing Law. The Indenture and the Debt Securities will be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities or Shares. Securities Warrants may be issued independently or
together with Debt Securities or Shares offered by any Prospectus Supplement and
may be attached to or separate from such Debt Securities or Shares. Each series
of Securities Warrants will be issued under a separate warrant agreement (a
"Securities Warrant Agreement") to be entered into between the Company and a
bank or trust company, as Securities Warrant agent, all as set forth in the
Prospectus Supplement relating to the particular issue of offered Securities
Warrants. The Securities Warrant agent will act solely as an agent of the
Company in connection with the Securities Warrant certificates relating to the
Securities Warrants and will not assume any obligation or relationship of agency
or trust for or with any holders of Securities Warrant certificates or
beneficial owners of Securities Warrants. The following summaries of certain
provisions of the Securities Warrant Agreement and Securities Warrants do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Securities Warrant Agreement and the
Securities Warrant certificates relating to each series of Security Warrants
which will be filed with the Commission and incorporated by reference as an
exhibit to the Registration Statement of which this Prospectus is a part at or
prior to the time of the issuance of such series of Security Warrants.
If Debt Securities Warrants are offered, the applicable Prospectus
Supplement will describe the terms of such Securities Warrants, including the
following where applicable: (i) the offering price, (ii) the denominations and
terms of the series of Debt Securities purchasable upon exercise of such
Securities Warrants, (iii) the designation and terms of any series of Debt
Securities with which such Securities Warrants are being offered and the number
of such Securities Warrants being offered with each such Debt Security, (iv) the
date, if any, on and after which such Securities Warrants and the related series
of Debt Securities will be transferable separately, (v) the principal amount of
the series of Debt Securities purchasable upon exercise of each such Securities
Warrant and the price at which such principal amount of Debt Securities of such
series may be purchased upon such exercise, (vi) the date on which the right to
exercise such Securities Warrants shall commence and the date (the "Expiration
Date") on which such right shall expire, (vii) whether the Securities Warrants
will be issued in registered or bearer form, (viii) any special United States
Federal income tax consequences, (ix) the terms, if any, on which the Company
may accelerate the Expiration Date and (x) any other terms of such Securities
Warrants.
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In the case of Share Warrants, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price, (ii) the aggregate number of Shares
purchasable upon exercise of such Securities Warrants and the exercise price,
(iii) the designation and terms of the Shares purchasable upon exercise of such
Securities Warrants, (iv) the designation and terms of the Securities with which
such Securities Warrants are being offered, if any, and the number of such
Securities Warrants being offered with each such Security, (v) the date, if any,
on and after which such Securities Warrants and the related series of Debt
Securities or Shares will be transferable separately, (vi) the date on which the
right to exercise such Securities Warrants shall commence and the Expiration
Date, (vii) any special United States Federal income tax consequences and (viii)
any other terms of such Securities Warrants.
Securities Warrant certificates may be exchanged for new Securities
Warrant certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Debt
Securities Warrants, holders of such Securities Warrants will not have any of
the rights of holders of the Debt Securities purchasable upon such exercise,
including the right to receive payments of principal of, premium, if any, or
interest, if any, on such Debt Securities or to enforce covenants in the
applicable indenture. Prior to the exercise of any Share Warrants, holders of
such Securities Warrants will not have any rights of holders of such Shares,
including the right to receive payments of dividends, if any, on such Shares, or
to exercise any applicable right to vote.
Certain Risk Considerations. Any Securities Warrants issued by the Company
will involve a certain degree of risk, including risks arising from the
fluctuations in the price of the underlying securities and general risks
applicable to the stock market (or markets) on which the underlying securities
are traded.
Prospective purchasers of the Securities Warrants should recognize that
the Securities Warrants may expire worthless and, thus, purchasers should be
prepared to sustain a total loss of the purchase price of their Securities
Warrants. This risk reflects the nature of a Securities Warrant as an asset
which, other factors held constant, tends to decline in value over time and
which may, depending on the price of the underlying securities, become worthless
when it expires. The trading price of a Securities Warrant at any time is
expected to increase as the price, or, if applicable, dividend rate on the
underlying securities increases. Conversely, the trading price of a Securities
Warrant is expected to decrease as the time remaining to expiration of the
Securities Warrant decreases and as the price or, if applicable, dividend rate
on the underlying securities, decreases. Assuming all other factors are held
constant, the more a Securities Warrant is "out of the money" (i.e., the more
the exercise price exceeds the price of the underlying securities and the
shorter its remaining term to expiration), the greater the risk that a purchaser
of the Securities Warrant will lose all or part of his or her investment. If the
price of the underlying securities does not rise before the Securities Warrant
expires to an
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extent sufficient to cover a purchaser's cost of the Securities Warrant, the
purchaser will lose all or part of his or her investment in such Securities
Warrant upon expiration.
In addition, prospective purchasers of the Securities Warrants should be
experienced with respect to options and option transactions and understand the
risks associated with options and should reach an investment decision only after
careful consideration, with their financial advisers, of the suitability of the
Securities Warrants in light of their particular financial circumstances and the
information discussed herein and, if applicable, the Prospectus Supplement.
Before purchasing, exercising or selling any Securities Warrants, prospective
purchasers and holders of Securities Warrants should carefully consider, among
other things, (i) the trading price of the Securities Warrants, (ii) the price
of the underlying securities at such time, (iii) the time remaining to
expiration and (iv) any related transaction costs. Some of the factors referred
to above are in turn influenced by various political, economic and other factors
that can affect the trading prices of the underlying securities and should be
carefully considered prior to making any investment decisions.
Purchasers of the Securities Warrants should further consider that the
initial offering price of the Securities Warrants may be in excess of the price
that a purchaser of options might pay for a comparable option in a private, less
liquid transaction. In addition it is not possible to predict the price at which
the Securities Warrants will trade in the secondary market or whether any such
market will be liquid. The Company may, but is not obligated to, file an
application to list any Securities Warrants issued on a United States national
securities exchange. To the extent that any Securities Warrants are exercised,
the number of Securities Warrants outstanding will decrease, which may result in
a lessening of the liquidity of the Securities Warrants. Finally, the Securities
Warrants will constitute direct, unconditional and unsecured obligations of the
Company and as such will be subject to any changes in the perceived
creditworthiness of the Company.
Exercise of Securities Warrants. Each Securities Warrant will entitle the
holder thereof to purchase such principal amount of Debt Securities or number of
Shares, as the case may be, at such exercise price as shall in each case be set
forth in, or calculable from, the Prospectus Supplement relating to the offered
Securities Warrants. After the close of business on the Expiration Date (or such
later date to which such Expiration Date may be extended by the Company),
unexercised Securities Warrants will become void.
Securities Warrants may be exercised by delivering to the Securities
Warrant agent payment as provided in the applicable Prospectus Supplement of the
amount required to purchase the Debt Securities or Shares, as the case may be,
purchasable upon such exercise together with certain information set forth on
the reverse side of the Securities Warrant certificate. Securities Warrants will
be deemed to have been exercised upon receipt of payment of the exercise price,
subject to the receipt within five Business Days of the Securities Warrant
certificate evidencing such Securities Warrants. Upon receipt of such payment
and the Securities Warrant certificate properly completed and duly executed at
the corporate trust office of the Securities Warrant agent or any other office
indicated in the applicable Prospectus Supplement, the Company will,
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as soon as practicable, issue and deliver the Debt Securities or Shares, as the
case may be, purchasable upon such exercise. If fewer than all of the Securities
Warrants represented by such Securities Warrant certificate are exercised, a new
Securities Warrant certificate will be issued for the remaining amount of
Securities Warrants.
Amendments and Supplements to Securities Warrant Agreement. The Securities
Warrant Agreements may be amended or supplemented without the consent of the
holders of the Securities Warrants issued thereunder, to effect changes that are
not inconsistent with the provisions of the Securities Warrants and that do not
adversely affect the interest of the holders of the Securities Warrants.
Share Warrant Adjustments. Unless otherwise indicated in the applicable
Prospectus Supplement, the exercise price of and the number of Shares covered by
a Share Warrant are subject to adjustment in certain events, including (i)
payment of a dividend on the Shares payable in Shares and Share splits,
combinations or reclassification of Shares, (ii) issuance to all holders of
Shares of rights or warrants to subscribe for or purchase Shares at less than
their current market price (as defined in the Securities Warrant Agreement for
such series of Share Warrants) and (iii) certain distributions of evidences of
indebtedness or assets (including securities but excluding cash, dividends or
distributions paid out of consolidated earnings or retained earnings or
dividends payable in Shares or of subscription rights and warrants excluding
those referred to above).
No adjustments in the exercise price of and the number of Shares covered
by a Share Warrant will be made for regular quarterly or other periodic or
recurring cash dividends or distributions or for cash dividends or distributions
to the extent paid from consolidated earnings or retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the exercise price then in effect. Except as stated above, the
exercise price of and the number of Shares covered by a Share Warrant will not
be adjusted for the issuance of Shares or any securities convertible into or
exchangeable for Shares or carrying the right or option to purchase or otherwise
acquire the foregoing in exchange for cash, other property or services.
In the event of any (i) consolidation or merger of the Company with or
into any entity (other than consolidation or a merger that does not result in
any reclassification, conversion, exchange or cancellation of outstanding
Shares), (ii) sale, transfer, lease or conveyance of all or substantially all of
the assets of the Company or (iii) reclassification, capital reorganization or
change of the Shares (other than solely a change in par value), then any holder
of a Share Warrant will be entitled, on or after the occurrence of any such
event, to receive on exercise of such Share Warrant the kind and amount of
Shares or other securities, cash or other property (or any combination thereof)
that the holder would have received had such holder exercised such holder's
Share Warrant immediately prior to the occurrence of such event. If the
consideration to be received upon exercise of the Share Warrant following any
such event consists of common stock (or its equivalent) of the surviving entity,
then from and after the occurrence of such event, the exercise price of such
Share Warrant will be subject to the same
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anti-dilution and other adjustments described in the second preceding paragraph,
applied as if such common stock were Shares.
FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material federal income tax
considerations that may be relevant to a prospective holder of Securities. This
summary is for information purposes only and is not tax advice. No ruling
letters from the Internal Revenue Service ("IRS") have been or will be requested
by the Company on any tax issue connected with this Prospectus. This summary is
based upon the Internal Revenue Code of 1986, as amended (the "Code"), as
currently in effect, applicable Treasury Regulations thereunder and judicial and
administrative interpretations thereof, all of which are subject to change,
including changes that may be retroactive. No assurances can be given that the
IRS will not challenge the propriety of one or more of the tax positions
described herein or that such a challenge would not be successful.
The tax treatment of a holder of any of the Securities will vary depending
upon the terms of the specific securities acquired by such holder, as well as
such holder's particular situation. The discussion below addresses in particular
material federal income tax considerations to holders of Shares. Any material
federal income tax considerations relevant to holders of Securities other than
Shares will be provided in the applicable Prospectus Supplement relating
thereto. This summary does not purport to deal with all aspects of taxation that
may be relevant to particular holders of Shares or other Securities in light of
their personal investment or tax circumstances. Except as specifically provided,
the discussion below does not address foreign, state or local tax consequences,
nor does it specifically address the tax consequences to taxpayers subject to
special treatment under the federal income tax laws (including dealers in
securities, foreign persons, life insurance companies, tax-exempt organizations,
financial institutions, and taxpayers subject to the alternative minimum tax).
The discussion below assumes that the Shares are and will be held as capital
assets within the meaning of Section 1221 of the Code.
EACH PROSPECTIVE PURCHASER OF SECURITIES IS ADVISED TO CONSULT HIS OR HER OWN
TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OR HER OF THE
PURCHASE, OWNERSHIP AND SALE OF SECURITIES, INCLUDING THE FEDERAL, STATE, LOCAL,
FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP AND SALE AND OF
POTENTIAL CHANGES IN THE APPLICABLE TAX LAWS.
Taxation of the Company
General.
The sections of the Code regarding REIT status are highly technical and
complex. The following sets forth the material aspects of the sections that
govern the federal income tax
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treatment of a REIT. This summary is qualified in its entirety by the applicable
Code provisions, rules and regulations promulgated thereunder, and
administrative and judicial interpretations thereof.
Nutter, McClennen & Fish, LLP has acted as tax counsel to the Company in
connection with this Prospectus and the Company's election to be taxed as a REIT
and has rendered an opinion to the Company as of May 29, 1996 to the effect that
the Company has been organized in conformity with the requirements for
qualification as a REIT, and its proposed method of operation is consistent with
meeting the requirements for qualification and taxation as a REIT under the
Code. Nutter, McClennen & Fish, LLP undertakes no obligation to update this
opinion subsequent to such date. It must be emphasized that this opinion is
based on various assumptions and upon the factual representations and legal
conclusions of the Company as set forth in the Certificate of certain officers
of the Company attached to the opinion. Moreover, such qualification and
taxation as a REIT depends upon the Company's ability to meet (through actual
annual operating results, distribution levels and diversity of stock ownership)
the various qualification tests imposed under the Code discussed below, the
results of which have not been and will not be reviewed by Nutter, McClennen &
Fish, LLP. Accordingly, no assurance can be given that the actual results of the
Company's operations in any particular taxable year will satisfy such
requirements. See "Failure to Qualify."
If the Company qualifies for taxation as a real estate investment trust
and distributes to its shareholders at least 95% of its "real estate investment
taxable income," it generally will not be subject to federal corporate income
taxes on the amount distributed. However, a real estate investment trust is
subject to special taxes on the net income derived from "prohibited
transactions," on nonqualified income when it fails certain income tests, on the
net income from foreclosure properties and on undistributed capital gains. In
addition, under certain circumstances, the Company may be subject to a minimum
tax on its items of tax preference and a 4% excise tax on certain amounts of
undistributed income.
Requirements for Qualification.
Section 856(a) of the Code defines a real estate investment trust as a
corporation, trust or association (1) which is managed by one or more trustees;
(2) the beneficial ownership of which is evidenced by transferable shares, or by
transferable certificates of beneficial interest; (3) which would be taxable,
but for Sections 856 through 860 of the Code, as a domestic corporation; (4)
which is neither a financial institution nor an insurance company subject to
certain provisions of the Code; (5) the beneficial ownership of which is held by
100 or more persons; (6) not more than 50% in value of the outstanding shares of
which is owned, directly or indirectly (after the application of certain
attribution rules) by five or fewer individuals at any time during the last half
of the Company's taxable year; and (7) which meets certain other tests,
described below. Section 856(b) of the Code provides that conditions (1) to (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.
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It is the expectation of the Company that it will have at least 100
shareholders during the requisite period for each of its taxable years.
Furthermore, the Board of Trustees of the Company has the power under the
Company's Declaration of Trust to prohibit any transfer of the Company's Shares
and to redeem Shares that have been transferred pursuant to any transfer that in
the opinion of the Trustees would jeopardize the status of the Company as a real
estate investment trust. Nevertheless, there can be no assurance that the
Company will continue to meet this requirement, and, if the Company has fewer
than 100 shareholders during the requisite period, condition (5) described above
will not be satisfied, and the Company will not qualify as a real estate
investment trust during such taxable year. See "Failure to Qualify."
To qualify as a REIT for a taxable year under the Code, the Company must
elect or previously have elected to be so treated and must meet other
requirements, certain of which are summarized below, including percentage tests
relating to the sources of its gross income, the nature of the Company's assets,
and the distribution of its income to shareholders. The Company also must take
certain actions specified in regulations under the Code to attempt to ascertain
the true owners of its Shares and must maintain records of such ownership.
The Company has elected to be and intends to remain qualified as a REIT
under Sections 856 through 860 of the Code. Qualification of the Company as a
REIT will depend upon its continued ability to meet, through actual annual
operating results, the various qualification tests imposed under the Code and
discussed below. No assurance can be given that the actual results of the
Company's operations will satisfy such requirements. In particular, the various
qualification tests imposed under the Code may not be met if the loans made by
the Company are not fully secured by mortgages on real property or interests in
real property, or if the Company's leases for facilities (the "Leases") are not
true leases for federal income tax purposes, or if any of the partnerships in
which the Company is a partner is treated for tax purposes as an association
taxable as a corporation. See "Income Tests," Federal Income Tax Treatment of
Leases and "Other Tax Consequences".
Income Tests.
There are three gross income requirements. First, at least 75% of the
Company's gross income (excluding gross income from certain sales of property
held primarily for sale to customers in the ordinary course of the Company's
business ("dealer sales")) must be derived directly or indirectly from
investments relating to real property (including "rents from real property") or
mortgages on real property, or must be "qualified temporary investment income."
Second, at least 95% of the Company's gross income (excluding gross income from
dealer sales) must be derived from such real property investments, dividends,
interest, certain payments under interest rate swap and cap agreements and gain
from the sale or disposition of stock, securities or real property or from any
combination of the foregoing. Third, gain from the sale or other disposition of
stock or securities (including certain interest rate swap and cap agreements)
held for less than one year, gain from dealer sales (other than foreclosure
property) and gain on the sale or other disposition of real property interests
held for less than four years
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(apart from involuntary conversions and sales of foreclosure property) must
represent less than 30% of the Company's gross income.
The Company may temporarily invest a portion of the net proceeds from the
sale of Securities in short-term investments. Although the Company will make
every effort to ensure that its income generated by these investments will be of
a type which satisfies the 75% and 95% gross income tests, there can be no
assurance in this regard. Moreover, the Company may realize capital gain upon
sale or exchange of such assets held for less than one year, and any such
short-term capital gain will be subject to the limitations imposed by the 30%
gross income test.
In order to qualify as "rents from real property," the amount of rent
received may be based on receipts or sales, but must not be determined from the
income or profits of any person, unless such person is a tenant all of whose
income would qualify as "rents from real property" if such amounts were received
by the real estate investment trust. The Code provides also that rents will not
qualify as "rents from real property" in satisfying the gross income tests if
the real estate investment trust, or an owner of 10% or more of the real estate
investment trust, also owns 10% or more of the tenant. In addition, the Company
must not manage the property or furnish or render services to the tenants of
such property, except through an independent contractor from whom the Company
derives no income. However, there is an exception to this rule which permits a
real estate investment trust to perform certain customary tenant services of the
sort which a tax-exempt organization could perform without being considered in
receipt of "unrelated taxable business income." Finally, 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." If any rent payments do not qualify as rents from real property for
the purposes of Section 856 of the Code, it will be more difficult for the
Company to meet the 95% or 75% gross income tests and qualify as a real estate
investment trust.
Interest income received by the Company with respect to its loans will be
qualifying income for purposes of the 75% test only to the extent the interest
is attributable to obligations secured by interests in real property. Interest
is deemed attributable to obligations secured by real property only to the
extent the value of the real property securing such loan equals or exceeds the
amount of the loan. The Company believes that the value of the real property
securing its loans is such that interest on such loans will not cause the
Company to fail the 75% gross income test. However, there is no assurance that
the IRS will not assert a contrary position respecting the value of the real
property securing the Company's loans with the result that the Company may fail
to meet the 75% gross income test in a taxable year. See "Failure to Qualify."
Moreover, interest which is based on receipts or sales of the debtor may
constitute qualifying income for purposes of the 75% test, but interest based on
income or profits of the debtor will generally not constitute qualifying income.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a real estate
investment trust for such year if its
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failure to meet such tests was due to reasonable cause and not due to willful
neglect, it attaches a schedule of the sources of its income to its 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 Company would be entitled to the benefit of these relief provisions. If
these relief provisions apply, a 100% tax is imposed upon the greater of the
amount by which the Company failed the 75% gross income test or the 95% gross
income test less an amount which generally reflects the expenses attributable to
earning the non-qualified income.
Asset Tests.
At the close of each quarter of the Company's taxable year, it must also
satisfy three tests relating to the nature of its assets. First, at least 75% of
the value of the Company's total assets must consist of real estate assets
(including real estate assets held by any "qualified REIT subsidiary" of the
Company and its allocable share of real estate assets held by joint ventures or
partnerships in which the Company participates), cash, cash items and government
securities. Second, not more than 25% of the Company's total assets may be
represented by securities other than those includible in the 75% asset class.
Finally, of the investments included in the 25% asset class, the value of any
one issuer's securities owned by the Company may not exceed 5% of the value of
the Company's total assets, and the Company may not own more than 10% of any one
issuer's outstanding voting securities. Shares in a "qualified REIT subsidiary"
of the Company are excluded from the foregoing computation. A "qualified REIT
subsidiary" of the Company is any corporation 100% of the stock of which is held
by the Company at all times during the corporation's existence. The Company's
management believes that each of the Company's subsidiaries meets the
requirements for classification as a "qualified REIT subsidiary."
Where a failure to satisfy the 25% asset test results from an acquisition
of securities or other property during a quarter, the failure can be cured by
disposition of sufficient non-qualifying assets within 30 days after the close
of such quarter. The Company intends to maintain adequate records of the value
of its assets to determine the compliance with the 25% asset test, and to take
such action as may be required to cure any failure to satisfy the test within 30
days after the close of any quarter.
Distribution Requirements.
The Company, in order to qualify as a real estate investment trust, is
required to distribute to its shareholders an amount equal to or greater than
the excess of (A) the sum of (i) 95% of the Company's "real estate investment
trust taxable income" (computed without regard to the dividends paid deduction
and the Company's net capital gain) and (ii) 95% of the net income, if any,
(after tax) from foreclosure property, over (B) the Company's "excess noncash
income," if any. "Excess noncash income" is the excess of the sum of (A) certain
imputed rent receipts, income from like-kind exchanges intended in good faith to
qualify but ultimately determined to be ineligible for nonrecognition under
Section 1031 of the Code and, in the case of a real
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estate investment trust on the cash method of accounting, the excess of imputed
original issue discount income from certain debt instruments over amounts
actually received under such instruments over (B) five percent of the real
estate investment trust taxable income for the year determined without regard to
the deduction for dividends paid or net capital gain. In addition, the Company
must have qualified as a real estate investment trust for every taxable year
beginning after February 28, 1986 or have no earnings and profits accumulated in
any non-real estate investment trust year. To the extent that the Company does
not distribute all of its net long-term capital gain or distributes at least
95%, but less than 100% of its "real estate investment trust taxable income," as
adjusted, even if it is not subject to tax as a regular corporation it will be
subject to regular federal income tax on such undistributed net long-term
capital gain or such undistributed real estate investment trust taxable income.
In addition, a nondeductible 4% excise tax is imposed on the excess of (i) 85%
of the Company's ordinary income for the year plus 95% of capital gain net
income for the year and any undistributed income from prior years over (ii) the
actual distribution to the shareholders during the year. Dividends declared in
October, November or December and paid during the following January will be
treated as having been paid and received on December 3l.
It is possible that the Company, from time to time, may not have
sufficient cash or other liquid assets to meet the 95% distribution
requirements, due to timing differences between the actual receipt of income and
actual payment of deductible expenses on the one hand and the inclusion of such
income and deduction of such expenses in arriving at taxable income of the
Company on the other hand. In the event that timing differences were to occur,
in order to meet the 95% requirement, the Company might find it necessary to
arrange for short-term, or possibly long-term, borrowing.
In particular, the Company has borrowed significant amounts to acquire
certain of the facilities which it has leased. If and when the Company sells
such a facility, it will be required to repay any outstanding loans securing
such facility. If at the time of sale the debt required to be repaid exceeds the
Company's basis in the facility the Company will, because of the repayment of
the loan, realize a greater amount of income than cash from the sale. As a
consequence, the Company may be unable, without additional borrowings, to meet
the 95% distribution requirement for such taxable year.
Under certain circumstances, the Company may be able to rectify a failure
to meet the distribution requirement for a year by paying "deficiency dividends"
to shareholders in a later year, which may be included in the Company's
deduction for dividends paid for the earlier year. The Company may be able to
avoid being taxed on amounts distributed as deficiency dividends; however, the
Company will be required to pay interest and a penalty based upon the amount of
any deduction for deficiency dividends.
Federal Income Tax Treatment of Leases.
The availability to the Company of, among other things, depreciation
deductions with respect to the Company's facilities will depend upon the
treatment of the Company (or its
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subsidiary or a partnership in which the Company or its subsidiary is a partner)
as the owner of the facilities and the classification of the Leases as true
leases, rather than as sales or financing arrangements, for federal income tax
purposes. The questions whether the Company is the owner of the facilities and
whether the Leases are true leases for federal income tax purposes are
essentially factual matters. In a series of Revenue Procedures (Rev. Procs.
75-21, 75-28, 76-30, 79-48) the IRS set forth guidelines (regarding such matters
as the residual value of the property, the term of the lease, the lessor's
investment in the property and the terms of purchase options, if any) for the
issuance of rulings with respect to whether certain transactions purporting to
be leases of property would be treated as such for federal income tax purposes.
Although the transactions pursuant to which the Company leases the facilities do
not fully satisfy the conditions enumerated in such Revenue Procedures, such
conditions are applicable only to advance ruling requests and are not statements
of substantive law.
The Company believes that the Leases are true leases and it (or its
subsidiary or the partnership in which the Company or a subsidiary is a partner)
should be treated as the owner of the facilities so leased for federal income
tax purposes. However, no assurance can be given that the IRS will not
successfully challenge the status of the Company as the owner of the facilities
and the status of the Leases as true leases. In such event the Company would not
be entitled to claim depreciation deductions with respect to such facilities
and, as a result, the Company might fail to meet the 95% dividend distribution
requirement, or if such requirement is met, then a larger percentage of
distributions from the Company may in some years constitute ordinary dividend
income, instead of a partial return of capital to shareholders.
The IRS could assert that the acquisition price of one or more of the
facilities leased back to the seller was less than the fair market value of the
facility, and that the Company therefore realized prepaid rent in the amount of
the difference in the year of the purchase. Although the Company believes it has
paid fair market value for each of the facilities, there can be no assurance
that the IRS would not be successful in such a challenge. If the IRS were to
prevail, the Company might fail to meet the requirement that it distribute
annually at least 95% of its "real estate investment trust taxable income," in
which event it could lose its qualification as a real estate investment trust.
The Company should be able to rectify a failure to meet the 95% distribution
requirement arising from a determination by a court or a so-called "closing
agreement" with the IRS that the Company has prepaid rental income by paying a
"deficiency dividend" to its shareholders in a later year, which would be
included in the Company's deduction for dividends paid for the year challenged.
The Company might thus be able to avoid disqualification of real estate
investment trust status and being subject to the regular corporate income tax on
amounts ultimately distributed as deficiency dividends; however, it would in
such case remain liable for interest and penalties with respect to any failure
to meet the 95% distribution requirement until the deficiency dividend was paid.
Furthermore, the Company might have to borrow funds to pay any deficiency
dividend and such interest, penalties and excise tax, since it will not actually
have received cash equal to any deemed prepaid rental income, and as a result
the Company's ability to pay future dividends might be impaired.
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Additionally, it should be noted that Code Section 467 (concerning leases
with increasing rents) could apply to the Leases because each Lease provides for
percentage or additional rents which may increase from one period to the next.
Section 467 provides that in the case of a so-called "disqualified leaseback
agreement" rental income must be accrued at a constant rate. If such constant
rent accrual is required, the Company would recognize rental income in excess of
cash rents and as a result may fail to meet the 95% dividend distribution
requirement. See "Failure to Qualify." Because Section 467 directs the
Department of the Treasury to issue regulations providing that rents will not be
treated as increasing for tax avoidance purposes where the increases are based
upon a fixed percentage of lessee receipts, the additional rent provisions of
the leases should not cause the leases to be "disqualified leaseback
agreements." However, the absence of Treasury Regulations to date means that
there can be no assurance that none of the leases will be treated as
"disqualified leaseback agreements" resulting in constant rent accrual. Section
467 also requires that if the leased properties are disposed of during the lease
term (without taking into account renewal options), the Company must recapture
as ordinary income the portion of its realized gain that is equal to the excess
amounts of income that would have been accrued in prior years had constant
accrual been required.
Prohibited Transactions.
Most of the Leases grant the lessee the option to purchase the leased
property. It is possible that the IRS, upon the sale of a facility either to the
lessee pursuant to such a purchase option or to another party, or upon the sale
of part or all of a loan made by the Company, will take the position that the
gain from such sale is income from a "prohibited transaction." A prohibited
transaction occurs when a real estate investment trust sells property to
customers in the ordinary course of its business. The determination whether a
sale by the Company of any of its real estate assets will occur in the ordinary
course of its business will be based upon the facts and circumstances of the
transaction, including the frequency of the Company's sales of property and the
length of time the Company held the property. The consequences to the Company of
realizing gain from a prohibited transaction are that the Company will be
subject to a l00% penalty tax upon the gain realized from such transaction and
such gain will be treated as non-qualifying income for purposes of the 30% test,
which could adversely affect the Company's status as a real estate investment
trust. See "Failure to Qualify". The Company believes that it does not hold any
of its real estate assets for sale to customers in the ordinary course of its
business. However, no assurance can be given that the IRS will not successfully
assert a contrary position with respect to a sale of any of the Company's assets
with the consequences described above.
Failure to Qualify.
If the Company fails to qualify for taxation as a real estate investment
trust in any taxable year, and the relief provisions do not apply, the Company
will be subject to tax (including any applicable minimum tax) on its taxable
income at regular corporate rates. Distributions to shareholders in any year in
which the Company fails to qualify will not be deductible by the Company nor
will they be required to be made. In such event, to the extent of current and
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35
accumulated earnings and profits, all distributions to shareholders will be
taxable as ordinary income. Subject to certain limitations provided in the Code,
corporations will be eligible for the dividends received deduction with respect
to such dividends. Unless entitled to relief under specific statutory
provisions, the Company will also be disqualified from taxation as a real estate
investment trust for the next four taxable years. It is not possible to state
whether in all circumstances the Company would be entitled to statutory relief.
Failure to qualify for even one year could result in the Company's incurring
substantial indebtedness (to the extent borrowings are feasible) or liquidating
substantial investments in order to pay the resulting taxes.
Taxation of Shareholders Generally.
As long as the Company qualifies as a real estate investment trust,
distributions made to the Company's shareholders out of current or accumulated
earnings and profits will be taken into account by them as ordinary income
(which will not be eligible for the dividends received deduction for
corporations). Distributions that are designated as capital gain dividends will
be taxed as long-term capital gains to the extent they do not exceed the
Company's actual net capital gain for the taxable year. Distributions in excess
of current or accumulated earnings and profits will not be taxable to a
shareholder to the extent that they do not exceed the adjusted basis of the
shareholder's Shares, but will reduce the basis of the shareholder's Shares. To
the extent that such distributions exceed the adjusted basis of a shareholder's
Shares, they will be included in income as capital gain (long-term or short-term
depending upon the holding period for the Shares) assuming the Shares are a
capital asset in the hands of the shareholder. Shareholders may not include in
their individual income tax returns any net operating losses or capital losses
of the Company.
In general, any loss upon a sale or exchange of Shares by a shareholder
who has held such Shares for six months or less (after applying certain rules),
will be treated as a long-term capital loss to the extent of distributions from
the Company required to be treated by such shareholder as long-term capital
gain.
Distributions by the Company will constitute "portfolio income" to the
shareholders, and not "passive income," for purposes of applying the provisions
of Code Section 469. Accordingly, shareholders will not be able to net any
"passive losses" against such distributions.
Tax-Exempt Shareholders.
In Revenue Ruling 66-106, the IRS ruled that amounts distributed by a real
estate investment trust to a tax-exempt employees' pension trust did not
constitute "unrelated business taxable income." Revenue rulings are interpretive
in nature and subject to revocation or modification by the IRS. However, based
upon Revenue Ruling 66-106 and the analysis therein, dividend distributions by
the Company to qualified pension plans (including individual retirement
accounts) and other tax-exempt entities should not constitute "unrelated
business
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taxable income." This Ruling may not apply if a shareholder has borrowed money
to acquire Shares or if the Company makes a distribution of long term capital
gain.
Tax-exempt shareholders are urged to consult their tax advisors respecting
the tax consequences to them from their investment in the Company.
Withholding on Dividends.
Shareholders may be subject to "back-up withholding" from a reportable
payment at a rate of 31% if, among other things, (i) the shareholder fails to
furnish a social security number or other taxpayer identification number ("TIN")
to the Company certified under penalties of perjury within a reasonable time
after the request therefor; (ii) the IRS notifies the Company that the TIN
furnished by the shareholder is incorrect; (iii) the IRS notifies the Company
that backup withholding should be commenced because the shareholder has failed
to properly report interest or dividends; or (v) when required to do so, the
shareholder fails to certify under penalties of perjury that such shareholder is
not subject to backup withholding or that the TIN provided to the Company is
correct.
Any amount withheld is creditable against a shareholder's federal income
tax liability for such year. Shareholders should consult their tax advisors as
to their qualification for exemption from withholding and the procedure for
obtaining such an exemption.
The Company will report to its shareholders and the IRS the amount of
dividends paid during each calendar year, and the amount of tax withheld, if
any.
Alternative Minimum Tax.
The Company will be subject to the alternative minimum tax on its
undistributed real estate investment trust taxable income to the extent such tax
exceeds its regular tax liability. Tax preference items of a real estate
investment trust must be apportioned between the trust and its shareholders in
accordance with regulations. No such regulations have yet been issued and,
accordingly, the proper method of apportionment of preference items of the
Company is unclear.
Prospective investors should consult their tax advisors to determine
whether and to what extent an investment in the Company would have an adverse
effect on their alternative minimum tax position.
Foreign Shareholders.
The preceding discussion does not address the federal income tax
consequences to foreign shareholders of an investment in the Company. Foreign
shareholders in the Company should consult their own tax advisors concerning the
application to them of the Foreign Investment in
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Real Property Tax Act of l980 ("FIRPTA"), which altered the federal income tax
treatment of an investment in REITs by foreign shareholders.
(a) Distributions of cash made by the Company to a foreign shareholder are
generally subject to United States withholding tax at a 30% rate unless a lower
rate or exemption is provided by an applicable tax treaty. A foreign shareholder
receiving a distribution subject to such withholding tax will be able to claim a
refund to the extent the withholding has been imposed on a portion of such
distribution which does not constitute a "dividend" (i.e., a distribution out of
the Company's current or accumulated earnings and profits). The basis which a
foreign shareholder has in his shares is reduced by the portion of the
distribution that does not constitute a dividend, and after basis has been
reduced to zero, such non-dividend distributions generally represent capital
gain from the sale or exchange of the shares. The United States tax treatment of
such gain is described in section (c) below. If a distribution is effectively
connected with a United States trade or business conducted by the foreign
holder, the portion of such distribution constituting a dividend is generally
subject to graduated United States federal income tax.
(b) Distributions attributable to gain from the Company's sale or exchange of
United States real property interests are subject to the same United States
graduated federal income tax which applies to U.S. persons unless a lower rate
or exemption is provided under an applicable tax treaty. Such distributions to a
foreign holder are also subject to withholding at a 35% rate to the extent the
distributions are designated as capital gains dividends by the Company. If a
distribution is designated as a capital gain dividend after the time that the
distribution has been made, the 35% withholding rate will generally apply to
subsequent distributions in an amount equal to the previous distribution
designated as capital gain.
(c) The Company believes that it is currently a domestically-controlled REIT
(i.e., a real estate investment trust where less than 50% in value of its shares
is held directly or indirectly by foreign persons at all times during the period
in question). As such, gain realized by a foreign holder on the sale, exchange,
redemption or other disposition of Shares is not subject to United States
federal income tax unless (1) the gain is effectively connected with a United
States trade or business of the foreign holder, in which case the gain is
generally subject to graduated United States federal income tax; or (2) in the
case of a nonresident alien, the individual is present in the United States for
183 days or more during the year of disposition, and either has a tax home in
the United States or maintains an office or other fixed place of business in the
United States and the income is attributable to such office, in which case the
gain is subject to 30% federal income tax.
If the Company is not a domestically-controlled REIT, the sale of Shares
by a foreign shareholder will be treated as a disposition of United States real
property interest, and consequently the gain will be subject to graduated United
States income tax rates and withholding as described in section (b).
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(d) Shares held by an individual at the time of his death (or previously
transferred subject to certain rights or powers or certain transfers by gift
within three years of death) are subject to United States federal estate tax
unless otherwise provided by an applicable treaty.
(e) Dividend distributions are not subject to information reporting or backup
withholding. Under current law, payments of proceeds from the sale of Shares to
or through a broker are generally subject to information reporting and backup
withholding unless the shareholder certifies as to his non-United States status
or otherwise establishes an exemption.
Future Tax Laws.
The foregoing discussion is based on provisions of the Code, Treasury
Regulations, administrative interpretations and court decisions. No assurance
can be given that subsequent legislation, Treasury Regulations, administrative
interpretations or court decisions will not change the tax laws so that the
treatment of a real estate investment trust or the consequences of an investment
in the Company would vary substantially from the treatment described above.
Any such change might apply retroactively.
Other Tax Consequences.
Certain of the Company's investments are through partnerships (the
"Partnerships"), which may involve certain tax risks. Such risks include
possible challenge by the IRS of (a) allocations of income and expense items
which could affect the computation of taxable income of the Company and (b) the
status of the Partnerships as partnerships (as opposed to associations taxable
as corporations) for income tax purposes. If any of the Partnerships in which
the Company is a partner is treated as an association, it would be treated as a
taxable entity. In such a situation, if the Company's ownership interest in any
of the Partnerships exceeded 10% of the Partnership's voting interests or the
value of such interest exceeded 5% of the value of the Company's assets, the
Company would cease to qualify as a real estate investment trust. Furthermore,
in such a situation distributions from any of the Partnerships to the Company
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 Company to qualify as a real estate investment trust 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 Company would not
qualify as a "real estate asset," which could make it more difficult for the
Company to meet the 75% asset test described above. Finally, in such a situation
the Company would not be able to deduct its share of losses generated by any of
the Partnerships in computing its taxable income. See "Failure to Qualify." The
Company believes that each of the Partnerships will be treated for tax purposes
as a partnership. However, no assurance can be given that the IRS may not
successfully challenge the tax status of any of the Partnerships.
The Company and its shareholders may be subject to state or local taxation
in various state or local jurisdictions, including those in which it or they
transact business or reside.
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There may be other federal, state, local or foreign tax considerations
applicable to the circumstances of a particular shareholder.
PLAN OF DISTRIBUTION
General.
The Company may sell the Securities in any of three ways: (i) through
underwriting syndicates represented by one or more managing underwriters, or by
one or more underwriters without a syndicate; (ii) through agents designated
from time to time; and (iii) directly to investors. The names of any
underwriters or agents of the Company involved in the sale of the Securities in
respect of which this Prospectus is being delivered and any applicable
commissions or discounts will be set forth in the Prospectus Supplement. The net
proceeds to the Company from such sale will also be set forth in the Prospectus
Supplement.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices (which may be changed from
time to time), at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Prospectus
Supplement will describe the method of distribution of the Securities.
In connection with the sale of Securities, underwriters or agents acting
on the Company's behalf may receive compensation from the Company or from
purchasers of Securities for whom they may act as agents, in the form of
discounts, concessions or commissions. The underwriter, dealers and agents that
participate in the distribution of Securities may be deemed to be underwriters
under the Securities Act and any discounts or commissions received by them and
any profit on the resale of Securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act. Any such underwriter will be
identified and any such compensation will be described in the Prospectus
Supplement.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which the agents or underwriters may be required to make in respect
thereof. Agents and underwriters may engage in transactions with or perform
services for the Company in the ordinary course of business.
Structured Equity Program.
The Company may also issue and sell Shares from time to time through one
or more sales agents (to be named in a prospectus supplement hereto, the
"Agent") in ordinary brokers' transactions on the New York Stock Exchange (the
"NYSE"). Such sales, if any, will be effected during a series of one or more
pricing periods (each, a "Pricing Period"), each consisting of five consecutive
calendar days in duration, unless a shorter period has otherwise been agreed to
by the Company and the Agent. For each Pricing Period, an Average Market
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40
Price (as hereinafter defined) will be computed. With respect to any Pricing
Period, "Average Market Price" shall equal the average of the arithmetic mean of
the high and low sales prices of the Shares of the Company reported on the NYSE
for each trading day of such Pricing Period.
The net proceeds to the Company with respect to sales of Shares in any
Pricing Period up to a maximum amount agreed to in advance with the Agent (the
"Average Market Price Shares") will equal a percentage (the "Company's
Percentage") of the Average Market Price for each Share sold during the Pricing
Period (subject to adjustment in certain circumstances), plus Excess Proceeds
(as defined below), if any. The compensation to the Agent for sales of Average
Market Price Shares in any Pricing Period will equal the difference between the
aggregate gross sales price at which such sales are actually effected and the
net proceeds to the Company for such sales, but in no event will exceed 10% of
the aggregate gross sales prices of the Average Market Price Shares during any
Pricing Period (the "Maximum Commission"). To the extent that such aggregate
gross sales prices are less than the Average Market Price, the compensation to
the Agent will be correspondingly reduced; to the extent that such aggregate
gross sales prices are greater than the Average Market Price, the compensation
to the Agent will be correspondingly increased (but in no event will exceed the
Maximum Commission). In the event that the average aggregate gross sales price
in any Pricing Period equals the Company's Percentage of the Average Market
Price (or less) for such Pricing Period, all of the proceeds from such sales
will be for the account of the Company and no compensation will be payable to
the Agent. To the extent that the Agent's compensation under the foregoing
formula would otherwise exceed the Maximum Commission in any Pricing Period, the
excess will constitute additional net proceeds to the Company (the "Excess
Proceeds").
Any Shares sold by the Agent during the Pricing Period on behalf of the
Company other than Average Market Price Shares ("Additional Shares") will be at
a fixed commission rate based on a percentage of the Share price per Share. In
no event will the compensation to the Agent be in excess of any applicable
requirements of the National Association of Securities Dealers, Inc.
Settlements of sales of Additional Shares and Average Market Price Shares
will occur on the third business day following the date on which any such sales
are made. Purchases of Shares from the Agent, as sales agent for the Company,
will settle the regular way on the NYSE. Compensation to the Agent with respect
to sales of Average Market Price Shares will be paid out of the proceeds of such
settlements. There is no arrangement for funds to be received in an escrow,
trust or similar arrangement.
At the end of each Pricing Period, the Company will file a Prospectus
Supplement under the applicable paragraph of Rule 424(b) promulgated under the
Act, which Prospectus Supplement will set forth the name of the Agent, dates
included in such Pricing Period, the number of such Shares sold through the
Agent as sales agent (identifying separately the number of Average Market Shares
and any Additional Shares), the high and low prices at which Average Market
Shares were sold during such Pricing Period, the net proceeds to the Company,
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the compensation payable by the Company to the Agent with respect to such sales
pursuant to the formula set forth above and other relevant information. Unless
otherwise indicated in a Prospectus Supplement, the Agent will act as sales
agent on a best efforts basis.
In connection with the sale of the Shares on behalf of the Company, the
Agent will be deemed to be an "underwriter" within the meaning of the Securities
Act, and the compensation of the Agent may be deemed to be underwriting
commissions or discounts. The Company intends to provide indemnification and
contribution to the Agent against certain civil liabilities, including
liabilities under the Securities Act. The Agent may engage in transactions with,
or perform services for, the Company in the ordinary course of business.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Nutter, McClennen & Fish, LLP, Boston, Massachusetts. In addition,
Nutter, McClennen & Fish, LLP will pass upon certain Federal income tax matters
relating to the Company. The name of any legal counsel that passes on the
validity of the other Securities offered hereby for any underwriter or agent
will be set forth in the applicable Prospectus Supplement.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1995 and
1994 and the related consolidated statements of income, changes in shareholders'
equity and cash flows for each of the three years in the period ended December
31, 1995, and the financial statement schedules incorporated by reference in
this Prospectus and elsewhere in the Registration Statement, have been audited
by Coopers & Lybrand L.L.P., independent accountants, as indicated in their
report with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing.
Any financial statements and schedules hereafter incorporated by reference in
the registration statement of which this Prospectus is a part that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Commission.
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===============================================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE HEREIN, IN
CONNECTION WITH THIS OFFERING AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY OTHER PERSON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR
SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES IN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT
THE INFORMATION IN THE PROSPECTUS IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
- -------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Available Information ..................................................... 2
Incorporation of Certain
Documents by Reference .................................................. 2
The Company ............................................................... 4
Health Care Reform
and Regulation ........................................................... 6
Ratio of Earnings to Fixed
Charges ................................................................. 6
Use of Proceeds ........................................................... 6
Description of Shares ..................................................... 7
Description of Debt
Securities .............................................................. 14
Description of Securities
Warrants ................................................................ 21
Federal Income Tax
Considerations ........................................................... 25
Plan of Distribution ...................................................... 37
Legal Matters ............................................................. 39
Experts ................................................................... 39
MEDITRUST
PROSPECTUS
May 30, 1996
===============================================================================
43
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits
The following is a list of exhibits filed as part of this Registration Statement
(numbering corresponds to numbering in Item 601 of Regulation S-K).
Exhibit Description
-----------
No.
- ---
1.1 Form of Underwriting Agreement (incorporated by reference to Exhibit 1
to the Current Report on Form 8-K dated October 7, 1994)
1.2 Form of Underwriting Agreement (incorporated by reference to Exhibit 1
to the Current Report on Form 8-K dated July 13, 1995)
1.3 Form of Distribution Agreement (incorporated by reference to Exhibit 1 to
the Current Report dated August 8, 1995)
1.4 Form of Placement Agency Agreement (incorporated by reference to Exhibit
1.1 to the Registration Statement on Form S-3 (File No. 33-55386))
1.5 Form of Sales Agency Agreement (incorporated by reference to Exhibit 1.5
to the Registration Statement on Form S-3 (File No. 33-62293))
4.1 Restated Declaration of Trust dated May 10, 1996
4.2 By-laws, as amended (incorporated by reference to Exhibit 3.2
to the Annual Report on Form 10-K for the fiscal year ended
December 31, 1992)
4.3 Form of Indenture and Form of Convertible Debenture (incorporated by
reference to Exhibit 4 to the Registration Statement on Form S-3
(File No. 33-50835))
4.4 Form of Indenture Supplement and Form of Note (incorporated by
reference to Exhibit 4.1 to the Current Report on Form 8-K dated July 13,
1995)
4.5 Form of Indenture Supplement and Forms of Convertible Notes
(incorporated by reference to Exhibit 4.1 to the Current Report on Form
8-K dated July 27, 1995)
4.6 Form of Indenture Supplement and Forms of Medium-Term Notes
(incorporated by reference to Exhibit 4.1 to the Current Report on Form
8-K dated August 13, 1995)
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44
4.7 Form of Debt Security(1)
4.8 Form of Securities Warrant Agreement(1)
5 Opinion letter of Nutter, McClennen & Fish, LLP(2)
8 Opinion letter of Nutter, McClennen & Fish, LLP regarding tax matters
12 Computation of Ratios of Earnings to Fixed Charges
23.1 Consents of Nutter, McClennen & Fish, LLP (included in Exhibits 5 and 8)
23.2 Consent of Coopers & Lybrand L.L.P.(2)
25 Form T-1 Statement of Eligibility and Qualification of Fleet National Bank
under the Trust Indenture Act of 1939(2)
(1) To be filed by amendment or incorporated by reference if necessary in
connection with the offering of the Securities.
(2) Filed previously.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, Commonwealth of Massachusetts on May 30,
1996.
MEDITRUST
By: /s/ Abraham D. Gosman*
------------------------------
Abraham D. Gosman, Chairman of
the Board and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
amendment to the registration statement has been signed below by the following
persons on behalf of the registrant in the capacities and on the dates
indicated.
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45
Signature Title Date
- --------- ----- ----
/s/ Abraham D. Gosman* Chairman of the
- ------------------------------------ Board and Chief
Abraham D. Gosman Executive Officer May 30, 1996
(Principal Executive Officer)
/s/ Lisa P. McAlister* Chief Financial Officer
- ------------------------------------ and Vice President
Lisa P. McAlister (Principal May 30, 1996
Financial and Accounting Officer)
/s/ David F. Benson* President
- ------------------------------------ and Trustee May 30, 1996
David F. Benson
/s/ Edward W. Brooke* Trustee May 30, 1996
- ------------------------------------
Edward W. Brooke
/s/ Robert Cataldo* Trustee May 30, 1996
- ------------------------------------
Robert Cataldo
/s/ Philip L. Lowe* Trustee May 30, 1996
- ------------------------------------
Philip L. Lowe
/s/ Thomas J. Magovern* Trustee May 30, 1996
- ------------------------------------
Thomas J. Magovern
/s/ Gerald Tsai, Jr.* Trustee May 30, 1996
- ------------------------------------
Gerald Tsai, Jr.
/s/ Frederick W. Zuckerman* Trustee May 30, 1996
- ------------------------------------
Frederick W. Zuckerman
*By: /s/ Michael J. Bohnen
-------------------------------
Michael J. Bohnen
Attorney-in-fact
*A power of attorney was previously filed with the Registration Statement.
II-3