As filed with the Securities and Exchange Commission on March 11, 2004
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LEXINGTON CORPORATE PROPERTIES TRUST
(Exact Name of Registrant as Specified in Its Charter)
Maryland 13-3717318
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
One Penn Plaza, Suite 4015
New York, NY 10119
(212) 692-7260
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
T. Wilson Eglin With copies to:
President and Chief Executive Officer Barry A. Brooks, Esq.
Lexington Corporate Properties Trust Mark Schonberger, Esq.
One Penn Plaza, Suite 4015 Paul, Hastings, Janofsky & Walker LLP
New York, NY 10119 75 East 55th Street
(212) 692-7260 New York, New York 10022
(Name, Address, Including Zip Code, (212) 318-6000
and Telephone Number, Including Area Code,
of Agent For Service)
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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Title of each class of Proposed Maximum Proposed Maximum
securities Amount to Be Offering Price Aggregate Amount of
to be registered Registered Per Unit (1) Offering Price (1) Registration Fee (1)
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Common shares of beneficial interest,
par value $.0001 per share........ 63,244 shares $21.35 $1,350,259.40 $171.08
====================================================================================================================================
(1)Estimated solely for purposes of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act of 1933, as amended, based upon the
average of the high and low reported sales prices for the registrant's common
shares of beneficial interest, as reported on the New York Stock Exchange on
March 5, 2004, which was within five business days prior to the filing of
this registration statement.
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The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant will file a
further amendment which specifically states that this Registration Statement
will thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement will become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 11, 2004
Prospectus
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63,244 Shares
LEXINGTON CORPORATE PROPERTIES TRUST
Common Shares Of Beneficial Interest
--------------------------------------------------------------------------------
We are Lexington Corporate Properties Trust, a self-managed and
self-administered real estate investment trust that acquires, owns and manages a
geographically diversified portfolio of net leased office, industrial and retail
properties. Our executive offices are located at One Penn Plaza, Suite 4015, New
York, New York 10119, and our telephone number is (212) 692-7260.
This prospectus relates to the possible offer of up to 63,244 common
shares, which we may issue in exchange for the redemption of an equal number of
units of limited partnership, or OP units, issued by our controlled operating
partnership subsidiary, Lepercq Corporate Income Fund, L.P., or LCIF. The OP
units were issued on August 1, 1995, and are redeemable on and after March 1,
2004, as more fully described in this prospectus. We will not receive proceeds
from any issuance of common shares in exchange for OP units. We are not being
assisted by any underwriter in connection with any issuance of common shares in
exchange for OP units.
We are registering the common shares being offered by this prospectus in
order to permit the recipient thereof to sell such shares without restriction,
in the open market or otherwise. However, the registration of such common shares
does not necessarily mean that any of the OP units will be submitted for
redemption or that any of the common shares to be issued upon such redemption
will be offered or sold by the recipient thereof.
Our common shares trade on the New York Stock Exchange under the symbol
"LXP." On March 10, 2004, the last reported sale price of our common shares, as
reported on the New York Stock Exchange, was $20.99 per share.
------------------------
YOU SHOULD BE AWARE THAT AN INVESTMENT IN OUR COMMON
SHARES INVOLVES VARIOUS RISKS. SEE "RISK FACTORS" BEGINNING
ON PAGE 2 OF THIS PROSPECTUS.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY
STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF
THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS __________________.
Table of Contents
-----------------
Page
----
CAUTIONARY STATEMENTS CONCERNING FORWARD-LOOKING
INFORMATION...........................................................ii
ABOUT THIS PROSPECTUS.........................................................ii
PROSPECTUS SUMMARY.............................................................1
RISK FACTORS...................................................................2
USE OF PROCEEDS................................................................8
PLAN OF DISTRIBUTION...........................................................8
DESCRIPTION OF OUR COMMON SHARES...............................................9
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK AND ANTI-TAKEOVER
PROVISIONS............................................................11
DESCRIPTION OF OP UNITS.......................................................15
REDEMPTION OF OP UNITS........................................................18
REGISTRATION RIGHTS...........................................................19
COMPARISON OF OWNERSHIP OF OP UNITS AND COMMON SHARES.........................19
FEDERAL INCOME TAX CONSIDERATIONS.............................................26
EXPERTS.......................................................................34
LEGAL MATTERS.................................................................35
WHERE YOU CAN FIND MORE INFORMATION...........................................35
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................35
-i-
CAUTIONARY STATEMENTS CONCERNING FORWARD-LOOKING INFORMATION
Certain information included or incorporated by reference in this
prospectus and any applicable prospectus may contain forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended,
("Securities Act") and Section 21E of the Securities Exchange Act of 1934, as
amended, and as such may involve known and unknown risks, uncertainties and
other factors which may cause our actual results, performance or achievements to
be materially different from future results, performance or achievements
expressed or implied by these forward-looking statements. Forward-looking
statements, which are based on certain assumptions and describe our future
plans, strategies and expectations, are generally identifiable by use of the
words "may," "will," "should," "expect," "anticipate," "estimate," "believe,"
"intend," "project," or the negative of these words or other similar words or
terms. Factors which could have a material adverse effect on our operations and
future prospects include, but are not limited to, changes in economic conditions
generally and the real estate market specifically, adverse developments with
respect to our tenants, legislative/regulatory changes including changes to laws
governing the taxation of REITs, availability of debt and equity capital,
interest rates, competition, supply and demand for properties in our current and
proposed market areas, policies and guidelines applicable to REITs and the other
factors described under the heading "RISK FACTORS" in any supplement to this
prospectus. These risks and uncertainties should be considered in evaluating any
forward-looking statements contained or incorporated by reference in this
prospectus.
We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed or incorporated by reference in this prospectus
and any applicable prospectus supplement may not occur and actual results could
differ materially from those anticipated or implied in the forward-looking
statements.
ABOUT THIS PROSPECTUS
All references to "the Company," "we," "our" and "us" in this prospectus
mean Lexington Corporate Properties Trust and all entities owned or controlled
by us except where it is made clear that the term means only the parent company.
The term "you" refers to a prospective investor.
ii
PROSPECTUS SUMMARY
The following summary highlights information included elsewhere in or
incorporated by reference in this prospectus. It may not contain all of the
information that is important to you. You should read the following summary
together with the more detailed information included or incorporated by
reference in this prospectus, including the risk factors regarding our business
and the common shares being offered hereby.
Our Company
We are a self-managed and self-administered real estate investment
trust, commonly referred to as a REIT, formed under the laws of the State of
Maryland. Our common shares and preferred shares are traded on the New York
Stock Exchange under the symbols "LXP" and "LXP_pb", respectively. Our primary
business is the acquisition, ownership and management of a geographically
diverse portfolio of net leased office, industrial and retail properties.
Substantially all of our properties are subject to triple net leases, which are
generally characterized as leases in which the tenant bears all or substantially
all of the costs and cost increases for real estate taxes, utilities, insurance
and ordinary repairs and maintenance.
We grow our portfolio primarily by acquiring properties from
corporations and other entities in sale-leaseback transactions and from
developers of newly-constructed properties built to suit the needs of a
corporate tenant. We have diversified our portfolio by geographical location,
tenant industry segment, lease term expiration and property type with the
intention of providing steady internal growth with low volatility. We believe
that such diversification should help insulate us from regional recession,
industry specific downturns and price fluctuations by property type. As part of
our ongoing efforts, we expect to continue to effect portfolio and individual
property acquisitions and dispositions, expand existing properties, extend lease
maturities in advance of expiration and refinance outstanding indebtedness when
advisable. Additionally, we enter into joint ventures with third-party investors
as a means of creating additional growth and expanding the revenue realized from
advisory and asset management activities.
Our operating partnership structure enables us to acquire properties by
issuing to property owners, as a form of consideration, OP units in any of our
three operating partnership subsidiaries. The OP units are redeemable, after
certain dates, for our common shares. We believe that this structure facilitates
our ability to raise capital and to acquire portfolio and individual properties
by enabling us to structure transactions which may defer tax gains for a
contributor of property while preserving our available cash for other purposes,
including the payment of dividends and distributions.
Our principal executive offices are located at One Penn Plaza, New York,
New York 10119, our telephone number is (212) 692-7260 and our Internet address
is www.lxp.com. None of the information on our website that is not otherwise
expressly set forth in, or incorporated by reference in, this prospectus is a
part of this prospectus.
Securities That May Be Offered
This prospectus relates to the possible issuance by the Company of up to
63,244 common shares, if and to the extent that, certain holders elect to tender
up to an aggregate of 63,244 OP units in LCIF for redemption commencing on March
1, 2004. The Company is registering the 63,244 common shares for sale to permit
the holders thereof to sell such shares without restriction in the open market
or otherwise, but the registration of such shares does not necessarily mean that
any of such OP units will be tendered for redemption or that any of such shares
will be offered or sold by the holders thereof.
We will not receive any proceeds from the issuance of the common shares
covered by this prospectus.
Risk Factors
Investing in our common shares involves various risks. In considering
whether to purchase our common shares, you should carefully consider the matters
discussed under "RISK FACTORS" beginning on page 2 of this prospectus.
1
RISK FACTORS
In evaluating an investment in our common shares, you should carefully
consider the following factors, in addition to other information set forth or
incorporated by reference in this prospectus. See the sections entitled "WHERE
YOU CAN FIND MORE INFORMATION" on page 35 of this prospectus and "INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE" on page 35 of this prospectus.
Risks Involved in Single Tenant Leases. We focus our acquisition
activities on real properties that are net leased to single tenants. Therefore,
the financial failure of, or other default by, a single tenant under its lease
may cause a significant reduction in the operating cash flow generated by the
property leased to that tenant and might decrease the value of that property.
Dependence on Major Tenants. Revenues from several of our tenants and/or
their guarantors constitute a significant percentage of our rental revenues. As
of December 31, 2003, our fifteen largest tenants/guarantors, which occupied 34
properties, represented $59.7 million, or 46.1%, of our rental revenue for the
twelve months ended December 31, 2003, including our proportionate share of
rental revenue from non-consolidated entities and rental revenue recognized from
properties sold through date of sale. The default, financial distress or
bankruptcy of any of the tenants of these properties could cause interruptions
in the receipt of lease revenues from these tenants and/or result in vacancies,
which would reduce our revenues and increase operating costs until the affected
property is re-let, and could decrease the ultimate sales value of that
property. Upon the expiration or other termination of the leases that are
currently in place with respect to these properties, we may not be able to
re-lease the vacant property at a comparable lease rate or without incurring
additional expenditures in connection with the re-leasing.
Leverage. We have incurred, and expect to continue to incur,
indebtedness (secured and unsecured) in furtherance of our activities. Neither
our declaration of trust nor any policy statement formally adopted by our board
of trustees limits either the total amount of indebtedness or the specified
percentage of indebtedness that we may incur. Accordingly, we could become more
highly leveraged, resulting in increased risk of default on our obligations and
in an increase in debt service requirements which could adversely affect our
financial condition and results of operations and our ability to pay
distributions. Our current unsecured revolving credit facility contains various
covenants which limit the amount of secured, unsecured and variable-rate
indebtedness we may incur.
Risks Relating to Interest Rate Increases. We have exposure to market
risks relating to increases in interest rates due to our variable-rate debt. An
increase in interest rates may increase our costs of borrowing on existing
variable-rate indebtedness, leading to a reduction in our net income.
Specifically, as of the date of this prospectus, we have no borrowings
outstanding under our $100.0 million unsecured revolving credit facility and
$15.2 million in variable-rate indebtedness with an interest rate of 4.07%. The
level of our variable-rate indebtedness, along with the interest rate associated
with such variable-rate indebtedness, may change in the future and materially
affect our interest costs and net income.
In addition, our interest costs on our fixed-rate indebtedness can
increase if we are required to refinance our fixed-rate indebtedness at maturity
at higher interest rates.
Risks Associated with Refinancing. A significant number of our
properties are subject to mortgage notes with balloon payments due at maturity.
As of the date of this prospectus, the scheduled balloon payments and balances
due on our unsecured revolving credit facility, for the next five calendar years
are as follows:
o 2004-$14.5 million;
o 2005-$0;
o 2006-$0;
o 2007-$0; and
o 2008-$70.5 million.
-2-
Our ability to make the scheduled balloon payments will depend upon the
amount available under our unsecured revolving credit facility and our ability
either to refinance the related mortgage debt or to sell the related property.
Our ability to accomplish these goals will be affected by various factors
existing at the relevant time, such as the state of the national and regional
economies, local real estate conditions, available mortgage rates, the lease
terms of the mortgaged properties, our equity in the mortgaged properties, our
financial condition, the operating history of the mortgaged properties and tax
laws. If we are unable to obtain sufficient financing to fund a scheduled
balloon payment or to sell the related property at a price that generates
sufficient proceeds to pay the scheduled balloon payment, we would lose our
entire investment.
Uncertainties Relating to Lease Renewals and Re-letting of Space. Upon
the expiration of current leases for space located in our properties, we may not
be able to re-let all or a portion of that space, or the terms of re-letting
(including the cost of concessions to tenants) may be less favorable to us than
current lease terms. If we are unable to re-let promptly all or a substantial
portion of the space located in our properties or if the rental rates we receive
upon re-letting are significantly lower than current rates, our net income and
ability to make expected distributions to our shareholders will be adversely
affected due to the resulting reduction in rent receipts and increase in our
property operating costs. There can be no assurance that we will be able to
retain tenants in any of our properties upon the expiration of their leases. As
of the date of this prospectus, our scheduled lease maturities, including a 2008
lease maturing at a property owned by a non-consolidated entity, for the next
five years are as follows:
Number of Annual
Leases Rent ($000)
----------- -------------
2004 ................................. 2 $ 1,302
2005 ................................. 7 7,311
2006 ................................. 15 12,700
2007 ................................. 9 16,542
2008 ................................. 8 8,923
----- ---------
Total......................... 41 $ 46,778
===== =========
Defaults on Cross-Collateralized Properties. As the date of this
prospectus, the mortgages on two of our properties, in Canton, Ohio and
Spartanburg, South Carolina, are cross-collateralized. To the extent that any
of our properties are cross-collateralized, any default by us under the mortgage
note relating to one property will result in a default under the financing
arrangements relating to any other property that also provides security for that
mortgage note.
Possible Liability Relating to Environmental Matters. Under various
federal, state and local environmental laws, statutes, ordinances, rules and
regulations, as an owner of real property, we may be liable for the costs of
removal or remediation of hazardous or toxic substances at, on, in or under our
properties, as well as other potential costs relating to hazardous or toxic
substances, including government fines and penalties and damages for injuries to
persons and adjacent property. These laws may impose liability without regard to
whether we knew of, or were responsible for, the presence or disposal of those
substances. This liability may be imposed on us in connection with the
activities of an operator of, or tenant at, the property. The cost of any
required remediation, removal, fines or personal or property damages and our
liability therefor could exceed the value of the property and/or our aggregate
assets. In addition, the presence of those substances, or the failure to
properly dispose of or remove those substances, may adversely affect our ability
to sell or rent that property or to borrow using that property as collateral,
which, in turn, would reduce our revenues and ability to make distributions.
A property can also be adversely affected either through physical
contamination or by virtue of an adverse effect upon value attributable to the
migration of hazardous or toxic substances, or other contaminants that have or
may have emanated from other properties. Although our tenants are primarily
responsible for any environmental damages and claims related to the leased
premises, in the event of the bankruptcy or inability of a tenant to satisfy any
obligations with respect to the property leased to that tenant, we may be
required to satisfy such obligations. In addition, we may be held directly
liable for any such damages or claims irrespective of the provisions of any
lease.
-3-
From time to time, in connection with the conduct of our business, and
prior to the acquisition of any property from a third party or as required by
our financing sources, we authorize the preparation of Phase I environmental
reports and, when necessary, Phase II environmental reports, with respect to our
properties. Based upon these environmental reports and our ongoing review of our
properties, as of the date of this prospectus, we are not aware of any
environmental condition with respect to any of our properties that we believe
would be reasonably likely to have a material adverse effect on us. There can be
no assurance, however, that the environmental reports will reveal all
environmental conditions at our properties or that the following will not expose
us to material liability in the future:
o the discovery of previously unknown environmental conditions;
o changes in law;
o activities of tenants; or
o activities relating to properties in the vicinity of our properties.
Changes in laws increasing the potential liability for environmental
conditions existing on properties or increasing the restrictions on discharges
or other conditions may result in significant unanticipated expenditures or may
otherwise adversely affect the operations of our tenants, which could adversely
affect our financial condition or results of operations.
Uninsured Loss. We carry comprehensive liability, fire, extended
coverage and rent loss insurance on most of our properties, with policy
specifications and insured limits that we believe are customary for similar
properties. However, with respect to those properties where the leases do not
provide for abatement of rent under any circumstances, we generally do not
maintain rent loss insurance. In addition, there are certain types of losses,
such as losses resulting from wars, terrorism or certain acts of God, that
generally are not insured because they are either uninsurable or not
economically insurable. Should an uninsured loss or a loss in excess of insured
limits occur, we could lose capital invested in a property, as well as the
anticipated future revenues from a property, while remaining obligated for any
mortgage indebtedness or other financial obligations related to the property.
Any loss of these types would adversely affect our financial condition.
Risks Relating to Terrorism. Future terrorist attacks such as those
which occurred in New York City, Pennsylvania and Washington, D.C. on September
11, 2001, and military conflicts such as the military actions taken by the
United States and its allies in Afghanistan and Iraq, could have a material
adverse effect on general economic conditions, consumer confidence and market
liquidity. Among other things, it is possible that interest rates may be
affected by these events. An increase in interest rates may increase our costs
of borrowing on existing variable-rate indebtedness, leading to a reduction in
our net income. These types of terrorist acts could also result in significant
damages to, or loss of, our properties.
We and our tenants may be unable to obtain adequate insurance coverage
on acceptable economic terms for losses resulting from acts of terrorism. Our
lenders may require that we carry terrorism insurance even if we do not believe
this insurance is necessary or cost effective. We may also be prohibited under
the applicable lease from passing all or a portion of the cost of such insurance
through to the tenant. Should an act of terrorism result in an uninsured loss or
a loss in excess of insured limits, we could lose capital invested in a
property, as well as the anticipated future revenues from a property, while
remaining obligated for any mortgage indebtedness or other financial obligations
related to the property. Any loss of these types would adversely affect our
financial condition.
Competition. There are numerous commercial developers, real estate
companies, financial institutions and other investors whose financial resources
are greater than ours, which compete with us in seeking properties for
acquisition and tenants who will lease space in our properties. Due to our focus
on net lease properties located throughout the United States, and because most
competitors are locally and/or regionally focused, we do not encounter the same
competitors in each region of the United States. Our competitors include other
REITs, financial institutions, insurance companies, pension funds, private
companies and individuals. This competition may result in a higher cost for
properties that we wish to purchase.
-4-
Failure to Qualify as a REIT. We believe that we have met the
requirements for qualification as a REIT for federal income tax purposes
beginning with our taxable year ended December 31, 1993, and we intend to
continue to meet these requirements in the future. However, qualification as a
REIT involves the application of highly technical and complex provisions of the
Internal Revenue Code of 1986, as amended, which is generally referred to as the
Code, for which there are only limited judicial or administrative
interpretations. No assurance can be given that we have qualified or will remain
qualified as a REIT. The Code provisions and income tax regulations applicable
to REITs are more complex than those applicable to corporations. The
determination of various factual matters and circumstances not entirely within
our control may affect our ability to continue to qualify as a REIT. In
addition, no assurance can be given that legislation, regulations,
administrative interpretations or court decisions will not significantly change
the requirements for qualification as a REIT or the federal income tax
consequences of such qualification. If we do not qualify as a REIT, we would not
be allowed a deduction for distributions to shareholders in computing our
income. In addition, our income would be subject to tax at the regular corporate
rates. We also could be disqualified from treatment as a REIT for the four
taxable years following the year during which qualification was lost. Cash
available for distribution to our shareholders would be significantly reduced
for each year in which we do not qualify as a REIT. In that event, we would not
be required to continue to make distributions. Although we currently intend to
continue to qualify as a REIT, it is possible that future economic, market,
legal, tax or other considerations may cause us, without the consent of the
shareholders, to revoke the REIT election or to otherwise take action that would
result in disqualification.
Distribution Requirements Imposed by Law Limit Our Flexibility. To
maintain our status as a REIT for federal income tax purposes, we are generally
required to distribute to our shareholders at least 90% of our taxable income
for that calendar year. Our taxable income is determined without regard to any
deduction for dividends paid and by excluding net capital gains. To the extent
that we satisfy the distribution requirement, but distribute less than 100% of
our taxable income, we will be subject to federal corporate income tax on our
undistributed income. In addition, we will incur a 4% nondeductible excise tax
on the amount, if any, by which our distributions in any year are less than the
sum of (i) 85% of our ordinary income for that year, (ii) 95% of our capital
gain net income for that year and (iii) 100% of our undistributed taxable income
from prior years. We intend to continue to make distributions to our
shareholders to comply with the distribution requirements of the Code and to
reduce exposure to federal income and nondeductible excise taxes. Differences in
timing between the receipt of income and the payment of expenses in determining
our income and the effect of required debt amortization payments could require
us to borrow funds on a short-term basis in order to meet the distribution
requirements that are necessary to achieve the tax benefits associated with
qualifying as a REIT.
Interest Rate Fluctuations. It is likely that the public valuation of
our common shares will be based primarily on the earnings that we derive from
rental income with respect to our properties and not from the underlying
appraised value of the properties themselves. As a result, interest rate
fluctuations and capital market conditions can affect the market value of our
common shares. For instance, if interest rates rise, it is likely that the
market price of our common shares will decrease because potential investors may
require a higher dividend yield on our common shares as market rates on
interest-bearing securities, such as bonds, rise.
Inability to Carry Out Our Growth Strategy. Our growth strategy is based
on the acquisition and development of additional properties, including
acquisitions through co-investment programs. In the context of our business
plan, "development" generally means an expansion or renovation of an existing
property or the acquisition of a newly constructed property. We typically
provide a developer with a commitment to acquire a property upon completion of
construction. Our plan to grow through the acquisition and development of new
properties could be adversely affected by trends in the real estate and
financing businesses. The consummation of any future acquisitions will be
subject to satisfactory completion of our extensive valuation analysis and due
diligence review, and negotiation of definitive documentation. We cannot be sure
that we will be able to implement our strategy because we may have difficulty
finding new properties, negotiating with new or existing tenants or securing
acceptable financing. If we are unable to carry out our strategy, our financial
condition and results of operations could be adversely affected.
Acquisitions of additional properties entail the risk that investments
will fail to perform in accordance with expectations, including operating and
leasing expectations. Redevelopment and new project development are subject to
numerous risks, including risks of construction delays, cost overruns or force
majeure that may increase project costs, new project commencement risks such as
the receipt of zoning, occupancy and other required
-5-
governmental approvals and permits, and the incurrence of development costs in
connection with projects that are not pursued to completion.
We anticipate that some of our acquisitions and developments will be
financed using the proceeds of periodic equity or debt offerings, lines of
credit or other forms of secured or unsecured financing that will result in a
risk that permanent financing for newly acquired projects might not be available
or would be available only on disadvantageous terms. If permanent debt or equity
financing is not available on acceptable terms to refinance acquisitions
undertaken without permanent financing, further acquisitions may be curtailed or
cash available for distribution may be adversely affected.
Dilution of Common Shares. Our future growth will depend in part on our
ability to raise additional capital. If we raise additional capital through the
issuance of equity securities, the interests of holders of our common shares,
including the common shares being offered by this prospectus, could be diluted.
Likewise, our Board of Trustees is authorized to cause us to issue preferred
shares in one or more series, the holders of which would be entitled to the
dividends and voting and other rights that our Board of Trustees determines, and
which could be senior to our common shares. Accordingly, our Board of Trustees
may authorize the issuance of preferred shares with dividends and voting and
other rights that could be dilutive to or otherwise adversely affect the
interests of holders of our common shares.
Ownership Limitations. For us to qualify as a REIT under the Code, among
other things, not more than 50% in value of the outstanding shares of our
capital stock may be owned, directly or indirectly, by five or fewer individuals
(defined in the Code to include certain entities) during the last half of a
taxable year, and these capital shares must be beneficially owned by 100 or more
persons during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year (in each case, other than the first
such year). Our declaration of trust includes certain restrictions regarding
transfers of shares of our capital stock and ownership limits that are intended
to assist us in satisfying these limitations. These restrictions and limits may
not be adequate in all cases, however, to prevent the transfer of shares of our
capital stock in violation of the ownership limitations. The ownership limit
discussed above may have the effect of delaying, deferring or preventing someone
from taking control of our company, even though a change of control could
involve a premium price for our common shares or otherwise be in your best
interest.
Restrictions on a Potential Change of Control. Our board of trustees is
authorized by our declaration of trust to establish and issue one or more series
of preferred shares without shareholder approval. As of the date of this
prospectus, we have only one series of preferred shares outstanding which is the
Series B Preferred Shares we issued in June 2003. The establishment and issuance
of shares of our existing preferred shares or a future series of preferred
shares could make more difficult a change of control of our company.
In addition, we have entered into employment agreements with seven of
our executive officers which provide that, upon the occurrence of a change in
control of our company (including a change in ownership of more than fifty
percent of the total combined voting power of our outstanding securities, the
sale of all or substantially all of our assets, dissolution of our company, the
acquisition, except from us, of 20% or more of our voting shares or a change in
the majority of our board of trustees), those executive officers would be
entitled to severance benefits based on their current annual base salaries and
recent annual bonuses, as defined in the employment agreements. The provisions
of these agreements could deter a change of control.
Concentration Of Ownership By Certain Investor. As of the date of this
prospectus, E. Robert Roskind, the chairman of our board of trustees, owned or
controlled (including through trusts with respect to which he is a beneficiary)
651,681 common shares, 1,608,995 operating partnership units which are
convertible into common shares, and options (including unvested options) to
purchase 12,500 common shares, representing 4.7% of our fully-diluted
outstanding voting securities.
In 1999, we entered into a joint venture agreement with The Comptroller
of the State of New York as trustee of The Common Retirement Fund, or "CRF", to
acquire properties in an aggregate amount of up to approximately $400 million.
As of the date of this prospectus, this joint venture and a separate partnership
formed by the Company and CRF to purchase a specific property have made
investments in thirteen properties for $403.0 million. We have a 33 1/3% equity
interest in this joint venture and the separate partnership. In December 2001,
we
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formed a separate second joint venture with CRF to acquire additional properties
in an aggregate amount of up to approximately $560 million. We have a 25% equity
interest in this joint venture. As of the date of this prospectus, this joint
venture has made investments in one property for $30.3 million. Under these
joint venture agreements, CRF has the right to sell its equity position in the
joint ventures to us, although as of the date of this prospectus, this right is
only effective with respect to the first joint venture, and becomes effective
with respect to the second joint venture upon the occurrence of certain
conditions. In the event CRF exercises its right to sell its equity interest in
either joint venture to us, we may, at our option, either issue our common
shares to CRF for the fair market value of CRF's equity position, based upon a
formula contained in the respective operating agreements, or pay cash to CRF
equal to 110% of the fair market value of CRF's equity position. We have the
right to not accept any property in the joint ventures (thereby reducing the
fair market value of CRF's equity position) that does not meet certain
underwriting criteria. In addition, the joint venture agreements contain a
mutual buy-sell provision in which either CRF or we can force the sale of any
property.
In October 2003, we entered into a joint venture agreement with Clarion
Lion Properties Fund, LLC, or "Clarion", to acquire properties in an aggregate
amount of up to approximately $250 million. As of the date of this prospectus,
this joint venture owns four properties for which it paid an aggregate purchase
price of $103.1 million. We have a 30% equity interest in this joint venture.
Under the joint venture agreement, Clarion has the right to sell its equity
position in the joint venture to us. This right becomes effective upon the
occurrence of certain conditions. In the event Clarion exercises its right to
sell its equity interest in the joint venture to us, we may, at our option,
either issue our common shares to Clarion for the fair market value of Clarion's
equity position, based upon a formula contained in the partnership agreement, or
pay cash to Clarion equal to 100% of the fair market value of Clarion's equity
position. We have the right not to accept any property in the joint venture
(thereby reducing the fair market value of Clarion's equity position) that does
not meet certain underwriting criteria. In addition, the joint venture agreement
contains a mutual buy-sell provision in which either Clarion or we can force the
sale of any property.
A significant concentration of ownership may allow an investor to exert
a greater influence over our management and affairs, and may have the effect of
delaying, deferring or preventing a change in control of our company, may
discourage bids for our common shares at a premium over the market price and may
adversely affect the market price of our common shares.
Limited Control over Joint Venture Investments. Our joint venture
investments may involve risks not otherwise present for investments made solely
by us, including the possibility that our joint venture partner might, at any
time, become bankrupt, have different interests or goals than we do, or take
action contrary to our instructions, requests, policies or objectives, including
our policy with respect to maintaining our qualification as a REIT. Other risks
of joint venture investments include impasse on decisions, such as a sale,
because neither we nor a joint venture partner would have full control over the
joint venture. Also, there is no limitation under our organizational documents
as to the amount of funds that may be invested in joint ventures. Our credit
facility restricts the amount of capital that we can invest in joint ventures.
Under the terms of our joint venture with CRF, we are required to first
offer to the joint venture all of our opportunities to acquire office and
industrial properties requiring a minimum investment of $10 million which are
net leased primarily to investment grade tenants for a minimum term of ten
years, are available for immediate delivery and satisfy other specified
investment criteria. Only if CRF elects not to approve the joint venture's
pursuit of an acquisition opportunity may we pursue the opportunity directly. As
a result, we may not be able to make attractive acquisitions directly and may
only receive a minority interest in such acquisitions through our minority
interest in this joint venture.
Under the terms of our joint venture with Clarion, we are required to
first offer to the joint venture all of our opportunities to acquire office,
industrial and retail properties requiring a minimum investment of $15.0 million
to $40.0 million which are net leased primarily to non-investment grade tenants
for a minimum term of at least five years, are available for immediate delivery
and satisfy other specified investment criteria. Only if Clarion elects not to
approve the joint venture's pursuit of an acquisition opportunity may we pursue
the opportunity directly. As a result, we may not be able to make attractive
acquisitions directly and may only receive a minority interest in such
acquisitions through our minority interest in this joint venture.
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Conflicts of Interest with Respect to Sales and Refinancings. Two of our
trustees and officers own OP units and, as a result, may face different and more
adverse tax consequences than you will if we sell, or reduce our mortgage
indebtedness on, any of our properties. Those individuals may, therefore, have
different objectives than you regarding the appropriate pricing and timing of
any sale of our properties or reduction of mortgage debt. Accordingly, there may
be instances in which we may not sell a property or pay down the debt on a
property even though doing so would be advantageous to you.
Our Ability To Change Our Portfolio Is Limited Because Real Estate
Investments Are Illiquid. Equity investments in real estate are relatively
illiquid and, therefore, our ability to change our portfolio promptly in
response to changed conditions will be limited. Our Board of Trustees may
establish investment criteria or limitations as it deems appropriate, but
currently does not limit the number of properties in which we may seek to invest
or on the concentration of investments in any one geographic region. We could
change our investment, disposition and financing policies without a vote of our
shareholders.
Our Board of Trustees May Change Our Investment Policy Without
Shareholders' Approval. Subject to our fundamental investment policy to maintain
our qualification as a REIT, our Board of Trustees will determine our investment
and financing policies, our growth strategy and our debt, capitalization,
distribution, acquisition, disposition and operating policies. Although our
Board of Trustees has no present intention to revise or amend these strategies
and policies, it may do so at any time without a vote by our shareholders.
Accordingly, our shareholders' control over changes in our strategies and
policies is limited to the election of trustees, and changes made by our Board
of Trustees may not serve the interests of our shareholders and could adversely
affect our financial condition or results of operations, including our ability
to distribute cash to shareholders or to qualify as a REIT.
Limits on Ownership of Our Capital Shares. Actual or constructive
ownership of our capital shares in excess of the share ownership limits
contained in our declaration of trust would cause the violative transfer or
ownership to be void or cause the shares to be transferred to a charitable trust
and then sold to a person or entity who can own the shares without violating
these limits. As a result, if a violative transfer were made, the recipient of
the shares would not acquire any economic or voting rights attributable to the
transferred shares. Additionally, the constructive ownership rules for these
limits are complex and groups of related individuals or entities may be deemed a
single owner and consequently in violation of the share ownership limits. We
recommend that you read "RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK AND
ANTI-TAKEOVER PROVISIONS" on page 11 of this prospectus for a detailed
description of the share ownership limits.
Adverse Legislative or Regulatory Tax Changes. At any time, the federal
income tax laws governing REITs or the administrative interpretations of those
laws may be amended. Any of those new laws or interpretations may take effect
retroactively and could adversely affect us or you as a shareholder. Recently
enacted legislation reduces individual tax rates applicable to certain corporate
dividends. REIT dividends generally would not be eligible for reduced rates
because a REIT's income generally is not subject to corporate level tax. As a
result, investment in non-REIT corporations may be relatively more attractive
than investment in REITs. This could adversely affect the market price of our
shares.
USE OF PROCEEDS
We will not receive any proceeds from the issuance of the common shares
covered by this prospectus.
PLAN OF DISTRIBUTION
This prospectus relates to our offering of up to 63,244 common shares
if, and to the extent that, the holders of an equal number of OP units submit
such OP units for redemption. We will not receive proceeds from any issuance of
common shares in exchange for OP units (but we will acquire the OP units
submitted for redemption).
We are registering the common shares covered by this prospectus in order
to permit the recipient thereof to sell such shares without restriction, in the
open market or otherwise. However, the registration of such common
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shares does not necessarily mean that any of the OP units will be submitted for
redemption or that any of such common shares to be issued upon such redemption
will be offered or sold by the recipient thereof.
The recipient of the common shares covered by this prospectus, and any
agents or broker-dealers that participate with them in the distribution of such
common shares, may be deemed "underwriters" within the meaning of the Securities
Act and any commissions received by them on the resale of such common shares may
be deemed to be underwriting commissions or discounts under the Securities Act.
DESCRIPTION OF OUR COMMON SHARES
The following summary of the material terms and provisions of our common
shares does not purport to be complete and is subject to the detailed provisions
of our declaration of trust and our by-laws, each of which is incorporated by
reference into this prospectus. You should carefully read each of these
documents in order to fully understand the terms and provisions of our common
shares. For information on incorporation by reference, and how to obtain copies
of these documents, see the sections entitled "WHERE YOU CAN FIND MORE
INFORMATION" on page 35 of this prospectus and "INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE" on page 35 of this prospectus.
General
Under our declaration of trust, our board of trustees has authority to
issue 80,000,000 common shares. Under Maryland law, our shareholders generally
are not responsible for our debts or obligations as a result of their status as
shareholders.
Terms
Subject to the preferential rights of any other shares or series of
equity securities and to the provisions of our declaration of trust regarding
excess shares, holders of our common shares are entitled to receive dividends on
our common shares if, as and when authorized and declared by our board of
trustees out of assets legally available therefor and to share ratably in those
of our assets legally available for distribution to our shareholders in the
event that we liquidate, dissolve or wind up, after payment of, or adequate
provision for, all of our known debts and liabilities and the amount to which
holders of any class of shares classified or reclassified or having a preference
on distributions in liquidation, dissolution or winding up have a right.
Subject to the provisions of our declaration of trust regarding excess
shares, each outstanding common share entitles the holder to one vote on all
matters submitted to a vote of shareholders, including the election of trustees
and, except as otherwise required by law or except as otherwise provided in our
declaration of trust with respect to any other class or series of shares, the
holders of our common shares will possess exclusive voting power. There is no
cumulative voting in the election of trustees, which means that the holders of a
majority of our outstanding common shares can elect all of the trustees then
standing for election, and the holders of the remaining common shares will not
be able to elect any trustees.
Holders of our common shares have no conversion, sinking fund or
redemption rights, or preemptive rights to subscribe for any of our securities.
We furnish our shareholders with annual reports containing audited
consolidated financial statements and an opinion thereon expressed by an
independent public accounting firm.
Subject to the provisions of our declaration of trust regarding excess
shares, all of our common shares will have equal dividend, distribution,
liquidation and other rights and will have no preference, appraisal or exchange
rights.
Pursuant to the Maryland REIT Law, a real estate investment trust
generally cannot amend its declaration of trust or merge unless approved by the
affirmative vote of shareholders holding at least two-thirds of the shares
entitled to vote on the matter unless a lesser percentage (but not less than a
majority of all of the votes to be cast on the matter) is set forth in our
declaration of trust. Our declaration of trust provides that those actions, with
the
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exception of certain amendments to our declaration of trust for which a higher
vote requirement has been set, will be valid and effective if authorized by
holders of a majority of the total number of shares of all classes outstanding
and entitled to vote thereon.
Restrictions on Ownership
For the Company to qualify as a REIT under the Internal Revenue Code of
1986, as amended (which is commonly referred to as the Code), not more than 50%
in value of its outstanding capital shares may be owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year. To assist the Company in
meeting this requirement, the Company may take certain actions to limit the
beneficial ownership, directly or indirectly, by a single person of the
Company's outstanding equity securities. See "RESTRICTIONS ON TRANSFERS OF
CAPITAL STOCK AND ANTI-TAKEOVER PROVISIONS" beginning on page 11 of this
prospectus.
Transfer Agent
The transfer agent and registrar for our common shares is Mellon
Investor Services, LLC.
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RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK AND ANTI-TAKEOVER PROVISIONS
Restrictions Relating To REIT Status
For us to qualify as a REIT under the Code, among other things, not more
than 50% in value of the outstanding shares of our capital stock may be owned,
directly or indirectly, by five or fewer individuals (defined in the Code to
include certain entities) during the last half of a taxable year, and such
shares of our capital stock must be beneficially owned by 100 or more persons
during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year (in each case, other than the first
such year). To assist us in continuing to remain a qualified REIT, our
declaration of trust, subject to certain exceptions, provides that no holder may
own, or be deemed to own by virtue of the attribution provisions of the Code,
more than 9.8% of our equity shares, defined as common shares or preferred
shares. We refer to this restriction as the Ownership Limit. Our board of
trustees may waive the Ownership Limit if evidence satisfactory to our board of
trustees and our tax counsel is presented that the changes in ownership will not
then or in the future jeopardize our status as a REIT. Any transfer of equity
shares or any security convertible into equity shares that would create a direct
or indirect ownership of equity shares in excess of the Ownership Limit or that
would result in our disqualification as a REIT, including any transfer that
results in the equity shares being owned by fewer than 100 persons or results in
us being "closely held" within the meaning of Section 856(h) of the Code, will
be null and void, and the intended transferee will acquire no rights to such
equity shares. The foregoing restrictions on transferability and ownership will
not apply if our board of trustees determines that it is no longer in our best
interests to attempt to qualify, or to continue to qualify, as a REIT.
Equity shares owned, or deemed to be owned, or transferred to a
shareholder in excess of the Ownership Limit, will automatically be exchanged
for excess shares that will be transferred, by operation of law, to us as
trustee of a trust for the exclusive benefit of the transferees to whom such
shares of our capital stock may be ultimately transferred without violating the
Ownership Limit. While the excess shares are held in trust, they will not be
entitled to vote, they will not be considered for purposes of any shareholder
vote or the determination of a quorum for such vote and, except upon
liquidation, they will not be entitled to participate in dividends or other
distributions. Any dividend or distribution paid to a proposed transferee of
excess shares prior to our discovery that equity shares have been transferred in
violation of the provisions of our declaration of trust will be repaid to us
upon demand. The excess shares are not treasury shares, but rather constitute a
separate class of our issued and outstanding shares. The original
transferee-shareholder may, at any time the excess shares are held by us in
trust, transfer the interest in the trust representing the excess shares to any
individual whose ownership of the equity shares exchanged into such excess
shares would be permitted under our declaration of trust, at a price not in
excess of the price paid by the original transferee-shareholder for the equity
shares that were exchanged into excess shares, or, if the transferee-shareholder
did not give value for such shares, a price not in excess of the market price
(as determined in the manner set forth in our declaration of trust) on the date
of the purported transfer. Immediately upon the transfer to the permitted
transferee, the excess shares will automatically be exchanged for equity shares
of the class from which they were converted. If the foregoing transfer
restrictions are determined to be void or invalid by virtue of any legal
decision, statute, rule or regulation, then the intended transferee of any
excess shares may be deemed, at our option, to have acted as an agent on our
behalf in acquiring the excess shares and to hold the excess shares on our
behalf.
In addition to the foregoing transfer restrictions, we will have the
right, for a period of 90 days during the time any excess shares are held by us
in trust, to purchase all or any portion of the excess shares from the original
transferee-shareholder for the lesser of the price paid for the equity shares by
the original transferee-shareholder or the market price (as determined in the
manner set forth in our declaration of trust) of the equity shares on the date
we exercise our option to purchase. The 90-day period begins on the date on
which we receive written notice of the transfer or other event resulting in the
exchange of equity shares for excess shares.
Each shareholder will be required, upon demand, to disclose to us in
writing any information with respect to the direct, indirect and constructive
ownership of beneficial interests as our board of trustees deems necessary to
comply with the provisions of the Code applicable to REITs, to comply with the
requirements of any taxing authority or governmental agency or to determine any
such compliance.
This Ownership Limit may have the effect of precluding an acquisition of
control unless our board of trustees determines that maintenance of REIT status
is no longer in our best interests.
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Authorized Capital
Under our declaration of trust, we have authority to issue up to
130,000,000 shares of beneficial interest par value $0.0001 per share, of which
80,000,000 shares are classified as common shares, 40,000,000 shares are
classified as excess shares and 10,000,000 shares are classified as preferred
shares, of which 3,160,000 shares are designated as the Series B Preferred
Shares. We may issue such shares (other than reserved shares) from time to time
in the discretion of our board of trustees to raise additional capital, acquire
assets, including additional real properties, redeem or retire debt or for any
other business purpose. In addition, the undesignated preferred shares may be
issued in one or more additional classes with such designations, preferences and
relative, participating, optional or other special rights including, without
limitation, preferential dividend or voting rights, and rights upon liquidation,
as will be fixed by our board of trustees. Our board of trustees is authorized
to classify and reclassify any unissued shares of our capital stock by setting
or changing, in any one or more respects, the preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends, qualifications
or terms or conditions of redemption of such shares. This authority includes,
without limitation, subject to the provisions of our declaration of trust,
authority to classify or reclassify any unissued shares into a class or classes
of preferred shares, preference shares, special shares or other shares, and to
divide and reclassify shares of any class into one or more series of that class.
In some circumstances, the issuance of preferred shares, or the exercise
by our board of trustees of its right to classify or reclassify shares, could
have the effect of deterring individuals or entities from making tender offers
for our common shares or seeking to change incumbent management.
Maryland Law
Maryland law includes certain other provisions which may also discourage
a change in control of management. Maryland law provides that, unless an
exemption applies, we may not engage in any "business combination" with an
"interested stockholder" or any affiliate of an interested stockholder for a
period of five years after the interested stockholder became an interested
stockholder, and thereafter may not engage in a business combination with such
interested stockholder unless the combination is recommended by our board of
trustees and approved by the affirmative vote of at least (i) 80% of the votes
entitled to be cast by the holders of all of our outstanding voting shares, and
(ii) 66 2/3% of the votes entitled to be cast by all holders of outstanding
voting shares other than voting shares held by the interested stockholder. An
"interested stockholder" is defined, in essence, as any person owning
beneficially, directly or indirectly, 10% or more of the outstanding voting
shares of a Maryland real estate investment trust. The voting requirements do
not apply at any time to business combinations with an interested stockholder or
its affiliates if approved by our board of trustees prior to the time the
interested stockholder first became an interested stockholder. Additionally, if
the business combination involves the receipt of consideration by our
shareholders in exchange for common shares that satisfies certain "fair price"
conditions, such supermajority voting requirements do not apply.
Maryland law provides that "control shares" of a Maryland real estate
investment trust acquired in a "control share acquisition" have no voting rights
except to the extent approved by a vote of two-thirds of the votes entitled to
be cast on the matter, excluding shares owned by the acquiror or by officers or
trustees who are employees of the trust. "Control shares" are voting shares
that, if aggregated with all other shares previously acquired by that person,
would entitle the acquiror to exercise voting power in electing trustees within
one of the following ranges of voting power:
o one-tenth or more but less than one-third;
o one-third or more but less than a majority; or
o a majority or more of all voting power.
Control shares do not include shares the acquiring person is then
entitled to vote as a result of having previously obtained shareholder approval.
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A "control share acquisition" means the acquisition of ownership of or
the power to direct the exercise of voting power of issued and outstanding
control shares, subject to certain exceptions. A person who has made or proposes
to make a control share acquisition, upon satisfaction of certain conditions
(including an undertaking to pay expenses), may compel the trust's board of
trustees to call a special meeting of shareholders, to be held within 50 days of
demand, to consider the voting rights of the shares. If no request for a meeting
is made, the trust may itself present the question at any shareholders' meeting.
If voting rights are not approved at the meeting or if the acquiring
person does not deliver an "acquiring person statement" as permitted by the
statute, then, subject to certain conditions and limitations, the trust may
redeem any or all of the control shares (except those for which voting rights
have previously been approved) for fair value determined, without regard to the
absence of voting rights, as of the date of the last control share acquisition
or of any meeting of shareholders at which the voting rights of such shares were
considered and not approved. If voting rights for control shares are approved at
a shareholders' meeting and the acquiror becomes entitled to vote a majority of
the shares entitled to vote, all other shareholders may exercise appraisal
rights. The fair value of the shares as determined for purposes of the appraisal
rights may not be less than the highest price per share paid in the control
share acquisition, and certain limitations and restrictions otherwise applicable
to the exercise of dissenters' rights do not apply in the context of a control
share acquisition.
The control share acquisition statute does not apply to shares acquired
in a merger, consolidation or share exchange if the trust is a party to the
transaction, or to acquisitions approved or exempted by our declaration of trust
or by-laws prior to the control share acquisition. No such exemption appears in
our declaration of trust or by-laws. The control share acquisition statute could
have the effect of discouraging offers to acquire us and of increasing the
difficulty of consummating any such offer.
Certain Elective Provisions of Maryland Law
Publicly-held Maryland statutory real estate investment trusts ("REITs")
may elect to be governed by all or any part of Maryland law provisions relating
to extraordinary actions and unsolicited takeovers. The election to be governed
by one or more of these provisions can be made by a Maryland REIT in its
declaration of trust or bylaws ("charter documents") or by resolution adopted by
its board of trustees so long as the REIT has at least three trustees who, at
the time of electing to be subject to the provisions, are not:
o officers or employees of the REIT;
o persons seeking to acquire control of the REIT;
o trustees, officers, affiliates or associates of any person seeking
to acquire control; or
o nominated or designated as trustees by a person seeking to acquire
control.
Articles supplementary must be filed with the Maryland State Department
of Assessments and Taxation if a Maryland REIT elects to be subject to any or
all of the provisions by board resolution or bylaw amendment. Shareholder
approval is not required for the filing of these articles supplementary.
The Maryland law provides that a REIT can elect to be subject to all or
any portion of the following provisions, notwithstanding any contrary provisions
contained in that REIT's existing charter documents:
Classified Board: The REIT may divide its board into three classes
which, to the extent possible, will have the same number of trustees, the terms
of which will expire at the third annual meeting of shareholders after the
election of each class;
Two-thirds Shareholder Vote to Remove Trustees Only for Cause: The
shareholders may remove any trustee only by the affirmative vote of at least
two-thirds of all votes entitled to be cast by the shareholders generally in the
election of trustees, but a trustee may not be removed without cause;
Size of Board Fixed by Vote of Board: The number of trustees will be
fixed only by resolution of the board;
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Board Vacancies Filled by the Board for the Remaining Term: Vacancies
that result from an increase in the size of the board, or the death,
resignation, or removal of a trustee, may be filled only by the affirmative vote
of a majority of the remaining trustees even if they do not constitute a quorum.
Trustees elected to fill vacancies will hold office for the remainder of the
full term of the class of trustees in which the vacancy occurred, as opposed to
until the next annual meeting of shareholders, and until a successor is elected
and qualified; and
Shareholder Calls of Special Meetings: Special meetings of shareholders
may be called by the secretary of the REIT only upon the written request of
shareholders entitled to cast at least a majority of all votes entitled to be
cast at the meeting and only in accordance with procedures set out in the
Maryland General Corporation Law.
We have not elected to be governed by these specific provisions.
However, our declaration of trust and/or bylaws, as applicable, already provide
for an 80% vote to remove trustees only for cause, and that the number of
trustees may be determined by a resolution of our Board, subject to a minimum
number. In addition, we can elect to be governed by any or all of the provisions
of the Maryland law at any time in the future.
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DESCRIPTION OF OP UNITS
The material terms of the OP units, including a summary of certain
provisions of the Agreement of Limited Partnership of LCIF, which we refer to as
the Partnership Agreement, as in effect as of the date of this prospectus, are
set forth below. The following description does not purport to be complete and
is subject to and qualified in its entirety by reference to applicable
provisions of Delaware law and the Partnership Agreement. For a comparison of
the voting and other rights of holders of OP units, whom we refer to as
unitholders or limited partners, and our shareholders, see "COMPARISON OF
OWNERSHIP OF OP UNITS AND COMMON SHARES" beginning on page 19 of this
prospectus.
General
We are the sole equity owner of Lex GP-1 Trust (Lex GP-1), a Delaware
statutory trust, which is the general partner of LCIF and holds, as of the date
of this prospectus, a 1% interest in LCIF. We are also the sole equity owner of
Lex LP-1 Trust (Lex LP-1), a Delaware statutory trust, which holds, as of the
date of this prospectus, approximately 85% of the OP unit interest in LCIF. We
indirectly hold OP units through these entities.
Issuance of OP Units
Our operating partnership structure enables us to acquire property by
issuing OP units to a property owner as a form of consideration. All of the OP
units which have been issued as of the date of this prospectus are redeemable,
at the option of the holders thereof, on a one-for-one basis (subject to certain
anti-dilution adjustments) for common shares at various times, and certain OP
units require us to pay distributions to the holders thereof (although certain
OP units currently outstanding do not require the payment of distributions). As
a result, our cash available for distribution to shareholders is reduced by the
amount of the distributions required by the terms of such OP units, and the
number of common shares that will be outstanding in the future is expected to
increase, from time to time, as such OP units are redeemed for common shares.
The general partner of LCIF has the right to redeem the OP units held by all,
but not less than all, of the unitholders (other than those unitholders
identified as the "Special Limited Partners" in the Partnership Agreement) under
certain circumstances, including but not limited to a merger, sale of assets or
other transaction by the Company or LCIF which would result in a change of
beneficial ownership in the Company or LCIF by 50% or more.
Unitholders hold OP units in LCIF, and all unitholders are entitled to
share in the profits and losses of LCIF.
Unitholders have the rights to which limited partners are entitled under
the Partnership Agreement and the Delaware Revised Uniform Limited Partnership
Act, which we refer to as the Delaware Act. The OP units have not been
registered pursuant to the federal or state securities laws and are not listed
on any exchange or quoted on any national market system.
As of the date of this prospectus, there are 5,385,747 OP units
outstanding, of which in addition to the 63,244 OP units to which this
prospectus relates, 4,770,287 are also currently redeemable for common shares.
The average annualized distribution per OP unit is $1.25. Of the total OP units,
1,708,212 OP units are owned by our affiliates, including two members of our
Board of Trustees.
Purposes, Business And Management
The purpose of LCIF includes the conduct of any business that may be
conducted lawfully by a limited partnership formed under the Delaware Act,
except that the Partnership Agreement requires the business of LCIF to be
conducted in such a manner that will permit us to continue to be classified as a
REIT under Sections 856 through 860 of the Code, unless we cease to qualify as a
REIT for reasons other than the conduct of the business of LCIF. Subject to the
foregoing limitation, LCIF may enter into partnerships, joint ventures or
similar arrangements and may own interests in any other entity.
We, as sole equity owner of the general partner of LCIF, have exclusive
power and authority to conduct the business of LCIF, subject to the consent of
the limited partners in certain limited circumstances discussed below.
-15-
No limited partner may take part in the operation, management or control of the
business of LCIF by virtue of being a unitholder.
Ability To Engage In Other Businesses; Conflicts Of Interest
The general partner may acquire assets directly and engage in activities
outside of LCIF, including activities in direct or indirect competition with
LCIF. Other persons (including our officers, trustees, employees, agents and
other affiliates) are not prohibited under the Partnership Agreement from
engaging in other business activities and will not be required to present any
business opportunities to LCIF.
Distributions; Allocations Of Income And Loss
Generally, unitholders are allocated and distributed amounts with
respect to their OP units which approximate the amount of distributions made
with respect to the same number of our common shares, as determined in the
manner provided in the Partnership Agreement and subject to certain restrictions
and exceptions for certain limited partners. Remaining amounts available for
distribution are generally allocated to the general partner.
Borrowing By The Partnership
The general partner has full power and authority to cause LCIF to borrow
money and to issue and guarantee debt.
Reimbursement Of Expenses; Transactions With The General Partner And Its
Affiliates
Neither Lex GP-1 nor the Company receives any compensation for Lex
GP-1's services as general partner of LCIF. Lex GP-1 and Lex LP-1, however, as
partners in LCIF, have the same right to allocations and distributions as other
partners of LCIF. In addition, LCIF will reimburse Lex GP-1 and the Company for
all expenses incurred by them related to the ownership and operation of, or for
the benefit of, LCIF. In the event that certain expenses are incurred for the
benefit of LCIF and other entities (including us), such expenses are allocated
by us, as sole equity owner of the general partner of LCIF, to LCIF and such
other entities in a manner as we, as sole equity owner of the general partner of
LCIF, in our sole and absolute discretion deem fair and reasonable. We have
guaranteed the obligations of LCIF in connection with the redemption of OP units
pursuant to the Partnership Agreement.
We and our affiliates may engage in any transactions with LCIF subject
to the fiduciary duties established under applicable law.
Liability Of General Partner And Limited Partners
Lex GP-1, as the general partner of LCIF, is ultimately liable for all
general recourse obligations of LCIF to the extent not paid by LCIF. Lex GP-1 is
not liable for the nonrecourse obligations of LCIF. The limited partners of LCIF
are not required to make additional contributions to LCIF. Assuming that a
limited partner does not take part in the control of the business of LCIF and
otherwise acts in conformity with the provisions of the Partnership Agreement,
the liability of the limited partner for obligations of LCIF under the
Partnership Agreement and the Delaware Act is generally limited, subject to
certain limited exceptions, to the loss of the limited partner's investment in
LCIF represented by his or her OP units. LCIF will operate in a manner the
general partner deems reasonable, necessary and appropriate to preserve the
limited liability of the limited partners.
Exculpation And Indemnification Of The General Partner
Generally, Lex GP-1, as general partner of LCIF (and the Company as the
sole equity owner of the general partner of LCIF) will incur no liability to
LCIF or any limited partner for losses sustained or liabilities incurred as a
result of errors in judgment or of any act or omission if we carried out our
duties in good faith. In addition, Lex GP-1 and the Company are not responsible
for any misconduct or negligence on the part of their agents, provided Lex GP-1
and the Company appointed such agents in good faith. Lex GP-1 and the Company
may consult with legal counsel, accountants, appraisers, management consultants,
investment bankers and other consultants and advisors, and any action it takes
or omits to take in reliance upon the opinion of such persons, as to matters
that
-16-
Lex GP-1 and the Company reasonably believe to be within their professional or
expert competence, shall be conclusively presumed to have been done or omitted
in good faith and in accordance with such opinion.
The Partnership Agreement also provides that LCIF will indemnify Lex
GP-1 and the Company, the directors, trustees and officers of Lex GP-1 and the
Company, and such other persons as Lex GP-1 and the Company may from time to
time designate to the fullest extent permitted under the Delaware Act.
Sales Of Assets
Under the Partnership Agreement, Lex GP-1 generally has the exclusive
authority to determine whether, when and on what terms the assets of LCIF will
be sold. LCIF, however, is prohibited under the Partnership Agreement and
certain contractual agreements from selling certain assets, except in certain
limited circumstances. Lex GP-1 may not consent to a sale of all or
substantially all of the assets of LCIF, or a merger of LCIF with another
entity, without the consent of a majority in interest of the Special Limited
Partners.
Removal Of The General Partner; Restrictions on Transfer By The General Partner
Or The Company
The Partnership Agreement provides that the limited partners may not
remove Lex GP-1 as general partner of LCIF. Lex GP-1 may not transfer any of its
interests as the general partner of LCIF, and Lex LP-1 may not transfer any of
its interests as a limited partner in LCIF, except to each other or to the
Company. We also may not sell all or substantially all of our assets, or enter
into a merger, unless the sale or merger includes the sale of all or
substantially all of the assets, or the merger, of LCIF in pursuant to which
unitholders receive substantially the same consideration as shareholders.
Restrictions On Transfer Of OP Units By Unitholders
Unitholders now may transfer, subject to certain limitations, the
economic rights associated with their OP units without the consent of the
general partner, thereby eliminating the ability of the general partner to
block, except in very limited circumstances, such assignments. However, a
transferee will not be admitted to LCIF as a substituted limited partner without
the consent of the general partner. In addition, unitholders may dispose of
their OP units by exercising their rights to have their OP units redeemed for
common shares. See "REDEMPTION OF OP UNITS" below.
Issuance Of Additional Limited Partnership Interests
Lex GP-1 is authorized, in its sole and absolute discretion and without
the consent of the limited partners, to cause LCIF to issue additional OP units
to any limited partners or any other persons for such consideration and on such
terms and conditions as Lex GP-1 deems appropriate. In addition, Lex GP-1 may
cause LCIF to issue additional partnership interests in different series or
classes, which may be senior to the OP units. Subject to certain exceptions, no
additional OP units may be issued to the Company, Lex GP-1 or Lex LP-1.
Meetings; Voting
The Partnership Agreement provides that limited partners may not take
part in the operation, management or control of LCIF's business. The Partnership
Agreement does not provide for annual meetings of the limited partners, and LCIF
does not anticipate calling such meetings.
Amendment Of The Partnership Agreement
The Partnership Agreement may be amended with the consent of Lex GP-1,
Lex LP-1 and a majority in interest of the Special Limited Partners.
Notwithstanding the foregoing, Lex GP-1 has the power, without the consent of
limited partners, to amend the Partnership Agreement in certain limited
circumstances.
Dissolution, Winding Up And Termination
LCIF will continue indefinitely, unless sooner dissolved and terminated.
LCIF will be dissolved, and its affairs wound up upon the occurrence of the
earliest of: (1) the withdrawal of Lex GP-1 as general partner (except in
certain limited circumstances); (2) the sale of all or substantially all of
LCIF's assets and properties; or (3) the entry of a decree of judicial
dissolution of LCIF pursuant to the provisions of the Delaware Act. Upon
dissolution,
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Lex GP-1, as general partner, or any person elected as liquidator by a majority
in interest of the limited partners, will proceed to liquidate the assets of
LCIF and apply the proceeds therefrom in the order of priority set forth in the
Partnership Agreement.
REDEMPTION OF OP UNITS
General
Each unitholder may, subject to certain limitations, require that LCIF
redeem its OP units, by delivering a notice to LCIF. We have guaranteed LCIF's
obligation to redeem OP units covered by any such notice. Upon redemption, such
unitholder will receive one common share (subject to certain anti-dilution
adjustments) in exchange for each OP unit held by such unitholder.
LCIF and the Company will satisfy any redemption right exercised by a
unitholder through our issuance of common shares, whether pursuant to this
prospectus or otherwise, whereupon we will acquire, and become the owner of, the
OP units being redeemed. Such an acquisition of OP units by us will be treated
as a sale of the OP units by the redeeming unitholders to us for federal income
tax purposes. See "-- Tax Treatment of Redemption of OP Units" below. Upon
redemption, such unitholder's right to receive distributions from LCIF with
respect to the OP units redeemed will cease. The unitholder will have rights to
dividend distributions as a shareholder of the Company from the time of its
acquisition of common shares in exchange for the redemption of its OP units.
A unitholder must notify Lex GP-1 and us of its desire to require LCIF
to redeem OP units by sending a notice in the form attached as an exhibit to the
Partnership Agreement, a copy of which is available from us. A unitholder must
request the redemption of at least 1,000 OP units, or, if the unitholder holds
fewer than 1,000 OP units, all OP units held by such holder. No redemption can
occur if the delivery of common shares would be prohibited under the provisions
of the declaration of trust designed to protect our qualification as a REIT.
Tax Treatment Of Redemption Of OP Units
The following discussion summarizes certain federal income tax
considerations that may be relevant to a unitholder that exercises its right to
redeem OP units.
The Partnership Agreement provides that the redemption of OP units will
be treated by us, LCIF and the redeeming unitholder as a sale of OP units by
such unitholder to us at the time of the redemption. Such sale will be fully
taxable to the redeeming unitholder.
The determination of gain or loss from the sale or other disposition
will be based on the difference between the unitholder's amount realized for tax
purposes and his tax basis in such OP units. The amount realized will be
measured by the fair market value of property received (e.g., the common shares)
plus the portion of LCIF's liabilities allocable to the OP units sold. In
general, a unitholder's tax basis is based on the cost of the OP units, adjusted
for the unitholder's allocable share of Operating Partnership's income, loss,
distributions and liabilities, and can be determined by reference to LCIF's
Schedule K-1's. To the extent that the amount realized exceeds the unitholder's
basis for the OP units disposed of, such unitholder will recognize gain. It is
possible that the amount of gain recognized or even the tax liability resulting
from such gain could exceed the fair market value of the common shares received
upon such disposition. EACH UNITHOLDER SHOULD CONSULT WITH ITS OWN TAX ADVISOR
FOR THE SPECIFIC TAX CONSEQUENCES RESULTING FROM A REDEMPTION OF ITS OP UNITS.
Generally, any gain recognized upon a sale or other disposition of OP
units will be treated as gain attributable to the sale or disposition of a
capital asset. To the extent, however, that the amount realized upon the sale of
OP units attributable to a unitholder's share of "unrealized receivables" of
LCIFs (as defined in Section 751 of the Code) exceeds the basis attributable to
those assets, such excess will be treated as ordinary income. Unrealized
receivables include, to the extent not previously included in Operating
Partnership's income, any rights to payment for services rendered or to be
rendered. Unrealized receivables also include amounts that would be subject to
recapture as ordinary income if LCIF had sold its assets at their fair market
value at the time of the transfer of OP units.
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For individuals, trusts and estates, the maximum rate of tax on the net
capital gain from a sale or exchange of a long-term capital asset (i.e., a
capital asset held for more than 12 months) is 15%. The maximum rate for net
capital gains attributable to the sale of depreciable real property held for
more than 12 months is 25% to the extent of the prior depreciation deductions
for "unrecaptured Section 1250 gain" (that is, depreciation deductions not
otherwise recaptured as ordinary income under the existing depreciation
recapture rules). Treasury Regulations provide that individuals, trusts and
estates are subject to a 25% tax to the extent of their allocable share of
unrecaptured Section 1250 gain immediately prior to their sale or disposition of
the OP units (the "25% Amount"). Provided that the OP units are held as a
long-term capital asset, such unitholders would be subject to a maximum rate of
tax of 15% of the difference, if any, between any gain on the sale or
disposition of the OP units and the 25% Amount.
There is a risk that a redemption by LCIF of OP units issued in exchange
for a contribution of property to LCIF may cause the original transfer of
property to LCIF in exchange for OP units to be treated as a "disguised sale" of
property. Section 707 of the Code and the Treasury Regulations thereunder (the
"Disguised Sale Regulations") generally provide that, unless one of the
prescribed exceptions is applicable, a partner's contribution of property to a
partnership and a simultaneous or subsequent transfer of money or other
consideration (which may include the assumption of or taking subject to a
liability) from the partnership to the partner will be presumed to be a sale, in
whole or in part, of such property by the partner to the partnership. Further,
the Disguised Sale Regulations provide generally that, in the absence of an
applicable exception, if money or other consideration is transferred by a
partnership to a partner within two years of the partner's contribution of
property, the transactions are presumed to be a sale of the contributed property
unless the facts and circumstances clearly establish that the transfers do not
constitute a sale. The Disguised Sale Regulations also provide that if two years
have passed between the transfer of money or other consideration and the
contribution of property, the transactions will be presumed not to be a sale
unless the facts and circumstances clearly establish that the transfers
constitute a sale. EACH UNITHOLDER SHOULD CONSULT WITH ITS OWN TAX ADVISOR TO
DETERMINE WHETHER A REDEMPTION OF OP UNITS COULD BE SUBJECT TO THE DISGUISED
SALE REGULATIONS.
REGISTRATION RIGHTS
We have filed the registration statement of which this prospectus is a
part pursuant to our obligations under the Partnership Agreement in conjunction
with certain agreements entered into in connection with the acquisition of
certain properties. Under these agreements, executed in conjunction with the
parties listed therein, we are obligated to use our reasonable efforts to keep
the registration statement continuously effective for a period expiring on the
date on which all of the OP units covered by these agreements have been redeemed
pursuant to the registration statement. Any common shares that have been sold
pursuant to such agreements, or have been otherwise transferred and new
certificates for them have been issued without legal restriction on further
transfer of such shares, will no longer be entitled to the benefits of those
agreements.
We have no obligation under these agreements to retain any underwriter
to effect the sale of the shares covered thereby and the registration statement
will not be available for use for an underwritten public offering of such
shares.
Pursuant to these agreements, we agreed to pay all expenses of effecting
the registration of the common shares covered by this prospectus (other than
underwriting discounts and commissions, fees and disbursements of counsel, and
transfer taxes, if any) pursuant to the registration statement.
COMPARISON OF OWNERSHIP OF OP UNITS AND COMMON SHARES
The information below highlights a number of the significant differences
between LCIF and the Company relating to, among other things, form of
organization, permitted investments, policies and restrictions, management
structure, compensation and fees, investor rights and federal income taxation,
and compares certain legal rights associated with the ownership of OP units and
common shares, respectively. These comparisons are intended to assist
unitholders in understanding how their investment will be changed if their OP
units are redeemed for common shares. This discussion is summary in nature and
does not constitute a complete discussion of these matters, and
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unitholders should carefully review the balance of this prospectus and the
registration statement of which this prospectus is a part for additional
important information about the Company.
THE OPERATING PARTNERSHIP THE COMPANY
FORM OF ORGANIZATION AND ASSETS OWNED
-------------------------------------
LCIF is organized as a Delaware limited We are a Maryland statutory real estate
partnership. LCIF owns interests (directly and investment trust. We believe that we have
indirectly through subsidiaries) in properties. operated so as to qualify as a REIT under the
Code, commencing with our taxable year ended
December 31, 1993, and intend to continue to
so operate. Our indirect interest in LCIF
gives us an indirect investment in the
properties owned by LCIF. In addition, we
own (either directly or indirectly through
interests in subsidiaries other than LCIF)
interests in other properties.
LENGTH OF INVESTMENT
--------------------
LCIF has a perpetual term, unless sooner We have a perpetual term and intend to
dissolved and terminated. continue our operations for an indefinite
time period.
PURPOSE AND PERMITTED INVESTMENTS
---------------------------------
LCIF's purpose is to conduct any business that Our purposes are to engage in the real estate
may be lawfully conducted by a limited business and lawful activities incidental
partnership organized pursuant to the Delaware thereto, and to engage in any lawful activity
Act, provided that such business is to be permitted under the applicable laws of the
conducted in a manner that permits us to be State of Maryland. We are permitted by the
qualified as a REIT unless we cease to qualify Partnership Agreement to engage in activities
as REIT for reason other than the conduct of not related to the business of LCIF,
LCIF's business. LCIF may not take, or refrain including activities in direct or indirect
from taking, any action which, in the judgment competition with LCIF, and may own assets
of the general partner (which is wholly-owned other than our interest in LCIF and such
by us) (i) could adversely affect our ability other assets necessary to carry out our
to continue to qualify as a REIT, (ii) could responsibilities under the Partnership
subject the general partner to any additional Agreement and our declaration of trust. In
taxes under Section 857 or Section 4981 of the addition, we have no obligation to present
Code, or any other Section of the Code, or opportunities to LCIF and the unitholders
(iii) could violate any law or regulation of have no rights by virtue of the Partnership
any governmental body (unless such action, or Agreement in any of our outside business
inaction, is specifically consented to by the ventures.
general partner).
ADDITIONAL EQUITY
-----------------
LCIF is authorized to issue OP units and other The Board of Trustees may issue, in its
partnership interests (including partnership discretion, additional equity securities
interests of different series or classes that consisting of common shares and/or preferred
may be senior to OP units) as determined by shares. However, the total number of shares
the general partner, in its sole discretion. issued may not exceed the authorized number
of shares of capital stock set forth in our
declaration of trust. The proceeds of equity
capital raised by us are not required to be
contributed to LCIF; provided, however, that
if we desire to increase our ownership of OP
units, we may only do so by contributing the
proceeds of equity capital raised by us.
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BORROWING POLICIES
------------------
LCIF has no restrictions on borrowings, and the Neither our declaration of trust nor our
general partner has full power and authority to by-laws impose any restrictions on our
borrow money on behalf of LCIF. ability to borrow money. We are not required
to incur our indebtedness through LCIF.
OTHER INVESTMENT RESTRICTIONS
-----------------------------
Other than restrictions precluding investments Neither our declaration of trust nor our
by LCIF that would adversely affect our by-laws impose any restrictions upon the
qualification as a REIT, there are no types of investments made by us.
restrictions upon LCIF's authority to enter
into certain transactions, including among
others, making investments, lending Operating
Partnership funds, or reinvesting LCIF's cash
flow and net sale or refinancing proceeds.
MANAGEMENT CONTROL
------------------
All management powers over the business and The Board of Trustees has exclusive control
affairs of LCIF are vested in the general over our business and affairs subject only to
partner of LCIF, and no limited partner of LCIF the restrictions in our declaration of trust
has any right to participate in or exercise and by-laws. The Board of Trustees consists
control or management power over the business of nine trustees, which number may be
and affairs of LCIF except that (1) the general increased or decreased by vote of at least a
partner of LCIF may not consent to the majority of the entire Board of Trustees
participation of LCIF in any merger, pursuant to our by-laws, but may never be
consolidation or other combination with or into fewer than the minimum permitted by the
another person or entity, or a sale of all or Maryland REIT Law. At each annual meeting of
substantially all of LCIF's assets without the our shareholders, the successors of the class
consent of a majority in interest of the of trustees whose terms expire at that
Special Limited Partners, and (2) there are meeting will be elected. The policies adopted
certain limitations on the ability of the by the Board of Trustees may be altered or
general partner of LCIF to cause or permit LCIF eliminated without a vote of the
to dissolve. See "--VOTING RIGHTS--VOTE REQUIRED shareholders. Accordingly, except for their
TO DISSOLVE THE OPERATING PARTNERSHIP OR THE vote in the elections of trustees,
COMPANY" below. The general partner may not be shareholders have no control over our
removed by the limited partners of LCIF with or ordinary business policies.
without cause.
FIDUCIARY DUTIES
----------------
Under Delaware law, the general partner of LCIF Under Maryland law, the trustees must perform
is accountable to LCIF as a fiduciary and, their duties in good faith, in a manner that
consequently, is required to exercise good they reasonably believe to be in the best
faith and integrity in all of its dealings with interests of the Company and with the care
respect to partnership affairs. However, under that an ordinarily prudent person in a like
the Partnership Agreement, the general partner position would use under similar
may, but is under no obligation to, take into circumstances. Trustees of the Company who
account the tax consequences to any partner of act in such a manner generally will not be
any action taken by it, and the general partner liable to the Company for monetary damages
is not liable for monetary damages for losses arising from their activities.
sustained or liabilities incurred by partners
as a result of errors of judgment or of any act
or omission, provided that the general partner
has acted in good faith.
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MANAGEMENT LIABILITY AND INDEMNIFICATION
----------------------------------------
Under Delaware law, the general partner has Under our declaration of trust, the liability
liability for the payment of the obligations of the Company's trustees and officers to the
and debts of LCIF unless limitations upon such Company and its shareholders for money
liability are stated in the document or damages is limited to the fullest extent
instrument evidencing the obligation. Under the permitted under Maryland law. Under our
Partnership Agreement, LCIF has agreed to declaration of trust we have agreed to
indemnify the general partner and the Company, indemnify trustees and officers, to the
and any director or officer of the general fullest extent permitted under Maryland law
partner or the Company to the fullest extent and to indemnify our other employees and
permitted under the Delaware Act. The agents to such extent as authorized by our
reasonable expenses incurred by an indemnitee Board of Trustees or our by-laws, but only to
may be reimbursed by LCIF in advance of the the extent permitted under applicable law.
final disposition of the proceeding upon
receipt by LCIF of a written affirmation by
such indemnitee of his, her or its good faith
belief that the standard of conduct necessary
for indemnification has been met and a written
undertaking by such indemnitee to repay the
amount if it is ultimately determined that such
standard was not met.
ANTI-TAKEOVER PROVISIONS
------------------------
Except in limited circumstances (see "--VOTING Our declaration of trust and by-laws contain
RIGHTS" below), the general partner of LCIF has a number of provisions that may have the
exclusive management power over the business effect of delaying or discouraging an
and affairs of LCIF. The general partner may unsolicited proposal for the acquisition of
not be removed by the limited partners with or the Company or the removal of incumbent
without cause. Under the Partnership Agreement, management. These provisions include, among
a limited partner may transfer his or her others: (1) authorized capital shares that
interest as a limited partner (subject to may be issued as Preferred Shares in the
certain limited exceptions set forth in the discretion of the Board of Trustees, with
Partnership Agreement), without obtaining the superior voting rights to the common shares;
approval of the general partner except that the (2) a requirement that trustees may be
general partner may, in its sole discretion, removed only for cause and only by the
prevent the admission of transferees to LCIF as affirmative vote of the holders of at least
substituted limited partners. 80% of the combined voting power of all
classes of shares of beneficial interest
entitled to vote in the election of
trustees; and (3) provisions designed to
avoid concentration of share ownership in a
manner that would jeopardize our status as a
REIT under the Code.
VOTING RIGHTS
-------------
All decisions relating to the operation and The Company is managed and controlled by a
management of LCIF are made by the general Board of Trustees presently consisting of
partner. See "DESCRIPTION OF OP UNITS" nine members. Each trustee is to be elected
beginning on page 15 of this prospectus. As of by the shareholders at annual meetings of the
the date of this prospectus, we held, through Company. Maryland law requires that certain
various subsidiaries, approximately 86% of the major corporate transactions, including most
outstanding OP units. As OP units are redeemed amendments to the declaration of trust, may
by unitholders, the Company's percentage not be consummated without the approval of
ownership of LCIF will increase. shareholders as set forth below. All common
shares have one vote, and the declaration of
trust permits the Board of Trustees to
classify and issue preferred shares in one
or more series having voting power which may
differ from that of the common shares. See
"DESCRIPTION OF OUR COMMON SHARES" beginning
on page 9 of this prospectus.
-22-
The following is a comparison of the voting rights of the limited
partners of LCIF and the shareholders of the Company as they relate to certain
major transactions:
A. AMENDMENT OF THE PARTNERSHIP AGREEMENT OR THE DECLARATION OF
TRUST.
The Partnership Agreement may be amended with Amendments to our declaration of trust must
the consent of Lex GP-1, Lex LP-1 and a be approved by the Board of Trustees and
majority in interest of the Special Limited generally by at least a majority of the votes
Partners. Certain amendments that affect the entitled to be cast on that matter at a
fundamental rights of a limited partner must be meeting of shareholders.
approved by each affected limited partner. In
addition, the general partner may, without the
consent of the limited partners, amend the
Partnership Agreement as to certain ministerial
matters.
B. VOTE REQUIRED TO DISSOLVE OR TERMINATE THE OPERATING PARTNERSHIP
OR THE COMPANY.
LCIF may be dissolved upon the occurrence of The Company may be terminated only upon the
certain events, none of which require the affirmative vote of the holders of two-thirds
consent of the limited partners. of the outstanding common shares.
C. VOTE REQUIRED TO SELL ASSETS OR MERGE.
Under the Partnership Agreement, the sale, Under Maryland law, the sale of all or
exchange, transfer or other disposition of all substantially all of our assets, or a merger
or substantially all of LCIF's assets, or a or consolidation of the Company, requires the
merger or consolidation of LCIF, require the approval of the Board of Trustees and the
consent of a majority in interest of the holders of a majority of the outstanding
Special Limited Partners. The general partner common shares. No approval of the
of LCIF has the exclusive authority the sell shareholders is required for the sale of less
individual assets of LCIF. than all or substantially all of our assets.
COMPENSATION, FEES AND DISTRIBUTIONS
------------------------------------
The general partner does not receive any Our non-employee trustees and our officers
compensation for its services as general receive compensation for their services.
partner of LCIF. As a partner in LCIF, however,
the general partner has the same right to
allocations and distributions as other partners
of LCIF. In addition, LCIF will reimburse the
general partner (and the Company) for all
expenses incurred relating to the ownership and
operation of LCIF and any other offering of
additional partnership interests in LCIF.
LIABILITY OF INVESTORS
----------------------
Under the Partnership Agreement and applicable Under Maryland law, shareholders are not
state law, the liability of the limited partners personally liable for the debts or
for LCIF's debts and obligations is generally obligations of the Company.
limited to the amount of their investment in LCIF.
-23-
NATURE OF INVESTMENT
--------------------
The OP units constitute equity interests in Common shares constitute equity interests in
LCIF. Generally, unitholders are allocated and the Company. We are entitled to receive our
distributed amounts with respect to their OP pro rata share of distributions made by LCIF
units which approximate the amount of with respect to OP units held by us, and by
distributions made with respect to the same our other direct subsidiaries. Each
number of our common shares, as determined in shareholder will be entitled to his pro rata
the manner provided in the Partnership share of any dividends or distributions paid
Agreement and subject to certain restrictions with respect to the common shares. The
and exceptions for certain limited partners. dividends payable to the shareholders are not
LCIF generally intends to retain and reinvest fixed in amount and are only paid if, when
proceeds of the sale of property or excess and as declared by the Board of Trustees. In
refinancing proceeds in its business. order to continue to qualify as a REIT, we
generally must distribute at least 90% of
our net taxable income (excluding capital
gains), and any taxable income (including
capital gains) not distributed will be
subject to corporate income tax.
POTENTIAL DILUTION OF RIGHTS
----------------------------
The general partner of LCIF is authorized, in The Board of Trustees may issue, in its
its sole discretion and without limited partner discretion, additional shares, and has the
approval, to cause LCIF to issue additional Op authority to issue from authorized capital a
units and other equity securities for any variety of other equity securities of the
partnership purpose at any time to the limited Company with such powers, preferences and
partners or to other persons (including the rights as the Board of Trustees may designate
general partner under certain circumstances set at the time. The issuance of either
forth in the Partnership Agreement). additional common shares or other similar
equity securities may result in the dilution
of the interests of the shareholders.
LIQUIDITY
---------
Limited partners may generally transfer their The common shares covered by this prospectus
OP units without the general partner's consent, will be freely transferable as registered
except that the general partner may, in its securities under the Securities Act. Our
sole discretion, prevent the admission of common shares are listed on the NYSE. The
transferees to LCIF as substituted limited breadth and strength of this secondary market
partners. Certain limited partners have the will depend, among other things, upon the
right to tender their OP units for redemption number of shares outstanding, our financial
by LCIF at certain times, as specified in the results and prospects, the general interest
Partnership Agreement. See "REDEMPTION OF OP in the Company's and other real estate
UNITS" beginning on page 18 of this prospectus. investments, and our dividend yield compared
to that of other debt and equity securities.
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FEDERAL INCOME TAXATION
-----------------------
LCIF is not subject to federal income taxes. We have elected to be taxed as a REIT. So
Instead, each unitholder includes its allocable long as we qualify as a REIT, we will be
share of LCIF's taxable income or loss in permitted to deduct distributions paid to our
determining its individual federal income tax shareholders, which effectively will reduce
liability. The maximum federal income tax rate the "double taxation" that typically results
individuals under current law is 35%. for when a corporation earns income and
distributes that income to its shareholders
A unitholder's share of income and loss in the form of dividends. A qualified REIT,
generated by LCIF generally is subject to the however, is subject to federal income tax on
"passive activity" limitations. Under the income that is not distributed and also may
"passive activity" rules, income and loss from be subject to federal income and excise taxes
LCIF that are considered "passive income" in certain circumstances. The maximum federal
generally can be offset against income and loss income tax rate for corporations under
from other investments that constitute "passive current law is 35%.
activities." Cash distributions from LCIF are
not taxable to a unitholder except to the Dividends paid by us will be treated as
extent such distributions exceed such "portfolio" income and cannot be offset with
unitholder's basis in its interest in LCIF losses from "passive activities." The maximum
(which will include such holder's allocable federal income tax rate for individuals under
share of LCIF's taxable income and nonrecourse current law is 35%. Distributions made by us
debt). to our taxable domestic shareholders out of
current or accumulated earnings and profits
Each year, unitholders will receive a Schedule will be taken into account by them as
K-1 containing detailed tax information for ordinary income. Distributions that are
inclusion in preparing their federal income tax designated as capital gain dividends
returns. generally will be taxed as long-term capital
gain, subject to certain limitations, but
Unitholders are required, in some cases, to file generally would not be eligible for certain
state income tax returns and/or pay state income recently-enacted reduced rates. Distributions
taxes in the states in which LCIF owns property, in excess of current or accumulated earnings
even if they are not residents of those states. and profits will be treated as a non-taxable
return of basis to the extent of a
shareholder's adjusted basis in its common
shares, with the excess taxed as capital
gain.
Each year, shareholders will receive an IRS
Form 1099 used by corporations to report
dividends paid to their shareholders.
Shareholders who are individuals generally
will not be required to file state income tax
returns and/or pay state income taxes outside
of their state of residence with respect to
our operations and distributions. We may be
required to pay state income taxes in certain
states.
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FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes the material federal income tax
considerations to you as a prospective holder of our common shares. For a
discussion of certain federal income tax considerations that may be relevant to
a unitholder that exercises its right to redeem OP units, see "REDEMPTION OF OP
UNITS - Tax Treatment of Redemption of OP Units" beginning on page 18 of this
prospectus. The following discussion is for general information purposes only,
is not exhaustive of all possible tax considerations and is not intended to be
and should not be construed as tax advice. For example, this summary does not
give a detailed discussion of any state, local or foreign tax considerations. In
addition, this discussion is intended to address only those federal income tax
considerations that are generally applicable to all of our shareholders. It does
not discuss all of the aspects of federal income taxation that may be relevant
to you in light of your particular circumstances or to certain types of
shareholders who are subject to special treatment under the federal income tax
laws including, without limitation, insurance companies, tax-exempt entities,
financial institutions or broker-dealers, foreign corporations and persons who
are not citizens or residents of the United States.
The information in this section is based on the Internal Revenue Code of
1986, as amended, which is generally referred to as the Code, existing,
temporary and proposed regulations under the Code, the legislative history of
the Code, current administrative rulings and practices of the IRS and court
decisions, all as of the date hereof. No assurance can be given that future
legislation, regulations, administrative interpretations and court decisions
will not significantly change current law or adversely affect existing
interpretations of current law. Any such change could apply retroactively to
transactions preceding the date of the change. In addition, we have not
received, and do not plan to request, any rulings from the IRS concerning our
tax treatment. Thus no assurance can be provided that the statements set forth
herein (which do not bind the IRS or the courts) will not be challenged by the
IRS or that such statements will be sustained by a court if so challenged.
EACH PROSPECTIVE PURCHASER OF COMMON SHARES IS ADVISED TO CONSULT WITH
HIS OR HER OWN TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OR HER
OF THE PURCHASE, OWNERSHIP AND SALE OF COMMON SHARES OF AN ENTITY ELECTING TO BE
TAXED AS A REIT, INCLUDING THE FEDERAL, STATE, LOCAL AND FOREIGN AND OTHER TAX
CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP, SALE AND ELECTION AND OF POTENTIAL
CHANGES IN APPLICABLE TAX LAWS.
Taxation of the Company
General. We elected to be taxed as a REIT under Sections 856 through 860
of the Code, commencing with our taxable year ended December 31, 1993. We
believe that we have been organized, and have operated, in such a manner so as
to qualify for taxation as a REIT under the Code and intend to conduct our
operations so as to continue to qualify for taxation as a REIT. No assurance,
however, can be given that we have operated in a manner so as to qualify or will
be able to operate in such a manner so as to remain qualified as a REIT.
Qualification and taxation as a REIT depend upon our ability to meet on a
continuing basis, through actual annual operating results, the required
distribution levels, diversity of share ownership and the various qualification
tests imposed under the Code discussed below, the results of which will not be
reviewed by counsel. Given the highly complex nature of the rules governing
REITs, the ongoing importance of factual determinations, and the possibility of
future changes in our circumstances, no assurance can be given that the actual
results of our operations for any one taxable year have satisfied or will
continue to satisfy such requirements.
The following is a general summary of the Code provisions that govern
the federal income tax treatment of a REIT and its shareholders. These
provisions of the Code are highly technical and complex. This summary is
qualified in its entirety by the applicable Code provisions, Treasury
Regulations and administrative and judicial interpretations thereof, all of
which are subject to change prospectively or retroactively.
If we qualify for taxation as a REIT, we generally will not be subject
to federal corporate income taxes on our net income that is currently
distributed to shareholders. This treatment substantially eliminates the "double
taxation" (at the corporate and shareholder levels) that generally results from
investment in a corporation. However, we will be subject to federal income tax
as follows: first, we will be taxed at regular corporate rates on any
undistributed REIT taxable income, including undistributed net capital gains.
Second, under certain circumstances,
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we may be subject to the "alternative minimum tax" on our items of tax
preference. Third, if we have (a) net income from the sale or other disposition
of "foreclosure property", which is, in general, property acquired on
foreclosure or otherwise on default on a loan secured by such real property or a
lease of such property, which is held primarily for sale to customers in the
ordinary course of business or (b) other nonqualifying income from foreclosure
property, we will be subject to tax at the highest corporate rate on such
income. Fourth, if we have net income from prohibited transactions such income
will be subject to a 100% tax. Prohibited transactions are, in general, certain
sales or other dispositions of property held primarily for sale to customers in
the ordinary course of business other than foreclosure property. Fifth, if we
should fail to satisfy the 75% gross income test or the 95% gross income test
(as discussed below), but nonetheless maintain our qualification as a REIT
because certain other requirements have been met, we will be subject to a 100%
tax on an amount equal to (a) the gross income attributable to the greater of
the amount by which we fail the 75% gross income test or the amount by which 90%
of our gross income exceeds the amount of income qualifying under the 95% gross
income test multiplied by (b) a fraction intended to reflect our profitability.
Sixth, if we should fail to distribute during each calendar year at least the
sum of (a) 85% of our REIT ordinary income for such year, (b) 95% of our REIT
capital gain net income for such year, and (c) any undistributed taxable income
from prior periods, we would be subject to a nondeductible 4% excise tax on the
excess of such required distribution over the amounts actually distributed.
Seventh, assuming we do not elect to instead be taxed at the time of
acquisition, if we acquire any asset from a C corporation (i.e., a corporation
generally subject to full corporate level tax) in a transaction in which the
basis of the asset in our hands is determined by reference to the basis of the
asset (or any other property) in the hands of the C corporation, we would be
subject to tax at the highest corporate rate if we dispose of such asset during
the 10-year period beginning on the date that we acquired that asset, to the
extent of such property's "built-in gain" (the excess of the fair market value
of such property at the time of our acquisition over the adjusted basis of such
property at such time). Eighth, we will incur a 100% excise tax on transactions
with a taxable REIT subsidiary that are not conducted on an arm's-length basis.
Requirements for Qualification. A REIT is a corporation, trust or
association (1) which is managed by one or more trustees or directors, (2) the
beneficial ownership of which is evidenced by transferable shares, or by
transferable certificates of beneficial interest, (3) which would be taxable as
a domestic corporation, but for Sections 856 through 859 of the Code, (4) which
is neither a financial institution nor an insurance company subject to certain
provisions of the Code, (5) that has the calendar year as its taxable year, (6)
the beneficial ownership of which is held by 100 or more persons, (7) during the
last half of each taxable year not more than 50% in value of the outstanding
stock of which is owned, directly or indirectly, by five or fewer individuals
(as defined in the Code to include certain entities), and (8) which meets
certain other tests, described below, regarding the nature of its income and
assets. The Code provides that conditions (1) through (5), inclusive, must be
met during the entire taxable year and that condition (6) 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. We expect to meet the ownership test
immediately after the transaction contemplated herein.
We may redeem, at our option, a sufficient number of shares or restrict
the transfer thereof to bring or maintain the ownership of the shares in
conformity with the requirements of the Code. In addition, our declaration of
trust includes restrictions regarding the transfer of our stock that are
intended to assist us in continuing to satisfy requirements (6) and (7).
Moreover, if we comply with regulatory rules pursuant to which we are required
to send annual letters to our shareholders requesting information regarding the
actual ownership of shares of our capital stock, and we do not know, or
exercising reasonable diligence would not have known, whether we failed to meet
requirement (7) above, we will be treated as having met the requirement. See the
section entitled "DESCRIPTION OF OUR COMMON SHARES" beginning on page 9 of this
prospectus and the section entitled "RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK
AND ANTI-TAKEOVER PROVISIONS" beginning on page 11 of this prospectus.
The Code allows a REIT to own wholly-owned subsidiaries which are
"qualified REIT subsidiaries." The Code provides that a qualified REIT
subsidiary is not treated as a separate corporation, and all of its assets,
liabilities and items of income, deduction and credit are treated as assets,
liabilities and items of income, deduction and credit of the REIT. Thus, in
applying the requirements described herein, our qualified REIT subsidiaries will
be ignored, and all assets, liabilities and items of income, deduction and
credit of such subsidiaries will be treated as our assets, liabilities and items
of income, deduction and credit.
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A REIT may also hold any direct or indirect interest in a corporation
that qualifies as a "taxable REIT subsidiary", as long as the REIT's aggregate
holdings of taxable REIT subsidiary securities do not exceed 20% of the value of
the REIT's total assets. A taxable REIT subsidiary is a fully taxable
corporation that generally is permitted to engage in businesses, own assets, and
earn income that, if engaged in, owned, or earned by the REIT, might jeopardize
REIT status or result in the imposition of penalty taxes on the REIT. To qualify
as a taxable REIT subsidiary, the subsidiary and the REIT must make a joint
election to treat the subsidiary as a taxable REIT subsidiary. A taxable REIT
subsidiary also includes any corporation (other than a REIT or a qualified REIT
subsidiary) in which a taxable REIT subsidiary directly or indirectly owns more
than 35% of the total voting power or value. See "Asset Tests" below. A taxable
REIT subsidiary will pay tax at regular corporate income rates on any taxable
income it earns. Moreover, the Code contains rules, including rules requiring
the imposition of taxes on a REIT at the rate of 100% on certain reallocated
income and expenses, to ensure that contractual arrangements between a taxable
REIT subsidiary and its parent REIT are at arm's-length.
In the case of a REIT which is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of each of the assets of the partnership and will be deemed to be entitled to
the income of the partnership attributable to such share. In addition, the
character of the assets and items of gross income of the partnership will retain
the same character in the hands of the REIT for purposes of Section 856 of the
Code, including satisfying the gross income and assets tests (as discussed
below). Thus, our proportionate share of the assets, liabilities, and items of
gross income of the partnerships in which we own an interest are treated as our
assets, liabilities and items of gross income for purposes of applying the
requirements described herein.
Income Tests. In order to maintain qualification as a REIT, we must
satisfy annually certain gross income requirements. First, at least 75% of our
gross income (excluding gross income from prohibited transactions) for each
taxable year must be derived directly or indirectly from investments relating to
real property or mortgages on real property (including "rents from real
property" and, in certain circumstances, interest) or from certain types of
qualified temporary investments. Second, at least 95% of our gross income
(excluding gross income from prohibited transactions) for each taxable year must
be derived from such real property investments, dividends, interest and gain
from the sale or disposition of stock or securities.
Rents received by us will qualify as "rents from real property" in
satisfying the gross income requirements for a REIT described above only if
several conditions are met. First, the amount of rent must not be based in whole
or in part on the income or profits of any person. However, an amount received
or accrued generally will not be excluded from the term "rents from real
property" solely by reason of being based on a fixed percentage or percentages
of receipts or sales. Second, the Code provides that rents received from a
tenant will not qualify as "rents from real property" in satisfying the gross
income tests if we, or an owner of 10% or more of our shares, actually or
constructively own 10% or more of such tenant. Third, if rent attributable to
personal property, leased in connection with a lease of real property, is
greater than 15% of the total rent received under the lease, then the portion of
rent attributable to such personal property will not qualify as "rents from real
property." Finally, in order for rents received to qualify as "rents from real
property," we generally must not operate or manage the property (subject to a de
minimis exception as described below) or furnish or render services to the
tenants of such property, other than through an independent contractor from whom
we derive no revenue or through a taxable REIT subsidiary. We may, however,
directly perform certain services that are "usually or customarily rendered" in
connection with the rental of space for occupancy only and are not otherwise
considered "rendered to the occupant" of the property ("Permissible Services").
Rents received generally will qualify as rents from real property
notwithstanding the fact that we provide services that are not Permissible
Services so long as the amount received for such services meets a de minimis
standard. The amount received for "impermissible services" with respect to a
property (or, if services are available only to certain tenants, possibly with
respect to such tenants) cannot exceed one percent of all amounts received,
directly or indirectly, by us with respect to such property (or, if services are
available only to certain tenants, possibly with respect to such tenants). The
amount that we will be deemed to have received for performing "impermissible
services" will be the greater of the actual amounts so received or 150% of the
direct cost to us of providing those services.
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We believe that substantially all of our rental income will be
qualifying income under the gross income tests, and that our provision of
services will not cause the rental income to fail to be qualifying income under
those tests.
If we fail to satisfy one or both of the 75% or 95% gross income tests
for any taxable year, we may nevertheless qualify as a REIT for such year if
such failure was due to reasonable cause and not willful neglect, we disclosed
the nature and amounts of our items of gross income in a schedule attached to
our 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 we would be entitled to the benefit of this relief provision. Even
if this relief provision applied, a 100% penalty tax would be imposed on the
amount by which we failed the 75% gross income test or the amount by which 90%
of our gross income exceeds the amount of income qualifying under the 95% gross
income test (whichever amount is greater), multiplied by a fraction intended to
reflect our profitability.
Subject to certain safe harbor exceptions, any gain realized by us on
the sale of any property held as inventory or other property held primarily for
sale to customers in the ordinary course of business will be treated as income
from a prohibited transaction that is subject to a 100% penalty tax. Such
prohibited transaction income may also have an adverse effect upon our ability
to satisfy the income tests for qualification as a REIT. Under existing law,
whether property is held as inventory or primarily for sale to customers in the
ordinary course of a trade or business is a question of fact that depends on all
the facts and circumstances with respect to the particular transaction.
Asset Tests. At the close of each quarter of our taxable year, we must
also satisfy the following tests relating to the nature of our assets. At least
75% of the value of our total assets must be represented by real estate assets,
including our allocable share of real estate assets held by partnerships in
which we own an interest or held by our qualified REIT subsidiaries, stock or
debt instruments held for not more than one year purchased with the proceeds of
an offering of equity securities or a long-term (at least five years) debt
offering by us, cash, cash items (including certain receivables) and government
securities. In addition, not more than 25% of our total assets may be
represented by securities other than those in the 75% asset class. Not more than
20% of the value of our total assets may be represented by securities of one or
more taxable REIT subsidiaries (as defined above under "Requirements for
Qualification"). Except for investments included in the 75% asset class,
securities in a taxable REIT subsidiary or qualified REIT subsidiary and certain
partnership interests and debt obligations, (1) not more than 5% of the value of
our total assets may be represented by securities of any one issuer, (2) we may
not hold securities that possess more than 10% of the total voting power of the
outstanding securities of a single issuer and (3) we may not hold securities
that have a value of more than 10% of the total value of the outstanding
securities of any one issuer.
We believe that substantially all of our assets consist and, after the
offering, will consist of (1) real properties, (2) stock or debt investments
that earn qualified temporary investment income, (3) other qualified real estate
assets, and (4) cash, cash items and government securities. We may also invest
in securities of other entities, provided that such investments will not prevent
us from satisfying the asset and income tests for REIT qualification set forth
above.
After initially meeting the asset tests at the close of any quarter, we
will not lose our status as a REIT for failure to satisfy the asset tests at the
end of a later quarter solely by reason of changes in asset values. If we
inadvertently fail one or more of the asset tests at the end of a calendar
quarter because we acquire securities or other property during the quarter, we
can cure this failure by disposing of sufficient nonqualifying assets within 30
days after the close of the calendar quarter in which it arose.
Annual Distribution Requirement. With respect to each taxable year, we
must distribute to our shareholders as dividends (other than capital gain
dividends) at least 90% of our taxable income. Specifically, we must distribute
an amount equal to (1) 90% of the sum of our "REIT taxable income" (determined
without regard to the deduction for dividends paid and by excluding any net
capital gain), and any after-tax net income from foreclosure property, minus (2)
the sum of certain items of "excess noncash income" such as income attributable
to leveled stepped rents, cancellation of indebtedness and original issue
discount. REIT taxable income is generally computed in the same manner as
taxable income of ordinary corporations, with several adjustments, such as a
deduction allowed for dividends paid, but not for dividends received.
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We will be subject to tax on amounts not distributed at regular United
States federal corporate income tax rates. In addition, a nondeductible 4%
excise tax is imposed on the excess of (1) 85% of our ordinary income for the
year plus 95% of capital gain net income for the year and the undistributed
portion of the required distribution for the prior year over (2) the actual
distribution to shareholders during the year (if any). Net operating losses
generated by us may be carried forward but not carried back and used by us for
15 years (or 20 years in the case of net operating losses generated in our tax
years commencing on or after January 1, 1998) to reduce REIT taxable income and
the amount that we will be required to distribute in order to remain qualified
as a REIT. As a REIT, our net capital losses may be carried forward for five
years (but not carried back) and used to reduce capital gains.
In general, a distribution must be made during the taxable year to which
it relates to satisfy the distribution test and to be deducted in computing REIT
taxable income. However, we may elect to treat a dividend declared and paid
after the end of the year (a "subsequent declared dividend") as paid during such
year for purposes of complying with the distribution test and computing REIT
taxable income, if the dividend is (1) declared before the regular or extended
due date of our tax return for such year and (2) paid not later than the date of
the first regular dividend payment made after the declaration, but in no case
later than 12 months after the end of the year. For purposes of computing the 4%
excise tax, a subsequent declared dividend is considered paid when actually
distributed. Furthermore, any dividend that is declared by us in October,
November or December of a calendar year, and payable to shareholders of record
as of a specified date in such quarter of such year will be deemed to have been
paid by us (and received by shareholders) on December 31 of such calendar year,
but only if such dividend is actually paid by us in January of the following
calendar year.
For purposes of complying with the distribution test for a taxable year
as a result of an adjustment in certain of our items of income, gain or
deduction by the IRS, we may be permitted to remedy such failure by paying a
"deficiency dividend" in a later year together with interest and a penalty. Such
deficiency dividend may be included in our deduction of dividends paid for the
earlier year for purposes of satisfying the distribution test. For purposes of
the 4% excise tax, the deficiency dividend is taken into account when paid, and
any income giving rise to the deficiency adjustment is treated as arising when
the deficiency dividend is paid.
We believe that we have distributed and intend to continue to distribute
to our shareholders in a timely manner such amounts sufficient to satisfy the
annual distribution requirements. However, it is possible that timing
differences between the accrual of income and its actual collection, and the
need to make nondeductible expenditures (such as capital improvements or
principal payments on debt) may cause us to recognize taxable income in excess
of our net cash receipts, thus increasing the difficulty of compliance with the
distribution requirement. In order to meet the distribution requirement, we
might find it necessary to arrange for short-term, or possibly long-term,
borrowings.
Failure to Qualify. If we fail to qualify as a REIT for any taxable
year, and if certain relief provisions of the Code do not apply, we would be
subject to federal income tax (including applicable alternative minimum tax) on
our taxable income at regular corporate rates. Distributions to shareholders in
any year in which we fail to qualify will not be deductible by us nor will they
be required to be made. As a result, our failure to qualify as a REIT would
reduce the cash available for distribution by us to our shareholders. In
addition, if we fail to qualify as a REIT, all distributions to shareholders
will be taxable as ordinary income, to the extent of our current and accumulated
earnings and profits. Subject to certain limitations of the Code, corporate
distributees may be eligible for the dividends-received deduction.
If our failure to qualify as a REIT is not due to reasonable cause but
results from willful neglect, we would not be permitted to elect REIT status for
the four taxable years after the taxable year for which such disqualification is
effective. In the event we were to fail to qualify as a REIT in one year and
subsequently requalify in a later year, we might be required to recognize
taxable income based on the net appreciation in value of our assets as a
condition to requalification. In the alternative, we may be taxed on the net
appreciation in value of our assets if we sell properties within ten years of
the date we requalify as a REIT under federal income tax laws.
Taxation of Taxable U.S. Shareholders
As used herein, the term "U.S. shareholder" means a holder of our common
shares who (for United States federal income tax purposes) (1) is a citizen or
resident of the United States, (2) is a corporation, partnership, or
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other entity treated as a corporation or partnership for federal income tax
purposes created or organized in or under the laws of the United States or of
any political subdivision thereof (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise), (3) is an estate the
income of which is subject to United States federal income taxation regardless
of its source or (4) is a trust whose administration is subject to the primary
supervision of a United States court and which has one or more United States
persons who have the authority to control all substantial decisions of the trust
or a trust that has a valid election to be treated as a U.S. person in effect.
As long as we qualify as a REIT, distributions made to our U.S.
shareholders out of current or accumulated earnings and profits (and not
designated as capital gain dividends) will be taken into account by them as
ordinary income and corporate shareholders will not be eligible for the
dividends-received deduction as to such amounts. For purposes of computing our
earnings and profits, depreciation for depreciable real estate will be computed
on a straight-line basis over a 40-year period. For purposes of determining
whether distributions on the common shares are out of current or accumulated
earnings and profits, our earnings and profits will be allocated first to
distributions with respect to the Series B Preferred Shares and all other series
of preferred shares that are equal in rank as to distributions and upon
liquidation with the Series B Preferred Shares, and second to distributions with
respect to our common shares. There can be no assurance that we will have
sufficient earnings and profits to cover distributions on any common shares.
Distributions that are properly designated as capital gain dividends
will be taxed as gains from the sale or exchange of a capital asset held for
more than one year (to the extent they do not exceed our actual net capital gain
for the taxable year) without regard to the period for which the shareholder has
held its shares. However, corporate shareholders may be required to treat up to
20% of certain capital gain dividends as ordinary income under the Code. Capital
gain dividends, if any, will be allocated among different classes of shares in
proportion to the allocation of earnings and profits discussed above.
Distributions in excess of our current and accumulated earnings and
profits will constitute a non-taxable return of capital to a shareholder to the
extent that such distributions do not exceed the adjusted basis of the
shareholder's shares, and will result in a corresponding reduction in the
shareholder's basis in the shares. Any reduction in a shareholder's tax basis
for its shares will increase the amount of taxable gain or decrease the
deductible loss that will be realized upon the eventual disposition of the
shares. We will notify shareholders at the end of each year as to the portions
of the distributions which constitute ordinary income, capital gain or a return
of capital. Any portion of such distributions that exceed the adjusted basis of
a U.S. shareholder's shares will be taxed as capital gain from the disposition
of shares, provided that the shares are held as capital assets in the hands of
the U.S. shareholder.
Aside from the different income tax rates applicable to ordinary income
and capital gain dividends, regular and capital gain dividends from us will be
treated as dividend income for most other federal income tax purposes. In
particular, such dividends will be treated as "portfolio" income for purposes of
the passive activity loss limitation and shareholders generally will not be able
to offset any "passive losses" against such dividends. Dividends will be treated
as investment income for purposes of the investment interest limitation
contained in Section 163(d) of the Code, which limits the deductibility of
interest expense incurred by noncorporate taxpayers with respect to indebtedness
attributable to certain investment assets.
In general, dividends paid by us will be taxable to shareholders in the
year in which they are received, except in the case of dividends declared at the
end of the year, but paid in the following January, as discussed above.
In general, a domestic shareholder will realize capital gain or loss on
the disposition of shares equal to the difference between (1) the amount of cash
and the fair market value of any property received on such disposition and (2)
the shareholder's adjusted basis of such shares. Such gain or loss will
generally be short-term capital gain or loss if the shareholder has not held
such shares for more than one year and will be long-term capital gain or loss if
such shares have been held for more than one year. Loss upon the sale or
exchange of shares by a shareholder who has held such shares for six months or
less (after applying certain holding period rules) will be treated as long-term
capital loss to the extent of distributions from us required to be treated by
such shareholder as long-term capital gain.
We may elect to retain and pay income tax on net long-term capital
gains. If we make such an election, you, as a holder of shares, will (1) include
in your income as long-term capital gains your proportionate share of
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such undistributed capital gains and (2) be deemed to have paid your
proportionate share of the tax paid by us on such undistributed capital gains
and thereby receive a credit or refund for such amount. As a holder of shares
you will increase the basis in your shares by the difference between the amount
of capital gain included in your income and the amount of tax you are deemed to
have paid. Our earnings and profits will be adjusted appropriately.
Backup Withholding
We will report to our domestic shareholders and the IRS the amount of
dividends paid during each calendar year, and the amount of tax withheld, if
any, with respect thereto. Under the backup withholding rules, a shareholder may
be subject to backup withholding currently at the rate of 28%, with respect to
dividends paid unless such holder (a) is a corporation or comes within certain
other exempt categories and, when required, demonstrates this fact, or (b)
provides a taxpayer identification number, certifies as to no loss of exemption
from backup withholding and otherwise complies with the applicable requirements
of the backup withholding rules. Amounts withheld as backup withholding will be
creditable against the shareholder's income tax liability. In addition, we may
be required to withhold a portion of capital gain distributions made to any
shareholders who fail to certify their non-foreign status to us. See "--
Taxation of Non-U.S. Shareholders" below. Additional issues may arise pertaining
to information reporting and backup withholding with respect to Non-U.S.
Shareholders (persons other than U.S. shareholders, also further described
below). Non-U.S. Shareholders should consult their tax advisors with respect to
any such information and backup withholding requirements.
Taxation of Non-U.S. Shareholders
The following discussion is only a summary of the rules governing United
States federal income taxation of Non-U.S. Shareholders such as nonresident
alien individuals, foreign corporations, foreign partnerships or other foreign
estates or trusts. Prospective Non-U.S. Shareholders should consult with their
own tax advisors to determine the impact of federal, state and local income tax
laws with regard to an investment in shares, including any reporting
requirements.
Distributions that are not attributable to gain from sales or exchanges
by us of United States real property interests and not designated by us as
capital gains dividends will be treated as dividends of ordinary income to the
extent that they are made out of our current or accumulated earnings and
profits. Such distributions ordinarily will be subject to a withholding tax
equal to 30% of the gross amount of the distribution unless an applicable tax
treaty reduces or eliminates that tax. Certain tax treaties limit the extent to
which dividends paid by a REIT can qualify for a reduction of the withholding
tax on dividends. Distributions in excess of our current and accumulated
earnings and profits will not be taxable to a Non-U.S. Shareholder to the extent
that they do not exceed the adjusted basis of the shareholder's shares, but
rather will reduce the adjusted basis of such shares. To the extent that such
distributions exceed the adjusted basis of a Non-U.S. Shareholder's shares, they
will give rise to tax liability if the Non-U.S. Shareholder would otherwise be
subject to tax on any gain from the sale or disposition of his shares, as
described below.
For withholding tax purposes, we are generally required to treat all
distributions as if made out of our current or accumulated earnings and profits
and thus intend to withhold at the rate of 30% (or a reduced treaty rate if
applicable) on the amount of any distribution (other than distributions
designated as capital gain dividends) made to a Non-U.S. Shareholder. We would
not be required to withhold at the 30% rate on distributions we reasonably
estimate to be in excess of our current and accumulated earnings and profits. If
it cannot be determined at the time a distribution is made whether such
distribution will be in excess of current and accumulated earnings and profits,
the distribution will be subject to withholding at the rate applicable to
ordinary dividends. However, the Non-U.S. Shareholder may seek from the IRS a
refund of such amounts from the IRS if it is subsequently determined that such
distribution was, in fact, in excess of our current or accumulated earnings and
profits, and the amount withheld exceeded the Non-U.S. Shareholder's United
States tax liability, if any, with respect to the distribution.
For any year in which we qualify as a REIT, distributions that are
attributable to gain from sales or exchanges by us of United States real
property interests will be taxed to a Non-U.S. Shareholder under the provisions
of the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"). Under
FIRPTA, a Non-U.S. Shareholder is taxed as if such gain were effectively
connected with a United States business. Non-U.S. Shareholders would thus be
taxed at the normal capital gain rates applicable to U.S. shareholders (subject
to applicable alternative minimum tax and a special alternative minimum tax in
the case of non-resident alien
-32-
individuals). Also, distributions subject to FIRPTA may be subject to a 30%
branch profits tax in the hands of a corporate Non-U.S. Shareholder not entitled
to treaty relief or exemption. We are required by applicable regulations to
withhold 35% of any distribution that could be designated by us as a capital
gains dividend regardless of the amount actually designated as a capital gain
dividend. This amount is creditable against the Non-U.S. Shareholder's FIRPTA
tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of shares
generally will not be taxed under FIRPTA if we are a "domestically controlled
REIT," defined generally as a REIT in which at all times during a specified
testing period less than 50% in value of the shares was held directly or
indirectly by foreign persons. It is anticipated that we will continue to be a
"domestically controlled REIT" after the offering. Therefore, the sale of shares
will not be subject to taxation under FIRPTA. However, because our common shares
are publicly traded, no assurance can be given that we will continue to qualify
as a "domestically controlled REIT." In addition, a non-U.S. shareholder that
owns, actually or constructively, 5% or less of a class of our shares through a
specified testing period will not recognize taxable gain on the sale of its
shares under FIRPTA if the shares are regularly traded on an established
securities market. If the gain on the sale of shares were to be subject to
taxation under FIRPTA, the Non-U.S. Shareholder would be subject to the same
treatment as U.S. Shareholders with respect to such gain (subject to applicable
alternative minimum tax, special alternative minimum tax in the case of
nonresident alien individuals and possible application of the 30% branch profits
tax in the case of foreign corporations) and the purchaser would be required to
withhold and remit to the IRS 10% of the purchase price. Gain not subject to
FIRPTA will be taxable to a Non-U.S. Shareholder if (1) investment in the shares
is effectively connected with the Non-U.S. Shareholder's United States trade or
business, in which case the Non-U.S. Shareholder will be subject to the same
treatment as U.S. Shareholders with respect to such gain, or (2) the Non-U.S.
Shareholder is a nonresident alien individual who was present in the United
States for 183 days or more during the taxable year and such nonresident alien
individual has a "tax home" in the United States, in which case the nonresident
alien individual will be subject to a 30% tax on the individual's capital gain.
Taxation of Tax-Exempt Shareholders
Tax-exempt entities, including qualified employee pension and profit
sharing trusts and individual retirement accounts ("Exempt Organizations"),
generally are exempt from federal income taxation. However, they are subject to
taxation on their unrelated business taxable income ("UBTI"). While investments
in real estate may generate UBTI, the Service has issued a published ruling to
the effect that dividend distributions by a REIT to an exempt employee pension
trust do not constitute UBTI, provided that the shares of the REIT are not
otherwise used in an unrelated trade or business of the exempt employee pension
trust. Based on that ruling and on our intention to invest our assets in a
manner that will avoid the recognition of UBTI, amounts distributed by us to
Exempt Organizations generally should not constitute UBTI. However, if an Exempt
Organization finances its acquisition of our shares with debt, a portion of its
income from us, if any, will constitute UBTI pursuant to the "debt-financed
property" rules. Furthermore, social clubs, voluntary employee benefit
associations, supplemental unemployment benefit trusts, and qualified group
legal services plans that are exempt from taxation under paragraphs (7), (9),
(17), and (20), respectively, of Code Section 501(c) are subject to different
UBTI rules, which generally will require them to characterize distributions from
us as UBTI.
In addition, a pension trust that owns more than 10% of our shares is
required to treat a percentage of the dividends from us as UBTI (the "UBTI
Percentage") in certain circumstances. The UBTI Percentage is our gross income
derived from an unrelated trade or business (determined as if we were a pension
trust) divided by our total gross income for the year in which the dividends are
paid. The UBTI rule applies only if (i) the UBTI Percentage is at least 5%, (ii)
we qualify as a REIT by reason of the modification of the 5/50 Rule that allows
the beneficiaries of the pension trust to be treated as holding our shares in
proportion to their actuarial interests in the pension trust, and (iii) either
(A) one pension trust owns more than 25% of the value of our shares or (B) a
group of pension trusts individually holding more than 10% of the value of our
shares collectively owns more than 50% of the value of our shares.
Taxation of Reinvested Dividends
Shareholders who elect to participate in the dividend reinvestment plan
will be deemed to have received the gross amount of dividends distributed on
their behalf by the plan agent as agent for the participants in such plan. Such
deemed dividends will be treated as actual dividends to such shareholders by us
and will retain their character
-33-
and have the tax effects as described above. Participants that are subject to
federal income tax will thus be taxed as if they received such dividends despite
the fact that their distributions have been reinvested and, as a result, they
will not receive any cash with which to pay the resulting tax liability.
Other Tax Considerations
Entity Classification. A significant number of our investments are held
through partnerships. If any such partnerships were treated as an association,
the entity would be taxable as a corporation and therefore would be subject to
an entity level tax on its income. In such a situation, the character of our
assets and items of gross income would change and might preclude us from
qualifying as a REIT.
We believe that each partnership in which we hold a material interest
(either directly or indirectly) is properly treated as a partnership for tax
purposes (and not as an association taxable as a corporation).
Tax Allocations with Respect to the Properties. When property is
contributed to a partnership in exchange for an interest in the partnership, the
partnership generally takes a carryover basis in that property for tax purposes
equal to the adjusted basis of the contributing partner in the property, rather
than a basis equal to the fair market value of the property at the time of
contribution (this difference is referred to as "Book-Tax Difference"). Special
rules under Section 704(c) of the Code and the regulations thereunder require
special allocations of income, gain, loss and deduction with respect to
contributed property, which tend to eliminate the Book-Tax Difference over the
depreciable lives of such property, but which may not always entirely eliminate
the Book-Tax Difference on an annual basis or with respect to a specific taxable
transaction such as a sale. Thus, the carryover basis of the contributed
properties in the hands of the partnership could cause us (i) to be allocated
lower amounts of depreciation and other deductions for tax purposes than would
be allocated to us if all properties were to have a tax basis equal to their
fair market value at the time the properties were contributed to the
partnership, and (ii) possibly to be allocated taxable gain in the event of a
sale of such contributed properties in excess of the economic or book income
allocated to us as a result of such sale.
Recent Developments
The Jobs and Growth Tax Relief Reconciliation Act of 2003 (the "Act"),
which has been enacted into law, generally reduces the tax rates imposed on
dividends paid by C corporations to U.S. non-corporate taxpayers in order to
limit "double taxation" on dividends, and such reduced rates are effective from
January 1, 2003 through December 31, 2008. In addition, the capital gains tax
rates are also reduced, and such reduced rates are effective with respect to
transactions after May 5, 2003 through December 31, 2008.
A REIT's U.S. non-corporate shareholders generally would not benefit
from the Act with respect to dividends paid by a REIT because such dividends are
generally not subject to taxation at the REIT level. However, there are limited
circumstances in which a REIT U.S. non-corporate shareholder will be subject to
tax at the reduced rate with respect to REIT dividends. The reduced tax rates
would apply to an amount equal to the excess of a REIT's income subject to
corporate level income taxes (less such tax liability). This could occur, for
example, if a REIT did not distribute 100% of its taxable income as a dividend.
The reduced rates would also apply to capital gains dividends and to dividends
attributable to dividends a REIT receives from non-REIT corporations.
The Act could cause investors to view investments in common stock of
REITs less favorably in comparison to investments in common stock of C
corporations, the dividends for which would be subject to a reduced tax rate
under the Act.
EXPERTS
The consolidated financial statements and related financial statement
schedule included in our Annual Report on Form 10-K as of and for the year ended
December 31, 2003, incorporated by reference into this prospectus, have been
incorporated herein by reference in reliance on the report, also incorporated
herein by reference, of KPMG LLP, independent certified public accountants, and
upon the authority of said firm as experts in accounting and auditing.
-34-
LEGAL MATTERS
Certain legal matters will be passed upon for us by Paul, Hastings,
Janofsky & Walker LLP, New York, New York. Seth M. Zachary, a partner of Paul,
Hastings, Janofsky & Walker LLP, is presently serving on our Board of Trustees
and will continue to do so at least until the 2004 Annual Meeting of
Stockholders. As of the date of this prospectus, Mr. Zachary beneficially owns
44,931common shares. Certain legal matters under Maryland law, including the
legality of the common shares covered by this prospectus, will be passed on for
us by Piper Rudnick LLP, Baltimore, Maryland.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission, or the SEC. You
may read and copy any materials that we have filed with the SEC at the SEC's
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may
obtain information on the operation of the Public Reference Room by calling the
SEC at 1-800-SEC-0330. We file information electronically with the SEC. The SEC
maintains an Internet site that contains reports, proxies and information
statements and other information regarding issuers that file electronically with
the SEC. The address of the SEC's Internet site is http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, which is commonly referred to as
the Exchange Act (although with respect to the Form 8-Ks listed below, we are
only incorporating by reference those portions of such Form 8-Ks that were
deemed "filed" with the SEC and not those portions that were deemed "furnished"
to the SEC):
o Our Annual Report on Form 10-K (Commission File No. 1-12386) for the
year ended December 31, 2003.
o Our Current Report on Form 8-K (Commission File No. 1-12386), filed
on February 2, 2004 (with respect to Item 5 and Item 7 only).
o Our Current Report on Form 8-K (Commission File No. 1-12386), filed
on March 1, 2004.
-35-
=============================================== ===============================================
No dealer, salesperson or any other person
has been authorized to give any information or
to make any representations other than those
contained in or incorporated by reference in 63,244 Shares
this prospectus in connection with the offer
made by this prospectus, and, if given or made, LEXINGTON
such information or representations must not be CORPORATE
relied upon as having been authorized by us. PROPERTIES TRUST
This prospectus does not constitute an offer to
sell, or a solicitation of an offer to buy any
security other than the redemption shares
offered hereby, nor does it constitute an offer Common Shares
to sell or a solicitation of any offer to buy
any of the redemption shares offered by anyone
in any jurisdiction in which such offer or
solicitation is not authorized, or in which the
person making such offer or solicitation is not
qualified to do so, or to any person to whom it
is unlawful to make such offer or solicitation.
Neither the delivery of this prospectus nor any
sale made hereunder shall, under any
circumstances, create any implication that the
information contained herein is correct as of
any time subsequent to the date hereof. -----------------------------------------------
------------------ PROSPECTUS
-----------------------------------------------
The date of this prospectus is _____________.
=============================================== ===============================================
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee. $ 171.08
Accounting fees and expense......................... 5,000.00
Legal fees and expenses............................. 10,000.00
Miscellaneous....................................... 1,000.00
----------------
TOTAL........................................ $ 16,171.08
================
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Our trustees and officers are and will be indemnified against certain
liabilities under Maryland law, and under our declaration of trust. Our
declaration of trust requires us to indemnify our trustees and officers to the
fullest extent permitted from time to time by the laws of Maryland. Our
declaration of trust also provides that, to the fullest extent permitted under
Maryland law, our trustees and officers will not be liable to us or our
shareholders for money damages.
Section 2-418 of the Maryland General Corporation Law of generally
permits indemnification of any trustee made a party to any proceedings by reason
of service as a trustee unless it is established that (i) the act or omission of
such person was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty; or
(ii) such person actually received an improper personal benefit in money
property or services; or (iii) in the case of any criminal proceeding, such
person had reasonable cause to believe that the act or omission was unlawful.
The indemnity may include judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the trustee in connection with the
proceeding; but, if the proceeding is one by or in the right of the corporation,
indemnification is not permitted with respect to any proceeding in which the
trustee has been adjudged to be liable to the corporation, or if the proceeding
is one charging improper personal benefit to the trustee, whether or not
involving action in the trustee's official capacity, indemnification of the
trustee is not permitted if the trustee was adjudged to be liable on the basis
that personal benefit was improperly received. The termination of any proceeding
by conviction or upon a plea of nolo contendere or its equivalent, or any entry
of an order of probation prior to judgment, creates a rebuttable presumption
that the trustee did not meet the requisite standard of conduct required for
permitted indemnification. The termination of any proceeding by judgment, order
or settlement, however, does not create a presumption that the trustee failed to
meet the requisite standard of conduct for permitted indemnification.
The foregoing reference is necessarily subject to the complete text of
our declaration of trust and the statute referred to above and is qualified in
its entirety by reference thereto.
We have also entered into indemnification agreements with certain
officers and trustees for the purpose of indemnifying such persons from certain
claims and action in their capacities as such.
II-1
ITEM 16. EXHIBITS.
EXHIBIT NO. EXHIBIT
3.1 Declaration of Trust of the Company, dated December 31, 1997
(filed as Exhibit 3.1 to the Company's Current Report on Form 8-K
filed January 16, 1998) *
3.2 By-Laws of the Company (filed as Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1997
(the "1997 10-K"))*
3.3 Articles of Amendment of Declaration of Trust of the Company
(filed as Exhibit 3.3 to the Company's Registration Statement on
Form S-4 (File No. 333-70790))*
3.4 Amendment No.1 to Bylaws of the Company (filed as Exhibit 3.3 to
the Company's Registration Statement on Form 8A filed June 17,
2003)*
3.5 Fifth Amended and Restated Agreement of Limited Partnership of
Lepercq Corporate Income Fund L.P., dated as of December 31,
1996, as supplemented (filed as Exhibit 3.3 to the Company's
Registration Statement of Form 3/A filed September 10, 1999)*
3.6 Amendment No. 1 to the Fifth Amended and Restated Agreement of
Limited Partnership of Lepercq Corporate Income Fund L.P. dated
as of December 31, 2000 (filed as Exhibit 3.11 to the Company's
Annual Report on Form 10-K for the year ended December 31, 2003
(the "2003 10-K"))*
3.7 First Amendment to the Fifth Amended and Restated Agreement of
Limited Partnership of Lepercq Corporate Income Fund L.P.
effective as of June 19, 2003 (filed as Exhibit 3.12 to the 2003
10-K)*
3.8 Second Amendment to the Fifth Amended and Restated Agreement of
Limited Partnership of Lepercq Corporate Income Fund L.P.
effective as of June 30, 2003 (filed as Exhibit 3.13 to the 2003
10-K)*
4.1 Specimen of Common Shares Certificate of the Company (filed as
Exhibit 3.2 to the 1997 10-K)*
5.1 Opinion of Piper Rudnick LLP +
8.1 Opinion of Paul, Hastings, Janofsky & Walker LLP +
23.1 Consent of Piper Rudnick LLP (included as part of Exhibit 5.1) +
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included as
part of Exhibit 5.2) +
23.3 Consent of KPMG LLP +
24 Power of Attorney (included on signature page hereto) +
----------------
* Incorporated by reference
+ Filed herewith
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
and
II-2
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement will be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be the initial bona
fide offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to shareholders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on March 11, 2004.
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
President, Chief Executive Officer
and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints T. Wilson Eglin and Patrick Carroll, jointly and
severally, his attorneys-in-fact, each with power of substitution for him in any
and all capacities, to sign any amendments to this Registration Statement, to
file the same, with the exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
-------------------------------------------------------------------------------------------------
Signature Capacity Date
--------- -------- ----
-------------------------------------------------------------------------------------------------
/s/ E. Robert Roskind
---------------------------------
E. Robert Roskind Chairman of the Board March 11, 2004
/s/ Richard J. Rouse
--------------------------------- Vice Chairman of the Board and March 11, 2004
Richard J. Rouse Chief Investment Officer
/s/ T. Wilson Eglin
--------------------------------- President, Chief Executive Officer March 11, 2004
T. Wilson Eglin and Chief Operating Officer
/s/ Patrick Carroll
--------------------------------- Chief Financial Officer, Treasurer March 11, 2004
Patrick Carroll and Executive Vice President
/s/ Paul R. Wood
--------------------------------- Vice President, Chief Accounting March 11, 2004
Paul R. Wood Officer and Secretary
/s/ Geoffrey Dohrmann
--------------------------------- Trustee March 11, 2004
Geoffrey Dohrmann
/s/ Carl D. Glickman
--------------------------------- Trustee March 11, 2004
Carl D. Glickman
/s/ James Grosfeld
--------------------------------- Trustee March 11, 2004
James Grosfeld
/s/ Kevin Lynch
--------------------------------- Trustee March 11, 2004
Kevin Lynch
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
/s/ Stanley Perla
--------------------------------- Trustee March 11, 2004
Stanley Perla
/s/ Seth M. Zachary March 11, 2004
--------------------------------- Trustee
Seth M. Zachary
-------------------------------------------------------------------------------------------------
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
3.1 Declaration of Trust of the Company, dated December 31, 1997
(filed as Exhibit 3.1 to the Company's Current Report on Form 8-K
filed January 16, 1998) *
3.2 By-Laws of the Company (filed as Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1997
(the "1997 10-K"))*
3.3 Articles of Amendment of Declaration of Trust of the Company
(filed as Exhibit 3.3 to the Company's Registration Statement on
Form S-4 (File No. 333-70790))*
3.4 Amendment No.1 to Bylaws of the Company (filed as Exhibit 3.3 to
the Company's Registration Statement on Form 8A filed June 17,
2003)*
3.5 Fifth Amended and Restated Agreement of Limited Partnership of
Lepercq Corporate Income Fund L.P., dated as of December 31,
1996, as supplemented (filed as Exhibit 3.3 to the Company's
Registration Statement of Form 3/A filed September 10, 1999)*
3.6 Amendment No. 1 to the Fifth Amended and Restated Agreement of
Limited Partnership of Lepercq Corporate Income Fund L.P. dated
as of December 31, 2000 (filed as Exhibit 3.11 to the Company's
Annual Report on Form 10-K for the year ended December 31, 2003
(the "2003 10-K"))*
3.7 First Amendment to the Fifth Amended and Restated Agreement of
Limited Partnership of Lepercq Corporate Income Fund L.P.
effective as of June 19, 2003 (filed as Exhibit 3.12 to the 2003
10-K)*
3.8 Second Amendment to the Fifth Amended and Restated Agreement of
Limited Partnership of Lepercq Corporate Income Fund L.P.
effective as of June 30, 2003 (filed as Exhibit 3.13 to the 2003
10-K)*
4.1 Specimen of Common Shares Certificate of the Company (filed as
Exhibit 3.2 to the 1997 10-K)*
5.1 Opinion of Piper Rudnick LLP +
8.1 Opinion of Paul, Hastings, Janofsky & Walker LLP +
23.1 Consent of Piper Rudnick LLP (included as part of Exhibit 5.1) +
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included as
part of Exhibit 5.2) +
23.3 Consent of KPMG LLP +
24 Power of Attorney (included on signature page hereto) +
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* Incorporated by reference
+ Filed herewith