Filed Pursuant to Rule 424(b)(3)
Registration File No. 333-49351
THE INFORMATION IN THIS PROSPECTUS SUPPLEMENT IS NOT COMPLETE AND MAY BE
CHANGED. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION AND HAS BECOME EFFECTIVE. THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS ARE NOT AN OFFER TO SELL
THESE SECURITIES AND ARE NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JUNE 9, 2003
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED APRIL 10, 1998)
2,000,000 SHARES
(LEXINGTON CORPORATE LOGO)
LEXINGTON CORPORATE PROPERTIES TRUST
% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
LIQUIDATION PREFERENCE $25.00 PER SHARE
We are offering 2,000,000 preferred shares of beneficial interest,
classified as % Series B Cumulative Redeemable Preferred Stock, par value
$0.0001 per share ("Series B Preferred Shares"). We will pay cumulative
dividends on the Series B Preferred Shares from and including the date of
original issuance in the amount of $ per share each year, which is
equivalent to % of the $25.00 liquidation preference per share. Dividends
on the Series B Preferred Shares will be payable quarterly in arrears, beginning
on August 15, 2003. We have no other preferred shares of beneficial interest
outstanding as of the date of this prospectus supplement.
We may not redeem the Series B Preferred Shares before June , 2008,
except to preserve our status as a real estate investment trust. On or after
June , 2008, we may, at our option, redeem the Series B Preferred Shares, in
whole or in part, by paying $25.00 per share, plus any accrued and unpaid
dividends to and including the date of redemption. Our Series B Preferred Shares
have no stated maturity, will not be subject to any sinking fund or mandatory
redemption and will not be convertible into any of our other securities, except
that we may exchange shares of the Series B Preferred Shares for shares of
excess stock in order to ensure that we remain a qualified real estate
investment trust for federal income tax purposes. Investors in our Series B
Preferred Shares will generally have no voting rights, but will have limited
voting rights if we fail to pay dividends for six or more quarters and under
certain other circumstances.
Our Series B Preferred Shares are subject to certain restrictions on
ownership designed to preserve our qualification as a real estate investment
trust for federal income tax purposes. See "DESCRIPTION OF SERIES B PREFERRED
SHARES -- Restrictions on Ownership" beginning on page S-21 of this prospectus
supplement and "RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES AND ANTI-TAKEOVER
PROVISIONS" beginning on page S-22 of this prospectus supplement and on page 25
of the accompanying prospectus for more information about these restrictions.
No market currently exists for our Series B Preferred Shares. We have
applied to list our Series B Preferred Shares on the New York Stock Exchange
under the symbol "LXP PrB", subject to official notice of issuance. We expect
that trading on the NYSE will commence within 30 days after the initial delivery
of the Series B Preferred Shares. Our common shares of beneficial interest
currently trade on the NYSE under the symbol "LXP".
---------------------
INVESTING IN OUR SERIES B PREFERRED SHARES INVOLVES CERTAIN RISKS. SEE
"RISK FACTORS" BEGINNING ON PAGE S-7 OF THIS PROSPECTUS SUPPLEMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------------------------------------------------------------------
PER SHARE TOTAL
Public offering price $ 25.00 $ 50,000,000
Underwriting discount $ $
Proceeds, before expenses, to us $ $
--------------------------------------------------------------------------------
The underwriters are severally underwriting the shares being offered. The
underwriters have an option to purchase up to an additional 300,000 Series B
Preferred Shares from us within 30 days from the date of this prospectus
supplement to cover over-allotments, if any.
The underwriters expect that the Series B Preferred Shares will be ready for
delivery in book-entry form through The Depository Trust Company on or about
June 19, 2003.
BEAR, STEARNS & CO. INC. A.G. EDWARDS & SONS, INC.
SOLE BOOKRUNNING MANAGER
RAYMOND JAMES FRIEDMAN BILLINGS RAMSEY
ADVEST, INC. BB&T CAPITAL MARKETS FERRIS, BAKER WATTS
INCORPORATED
The date of this prospectus supplement is .
ABOUT THIS PROSPECTUS SUPPLEMENT
All references to "we," "our" and "us" in this prospectus supplement means
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.
When used in this prospectus supplement, the phrase "funds from
operations," or FFO, which is a commonly used measurement of the performance of
an equity real estate investment trust, or REIT, as defined by the National
Association of Real Estate Investment Trusts, Inc., is net income (or loss)
computed in accordance with generally accepted accounting principles, excluding
gains or losses from sales of property, plus depreciation and amortization, and
after adjustments for unconsolidated partnerships and joint ventures.
Adjustments for unconsolidated partnerships and joint ventures will be
calculated to reflect FFO on the same basis. FFO does not represent cash
generated from operating activities in accordance with generally accepted
accounting principles and is not necessarily indicative of cash available to
fund cash needs and should not be considered as an alternative to net income as
an indicator of our operating performance or as an alternative to cash flow as a
measure of liquidity.
We have filed with the Securities and Exchange Commission a Registration
Statement on Form S-3, of which the accompanying prospectus forms a part, under
the Securities Act of 1933, as amended. As permitted by the rules and
regulations of the Commission, and as stated in the accompanying prospectus,
this prospectus supplement sets forth the specific terms of the Series B
Preferred Shares being offered and updates certain information included in the
accompanying prospectus. TO THE EXTENT THAT ANY SUBJECT MATTER IS ADDRESSED IN
BOTH THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS, THE INFORMATION
CONTAINED IN THIS PROSPECTUS SUPPLEMENT SUPERSEDES THE INFORMATION CONTAINED IN
THE ACCOMPANYING PROSPECTUS.
CAUTIONARY STATEMENTS CONCERNING FORWARD-LOOKING INFORMATION
Certain information included or incorporated by reference in this
prospectus supplement and the accompanying prospectus may contain
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, 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,
changes in 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" beginning on
page S-7 of this prospectus supplement. These risks and uncertainties should be
considered in evaluating any forward-looking statements contained or
incorporated by reference in this prospectus supplement.
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 supplement and
the accompanying prospectus may not occur and actual results could differ
materially from those anticipated or implied in the forward-looking statements.
i
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights information contained elsewhere in this prospectus
supplement and the accompanying prospectus. Because this is a summary, it may
not contain all of the information that is important to you. Before making a
decision to invest in our Series B Preferred Shares, you should read this entire
prospectus supplement and the accompanying prospectus carefully, especially
"RISK FACTORS" beginning on page S-7 of this prospectus supplement and
"AVAILABLE INFORMATION" beginning on page S-37 of this prospectus supplement, as
well as the documents incorporated by reference in this prospectus supplement
and the accompanying prospectus, as provided in "INCORPORATION OF INFORMATION WE
FILE WITH THE SEC" beginning on page S-38 of this prospectus supplement. Unless
otherwise indicated, (i) all financial and property information is presented as
of March 31, 2003 and (ii) we assume the underwriters' over-allotment option to
purchase up to an additional 300,000 Series B Preferred Shares is not exercised.
THE 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 are traded on the New York Stock Exchange under the symbol
"LXP." 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. As of March 31, 2003,
we had ownership interests in 104 properties, located in 30 states and Canada
and containing an aggregate of approximately 19.8 million net rentable square
feet of space. Thirteen of these properties, containing approximately 4.7
million net rentable square feet of space, were held through joint ventures with
third parties. Approximately 99.2% of the net rentable square feet was leased.
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, through joint ventures and for our own account, expand existing
properties, attract investment grade quality tenants, 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 principal executive offices are located at 355 Lexington Avenue, New
York, New York 10017, our telephone number is (212) 692-7260 and our Internet
address is www.lxp.com.
RECENT DEVELOPMENTS
REMIC FINANCING. We have given notice to the holders of the commercial
mortgage pass-through certificates issued with respect to a segregated pool of
assets consisting of seventeen of our properties (the "REMIC") of our intention
to prepay the REMIC in June, 2003. As of the date of this prospectus supplement,
the REMIC had an outstanding balance of approximately $62.6 million. The REMIC
currently bears interest at a blended rate of 8.16% per annum and is secured by
cross-defaulted mortgages. Upon our prepayment of the REMIC, we will be
obligated to pay a premium estimated to be approximately $6.0 million.
COMMON SHARE OFFERING. On May 5, 2003, we sold 4.5 million common shares
at $16.44 per share, raising net proceeds of $73.9 million.
S-1
REPAYMENT OF INDEBTEDNESS. We utilized a portion of the proceeds of our
recent common share offering (see above) to satisfy the following indebtedness:
PREPAYMENT PENALTY
INDEBTEDNESS AMOUNT REPAID INCURRED DATE OF PAYMENT
------------ ------------- ------------------ ---------------
Unsecured revolving credit facility with Fleet
National Bank................................ $ 9.5 million none May 5, 2003
Mortgage on Chester, SC property............... $10.8 million $0.2 million June 2, 2003
We had expected to utilize a portion of the proceeds from our recent common
share offering to repay (i) the $4.7 million fixed rate mortgage on our Salt
Lake City, Utah property (the "Utah Mortgage") and (ii) the $12.5 million
variable-rate mortgage on our Warren, Ohio property (the "Ohio Mortgage"). The
Utah Mortgage is scheduled for repayment in July, 2003. Currently, we have
determined not to repay the Ohio Mortgage, but rather to utilize the remaining
offering proceeds for the other uses noted in the common share offering.
OWENS CORNING AMENDED PLAN OF REORGANIZATION. Owens Corning, which is our
eighth largest tenant based upon rental revenues, filed for Chapter 11
bankruptcy protection on October 5, 2000. Owens Corning leases two industrial
facilities, aggregating 651,000 square feet, in Hebron, Ohio and a 194,000
square foot industrial facility in Chester, South Carolina. The Hebron, Ohio
facilities were acquired post-bankruptcy and Owens Corning has affirmed the
lease of the Chester, South Carolina facility. We are also developing a property
in Minneapolis, Minnesota which Owens Corning is under contract to lease upon
its completion. On May 23, 2003, Owens Corning filed an amended joint plan of
reorganization which has not yet been approved by the bankruptcy court. As of
the date of this prospectus supplement, Owens Corning is current in all of its
obligations to us.
THE OFFERING
The following is a brief summary of certain terms of this offering. For a
more complete description of the terms of our Series B Preferred Shares, see
"DESCRIPTION OF SERIES B PREFERRED SHARES" beginning on page S-16 of this
prospectus supplement.
Issuer........................ Lexington Corporate Properties Trust
Securities Offered............ 2,000,000 preferred shares of beneficial
interest classified as % Series B
Cumulative Redeemable Preferred Stock
(2,300,000 shares if the underwriters exercise
their over-allotment option in full).
Dividends..................... Investors will be entitled to receive
cumulative cash dividends on the Series B
Preferred Shares at a rate of % of the
$25.00 liquidation preference per year
(equivalent to $ per year per share).
Beginning on August 15, 2003, dividends on the
Series B Preferred Shares will be payable
quarterly in arrears on each of February 15,
May 15, August 15, and November 15 of each year
or, if not a business day, the next succeeding
business day. Dividends on the Series B
Preferred Shares will be cumulative from and
including the date of original issuance, which
is expected to be , 2003. The
first dividend payable on the Series B
Preferred Shares, on August 15, 2003, will be
for less than a full quarter.
Liquidation Preference........ If we liquidate, dissolve or wind up, holders
of our Series B Preferred Shares will have the
right to receive $25.00 per share, plus accrued
and unpaid dividends (whether or not declared)
to and including the date of payment before any
payments are
S-2
made to the holders of our common shares and
any other capital shares ranking junior to the
Series B Preferred Shares as to liquidation
rights. The rights of the holders of the Series
B Preferred Shares to receive their liquidation
preference will be subject to the proportionate
rights of each other series or class of our
capital shares ranking, as to liquidation
rights, on a parity with the Series B Preferred
Shares.
No Maturity Date.............. The Series B Preferred Shares have no maturity
date and we are not required to redeem the
Series B Preferred Shares at any time.
Accordingly, the Series B Preferred Shares will
remain outstanding indefinitely, unless we
decide, at our option on or after June ,
2008, to exercise our redemption right. We are
not required to set aside funds to redeem the
Series B Preferred Shares.
Optional Redemption........... We may not redeem the Series B Preferred Shares
prior to June , 2008, except in limited
circumstances relating to the preservation of
our status as a REIT. On or after June ,
2008, we may, at our option, redeem the Series
B Preferred Shares, in whole or in part, at any
time and from time to time, for cash equal to
$25.00 per share, plus any accrued and unpaid
dividends, if any, to and including the date of
redemption. Any partial redemption will
generally be on a pro rata basis.
Ranking....................... The Series B Preferred Shares will, with
respect to the payment of dividends and amounts
upon liquidation, dissolution or winding up,
rank (i) senior to all classes or series of our
common shares and to all equity securities
ranking junior to our Series B Preferred
Shares, (ii) on a parity with all equity
securities issued by us the terms of which
specifically provide that such equity
securities rank on a parity with our Series B
Preferred Shares, and (iii) junior to all
equity securities issued by us the terms of
which specifically provide that such equity
securities rank senior to our Series B
Preferred Shares. As of the date of this
prospectus supplement, our only outstanding
equity securities are our common shares.
Voting Rights................. Holders of the Series B Preferred Shares will
generally have no voting rights. However, if we
do not pay dividends on the Series B Preferred
Shares for six or more quarterly periods
(whether or not consecutive), the holders of
the Series B Preferred Shares, voting together
as a class with the holders of all other
classes or series of our equity securities
ranking on parity with the Series B Preferred
Shares which are entitled to similar voting
rights, will be entitled to vote at the next
annual meeting of our shareholders for the
election of two additional trustees to serve on
our board of trustees until all unpaid
cumulative dividends have been paid or declared
and set apart for payment. In addition, the
affirmative vote of at least two-thirds of the
Series B Preferred Shares, voting together as a
class with the holders of all other classes or
series of our equity securities ranking on
parity with the Series B Preferred Shares which
are entitled to similar voting rights, is
required for us to authorize, create or
increase capital shares ranking senior to the
S-3
Series B Preferred Shares or to amend our
declaration of trust in a manner that
materially and adversely affects the rights of
the holders of the Series B Preferred Shares.
Listing....................... We have applied to list our Series B Preferred
Shares on the New York Stock Exchange under the
symbol "LXP PrB", subject to official notice of
issuance. We expect that trading on the NYSE
will commence within 30 days after the initial
delivery of the Series B Preferred Shares.
Settlement Date............... Delivery of the Series B Preferred Shares will
be made against payment therefor on or about
June 19, 2003, which will be the
business day following the date
of pricing of the Series B Preferred Shares
(this settlement cycle being referred to as
"T+ "). Accordingly, purchasers who wish to
trade the Series B Preferred Shares on the date
of pricing or the next succeeding
business days will be required,
by virtue of the fact that the Series B
Preferred Shares initially will settle in T+ ,
to specify an alternative settlement cycle at
the time of any such trade to prevent a failed
settlement and should consult their own
advisor.
Form.......................... The Series B Preferred Shares will be issued
and maintained in book-entry form registered in
the name of the nominee of The Depository Trust
Company.
Restrictions on Ownership..... For us to qualify as a REIT under the Internal
Revenue Code, the transfer of our capital
shares, which includes the Series B Preferred
Shares, is restricted. Not more than 50% in
value of our outstanding capital shares may be
owned, directly or constructively, by five or
fewer individuals, as defined in the Internal
Revenue Code. Our declaration of trust provides
that no person or persons acting as a group may
own, or be deemed to own by virtue of the
attribution rules of the Internal Revenue Code,
subject to limited exceptions, more than 9.8%
of the value of our outstanding capital shares.
See "DESCRIPTION OF SERIES B PREFERRED
SHARES -- Restrictions on Ownership beginning
on page S-21 of this prospectus supplement and
"RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES
AND ANTI-TAKEOVER PROVISIONS" beginning on page
S-22 of this prospectus supplement and on page
25 of the accompanying prospectus.
No Conversion................. The Series B Preferred Shares are not
convertible into, or exchangeable for, any
other property or securities, except that we
may exchange shares of the Series B Preferred
Shares for shares of excess stock in order to
ensure that we remain a qualified real estate
investment trust for federal income tax
purposes.
Use of Proceeds............... We expect that the net proceeds from this
offering will be approximately $ million after
deducting underwriting discounts and
commissions and our expenses (or approximately
$ million if the underwriters exercise their
over-allotment option in full). We expect to
use the net proceeds to repay the REMIC, but
may also use the net proceeds (i) to repay
other indebtedness, (ii) to fund future
acquisitions, and (iii) for general business
S-4
purposes. See "USE OF PROCEEDS" beginning on
page S-15 of this prospectus supplement.
Risk Factors.................. See "RISK FACTORS" beginning on page S-7 of
this prospectus supplement and other
information contained herein for a discussion
of factors you should carefully consider before
deciding to invest in the Series B Preferred
Shares.
For additional information regarding the terms of the Series B Preferred
Shares, see "DESCRIPTION OF SERIES B PREFERRED SHARES" beginning on page S-16 of
this prospectus supplement.
RATIOS OF EBITDA AND EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED SHARE DIVIDENDS
RATIO OF EBITDA TO COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDENDS
PRO FORMA(1) HISTORICAL
------------------------ --------------------------------------------
THREE THREE
MONTHS MONTHS
ENDED YEAR ENDED ENDED
MARCH 31, DECEMBER 31, MARCH 31, YEAR ENDED DECEMBER 31,
--------- ------------ --------- --------------------------------
2003 2002 2003 2002 2001 2000 1999 1998
--------- ------------ --------- ---- ---- ---- ---- ----
RATIO OF EBITDA TO COMBINED FIXED
CHARGES AND PREFERRED SHARE
DIVIDENDS........................ 2.48 2.45 2.12 2.02 1.98 2.12
EBITDA is a widely used performance measure. We compute EBITDA as the sum
of net income before extraordinary items, interest expense, depreciation and
amortization, income taxes and gain (loss) on sale of real estate. Given the
nature of our business as a real estate owner and operator, we believe that the
ratio of EBITDA to combined fixed charges and preferred share dividends, as
opposed to the ratio of earnings to combined fixed charges and preferred share
dividends, is helpful to investors as a measure of our operational performance
because the EBITDA ratio excludes various items included in the earnings ratio
that do not relate to or are not indicative of our operating performance, such
as gains and losses on sales of real estate and real estate related depreciation
and amortization. Accordingly, we believe EBITDA provides a meaningful
performance measure particularly as it relates to our ability to meet our fixed
charges and preferred share dividend requirements for the stated period.
EBITDA should not be considered as an alternative to net income as an
indicator of our financial performance, or as an alternative to cash flow from
operating activities as a measure of our liquidity. Our computation of EBITDA
may differ from the methodology utilized by other companies to calculate EBITDA.
RECONCILIATION OF NET INCOME TO EBITDA
PRO FORMA(1) HISTORICAL
------------------------ -----------------------------------------------------------
THREE THREE
MONTHS MONTHS
ENDED YEAR ENDED ENDED
MARCH 31, DECEMBER 31, MARCH 31, YEAR ENDED DECEMBER 31,
--------- ------------ --------- -----------------------------------------------
2003 2002 2003 2002 2001 2000 1999 1998
--------- ------------ --------- ------- ------- ------- ------- -------
NET INCOME BEFORE
EXTRAORDINARY
ITEMS.............. $10,125 $36,446 $ 8,763 $30,940 $21,206 $21,952 $21,347 $15,737
INTEREST EXPENSE..... 8,079 28,288 9,368 33,502 29,732 29,581 29,099 23,055
DEPRECIATION AND
AMORTIZATION....... 6,820 23,083 6,893 23,375 19,952 19,010 18,991 16,070
INCOME TAXES......... 74 262 74 262 204 126 115 261
(GAIN) LOSS ON SALE
OF REAL ESTATE..... (885) (1,172) (885) (1,172) -- (2,959) (5,127) 388
------- ------- ------- ------- ------- ------- ------- -------
EBITDA............... $24,213 $86,907 $24,213 $86,907 $71,094 $67,710 $64,425 $55,511
======= ======= ======= ======= ======= ======= ======= =======
S-5
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDENDS
The following table sets forth the ratio of earnings to combined fixed
charges and preferred share dividends for the periods indicated:
PRO FORMA(1) HISTORICAL
------------------------ --------------------------------------------
THREE THREE
MONTHS MONTHS
ENDED YEAR ENDED ENDED
MARCH 31, DECEMBER 31, MARCH 31, YEAR ENDED DECEMBER 31,
--------- ------------ --------- --------------------------------
2003 2002 2003 2002 2001 2000 1999 1998
--------- ------------ --------- ---- ---- ---- ---- ----
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED SHARE
DIVIDENDS........................ 1.91 1.88 1.57 1.55 1.58 1.51
---------------
(1) Reflects repayment of the REMIC but does not include the prepayment premium
payable with respect to such repayment estimated to be approximately $6.0
million and the write-off of deferred financing charges of $0.6 million. The
pro forma information presented does not reflect the retirement of
indebtedness with proceeds from our recently completed common share
offering.
S-6
RISK FACTORS
In evaluating an investment in our Series B Preferred Shares, you should
carefully consider the following factors, in addition to other information set
forth or incorporated by reference in this prospectus supplement or in the
accompanying prospectus. See "INCORPORATION OF INFORMATION WE FILE WITH THE SEC"
on page S-38 of this prospectus supplement.
NO ESTABLISHED TRADING MARKET FOR THE SERIES B PREFERRED SHARES. The
Series B Preferred Shares are a new issue of securities with no established
trading market. Since the securities have no stated maturity date, investors
seeking liquidity will be limited to selling their Series B Preferred Shares in
the secondary market. We have applied to list our Series B Preferred Shares on
the New York Stock Exchange under the symbol "LXP PrB", subject to official
notice of issuance. However, an active trading market on the NYSE for the shares
may not develop or, even if it develops, may not last, in which case the trading
price of the shares could be adversely affected and your ability to transfer
your Series B Preferred Shares will be limited. We have been advised by the
underwriters that prior to acceptance of the Series B Preferred Shares for
listing on the NYSE, they intend to make a market in the Series B Preferred
Shares, but they are not obligated to do so and may discontinue market-making at
any time without notice.
FACTORS AFFECTING TRADING PRICE OF THE SERIES B PREFERRED SHARES. The
trading price of the Series B Preferred Shares may depend on many factors,
including:
- prevailing interest rates;
- the market for similar securities;
- additional issuances of other series or classes of preferred shares;
- general economic conditions; and
- our financial condition, performance and prospects.
SERIES B PREFERRED SHARES HAVE NOT BEEN RATED AND ARE SUBORDINATED TO
EXISTING AND FUTURE DEBT; NO RESTRICTION ON ISSUANCE OF PARITY PREFERRED
SECURITIES. The Series B Preferred Shares have not been rated by any nationally
recognized statistical rating organization. Furthermore, payment of amounts due
on the Series B Preferred Shares will be subordinated to all of our existing and
future debt and will be structurally subordinate to the payment of our
third-party joint venture partners of distributions from such third-party joint
ventures in which we invest. In addition, we may issue additional Series B
Preferred Shares and/or shares of another class or series of preferred shares
ranking on a parity with (or, upon the affirmative vote or consent of the
holders of two-thirds of the outstanding Series B Preferred Shares, voting
together as a class with the holders of all other classes or series of our
equity securities ranking on parity with the Series B Preferred Shares which are
entitled to similar voting rights, senior to) the Series B Preferred Shares with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up. These factors may affect the trading
price of the Series B Preferred Shares.
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 resulting in the
termination of a lease is likely to 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 March 31, 2003, our fifteen largest tenants/guarantors, which occupied 29
properties, represented $14.8 million, or 47.8%, of our rental revenue for the
three months ended March 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
S-7
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.
Kmart Corporation, our largest tenant based upon rental revenues, filed for
Chapter 11 bankruptcy protection on January 22, 2002. On April 23, 2003, Kmart's
plan of reorganization was approved, and on May 6, 2003, Kmart emerged from
bankruptcy and affirmed our lease. Kmart leases a 1.7 million square foot
distribution facility in Warren, Ohio. We have no retail properties leased to
Kmart. The Kmart lease expires on September 30, 2007. Annual net cash rents are
currently $9.4 million ($5.50 per square foot) and annual net rents on a
straight-line basis are $8.9 million. Net GAAP rents from Kmart for the three
months ended March 31, 2003 represented approximately 7.2% of our rental revenue
for such period, including our proportionate share of rental revenue from
non-consolidated entities and rental revenue recognized from properties sold
through date of sale. Prior to May 6, 2003, rent had been payable semi-annually
in arrears. Effective as of May 6, 2003, rent has become payable monthly in
advance. At March 31, 2003, we had $9.6 million in accounts receivable from
Kmart, including $3.0 million in pre-bankruptcy petition rent for the period
from October 1, 2001 through January 21, 2002 and other past due amounts, plus
$1.9 million in straight line rents receivable. On April 1, 2003, Kmart made its
scheduled semi-annual rental payment of $4.7 million. On May 13, 2003, Kmart
paid $3.0 million in pre-bankruptcy petition rent and other past due amounts and
$1.6 million in rent for April 2003 and May 2003. In consideration for Kmart
making monthly rental payments in advance, we agreed to remit to Kmart a monthly
management fee of $41,667. In addition, Kmart has made its required June, 2003
rental payment.
The Kmart facility is subject to a 7% imputed interest rate non-recourse
mortgage note with an outstanding balance of $23.4 million as of the date of
this prospectus supplement, which fully amortizes by maturity on October 1,
2007. Annual debt service on the non-recourse first mortgage note is $6.2
million, and the next debt service payment is due October 1, 2003. The property
is also subject to an interest-only second mortgage loan, which is a recourse
obligation to us, with a variable interest rate of 90-day LIBOR plus 3.75% and
an outstanding principal balance of $12.5 million as of the date of this
prospectus supplement.
There can be no assurance that Kmart will not experience further financial
difficulties in the future. If Kmart were to experience further financial
difficulties in the future, it may determine to again file for bankruptcy
protection and reject our lease, which would result in a significant decrease in
our rental revenue, funds from operations and funds available for distribution
to shareholders if we are unable to re-lease promptly or if any new rental rates
are significantly lower than Kmart's current rent. We would also risk loss of
the property to lender foreclosure in the event we do not continue to make all
required debt service payments with respect to the mortgage debt on the
property. In addition, a default by us on the first mortgage would also be
considered a default of the second mortgage whereby the entire $12.5 million
second mortgage plus a 3% prepayment penalty would be immediately payable to the
lender. The prepayment penalty decreases by 1% each March 8th until March 8,
2006, after which no prepayment penalty would be due.
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 with Fleet
National Bank 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 March 31, 2003, we had $22.5 million in outstanding
borrowings under our $60.0 million unsecured
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credit facility and an additional $58.0 million in variable-rate indebtedness,
which does not include $24.0 million for non-consolidated entities. Subsequent
to March 31, 2003, we repaid all of the outstanding borrowings under our credit
facility and an additional $11.4 million in variable-rate indebtedness.
As of March 31, 2003, our consolidated variable-rate indebtedness
represented 14.6% of total mortgages and notes payable and had a weighted
average interest rate of 4.4%. 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. As of March 31, 2003, our consolidated fixed-rate
indebtedness had a weighted average interest rate of 7.4%. Following repayment
of the REMIC and the $4.7 million first mortgage on our Salt Lake City, Utah
property, our consolidated fixed rate indebtedness would have a weighted average
interest rate of 7.3%.
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 supplement, the scheduled balloon payments, including
those to be made by non-consolidated entities, for the next five calendar years
(adjusted to reflect the use of the proceeds of this offering to repay
indebtedness in the manner set forth under "USE OF PROCEEDS" on page S-15 of
this prospectus supplement) are as follows:
- 2003-$24.0 million;
- 2004-$14.5 million;
- 2005-$16.5 million;
- 2006-$0; and
- 2007-$12.5 million.
The balloon payment scheduled for 2003 is a non-recourse mortgage note
secured by a property held by Lexington Acquiport Company, LLC, a
non-consolidated entity in which we have a 33 1/3 % equity interest. The note
becomes prepayable without penalty in August 2003. We have arranged, subject to
certain conditions, for a $21.4 million fixed rate, non-recourse mortgage note,
the proceeds of which will be used, along with an additional equity contribution
of $2.6 million, to satisfy the current note in August 2003. The replacement
note bears interest at 5.42%, requires annual debt service payments of $1.5
million and matures in August 2012 when a balloon payment of $17.5 million is
due.
Our ability to make the scheduled balloon payments will depend upon the
amount available under our unsecured 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.
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
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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 supplement, our
scheduled lease maturities for the next five years are as follows:
CURRENT
NUMBER OF ANNUAL RENT PERCENTAGE OF TOTAL
LEASES MATURING IN: LEASES ($000) ANNUAL RENT
------------------- --------- ----------- -------------------
2003.......................................... 1 $ 1,742 1.4%
2004.......................................... 2 687 0.5
2005.......................................... 7 8,074 6.4
2006.......................................... 14 14,142 11.3
2007.......................................... 10 17,511 13.9
-- ------- ----
Total.................................... 34 $42,156 33.5%
== ======= ====
DEFAULTS ON CROSS-COLLATERALIZED PROPERTIES. As of the date of this
prospectus supplement, the mortgages on two of our properties, in Canton, Ohio
and Spartansburg, South Carolina, are cross-collateralized and seventeen of our
properties are part of a segregated pool of assets with respect to which
commercial mortgage pass-through certificates were issued. As noted under "USE
OF PROCEEDS" on page S-15 of this prospectus supplement, we intend to repay
these certificates with the proceeds of this offering. 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 certain hazardous or toxic substances at, on, in or
under our property, as well as certain 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 any of our tenants 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.
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 supplement, 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:
- the discovery of previously unknown environmental conditions;
- changes in law;
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- activities of tenants; or
- 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 customarily carried 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 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. The terrorist attacks which occurred in New
York City, Pennsylvania and Washington, D.C. on September 11, 2001, and the
subsequent military actions taken by the United States and its allies in
response, including the military conflicts in Afghanistan and Iraq, have caused
significant uncertainty in the global financial markets. While the short-term
and long-term effects of these events and their potential consequences are
uncertain, they 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.
In addition, 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 with greater financial
resources than we have that 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.
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, 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 Internal Revenue 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
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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 net taxable 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 Internal
Revenue 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.
INABILITY TO CARRY OUT GROWTH STRATEGY. Our growth strategy is based on
the acquisition and development of additional properties, including acquisitions
through co-investment programs such as joint ventures. 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 to the 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 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.
OWNERSHIP LIMITATIONS. For us to qualify as a REIT for federal income tax
purposes, among other requirements, not more than 50% of the value of our
capital shares may be owned, directly or indirectly,
S-12
by five or fewer individuals (as defined for federal income tax purposes to
include certain entities) during the last half of each taxable year after 1993,
and such 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 our
capital shares 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 our capital shares 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.
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 supplement, other than the Series B Preferred Shares being offered
hereby, we had previously established one series of preferred shares, none of
which are currently outstanding. 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 six 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 of our company.
CONCENTRATION OF OWNERSHIP BY CERTAIN INVESTORS. As of the date of this
prospectus supplement, E. Robert Roskind, the chairman of our board of trustees,
owned or controlled (including through trusts with respect to which he is a
beneficiary) 561,622 common shares, 1,487,183 operating partnership units which
are currently convertible into common shares, and options to purchase 25,000
common shares, representing 5.7% of our total 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 supplement, this joint venture has made
investments in eleven properties for $363.8 million. We have a 33 1/3% equity
interest in this joint venture. In December 2001, we formed a second joint
venture with CRF to acquire additional properties in an aggregate amount of up
to $560 million. We have a 25% equity interest in this joint venture. To date,
this joint venture has made no investments. The joint venture agreements allow
CRF to put its equity position in the joint ventures to us although as of the
date of this prospectus supplement such right is only effective with respect to
the first joint venture. At our option we may either issue our common shares for
the fair market value of CRF's equity position or cash for 110% of the fair
market value of CRF's equity position. The per common share value of shares
issued for CRF's equity position will be the greater of (i) the price of the our
common shares on the closing date, (ii) our funds from operations per share (as
defined) multiplied by 8.5 or (iii) $13.40 for properties in the first joint
venture, and $15.20 for properties in the second joint venture. We have the
right not to accept any property (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.
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.
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 co-venturer might,
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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 co-venturer 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.
CONFLICTS OF INTEREST WITH RESPECT TO SALES AND REFINANCINGS. Two of our
trustees and officers own units of limited partnership interest in our operating
partnerships and, as a result, may face different and more adverse tax
consequences than you will if we sell or reduce our mortgage indebtedness on our
properties. Those individuals may, therefore, have different objectives than you
regarding the appropriate pricing and timing of any sale of such 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.
LIMITATIONS ON SALE OF CERTAIN PROPERTIES. We have agreed with the seller
of one of our properties not to sell the property for a period of time in a
taxable transaction, subject to certain exceptions. We may enter into similar
agreements in connection with future property acquisitions. These agreements
generally provide that we may dispose of these properties in transactions that
qualify as tax-free exchanges under Section 1031 of the Internal Revenue Code of
1986, as amended. Therefore, we may be precluded from selling these properties
other than in transactions that would qualify as tax-free exchanges for federal
income tax purposes, even if it would be in your best interest to do so. This
restriction expires on January 1, 2004. As of March 31, 2003, the net book value
of this property approximated $5.1 million.
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 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
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ownership limits. We recommend that you read "DESCRIPTION OF COMMON SHARES --
Restrictions on Ownership" beginning on page 24 of the accompanying prospectus,
"DESCRIPTION OF SERIES B PREFERRED SHARES -- Restrictions on Ownership"
beginning on page S-21 of this prospectus supplement, and "RESTRICTIONS ON
TRANSFERS OF CAPITAL SHARES AND ANTI-TAKEOVER PROVISIONS" beginning on page S-22
of this prospectus supplement and on page 25 of the accompanying 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 expect that the net proceeds from this offering will be approximately
$ million after deducting underwriting discounts and commissions and our
expenses (or approximately $ million if the underwriters exercise their
over-allotment option in full). We intend to use the net proceeds (and cash, if
required) to repay the following four commercial mortgage pass-through
certificates which were issued with respect to a segregated pool of assets
consisting of seventeen of our properties (the "REMIC"):
CERTIFICATE OUTSTANDING BALANCE(1) INTEREST RATE
----------- ---------------------- -------------
A........................................................... $26,564,361.00 7.6175%
B........................................................... 18,500,000.00 8.1875
C........................................................... 17,500,000.00 8.9575
R........................................................... 781.30 7.6175
-------------- ------
Total/Average............................................... $62,565,142.30 8.1609%(2)
============== ======
---------------
(1) As of the date of this prospectus supplement.
(2) Weighted average interest rate
The REMIC matures on May 25, 2005. Upon our prepayment of the REMIC, we
will be obligated to pay a premium estimated to be approximately $6.0 million.
To the extent that the proceeds of this offering are not sufficient to prepay
the REMIC (including the premium), we will obtain the balance of the funds
necessary to prepay the REMIC from our existing working capital, including the
proceeds of our recent common share offering in May, 2003. We have given notice
to the holders of the REMIC of our intention to prepay the REMIC in June, 2003.
We reserve the right to substitute other indebtedness for repayment and/or
to utilize the proceeds of this offering to (i) fund future acquisitions, and
(ii) for general business purposes.
S-15
DESCRIPTION OF SERIES B PREFERRED SHARES
The following description of the material terms and provisions of the
Series B Preferred Shares is only a summary and is qualified in its entirety by
reference to our declaration of trust, the articles supplementary to our
declaration of trust establishing the Series B Preferred Shares and our by-laws,
each of which is incorporated by reference in this prospectus supplement and the
accompanying prospectus.
GENERAL
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. Our board of trustees may classify and re-classify any unissued shares
of beneficial interest 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 of beneficial interest.
Prior to the closing of this offering, our board of trustees will adopt
articles supplementary to our declaration of trust establishing the number and
fixing the terms, designations, powers, preferences, rights, limitations and
restrictions of a series of our preferred shares classified as % Series B
Cumulative Redeemable Preferred Stock. Our board of trustees has authorized up
to 2,300,000 Series B Preferred Shares. We will issue 2,000,000 Series B
Preferred Shares (2,300,000 shares if the underwriters' over-allotment option is
exercised in full) in this offering. As of the closing of this offering, we will
have no other classes or series of preferred shares authorized, issued or
outstanding; all of our Series A Senior Cumulative Convertible Preferred Stock,
par value $0.0001 per share, were converted into our common shares in April,
2002. Our board of trustees has reclassified the authorized shares of our Series
A Senior Cumulative Convertible Preferred Stock into shares of preferred stock
and prior to the closing of this offering we will file articles supplementary
with the Maryland State Department of Assessments and Taxation to give effect to
this reclassification. When issued, the Series B Preferred Shares will be
validly issued, fully paid and non-assessable.
No market currently exists for our Series B Preferred Shares. We have
applied to list our Series B Preferred Shares on the New York Stock Exchange
under the symbol "LXP PrB", subject to official notice of issuance. We expect
that trading on the NYSE will commence within 30 days after the initial delivery
of the Series B Preferred Shares.
We own a substantial portion of our properties through our three operating
partnership subsidiaries of which we wholly own the sole general partner and the
holder of a majority of the operating partnership units and in which the
minority limited partners are generally entitled to (i) receive distributions
which are in the same or lesser amounts than the dividends we pay on our common
shares and (ii) convert their minority operating partnership units on a one for
one basis into our common shares. These operating partnership subsidiaries are
jointly and severally obligated to pay to us an amount, which, when taken
together with other funds we have available for such dividends, will be equal to
the declared and unpaid dividends on the Series B Preferred Shares before paying
any distributions (from operations or upon liquidation) on account of their
outstanding operating partnership units.
RANK
The Series B Preferred Shares will, with respect to rights to the payment
of dividends and the distribution of assets in the event of our liquidation,
dissolution or winding up, rank: (i) senior to all classes or series of our
common shares and to all equity securities ranking junior to our Series B
Preferred Shares with respect to dividend rights and rights upon our
liquidation, dissolution or winding-up, (ii) on a parity with all equity
securities issued by us the terms of which specifically provide that such equity
securities rank on a parity with our Series B Preferred Shares with respect to
dividend rights and rights upon our liquidation, dissolution or winding-up, and
(iii) junior to all equity securities issued by us the terms of which
specifically provide that such equity securities rank senior to our Series B
Preferred Shares with respect to dividend rights and rights upon our
liquidation, dissolution or winding-up. For these purposes, the term "equity
securities" does not include convertible debt securities.
S-16
DIVIDENDS
Subject to the preferential rights of the holders of any class or series of
our capital shares ranking senior to the Series B Preferred Shares as to
dividends, the holders of our Series B Preferred Shares will be entitled to
receive, when, as and if declared by our board of trustees, out of funds legally
available for the payment of dividends, cumulative cash dividends at a rate of
% of the $25.00 liquidation preference per year (equivalent to $ per
year per share). These dividends will accrue and be cumulative from and
including the date of original issuance of the Series B Preferred Shares and
will be payable quarterly in arrears on each of February 15, May 15, August 15,
and November 15 of each year (or, if not a business day, the next succeeding
business day) in respect of the quarterly distribution periods ending on
December 31, March 31, June 30, and September 30, respectively. The dividend
payable on the Series B Preferred Shares on August 15, 2003 will be a pro rata
dividend from the original issue date to June 30, 2003 in the amount of
$ per share. Future dividends payable on the Series B Preferred Shares for
any partial dividend period will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Dividends will be payable to holders of
record as they appear in our shareholder records at the close of business on the
applicable record date, which will be a date designated by our board of trustees
for the payment of dividends that is not more than 30 days nor less than 10 days
before the dividend payment date.
We will not declare dividends on the Series B Preferred Shares, or pay or
set apart for payment dividends on the Series B Preferred Shares, at any time if
the terms and provisions of any of our agreements, including any agreement
relating to our indebtedness, prohibits the declaration, payment or setting
apart for payment or provides that the declaration, payment or setting apart for
payment would constitute a breach of or a default under the agreement, or if the
declaration, payment or setting apart for payment is restricted or prohibited by
law.
Notwithstanding the foregoing, dividends on the Series B Preferred Shares
will accrue whether or not we have earnings, whether or not there are funds
legally available for the payment of those dividends and whether or not those
dividends are declared. Except as described in the next paragraph, unless full
cumulative dividends on the Series B Preferred Shares have been or
contemporaneously are declared and paid in cash or declared and a sum sufficient
for the payment thereof is set apart for payment for all past dividend periods
and the then current dividend period:
- no dividends, other than distributions in kind of our common shares or
other capital shares ranking junior to our Series B Preferred Shares as
to distributions and upon liquidation, may be declared or paid or set
aside for payment, and no other dividend may be declared or made upon,
our common shares or any other capital shares ranking junior to or on a
parity with our Series B Preferred Shares as to distributions or upon
liquidation (other than pro rata dividends on preferred shares ranking on
a parity as to distributions with the Series B Preferred Shares); and
- no common shares or any other capital shares ranking junior to or on a
parity with our Series B Preferred Shares as to distributions or upon
liquidation may be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by us, except (i) by
conversion into or exchange for other capital shares ranking junior to
the Series B Preferred Shares as to distributions and amounts upon
liquidation and (ii) in accordance with certain provisions of our
declaration of trust, under which Series B Preferred Shares owned by a
shareholder in excess of the ownership limit discussed under
"-- Restrictions on Ownership" herein and under "RESTRICTIONS ON
TRANSFERS OF CAPITAL SHARES AND ANTI-TAKEOVER PROVISIONS" beginning on
page S-22 of this prospectus supplement and on page 25 of the
accompanying prospectus will be transferred to a trust for the exclusive
benefit of one or more charitable beneficiaries and may be purchased by
us under certain circumstances.
When we do not pay dividends in full (or we do not set apart a sum
sufficient to pay them in full) upon the Series B Preferred Shares and the
shares of any other class or series of capital shares ranking, as to dividends,
on a parity with the Series B Preferred Shares, we will declare any dividends
upon the
S-17
Series B Preferred Shares and each such other class or series of capital shares
ranking, as to dividends, on a parity with the Series B Preferred Shares
proportionately so that the amount of dividends declared per share of Series B
Preferred Shares and such other class or series of capital shares will in all
cases bear to each other the same ratio that accrued dividends per share on the
Series B Preferred Shares and such other class or series of preferred shares
(which will not include any accrual in respect of unpaid dividends on such other
class or series of capital shares for prior dividend periods if such other class
or series of capital shares does not have a cumulative dividend) bear to each
other. No interest, or sum of money in lieu of interest, will be payable in
respect of any dividend payment or payments on the Series B Preferred Shares
which may be in arrears.
Holders of Series B Preferred Shares are not entitled to any dividend,
whether payable in cash, property or capital shares, in excess of full
cumulative dividends on the Series B Preferred Shares as described above. Any
dividend payment made on the Series B Preferred Shares will first be credited
against the earliest accrued but unpaid dividends due with respect to those
shares which remain payable. Accrued but unpaid dividends on the Series B
Preferred Shares will accumulate as of the due date for the dividend payment on
which they first become payable.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding-up of
our affairs, the holders of our Series B Preferred Shares will be entitled to be
paid out of our assets legally available for distribution to our shareholders a
liquidation preference of $25.00 per share, plus an amount equal to any accrued
and unpaid dividends to the date of payment (whether or not declared), before
any distribution or payment may be made to holders of common shares or any other
class or series of our capital shares ranking, as to liquidation rights, junior
to the Series B Preferred Shares. If, upon our voluntary or involuntary
liquidation, dissolution or winding up, our available assets are insufficient to
pay the full amount of the liquidating distributions on all outstanding Series B
Preferred Shares and the corresponding amounts payable on all shares of each
other class or series of capital shares ranking, as to liquidation rights, on a
parity with the Series B Preferred Shares, then the holders of the Series B
Preferred Shares and each such other class or series of capital shares ranking,
as to liquidation rights, on a parity with the Series B Preferred Shares will
share proportionately in any distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled. Holders of Series B Preferred Shares will be entitled to written
notice of any liquidation. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series B Preferred
Shares will have no right or claim to any of our remaining assets. For these
purposes, our consolidation or merger with or into any other corporation, trust
or other entity, or the sale, lease, transfer or conveyance of all or
substantially all of our property or business, will not be deemed to constitute
our liquidation, dissolution or winding-up.
REDEMPTION
Our Series B Preferred Shares are not redeemable before June , 2008.
However, in order to ensure that we remain qualified as a REIT for federal
income tax purposes, the Series B Preferred Shares will be subject to certain
provisions of our declaration of trust under which Series B Preferred Shares
owned by a shareholder in excess of the ownership limit discussed under
"-- Restrictions on Ownership" herein and under "RESTRICTIONS ON TRANSFERS OF
CAPITAL SHARES AND ANTI-TAKEOVER PROVISIONS" beginning on page S-22 of this
prospectus supplement and on page 25 of the accompanying prospectus will be
transferred to a trust for the exclusive benefit of one or more charitable
beneficiaries and may be purchased by us under certain circumstances. On or
after June , 2008, we may, at our option upon not less than 30 days nor more
than 60 days' written notice, redeem the Series B Preferred Shares, in whole or
in part, at any time or from time to time, for cash at a redemption price of
$25.00 per share plus all accrued and unpaid dividends (whether or not declared)
to and including the date fixed for redemption, without interest.
Holders of Series B Preferred Shares to be redeemed must surrender such
Series B Preferred Shares at the place designated in such notice and will be
entitled to the redemption price and any accrued and
S-18
unpaid dividends payable upon such redemption following such surrender. If fewer
than all the outstanding Series B Preferred Shares are to be redeemed, the
Series B Preferred Shares to be redeemed will be selected pro rata (as nearly as
may be practicable without creating fractional Series B Preferred Shares) or by
any other equitable method determined by us that will not result in a violation
of the ownership restrictions in our declaration of trust applicable to owners
of our shares of beneficial interest. See "-- Restrictions on Ownership" and
"RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES AND ANTI-TAKEOVER PROVISIONS"
beginning on page S-22 of this prospectus supplement and on page 25 of the
accompanying prospectus. If we have (i) given notice of redemption of any Series
B Preferred Shares, (ii) irrevocably set aside the funds necessary for the
redemption in trust for the benefit of the holders of any Series B Preferred
Shares so called for redemption, and (iii) given irrevocable instructions to pay
the redemption price and all accrued and unpaid dividends, then from and after
the redemption date dividends will cease to accrue on such Series B Preferred
Shares, the Series B Preferred Shares will no longer be deemed outstanding and
all rights of the holders of Series B Preferred Shares will terminate, except
the right to receive the redemption price plus any accrued and unpaid dividends
payable upon the redemption, without interest. The redemption provisions of the
Series B Preferred Shares do not in any way limit or restrict our right or
ability to purchase, from time to time either at a public or a private sale, all
or any part of the Series B Preferred Shares at such price or prices as we may
determine, subject to the provisions of applicable law, to the provisions
described under "-- Dividends" herein and to the provisions described in the
next paragraph.
Unless we have declared and paid in cash, or we are contemporaneously
declaring and paying, or we have declared and set aside a sum sufficient for the
payment of, the full cumulative dividends on all Series B Preferred Shares for
all past dividend periods and the then current dividend period, we may not
redeem any Series B Preferred Shares unless we simultaneously redeem all
outstanding Series B Preferred Shares, and we will not purchase or otherwise
acquire directly or indirectly any Series B Preferred Shares or any class or
series of capital shares ranking, as to dividends or upon liquidation, on a
parity with or junior to the Series B Preferred Shares except by exchange for
capital shares ranking junior, as to dividends and upon liquidation, to the
Series B Preferred Shares; except that we may purchase Series B Preferred Shares
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding Series B Preferred Shares or, subject to certain provisions of
our declaration of trust, we may, under certain circumstances, purchase Series B
Preferred Shares owned by a shareholder in excess of the ownership limit.
We will mail or cause to be mailed a notice of redemption, postage prepaid,
not less than 30 days nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series B Preferred Shares
to be redeemed at their respective addresses as they appear on the share
transfer records of the transfer agent. No failure to give such notice or any
defect in the notice or in the mailing thereof will affect the sufficiency of
notice or validity of the proceedings for the redemption of any Series B
Preferred Shares except as to a holder to whom notice was defective or not
given. A redemption notice will be conclusively presumed to have been duly given
on the date mailed whether or not the holder actually received the redemption
notice. Each notice will state (i) the redemption date; (ii) the redemption
price and accrued and unpaid dividends payable on the redemption date; (iii) the
number of Series B Preferred Shares to be redeemed; (iv) the place or places
where the Series B Preferred Shares are to be surrendered for payment of the
redemption price and accrued and unpaid dividends payable on the redemption
date; and (v) that dividends on the Series B Preferred Shares to be redeemed
will cease to accrue on the redemption date. If we redeem fewer than all of the
Series B Preferred Shares held by any holder, the notice mailed to such holder
will also specify the number of Series B Preferred Shares held by such holder to
be redeemed.
Immediately prior to any redemption of the Series B Preferred Shares, we
will pay, in cash, any accrued and unpaid dividends to the redemption date,
whether or not declared, unless a redemption date falls after a dividend record
date and on or prior to the corresponding dividend payment date, in which case
each holder of Series B Preferred Shares at the close of business on such
dividend record date will be entitled to the dividend payable on such shares on
the corresponding dividend payment date
S-19
notwithstanding the redemption of such shares before the dividend payment date.
Except as described above, we will make no payment or allowance for unpaid
dividends, whether or not in arrears, on Series B Preferred Shares for which a
notice of redemption has been given.
Any Series B Preferred Shares that we redeem or repurchase will be
authorized but unissued Series B Preferred Shares until reclassified into
another class or series of capital stock.
The Series B Preferred Shares will have no stated maturity and will not be
subject to any sinking fund or mandatory redemption. However, in order to ensure
that we remain qualified as a REIT for federal income tax purposes, the Series B
Preferred Shares will be subject to provisions of our declaration of trust,
under which Series B Preferred Shares owned by a shareholder in excess of the
ownership limit discussed under "-- Restrictions on Ownership" herein and under
"RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES AND ANTI-TAKEOVER PROVISIONS"
beginning on page S-22 of this prospectus supplement and on page 25 of the
accompanying prospectus will be transferred to a trust and may be purchased by
us under certain circumstances.
VOTING RIGHTS
Holders of the Series B Preferred Shares will not have any voting rights,
except as provided by applicable law and as described below.
If we do not pay dividends on the Series B Preferred Shares for six or more
quarterly periods (whether or not consecutive), a preferred dividend default
will exist, and the holders of the Series B Preferred Shares, voting together as
a class with the holders of all other classes or series of our equity securities
ranking on parity with the Series B Preferred Shares which are entitled to
similar voting rights, will be entitled to vote at the next annual meeting of
our shareholders and at each subsequent meeting for the election of two
additional trustees to serve on our board of trustees. Notwithstanding the
foregoing, if, prior to the election of any additional trustees in the manner
described in this paragraph, all accumulated dividends are paid on the Series B
Preferred Shares and all other classes or series of parity preferred shares upon
which like voting rights have been conferred and are exercisable, no such
additional trustees will be so elected. Any such additional trustees so elected
will serve until all unpaid cumulative dividends have been paid or declared and
set apart for payment. Upon such election, the number of members of the size of
our board of trustees will be increased by two trustees. If and when all such
accumulated dividends shall have been paid on the Series B Preferred Shares and
all other classes or series of parity preferred shares upon which like voting
rights have been conferred and are exercisable, the term of office of each of
the additional trustees so elected will terminate and the size of our board of
trustees will be reduced accordingly. So long as a preferred dividend default
continues, any vacancy in the office of additional trustees elected under this
paragraph may be filled by written consent of the other additional trustee who
remains in office, or if no additional trustee remains in office, by a vote of
the holders of a majority of the outstanding Series B Preferred Shares when they
have the voting rights described above (voting as a single class with all other
classes or series of parity preferred shares upon which like voting rights have
been conferred and are exercisable). Each of the trustees elected as described
in this paragraph will be entitled to one vote on any matter.
The affirmative vote or consent of the holders of two-thirds of the
outstanding Series B Preferred Shares and each other class or series of
preferred shares ranking on a parity with respect to the payment of dividends or
the distribution of assets upon our liquidation, dissolution or winding up,
voting as a single class, will be required to (i) authorize or create, or
increase the authorized or issued amount of, any class or series of capital
shares ranking senior to the Series B Preferred Shares with respect to payment
of dividends or the distribution of assets upon our liquidation, dissolution or
winding-up or reclassify any of our authorized shares into capital shares of
that kind, or create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such capital shares; or (ii) amend,
alter or repeal the provisions of the declaration of trust or articles
supplementary, whether by merger, consolidation, transfer or conveyance of
substantially all of its assets or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of the Series B
Preferred Shares or its holders; except that with respect to the occurrence of
any of the events
S-20
described in (ii) above, so long as the Series B Preferred Shares remains
outstanding with the terms of the Series B Preferred Shares materially
unchanged, taking into account that, upon the occurrence of an event described
in (ii) above, we may not be the surviving entity, the occurrence of such event
will not be deemed to materially and adversely affect the rights, preferences,
privileges or voting power of holders of Series B Preferred Shares, and in such
case such holders shall not have any voting rights with respect to the events
described in (ii) above.
Holders of Series B Preferred Shares shall not be entitled to vote with
respect to (A) any increase, decrease or issuance of any class or series of
capital shares including the Series B Preferred Shares, or (B) the creation or
issuance of any other class or series of capital shares, in each case ranking on
a parity with or junior to the Series B Preferred Shares with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up.
The foregoing voting provisions will not apply if, at or before the time
when the act with respect to which the vote would otherwise be required is
effected, all outstanding Series B Preferred Shares are redeemed or called for
redemption upon proper notice and we deposit sufficient funds, in cash, in trust
to effect the redemption.
In any matter in which the Series B Preferred Shares may vote (as expressly
provided in the articles supplementary or as may be required by law), each share
of Series B Preferred Shares shall be entitled to one vote.
CONVERSION
The Series B Preferred Shares are not convertible into or exchangeable for
any property or securities, except that we may exchange shares of the Series B
Preferred Shares for shares of excess stock in order to ensure that we remain a
qualified real estate investment trust for federal income tax purposes.
RESTRICTIONS ON OWNERSHIP
As discussed under "RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES AND ANTI-
TAKEOVER PROVISIONS" beginning on page S-22 of this prospectus supplement and on
page 25 of the accompanying prospectus, for us to qualify as a REIT under the
Internal Revenue Code, the transfer of our capital shares, which includes the
Series B Preferred Shares, is restricted and not more than 50% in value of our
outstanding capital shares may be owned, directly or constructively, by five or
fewer individuals, as defined in the Internal Revenue Code to include certain
entities, during the last half of any taxable year. Our declaration of trust
provides that, no person or persons acting as a group may own, or be deemed to
own by virtue of the attribution rules of the Internal Revenue Code, subject to
limited exceptions, more than 9.8% in value of the outstanding shares of each
class or series of our capital shares.
EXCESS STOCK
The provisions of our declaration of trust relating to the excess stock
which apply to our common shares also applies to the Series B Preferred Shares
separately and without regard to any other series or class of our capital
shares. See "RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES AND ANTI-TAKEOVER
PROVISIONS" beginning on page S-22 of this prospectus supplement and on page 25
of the accompanying prospectus.
FORM
The Series B Preferred Shares will be issued and maintained in book-entry
form registered in the name of the nominee of The Depository Trust Company.
TRANSFER AGENT
The transfer agent, registrar and dividend disbursing agent for the Series
B Preferred Shares will be Mellon Investor Services LLC.
S-21
DESCRIPTION OF COMMON SHARES
The following updates and supersedes information about our common shares
included in the accompanying prospectus. For a summary of the material terms and
provisions of our common shares, see "DESCRIPTION OF COMMON SHARES" beginning on
page 24 of the accompanying prospectus.
On November 28, 2001, our shareholders approved an amendment to our
declaration of trust to increase our authorized common shares from 40,000,000
common shares to 80,000,000 common shares.
RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES
AND ANTI-TAKEOVER PROVISIONS
The following updates and supersedes information about Maryland law
included in the accompanying prospectus. For a summary of other restrictions on
transfers of our capital shares, see "RESTRICTIONS ON TRANSFERS OF CAPITAL
SHARES AND ANTI-TAKEOVER PROVISIONS" beginning on page 25 of the accompanying
prospectus.
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:
- one-tenth or more but less than one-third;
- one-third or more but less than a majority; or
- 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.
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.
S-22
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:
officers or employees of the REIT;
persons seeking to acquire control of the REIT;
trustees, officers, affiliates or associates of any person seeking to
acquire control; or
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;
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
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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.
FEDERAL INCOME TAX CONSIDERATIONS
You are advised to assume that the information in this prospectus
supplement and the accompanying prospectus is accurate only as of their
respective dates.
The following discussion summarizes the material federal income tax
considerations to you as a prospective holder of our shares. 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 our security holders. 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 security holders
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 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 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 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
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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.
In the opinion of Paul, Hastings, Janofsky & Walker LLP, based on certain
assumptions and our factual representations that are described in this section
and in the officer's certificate, commencing with our taxable year ended
December 31, 1993, we have been organized and operated in conformity with the
requirements for qualification as a REIT and our current and proposed method of
operation will enable us to continue to meet the requirements for qualification
and taxation as a REIT. It must be emphasized that this opinion is based on
various assumptions and is conditioned upon certain representations made by us
as to factual matters including, but not limited to, those set forth herein and
in the discussion of "FEDERAL INCOME TAX CONSIDERATIONS" contained in the
accompanying prospectus, and those concerning our business and properties as set
forth in this prospectus supplement and the accompanying prospectus. An opinion
of counsel is not binding on the Internal Revenue Service or the courts.
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, 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%
or 95% 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 4% excise tax
on the excess of such required distribution over the amounts actually
distributed.
- Seventh, as provided in temporary regulations, and assuming we do not
elect to instead be taxed at the time of the 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
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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) that 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) that would be taxable as a
domestic corporation, but for Sections 856 through 859 of the Code, (4) that is
neither a financial institution nor an insurance company subject to certain
provisions of the Code, (5) 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) that 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 shares 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 our shares, 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 "DESCRIPTION OF SERIES B PREFERRED
SHARES" beginning on page S-16 of this prospectus supplement, "DESCRIPTION OF
COMMON SHARES" beginning on page 24 of the accompanying prospectus and
"RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES AND ANTI-TAKEOVER PROVISIONS"
beginning on page S-22 of this prospectus supplement and on page 25 of the
accompanying 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.
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
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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 the
following 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.
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.
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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% or 95% test (whichever amount is greater),
less an amount which generally reflects expenses attributable to earning the
nonqualified income.
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 (1) our allocable share of real estate assets held by partnerships in
which we own an interest or held by our qualified REIT subsidiaries and (2)
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 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.
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
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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 non-deductible 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.
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TAXATION OF TAXABLE U.S. SHAREHOLDERS
As used herein, the term "U.S. shareholder" means a holder of 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 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. In determining the extent to
which a distribution on the Series B Preferred Shares constitutes a dividend for
tax purposes, 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.
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
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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 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% for 2003) 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
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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 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 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 Internal Revenue Service 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
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trusts, and qualified group legal services plans that are exempt from taxation
under specified provisions of the Code 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
capital shares collectively owns more than 50% of the value of our capital
shares.
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.
REDEMPTION OF SERIES B PREFERRED SHARES
In general, a holder of the Series B Preferred Shares will recognize
ordinary income to the extent of accrued but unpaid dividends and will recognize
capital gain or loss measured by the difference between the amount received upon
the redemption (less the amount attributable to accrued but unpaid dividends)
and the holder's adjusted basis in the Series B Preferred Shares redeemed
(provided the shares are held as a capital asset) if such redemption (i) results
in a "complete termination" of a holder's interest in all classes of our shares
under Section 302(b)(3) of the Code or (ii) is "not essentially equivalent to a
dividend" with respect to the holder under Section 302(b)(1) of the Code. In
applying these tests, there must be taken into account not only any Series B
Preferred Shares owned by the holder, but also such holder's ownership of our
common shares, other series of preferred shares and any options (including stock
purchase rights) to acquire any of the foregoing. The holder also must take into
account any such securities (including options) which are considered to be owned
by such holder by reason of the constructive ownership rules set forth in
Sections 318 and 302(c) of the Code. The treatment accorded to any redemption by
us (as distinguished from a sale, exchange or other disposition) of Series B
Preferred Shares can only be determined on the basis of particular facts as to
each holder of the Series B Preferred
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Shares at the time of redemption. Accordingly, prospective holders of the Series
B Preferred Shares are advised to consult their tax advisor to determine their
tax treatment.
If the redemption does not meet any of the tests under Section 302 of the
Code that are described above, then the redemption proceeds received from the
Series B Preferred Shares will be treated as a distribution on the Series B
Preferred Shares, with the consequences described under "Material Federal Income
Tax Consequences -- Taxation of Taxable U.S. Shareholders," "-- Taxation of
Tax-Exempt Shareholders," and "-- Taxation of Non-U.S. Shareholders". If the
redemption is taxed as a dividend, the holder's adjusted basis in the Series B
Preferred Shares redeemed will be transferred to any other holdings of the
holder in our shares. If the holder of the Series B Preferred Shares owns no
other shares in the Company, under certain circumstances, such basis may be
transferred to a related person, or it may be lost entirely.
RECENT DEVELOPMENTS
The Jobs and Growth Tax Relief Reconciliation Act of 2003 (the "Act"),
which has been enacted into law, reduces the tax rates imposed on dividends paid
by C corporations to individuals 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 individual 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 individual 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 and preferred
stock of REITs, including the Series B Preferred Shares being offered by this
prospectus supplement, less favorably in comparison to investments in common and
preferred stock of C corporations, the dividends for which would be subject to a
reduced tax rate under the Act.
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UNDERWRITING
We and the underwriters for this offering named below have entered into an
underwriting agreement concerning the Series B Preferred Shares being offered.
The underwriters' obligations are several and not joint, which means that each
underwriter is required to purchase a specified number of shares, but is not
responsible for the commitment of any other underwriter to purchase shares.
Subject to the terms and conditions of the underwriting agreement, each
underwriter has severally agreed to purchase the number of Series B Preferred
Shares set forth opposite its name below.
NUMBER OF SERIES B
UNDERWRITERS PREFERRED SHARES
------------ ------------------
Bear, Stearns & Co., Inc....................................
A.G. Edwards & Sons, Inc....................................
Raymond James & Associates, Inc.............................
Friedman, Billings, Ramsey & Co., Inc.......................
Advest, Inc.................................................
BB&T Capital Markets, a division of Scott & Stringfellow,
Inc.......................................................
Ferris, Baker Watts Incorporated............................
---------
Total....................................................... 2,000,000
=========
The underwriting agreement provides that the obligations of the
underwriters are conditional and may be terminated at their discretion based on
their assessment of the state of the financial markets. The obligations of the
underwriters may also be terminated upon the occurrence of the events specified
in the underwriting agreement. The underwriters are severally committed to
purchase all of the Series B Preferred Shares being offered if any such shares
are purchased, other than those shares covered by the over-allotment option
described below.
We have granted the underwriters an option to purchase up to 300,000
additional Series B Preferred Shares to be sold in this offering at the public
offering price, less the underwriting discounts and commissions described on the
cover page of this prospectus supplement. The underwriters may exercise this
option solely to cover over-allotments, if any. This option may be exercised, in
whole or in part, at any time within 30 days after the date of this prospectus
supplement. To the extent the option is exercised, the underwriters will be
severally committed, subject to certain conditions, to purchase the additional
Series B Preferred Shares in proportion to their respective commitments as
indicated in the table above.
The following table provides information regarding the per share and total
underwriting discounts and commissions that we will pay to the underwriters in
connection with this offering. These amounts are shown assuming both no exercise
and full exercise of the underwriters' option to purchase up to 300,000
additional Series B Preferred Shares.
TOTAL
---------------------------
PER SERIES B WITHOUT OVER- WITH OVER-
PREFERRED SHARE ALLOTMENT ALLOTMENT
--------------- -------------- ----------
Underwriting discounts and commissions payable by
us................................................. $ $ $
---------- ---------- ----------
We estimate that the total expenses of this offering payable by us,
excluding underwriting discounts and commissions, will be approximately
$ .
The underwriters propose to offer the Series B Preferred Shares directly to
the public initially at the public offering price set forth on the cover page of
this prospectus supplement and to selected dealers at such price less a
concession not to exceed $ per share. The underwriters may allow, and
such selected dealers may reallow, a concession not to exceed $ per share.
The Series B Preferred Shares will be available for delivery when, as and if
accepted by the underwriters and subject to prior sale and to withdrawal,
cancellation or modification of this offering without notice. The underwriters
reserve the right
S-35
to reject any order for purchase of Series B Preferred Shares in whole or in
part. After the commencement of this offering, the underwriters may change the
public offering price and other selling terms.
We have agreed in the underwriting agreement to indemnify the underwriters
against certain liabilities, including liabilities under the Securities Act of
1933, as amended, and, where such indemnification is unavailable, to contribute
to payments that the underwriters may be required to make in respect of such
liabilities.
Prior to acceptance of the Series B Preferred Shares for listing on the
NYSE, there will be no established trading market for the Series B Preferred
Shares. We have applied to list our Series B Preferred Shares on the NYSE under
the symbol "LXP PrB", subject to official notice of issuance. We expect that
trading will commence on the NYSE within 30 days after the initial delivery of
the Series B Preferred Shares. In order to meet the requirements for listing the
Series B Preferred Shares on the NYSE, the underwriters have undertaken to sell
(i) Series B Preferred Shares to ensure a minimum of 100 beneficial holders with
a minimum of 100,000 Series B Preferred Shares outstanding in the aggregate and
(ii) sufficient Series B Preferred Shares so that following this offering, the
Series B Preferred Shares have a minimum aggregate market value of $2.0 million.
The underwriters have advised us that prior to the commencement of listing on
the NYSE, they intend to make a market in the Series B Preferred Shares, but
they are not obligated to do so and may discontinue market making at any time
without notice. No assurance can be given as to the liquidity of any trading
market for the Series B Preferred Shares.
In order to facilitate this offering of the Series B Preferred Shares, the
underwriters may engage in transactions that stabilize, maintain or otherwise
affect the market price of the Series B Preferred Shares in accordance with
Regulation M under the Securities Exchange Act of 1934, as amended.
The underwriters may over-allot the Series B Preferred Shares in connection
with this offering, thus creating a short position for their own account. Short
sales involve the sale by the underwriters of a greater number of shares than
they are committed to purchase in this offering. A short position may involve
either "covered" short sales or "naked" short sales. Covered short sales are
sales made in an amount not greater than the underwriters' over-allotment option
to purchase additional Series B Preferred Shares as described above. The
underwriters may close out any covered short position by either exercising their
over-allotment option or purchasing shares in the open market. In determining
the source of shares to close the covered short position, the underwriters will
consider, among other things, the price of shares available for purchase in the
open market as compared to the price at which they may purchase shares from us
through the over-allotment option. Naked short sales are sales in excess of the
over-allotment option. The underwriters must close out any naked short position
by purchasing shares in the open market. A naked short position is more likely
to be created if the underwriters are concerned that there may be downward
pressure on the price of the Series B Preferred Shares in the open market after
pricing that could adversely affect investors who purchase in this offering.
Accordingly, to cover these short sales positions or to stabilize the
market price of the Series B Preferred Shares, the underwriters may bid for, and
purchase, Series B Preferred Shares in the open market. These transactions may
be effected on the NYSE or otherwise. Additionally, the representatives, on
behalf of the underwriters, may also reclaim selling concessions allowed to
another underwriter or dealer. Similar to other purchase transactions, the
underwriters' purchases to cover the syndicate short sales or to stabilize the
market price of our Series B Preferred Shares may have the effect of raising or
maintaining the market price of our Series B Preferred Shares or preventing or
mitigating a decline in the market price of our Series B Preferred Shares. As a
result, the price of the Series B Preferred Shares may be higher than the price
that might otherwise exist in the open market. No representation is made as to
the magnitude or effect of any such stabilization or other activities. The
underwriters are not required to engage in these activities and, if commenced,
may discontinue any of these activities at any time.
From time to time, the underwriters and/or their affiliates have engaged
in, and may in the future engage in, investment banking and other commercial
dealings in the ordinary course of business with us
S-36
and our affiliates for which they have received, and expect to receive,
customary fees and commissions for these transactions.
We expect that delivery of the Series B Preferred Shares will be made
against payment thereof on or about June 19, 2003, which will be the business
day following the date of pricing of the Series B Preferred Shares (this
settlement cycle being referred to as "T+ "). Under Rule 15c6-1 of the
Securities Exchange Act of 1934, as amended, trades in the secondary market
generally are required to settle in three business days, unless the parties to
any such trade expressly agree otherwise at the time of the transaction.
Accordingly, purchasers who wish to trade the Series B Preferred Shares on the
date of pricing or the next succeeding business days will be required,
by virtue of the fact that the Series B Preferred Shares initially will settle
in T+ , to specify an alternative settlement cycle at the time of any such
trade to prevent a failed settlement and should consult their own advisor.
Carl D. Glickman, a director of Bear, Stearns & Co., Inc., is presently
serving on our board of trustees and will continue to do so at least until the
2004 Annual Meeting of Shareholders. As of the date of this prospectus
supplement, Mr. Glickman beneficially owns 156,877 common shares and holds
options to purchase an additional 22,500 common shares.
LEGAL MATTERS
The legal matters described under "FEDERAL INCOME TAX CONSIDERATIONS"
beginning on page S-24 of this prospectus supplement 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 Shareholders. As of the date of this prospectus supplement, Mr.
Zachary beneficially owns 41,292 common shares and holds options to purchase an
additional 5,000 common shares. Legal matters relating to this offering will be
passed upon for the underwriters by Willkie Farr & Gallagher. Certain matters of
Maryland law will be passed upon for us and for the underwriters by Piper
Rudnick LLP, Baltimore, Maryland.
EXPERTS
The consolidated financial statements and the related financial statement
schedule included in our Annual Report on Form 10-K as of and for the year ended
December 31, 2002, as incorporated by reference in this prospectus supplement
and the accompanying prospectus, have been incorporated herein by reference in
reliance on the report, also incorporated herein by reference, of KPMG LLP,
independent public accountants, in reliance upon the authority of said firm as
experts in accounting and auditing.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934 which requires us to file reports and other information with the
Securities and Exchange Commission. You can inspect and copy reports, proxy
statements and other information filed by us at the public reference facility
maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. You can
obtain copies of this material by mail from the Public Reference Section of the
SEC at 450 West Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
You can also obtain such reports, proxy statements and other information from
the web site that the SEC maintains at http://www.sec.gov.
Reports, proxy statements and other information concerning us may also be
obtained electronically at our website, http://www.lxp.com and through a variety
of databases, including, among others, the SEC's Electronic Data Gathering and
Retrieval ("EDGAR") program, Knight-Ridder Information Inc., Federal Filing/Dow
Jones and Lexis/Nexis.
S-37
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information we file
with them, which means:
- Incorporated documents are considered part of this prospectus supplement
and the accompanying prospectus;
- We can disclose important information to you by referring you to those
documents; and
- Information that we file with the SEC will automatically update and
supersede this prospectus supplement and the accompanying prospectus.
We incorporate by reference the documents listed below which were filed
with the SEC under the Securities Exchange Act of 1934, as amended:
- Annual Report on Form 10-K for the year ended December 31, 2002;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2003;
- Current Report on Form 8-K filed April 28, 2003;
- Current Report on Form 8-K filed May 6, 2003; and
- Our Definitive Proxy Statement on Schedule 14A dated April 15, 2003.
If any statement in this prospectus supplement is inconsistent with a
statement in one of the incorporated documents referred to above, then the
statement in the incorporated document will be deemed to have been superseded by
the statement in this prospectus supplement.
We also incorporate by reference each of the following documents that we
will file with the SEC after the date of this prospectus supplement but before
the end of the offering:
- Reports filed under Sections 13(a) and (c) of the Exchange Act;
- Definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent shareholders' meeting; and
- Any reports filed under Section 15(d) of the Exchange Act.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address:
Lexington Corporate Properties Trust
Attention: T. Wilson Eglin, Chief Executive Officer
355 Lexington Avenue
New York, NY 10017-6603
(212) 692-7260
S-38
PROSPECTUS
$250,000,000
LEXINGTON CORPORATE PROPERTIES TRUST
DEBT SECURITIES
PREFERRED SHARES
COMMON SHARES
------------------------
Lexington Corporate Properties Trust (the "Company"), may offer from time
to time in one or more series (i) its debt securities ("Debt Securities"), which
may be senior or subordinated debt securities, (ii) its preferred shares, of
beneficial interest, $.0001 par value per share ("Preferred Shares"), and (iii)
its common shares of beneficial interest, $.0001 par value per share ("Common
Shares"), with an aggregate public offering price of up to $250,000,000 (or its
equivalent based on the exchange rate at the time of sale) in amounts, at prices
and on terms to be determined at the time of offering. The Debt Securities,
Preferred Shares and Common Shares (collectively, the "Securities") may be
offered, separately or together, in separate classes or series, in amounts, at
prices and on terms to be set forth in one or more supplements to this
Prospectus (each, a "Prospectus Supplement").
The specific terms of the Securities for which this Prospectus is being
delivered will be set forth in the applicable Prospectus Supplement and will
include, where applicable: (i) in the case of Debt Securities, the specific
title, aggregate principal amount, ranking, currency, form (which may be
registered or bearer, or certificated or global), authorized denominations,
maturity, rate (or manner of calculation thereof) and time of payment of
interest, terms for redemption at the option of the Company or repayment at the
option of the holder thereof, terms for sinking fund payments, terms for
conversion into Common Shares or Preferred Shares, covenants and any initial
public offering price; (ii) in the case of Preferred Shares, the specific
designation and stated value per share, any dividend, liquidation, redemption,
conversion, voting and other rights, and any initial public offering price; and
(iii) in the case of Common Shares, any initial public offering price. In
addition, such specific terms may include limitations on direct or beneficial
ownership and restrictions on transfer of the Securities, in each case as may be
consistent with the Company's Declaration of Trust (the "Declaration of Trust")
or otherwise appropriate to preserve the status of the Company as a real estate
investment trust for federal income tax purposes. See "Restrictions on Transfers
of Capital Shares and Anti-Takeover Provisions."
The applicable Prospectus Supplement will also contain information, where
appropriate, about certain United States federal income tax considerations
relating to, and any listings on a securities exchange of, the Securities
covered by such Prospectus Supplement.
The Securities may be offered by the Company directly, through agents
designated from time to time by the Company or to or through underwriters or
dealers. If any agents or underwriters are involved in the sale of any of the
securities, their names, and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth or will be
calculable from the information set forth in the applicable Prospectus
Supplement. See "Plan of Distribution." No Securities may be sold without
delivery of a Prospectus Supplement describing the method and terms of the
offering of such Securities.
PROSPECTIVE INVESTORS SHOULD CONSIDER CAREFULLY MATTERS DISCUSSED UNDER THE
CAPTION "RISK FACTORS" APPEARING ON PAGES 4 THROUGH 6 WHICH ARE RELEVANT TO AN
INVESTMENT IN THE SECURITIES.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is April 10, 1998.
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, is required to file reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional
offices located at 7 World Trade Center, 13th Floor, New York, New York 10048
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material also can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. In addition, such material may be electronically
accessed at the Commission's site on the World Wide Web located at
http://www.sec.gov.
The Company's Common Shares are listed on the New York Stock Exchange (the
"NYSE") and reports, proxy and information statements, and other information
concerning the Company can be inspected at the offices of the NYSE at 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3, of which this Prospectus forms a part (together with any amendments
thereto, the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Securities Act"). As permitted by the rules and regulations of the
Commission, this Prospectus omits certain information, exhibits and undertakings
contained in the Registration Statement. Such additional information, exhibits
and undertakings may be inspected and obtained from the Commission's principal
office in Washington, D.C. upon payment of the fees prescribed by the
Commission. The summaries or descriptions of documents in this Prospectus are
not necessarily complete. Reference is made to the copies of such documents
attached hereto or otherwise filed as a part of the Registration Statement for a
full and complete statement of their provisions, and such summaries and
descriptions are, in each case, qualified in their entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
In December 1997, the Company was reorganized as a Maryland real estate
investment trust. See "The Company." References herein to the Company include
references to the Company's predecessor corporations. The following documents or
information have been filed by the Company with the Commission and are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K (Commission File No. 1-12386)
for the year ended December 31, 1997, filed on March 31, 1998.
2. The Company's Current Report on Form 8-K (Commission File No. 1-12386),
filed on January 16, 1998.
3. The Company's 1997 Proxy Statement on Schedule 14-A, filed on May 6,
1997 (Commission File No. 1-12386).
4. The description of the Company's capital shares contained in the
Company's Registration Statement on Form 8-B under the Exchange Act,
filed on August 10, 1994 (Commission File No. 1-12386).
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Prospectus and prior to the termination of the offering of all
Securities covered by this Prospectus will be deemed incorporated by reference
into this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
2
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon the written or oral
request of such person to the Company at 355 Lexington Avenue, New York, New
York 10017. Attention: T. Wilson Eglin, President and Chief Operating Officer,
any or all of the documents referred to above (other than exhibits to such
documents) which have been incorporated by reference in this Prospectus.
THE COMPANY
Lexington Corporate Properties Trust is a self-managed and
self-administered real estate investment trust ("REIT") that acquires, owns and
manages a geographically diversified portfolio of high quality office,
industrial and retail properties. Substantially all of the Company's leases are
"Net Leases," under which the tenant is responsible for all costs of real estate
taxes, insurance, ordinary maintenance and structural repairs. Management
believes that owning acquiring and managing net lease properties results in
lower operating expenses for the Company than the Company otherwise would incur
through investments in properties which were not net leased.
Management has diversified the Company's portfolio by geographical
location, tenant industry segment, lease term expiration and property type with
the intention of providing steady internal growth with low volatility.
Management believes that such diversification should help insulate the Company
from regional recession, industry specific downturns and price fluctuations by
property type.
The Company's management team has demonstrated its ability to create value
and increase cash flow for the Company through active management of its
portfolio of Properties subject to Net Leases, including acquisitions,
expansions of existing Properties, attracting strong tenants, refinancings and
selective dispositions. Management has an active presence in and knowledge of
the real estate market in the United States, particularly with respect to the
market for single tenant properties subject to Net Leases. Management subjects
each prospective property acquisition candidate to a rigorous underwriting
process which analyzes the property's (i) design, construction quality,
efficiency and functionality; (ii) location with respect to the immediate
submarket, city and region; (iii) tenant financial strength, credit rating,
growth prospects and competitive position within its respective industry; (iv)
lease integrity with respect to term, rental rate increases, corporate
guarantees and property maintenance provisions; (v) economics with respect to
the current and future cash flow growth prospects and expected investment yield
sensitivity calculations; and (vi) fit within the existing Company portfolio of
Properties.
The Company commenced operations in 1993 as a REIT, with several operating
partnership subsidiaries. This operating partnership structure enables the
Company to acquire property by issuing to a seller, as a form of consideration,
interests ("OP Units") in the Company's subsidiary operating partnerships. The
OP Units are exchangeable, after certain dates, for Common Shares of the
Company. Management believes that this structure facilitates the Company's
ability to raise capital and to acquire portfolio and individual properties by
enabling the Company to structure transactions which may defer tax gains for a
contributor of property while preserving the Company's cash available for other
purposes, including the payment of distributions.
The Company was originally incorporated under the laws of the State of
Delaware, and was reincorporated in the State of Maryland in June 1994. In
December 1997, the Company reorganized as a Maryland real estate investment
trust ("Maryland REIT"). The reorganization was effected by merging the Company
with and into a newly formed Maryland REIT. References herein to the Company
include references to the Company's Delaware and Maryland predecessor
corporations and the predecessor companies referenced above, unless the context
otherwise requires.
The principal executive offices of the Company are located at 355 Lexington
Avenue, New York, New York 10017, and its telephone number is (212) 692-7260.
3
RISK FACTORS
Risks Involved in Single Tenant Leases. The Company focuses its
acquisition activities in Net Leased real properties or interests therein.
Because the Company's Net Leased real properties are leased to single tenants,
the financial failure of or other default by a tenant resulting in the
termination of a lease is likely to cause a significant reduction in the
operating cash flow of the lessor and might decrease the value of the property
leased to such tenant.
Dependence on Major Tenants. Revenues from several of the Company's
Properties constitute a significant percentage of the Company's consolidated
rental revenues. The default, financial distress or bankruptcy of any of the
tenants of such Properties could cause interruptions in the receipt of lease
revenues from such tenants and/or result in vacancies in the respective
Properties, which would reduce the revenues of the Company until the affected
property is relet, and could decrease the ultimate sale value of each such
Property. Upon the expiration of the leases that are currently in place with
respect to these Properties, the Company may not be able to re-lease the vacant
property at a comparable lease rate or without incurring additional expenditures
in connection with such re-leasing.
Leverage. The Company has incurred, and may continue to incur,
indebtedness (secured and unsecured) in furtherance of its activities. Neither
the Declaration of Trust nor any policy statement formally adopted by the Board
limits either the total amount of indebtedness or the specified percentage of
indebtedness (based upon the total market capitalization of the Company) which
may be incurred. Accordingly, the Company could become more highly leveraged,
resulting in increased risk of default on obligations of the Company and in an
increase in debt service requirements which could adversely affect the financial
condition and results of operations of the Company and the Company's ability to
pay distributions. The Credit Facility (as defined below) limits the amount of
indebtedness the Company may incur to 60% of the Company's total market
capitalization.
Possible Inability to Refinance Balloon Payments on Mortgage Debt. A
significant number of the Company's Properties are subject to mortgages with
balloon payments. Balloon payments, relating to three Properties, of
approximately $10.0 million and $5.6 million are due in 1998 and 1999,
respectively. The Company's secured revolving credit facility with Fleet
National Bank (the "Credit Facility") matures in 1999. Also, on May 19, 1995,
the Company, through its wholly owned subsidiary, LXP Funding Corp., completed a
$70 million secured debt offering, secured by fifteen of the Company's
Properties, by issuing commercial mortgage pass-through certificates, which
mature in 2005. See Note 5 of the Company's Consolidated Financial Statements
included in the Company's 1997 Annual Report on Form 10-K. The ability of the
Company to make such balloon payments will depend upon its ability either to
refinance the mortgage related thereto or to sell the related property. The
ability of the Company to accomplish such 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
Company's equity in the mortgaged properties, the financial condition of the
Company, the operating history of the mortgaged properties, and tax laws.
Uncertainties Relating to Lease Renewals and Re-letting of Space. The
Company will be subject to the risks that, upon expiration of leases for space
located in the Company's Properties, the premises may not be re-let or the terms
of re-letting (including the cost of concessions to tenants) may be less
favorable than current lease terms. If the Company were unable to re-let
promptly all or a substantial portion of its commercial units or if the rental
rates upon such re-letting were significantly lower than expected rates, the
Company's net income and ability to make expected distributions to shareholders
would be adversely affected. There can be no assurance that the Company will be
able to retain tenants in any of the Company's Properties upon the expiration of
their leases.
Defaults on Cross-Collateralized Properties. Although the Company does not
generally cross-collateralize any of its properties, management may determine to
do so from time to time. As of the date of this Prospectus, two of the Company's
Properties in Florida were cross-collateralized and fifteen of the Company's
Properties were the subject of a segregated pool of assets with respect to which
commercial mortgage pass-through certificates (as discussed above) were issued.
To the extent that any of the Company's Properties are cross-collateralized, any
default by the Company under the mortgage relating to one such Property will
result in a default under the financing arrangements relating to any other
Property which also provides security for such mortgage.
4
Possible Liability Relating to Environmental Matters. Under various
federal, state and local environmental laws, statutes, ordinances, rules and
regulations, an owner of real property may be liable for the costs of removal or
remediation of certain hazardous or toxic substances at, on, in or under such
property, as well as certain other potential costs relating to hazardous or
toxic substances (including government fines and penalties and damages for
injuries to persons and adjacent property). Such laws often impose liability
without regard to whether the owner knew of, or was responsible for, the
presence or disposal of such substances. Such liability may be imposed on the
owner 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 the owner's liability therefor could exceed the value of
the property and/or the aggregate assets of the owner. In addition, the presence
of such substances, or the failure to properly dispose of or remove such
substances, may adversely affect the owner's ability to sell or rent such
property or to borrow using such property as collateral, which, in turn, would
reduce the Company's 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 the Company's tenants are primarily responsible for any
environmental damages and claims related to the leased premises, in the event of
the bankruptcy or inability of the tenant of such premises to satisfy any
obligations with respect thereto, the Company may be required to satisfy such
obligations. In addition, under certain environmental laws, the Company, as the
owner of such properties, may be held directly liable for any such damages or
claims irrespective of the provisions of any lease.
From time to time, in connection with the conduct of the Company's
business, and prior to the acquisition of any property from a third party or as
required by the Company's financing sources, the Company authorizes the
preparation of Phase I environmental reports and, when necessary, Phase II
environmental reports, with respect to its Properties. Based upon such
environmental reports and management s ongoing review of its Properties, as of
the date of this Prospectus, management was not aware of any environmental
condition with respect to any of the Company's Properties which management
believed would be reasonably likely to have a material adverse effect on the
Company. There can be no assurance, however, that (i) the discovery of
environmental conditions, the existence or severity of which were previously
unknown, (ii) changes in law, (iii) the conduct of tenants, or (iv) activities
relating to properties in the vicinity of the Company's Properties will not
expose the Company to material liability in the future. 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 the Company's tenants, which could adversely affect the
Company's financial condition or results of operations.
Risks Relating to Acquisitions. A significant element of the Company's
business strategy is the enhancement of its portfolio through acquisitions of
additional properties. The consummation of any future acquisition will be
subject to satisfactory completion of the Company's extensive valuation analysis
and due diligence review and to the negotiation of definitive documentation.
There can be no assurance that the Company will be able to identify and acquire
additional properties or that it will be able to finance acquisitions in the
future. In addition, there can be no assurance that any such acquisition, if
consummated, will be profitable for the Company. If the Company is unable to
consummate the acquisition of additional properties in the future, there can be
no assurance that the Company will be able to increase the cash available for
distribution to shareholders.
Concentration of Ownership by Certain Investors. In three separate
closings in 1997, the Company sold 2,000,000 Class A Senior Cumulative
Convertible Preferred Shares of Beneficial Interest in the Company (the
"Convertible Preferred Shares") to Five Arrows Realty, L.L.C. ("Five Arrows").
The Convertible Preferred Shares are convertible to Common Shares on a
one-to-one basis at $12.50 per share. In March 1997, the Company sold to an
institutional investor in a private placement 8% Exchangeable Redeemable Secured
Notes (the "Exchangeable Notes") in the aggregate principal amount of $25
million. The Exchangeable Notes are exchangeable at $13 per share for the
Company's Common Shares beginning in the year 2000, subject to adjustment.
Significant concentrations of ownership by certain investors may allow such
investors to exert a greater influence over the management and affairs of the
Company.
5
Uninsured Loss. The Company carries comprehensive liability, fire,
extended coverage and carries rent loss insurance on most of its Properties,
with policy specifications and insured limits customarily carried for similar
properties. However, with respect to certain of the Properties where the leases
do not provide for abatement of rent under any circumstances, the Company
generally does not maintain rent loss insurance. In addition, there are certain
types of losses (such as due to wars or 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, the
Company 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 such
loss would adversely affect the financial condition of the Company. Management
believes that the Company's Properties are adequately insured in accordance with
industry standards.
Adverse Effects of Changes in Market Interest Rates. The trading prices of
equity securities issued by REITs have historically been affected by changes in
broader market interest rates, with increases in interest rates resulting in
decreases in trading prices, and decreases in interest rates resulting in
increases in such trading prices. An increase in market interest rates could
therefore adversely affect the trading prices of any equity Securities issued by
the Company.
Competition. The real estate industry is highly competitive. The Company's
principal competitors include national REITs, many of which are substantially
larger and have substantially greater financial resources than the Company.
Failure to Qualify as a REIT. Management believes that the Company has met
the requirements for qualification as a REIT for federal income tax purposes
beginning with its taxable year ended December 31, 1993 and intends to continue
to meet such 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 (the "Code"), for which there are only
limited judicial or administrative interpretations. No assurance can be given
that the Company has 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 the Company's control may affect its
ability 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 the Company does not
qualify as a REIT, the Company would not be allowed a deduction for
distributions to shareholders in computing its income subject to tax at the
regular corporate rates. The Company 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 the Company's
shareholders would be significantly reduced for each year in which the Company
does not qualify as a REIT. Although the Company currently intends to continue
to qualify as a REIT, it is possible that future economic, market, legal, tax or
other considerations may cause the Company, without the consent of the
shareholders, to revoke the REIT election or to otherwise take action that would
result in disqualification.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of Securities for general
corporate purposes, which may include the acquisition of additional properties,
the repayment of outstanding indebtedness or the improvement of certain
properties already in the Company's portfolio.
6
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for each of the years
ended 1997, 1996, 1995, 1994 and 1993 was 1.49, 1.41, 1.78, 1.48, and 1.40,
respectively. The ratios of earnings to fixed charges were computed by dividing
earnings by charges. For this purpose, earnings consist of pre-tax income from
continued operations plus fixed charges (excluding capitalized interest). Fixed
charges consist of interest expense and the amortization of debt issuance costs.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will be direct obligations of the Company, which may be
secured or unsecured and may be either senior Debt Securities ("Senior
Securities") or subordinated Debt Securities ("Subordinated Securities"). The
Debt Securities will be issued under one or more indentures in the form filed as
an exhibit to the Registration Statement of which this Prospectus is a part (the
"Form of Indenture"). As provided in the Form of Indenture, the specific terms
of any Debt Security issued pursuant to an indenture will be set forth in one or
more Supplemental Indentures, each dated as of a date of or prior to the
issuance of the Debt Securities to which it relates (the "Supplemental
Indentures" and each a "Supplemental Indenture"). Senior Securities and
Subordinated Securities may be issued pursuant to separate indentures
(respectively, a "Senior Indenture" and a "Subordinated Indenture"), in each
case between the Company and a trustee (an "Indenture Trustee"), which may be
the same Indenture Trustee, subject to such amendments or supplements as may be
adopted from time to time. The Senior Indenture and the Subordinated Indenture,
as amended or supplemented from time to time, are sometimes hereinafter referred
to collectively as the "Indentures." The Indentures will be subject to and
governed by the Trust Indenture Act of 1939, as amended. The statements made
under this heading relating to the Debt Securities and the Indentures are
summaries of the provisions thereof, do not purport to be complete and are
qualified in their entirety by reference to the Indentures and such Debt
Securities.
Capitalized terms used herein and not defined shall have the meanings
assigned to them in the applicable Indenture.
TERMS
The indebtedness represented by the Senior Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Company. The
indebtedness represented by Subordinated Securities will be subordinated in
right of payment to the prior payment in full of the Senior Debt of the Company
as described under "-- Subordination." The particular terms of the Debt
Securities offered by a Prospectus Supplement will be described in the
applicable Prospectus Supplement, along with any applicable federal income tax
considerations unique to such Debt Securities. Accordingly, for a description of
the terms of any series of Debt Securities, reference must be made to both the
Prospectus Supplement relating thereto and the description of the Debt
Securities set forth in this Prospectus.
Except as set forth in any Prospectus Supplement, the Debt Securities may
be issued without limits as to aggregate principal amount, in one or more
series, in each case as established from time to time by the Company or as set
forth in the applicable Indenture or in one or more Supplemental Indentures. All
Debt Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the holders
of the Debt Securities of such series, for issuance of additional Debt
Securities of such series.
The Form of Indenture provides that the Company may, but need not,
designate more than one Indenture Trustee thereunder, each with respect to one
or more series of Debt Securities. Any Indenture Trustee under an Indenture may
resign or be removed with respect to one or more series of Debt Securities and a
successor Indenture Trustee may be appointed to act with respect to such series.
If two or more persons are acting as Indenture Trustee with respect to different
series of Debt Securities, each such Indenture Trustee
7
shall be an Indenture Trustee of a trust under the applicable Indenture separate
and apart from the trust administered by any other Indenture Trustee, and,
except as otherwise indicated herein, any action described herein to be taken by
each Indenture Trustee may be taken by each such Indenture Trustee with respect
to, and only with respect to, the one or more series of Debt Securities for
which it is Indenture Trustee under the applicable Indenture.
The following Summaries set forth certain general terms and provisions of
the Indentures and the Debt Securities. The Prospectus Supplement relating to
the series of Debt Securities being offered will contain further terms of such
Debt Securities, including the following specific terms:
(1) The title of such Debt Securities and whether such Debt Securities
are secured or unsecured or Senior Securities or Subordinated Securities;
(2) The aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Debt Securities will be issued and, if other than
the principal amount thereof, the portion of the principal amount thereof
payable upon declaration of the maturity thereof, or (if applicable) the
portion of the principal amount of such Debt Securities that is convertible
into Common Shares or Preferred Shares, or the method by which any such
portion shall be determined;
(4) If convertible, the terms on which such Debt Securities are
convertible, including the initial conversion price or rate and the
conversion period and any applicable limitations on the ownership or
transferability of the Common Shares or Preferred Shares receivable on
conversion;
(5) The date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be payable;
(6) The rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which such Debt
Securities will bear interest, if any;
(7) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest payment
dates, or the method by which such dates shall be determined, the persons
to whom such interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day
months;
(8) The place or places where the principal of (and premium, if any)
and interest, if any, on such Debt Securities will be payable, where such
Debt Securities may be surrendered for conversion or registration of
transfer or exchange and where notices or demands to or upon the Company
with respect to such Debt Securities and the applicable Indenture may be
served;
(9) The period or periods, if any, within which, the price or prices
at which and the other terms and conditions upon which such Debt Securities
may, pursuant to any optional or mandatory redemption provisions, be
redeemed, as a whole or in part, at the option of the Company;
(10) The obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof, and the period or periods
within which, the price or prices at which and the other terms and
conditions upon which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(11) If other than U.S. dollars, the currency or currencies in which
such Debt Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite currency
or currencies, and the terms and conditions relating thereto;
(12) Whether the amount of payments of principal of (and premium, if
any) or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which
8
index, formula or method may, but need not, be based on a currency,
currencies, currency unit or units, or composite currency or currencies)
and the manner in which such amounts shall be determined;
(13) Whether such Debt Securities will be issued in certificated or
book-entry form and, if so, the identity of the depository for such Debt
Securities;
(14) Whether such Debt Securities will be in registered or bearer form
or both and, if in registered form, the denominations thereof if other than
$1,000 and any integral multiple thereof and, if in bearer form, the
denominations thereof and terms and conditions relating thereto;
(15) The applicability, if any, of the defeasance and covenant
defeasance provisions described herein or set forth in the applicable
Indenture, or any modification thereof;
(16) Whether and under what circumstances the Company will pay any
additional amounts on such Debt Securities in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Debt Securities in lieu of making such payment;
(17) Any deletions from, modifications of or additions to the events
of default or covenants of the Company, to the extent different from those
described herein or set forth in the applicable Indenture with respect to
such Debt Securities, and any change in the right of any Trustee or any of
the holders to declare the principal amount of any of such Debt Securities
due and payable;
(18) The provisions, if any, relating to the security provided for
such Debt Securities; and
(19) Any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture.
If so provided in the applicable Prospectus Supplement, the Debt Securities
may be issued at a discount below their principal amount and provide for less
than the entire principal amount thereof to be payable upon declaration of
acceleration of the maturity thereof ("Original Issue Discount Securities"). In
such cases, any special U.S. federal income tax, accounting and other
considerations applicable to Original Issue Discount Securities will be
described in the applicable Prospectus Supplement.
Except as may be set forth in any Prospectus Supplement, neither the Debt
Securities nor the Indenture will contain any provisions that would limit the
ability of the Company to incur indebtedness or that would afford holders of
Debt Securities protection in the event of a highly leveraged or similar
transaction involving the Company or in the event of a change of control,
regardless of whether such indebtedness, transaction or change of control is
initiated or supported by the Company, any affiliate of the Company or any other
party. However, certain restrictions on ownership and transfers of the Common
Shares and Preferred Shares are designed to preserve the Company's status as a
REIT and, therefore, may act to prevent or hinder a change of control. See
"Restrictions on Transfers of Capital Shares and Anti-Takeover Provisions."
Reference is made to the applicable Prospectus Supplement for information with
respect to any deletions from, modifications of, or additions to, the events of
default or covenants of the Company that are described below, including any
addition of a covenant or other provision providing event risk or similar
protection.
DENOMINATION, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof.
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium, if any) and interest on any series of Debt
Securities will be payable at the corporate trust office of the applicable
Indenture Trustee, the address of which will be stated in the applicable
Prospectus Supplement; provided, however, that, at the option of the Company,
payment of interest may be made by check mailed to the address of the person
entitled thereto as it appears in the applicable register for such Debt
Securities or by wire transfer of funds to such person at an account maintained
within the United States.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for any
authorized denomination of other Debt Securities of the
9
same series and of a like aggregate principal amount and tenor upon surrender of
such Debt Securities at the corporate trust office of the applicable Indenture
Trustee or at the office of any transfer agent designated by the Company for
such purpose. In addition, subject to certain limitations imposed upon Debt
Securities issued in book-entry form, the Debt Securities of any series may be
surrendered for conversion or registration of transfer or exchange thereof at
the corporate trust office of the applicable Indenture Trustee or at the office
of any transfer agent designated by the Company for such purpose. Every Debt
Security surrendered for conversion, registration of transfer or exchange must
be duly endorsed or accompanied by a written instrument of transfer, and the
person requesting such action must provide evidence of title and identity
satisfactory to the applicable Indenture Trustee or transfer agent. No service
charge will be made for any registration of transfer or exchange of any Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. If the
applicable Prospectus Supplement refers to any transfer agent (in addition to
the applicable Indenture Trustee) initially designated by the Company with
respect to any series of Debt Securities, the Company may at any time rescind
the designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that the Company will be
required to maintain a transfer agent in each place of payment for such series.
The Company may at any time designate additional transfer agents with respect to
any series of Debt Securities.
Neither the Company nor any Indenture Trustee shall be required (i) to
issue, register the transfer of or exchange Debt Securities of any series during
a period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of any Debt Securities that may be selected for
redemption and ending at the close of business on the day of such mailing; (ii)
to register the transfer of or exchange any Debt Security, or portion thereof,
so selected for redemption, in whole or in part, except the unredeemed portion
of any Debt Security being redeemed in part; or (iii) to issue, register the
transfer of or exchange any Debt Security that has been surrendered for
repayment at the option of the holder, except the portion, if any, of such Debt
Security not to be so repaid.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Indentures will provide that the Company may, without the consent of
the holders of any outstanding Debt Securities, consolidate with, or sell, lease
or convey all or substantially all of its assets to, or merge with or into, any
other entity provided that (a) either the Company shall be the continuing
entity, or the successor entity (if other than the Company) formed by or
resulting from any such consolidation or merger or which shall have received the
transfer of such assets, is organized under the laws of any domestic
jurisdiction and assumes the Company's obligations to pay principal of (and
premium, if any) and interest on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions
contained in each Indenture; (b) immediately after giving effect to such
transaction and treating any indebtedness that becomes an obligation of the
Company or any subsidiary as a result thereof as having been incurred by the
Company or such subsidiary at the time of such transaction, no event of default
under the Indentures, and no event which, after notice or the lapse of time, or
both, would become such an event of default, shall have occurred and be
continuing; and (c) an officers' certificate and legal opinion covering such
conditions shall be delivered to each Indenture Trustee.
CERTAIN COVENANTS
Existence. Except as permitted under "-- Merger, Consolidation or Sale of
Assets," the Indentures will require the Company to do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (by declaration of trust, by-laws and statute) and franchises;
provided, however, that the Company will not be required to preserve any right
or franchise if its Board of Trustees determines that the preservation thereof
is no longer desirable in the conduct of its business by appropriate
proceedings.
Maintenance of Properties. The Indentures will require the Company to
cause all of its material properties used or useful in the conduct of its
business or the business of any subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the
10
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Company and its subsidiaries shall not be prevented
from selling or otherwise disposing of their properties for value in the
ordinary course of business.
Insurance. The Indentures will require the Company to cause each of its
and its subsidiaries' insurable properties to be insured against loss or damage
with insurers of recognized responsibility and, if described in the applicable
Prospectus Supplement, having a specified rating from a recognized insurance
rating service, in such amounts and covering all such risks as shall be
customary in the industry in accordance with prevailing market conditions and
availability.
Payment of Taxes and Other Claims. The Indentures will require the Company
to pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any subsidiary or upon the income, profits or property of the
Company or any subsidiary and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith.
Provision of Financial Information. Whether or not the Company is subject
to Section 13 or 15(d) of the Exchange Act, the Indentures will require the
Company, within 15 days of each of the respective dates by which the Company
would have been required to file annual reports, quarterly reports and other
documents with the Commission if the Company were so subject, (i) to transmit by
mail to all holders of Debt Securities, as their names and addresses appear in
the applicable register for such Debt Securities, without cost to such holders,
copies of the annual reports, quarterly reports and other documents that the
Company would have been required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act if the Company were subject to such Sections,
(ii) to file with the applicable Indenture Trustee copies of the annual reports,
quarterly reports and other documents that the Company would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Company were subject to such Sections and (iii) to supply, promptly upon
written request and payment of the reasonable cost of duplication and delivery,
copies of such documents to any prospective holder.
Additional Covenants. Any additional covenants of the Company with respect
to any series of Debt Securities will be set forth in the Prospectus Supplement
relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Unless otherwise provided in the applicable Prospectus Supplement, each
Indenture will provide that the following events are "Events of Default" with
respect to any series of Debt Securities issued thereunder (i) default for 30
days in the payment of any installment of interest on any Debt Security of such
series; (ii) default in the payment of principal of (or premium, if any, on) any
Debt Security of such series at its maturity; (iii) default in making any
sinking fund payment as required for any Debt Security of such series; (iv)
default in the performance or breach of any other covenant or warranty of the
Company contained in the Indenture (other than a covenant added to the Indenture
solely for the benefit of a series of Debt Securities issued thereunder other
than such series), continued for 60 days after written notice as provided in the
applicable Indenture; (v) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or any of its
subsidiaries (including obligations under leases required to be capitalized on
the balance sheet of the lessee under generally accepted accounting principles
but not including any indebtedness or obligations for which recourse is limited
to property purchased) in an aggregate principal amount in excess of $10,000,000
or under any mortgage, indenture or instrument under which there may be issuedor
by which there may be secured or evidenced any indebtedness for money borrowed
by the Company or any its subsidiaries (including such leases, but not including
such indebtedness or obligations for which recourse is limited to property
purchased) in an aggregate principal amount in excess of $10,000,000, whether
such indebtedness exists on the date of such Indenture or shall thereafter be
created, with such obligations being accelerated and not rescinded or annulled;
(vi) certain events of bankruptcy, insolvency or reorganiza-
11
tion, or court appointment of a receiver, liquidator or trustee of the Company
or any Significant Subsidiary of the Company; and (vii) any other event of
default provided with respect to a particular series of Debt Securities. The
term "Significant Subsidiary" has the meaning ascribed to such term in
Regulation S-X promulgated under the Securities Act.
If an event of default under any Indenture with respect to Debt Securities
of any series at the time outstanding occurs and is continuing, then in every
such case the applicable Indenture Trustee or the holders of not less than 25%
in principal amount of the Debt Securities of that series will have the right to
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or indexed securities, such portion of the
principal amount as may be specified in the terms thereof) of all the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Company (and to the applicable Indenture Trustee if given by the
holders). However, at any time after such a declaration of acceleration with
respect to Debt Securities of such series (or of all Debt Securities then
outstanding under any Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
applicable Indenture Trustee, the holders of not less than a majority in
principal amount of outstanding Debt Securities of such series (or of all Debt
Securities then outstanding under the applicable Indenture, as the case may be)
may rescind and annul such declaration and its consequences if (i) the Company
shall have deposited with the applicable Indenture Trustee all required payments
of the principal of (and premium, if any) and interest on the Debt Securities of
such series (or of all Debt Securities than outstanding under the applicable
Indenture, as the case may be), plus certain fees, expenses, disbursements and
advances of the applicable Indenture Trustee and (ii) all events of default,
other than the non-payment of accelerated principal (or specified portion
thereof), with respect to Debt Securities of such series (or of all Debt
Securities then outstanding under the applicable Indenture, as the case may be)
have been cured or waived as provided in such Indenture. The Indentures will
also provide that the holders of not less than a majority in principal amount of
the outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may waive any
past default with respect to such series and its consequences, except a default
(x) in the payment of the principal of (or premium, if any) or interest on any
Debt Security of such series or (y) in respect of a covenant or provision
contained in the applicable Indenture that cannot be modified or amended without
the consent of the holder of each outstanding Debt Security affected thereby.
The Indentures will require each Indenture Trustee to give notice to the
holders of Debt Securities within 90 days of a default under the applicable
Indenture unless such default shall have been cured or waived; provided,
however, that such Indenture Trustee may withhold notice to the holders of any
series of Debt Securities of any default with respect to such series (except a
default in the payment of the principal of (or premium, if any) or interest on
any Debt Security of such series or in the payment of any sinking fund
installment in respect to any Debt Security of such series) if specified
responsible officers of such Indenture Trustee consider such withholding to be
in the interest of such holders.
The Indentures will provide that no holder of Debt Securities of any series
may institute any proceeding, judicial or otherwise, with respect to such
Indenture or for any remedy thereunder, except in the case of failure of the
applicable Indenture Trustee, for 60 days, to act after it has received a
written request to institute proceedings in respect of an event of default from
the holders of not less than 25% in principal amount of the outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it. This provision will not prevent, however, any holder of Debt
Securities from instituting suit for the enforcement of payment of the principal
of (and premium, if any) and interest on such Debt Securities at the respective
due dates thereof.
The Indentures will provide that, subject to provisions in each Indenture
relating to its duties in case of default, an Indenture Trustee will be under no
obligation to exercise any of its rights or powers under an Indenture at the
request or direction of any holders of any series of Debt Securities then
outstanding under such Indenture, unless such holders shall have offered to the
Indenture Trustee thereunder reasonable security or indemnity. The holders of
not less than a majority in principal amount of the outstanding Debt Securities
of any series (or of all Debt Securities then outstanding under an Indenture, as
the case may be) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
12
applicable Indenture Trustee, or of exercising any trust or power conferred upon
such Indenture Trustee. However, an Indenture Trustee may refuse to follow any
direction which is in conflict with any law or the applicable Indenture, which
may involve such Indenture Trustee in personal liability or which may be unduly
prejudicial to the holders of Debt Securities of such series not joining
therein.
Within 120 days after the close of each fiscal year, the Company will be
required to deliver to each Indenture Trustee a certificate, signed by one of
several specified officers of the Company, stating whether or not such officer
has knowledge of any default under the applicable Indenture and, if so,
specifying each such default and the nature and status thereof.
MODIFICATION OF THE INDENTURES
Modifications and amendments of an Indenture will be permitted to be made
only with the consent of the holders of not less than a majority in principal
amount of all outstanding Debt Securities issued under such Indenture affected
by such modification or amendment; provided, however, that no such modification
or amendment may, without the consent of the holder of each such Debt Security
affected thereby, (i) change the stated maturity of the principal of, or any
installment of interest (or premium, if any) on, any such Debt Security; (ii)
reduce the principal amount of, or the rate or amount of interest on, or any
premium payable on redemption of, any such Debt Security, or reduce the amount
of principal of an Original Issue Discount Security that would be due and
payable upon declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of repayment of the holder
of any such Debt Security; (iii) change the place of payment, or the coin or
currency, for payment of principal of, premium, if any, or interest on any such
Debt Security; (iv) impair the right to institute suit for the enforcement of
any payment on or with respect to any such Debt Security; (v) reduce the
above-stated percentage of outstanding Debt Securities of any series necessary
to modify or amend the applicable Indenture, to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the applicable Indenture; or (vi)
modify any of the foregoing provisions or any of the provisions relating to the
waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the holder of
such Debt Security.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of each series may, on behalf of all holders of Debt Securities
of that series, waive, insofar as that series is concerned, compliance by the
Company with certain restrictive covenants of the applicable Indenture.
Modifications and amendments of an Indenture will be permitted to be made
by the Company and the respective Indenture Trustee thereunder without the
consent of any holder of Debt Securities for any of the following purposes: (i)
to evidence the succession of another person to the Company as obligor under
such Indenture; (ii) to add to the covenants of the Company for the benefit of
the holders of all or any series of Debt Securities or to surrender any right or
power conferred upon the Company in such Indenture; (iii) to add events of
default for the benefit of the holders of all or any series of Debt Securities;
(iv) to add or change any provisions of an Indenture to facilitate the issuance
of, or to liberalize certain terms of, Debt Securities in bearer form, or to
permit or facilitate the issuance of Debt Securities in uncertificated form;
provided that such action shall not adversely affect the interest of the holders
of the Debt Securities of any series in any material respect; (v) to change or
eliminate any provisions of an Indenture; provided that any such change or
elimination shall be effective only when there are no Debt Securities
outstanding of any series created prior thereto which are entitled to the
benefit of such provision; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities of any series, including the
provisions and procedures, if applicable, for the conversion of such Debt
Securities into Common Shares or Preferred Shares; (viii) to provide for the
acceptance of appointment by a successor Indenture Trustee or facilitate the
administration of the trusts under an Indenture by more than one Indenture
Trustee; (ix) to cure any ambiguity, defect or inconsistency in an Indenture;
provided that such action shall not adversely affect the interests of holders of
Debt Securities of any series issued under such Indenture; or (x) to supplement
any of the provisions of an Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt Securities;
provided that such action shall not adversely affect the interests of the
holders of the outstanding Debt Securities of any series.
13
The Indentures will provide that, in determining whether the holders of the
requisite principal amount of outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof (ii) the principal amount of
any Debt Security denominated in a foreign currency that shall be deemed
outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Securities of the amount determined as provided in (i) above), (iii) the
principal amount of an indexed security that shall be deemed outstanding shall
be the principal face amount of such indexed security at original issuance,
unless otherwise provided with respect to such indexed security pursuant to such
Indenture, and (iv) Debt Securities owned by the Company or any other obligor
upon the Debt Securities or an affiliate of the Company or of such other obligor
shall be disregarded.
The Indentures will contain provisions for convening meetings of the
holders of Debt Securities of a series issued thereunder. A meeting may be
called at any time by the applicable Indenture Trustee, and also, upon request
by the Company or the holder of at least 25% in principal amount of the
outstanding Debt Securities of such series, in any such case upon notice given
as provided in such Indenture. Except for any consent that must be given by the
holder of each Debt Security affected by certain modifications and amendments of
an Indenture, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the affirmative vote
of the holders of a majority in principal amount of the outstanding Debt
Securities of that series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage, which is less than a majority, in principal
amount of the outstanding Debt Securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Debt Securities of any series duly
held in accordance with an Indenture will be binding on all holders of Debt
Securities of that series. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the outstanding Debt Securities
of a series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by the holders of
not less than a specified percentage in principal amount of the outstanding Debt
Securities of a series, the persons holding or representing such specified
percentage in principal amount of the outstanding Debt Securities of such series
will constitute a quorum.
Notwithstanding the foregoing provisions, the Indentures will provide that
if any action is to be taken at a meeting of holders of Debt Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver and other action that such Indenture expressly provides may be
made, given or taken by the holders of a specified percentage in principal
amount of all outstanding Debt Securities affected thereby, or of the holders of
such series and one or more additional series; (i) there shall be no minimum
quorum requirement for such meeting, and (ii) the principal amount of the
outstanding Debt Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made,
given or taken under such Indenture.
SUBORDINATION
Unless otherwise provided in the applicable Prospectus Supplement,
Subordinated Securities will be subject to the following subordination
provisions.
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
any Subordinated Securities will be subordinated to the extent provided in the
applicable Indenture in right of payment to the prior payment in full of all
Senior Debt (as
14
defined below), but the obligation of the Company to make payments of the
principal of and interest on such Subordinated Securities will not otherwise be
affected. No payment of principal or interest will be permitted to be made on
Subordinated Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Company receives notice of
the default. After all Senior Debt is paid in full and until the Subordinated
Securities are paid in full, holders will be subrogated to the rights of holders
of Senior Debt to the extent that distributions otherwise payable to holders
have been applied to the payment of Senior Debt. The Subordinated Indenture will
not restrict the amount of Senior Indebtedness or other indebtedness of the
Company and its subsidiaries. As a result of these subordination provisions in
the event of a distribution of assets upon insolvency, holders of Subordinated
Indebtedness may recover less, ratably, than senior creditors of the Company.
Senior Debt will be defined in the applicable Indenture as the principal of
and interest on, or substantially similar payments to be made by the Company in
respect of, the following, whether outstanding at the date of execution of the
applicable Indenture or thereafter incurred, created or assumed: (i)
indebtedness of the Company for money borrowed or represented by purchase-money
obligations, (ii) indebtedness of the Company evidenced by notes, debentures, or
bonds, or other securities issued under the provisions of an indenture, fiscal
agency agreement or other agreement, (iii) obligations of the Company as lessee
under leases of property either made as part of any sale and leaseback
transaction to which the Company is a part or otherwise, (iv) indebtedness of
partnerships and joint ventures which is included in the consolidated financial
statements of the Company, (v) indebtedness obligations and liabilities of
others in respect of which the Company is liable contingently or otherwise to
pay or advance money or property or as guarantor, endorser or otherwise or which
the Company has agreed to purchase or otherwise acquire, and (vi) any binding
commitment of the real estate investment, in each case other than (a) any such
indebtedness, obligation or liability referred to in clauses (i) through (vi)
above as to which, in the instrument creating or evidencing the same pursuant to
which the same is outstanding, it is provided that such indebtedness, obligation
or liability is not superior in right of payment to the Subordinated Securities
or ranks pari passu with the Subordinated Securities, (b) any such indebtedness
obligation or liability which is subordinated to indebtedness of the Company to
substantially the same extent as or to a greater extent than the Subordinated
Securities are subordinated, and (c) the Subordinated Securities. There will not
be any restriction in any Indenture relating to Subordinated Securities upon the
creation of additional Senior Debt.
If this Prospectus is being delivered in connection with a series of
Subordinated Securities, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Debt outstanding as of the end of the Company's most recent
fiscal quarter.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company will be permitted, at its option, to discharge certain obligations to
holders of any series of Debt Securities issued under any Indenture that have
not already been delivered to the applicable Indenture Trustee for cancellation
and that either have become due and payable or will become due and payable
within one year (or scheduled for redemption within one year) by irrevocably
depositing with the applicable Indenture Trustee, in trust, funds in such
currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities with respect to principal
(and premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the stated maturity or redemption
date, as the case may be.
The Indentures will provide that, unless otherwise indicated in the
applicable Prospectus Supplement, the Company may elect either (i) to defease
and be discharged from any and all obligations (except for the obligation to pay
additional amounts, if any, upon the occurrence of certain events of tax
assessment or governmental charge with respect to payments on such Debt
Securities and the obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of such Debt Securities,
to hold moneys for payment in trust and, with respect to Subordinated Debt
Securities which are convertible or exchangeable, the right to
15
convert or exchange) with respect to such Debt Securities ("defeasance") or (ii)
to be released from its obligations with respect to such Debt Securities under
the applicable Indenture ( being the restrictions described under '-- Certain
Covenants") or, if provided in the applicable Prospectus Supplement, its
obligations with respect to any other covenant, and any omission to comply with
such obligations shall not constitute an event of default with respect to such
Debt Securities ("covenant defeasance"), in either case upon the irrevocable
deposit by the Company with the applicable Indenture Trustee, in trust, of an
amount in such currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are payable at stated
maturity, or Government Obligations (as defined below), or both, applicable to
such Debt Securities, which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest on such
Debt Securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Company has delivered to the applicable Indenture Trustee an opinion
of counsel (as specified in the applicable Indenture) to the effect that the
holders of such Debt Securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and such opinion of counsel,
in the case of defeasance, will be required to refer to and be based upon a
ruling received from or published by the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after the date of the
Indenture. In the event of such defeasance, the holders of such Debt Securities
would thereafter be able to look only to such trust fund for payment of
principal (and premium, if any) and interest.
"Government Obligations" means securities that are (i) direct obligations
of the United States of America or the government which issued the foreign
currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged, or (ii) obligations
of a person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any series,
(i) the holder of a Debt Security of such series is entitled to, and does, elect
pursuant to the applicable Indenture or the terms of such Debt Security to
receive payment in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such Debt Security, or
(ii) a Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Debt Security will be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any) and interest on such Debt Security as they become due out
of the proceeds yielded by converting the amount so deposited in respect of such
Debt Security into the currency, currency unit or composite currency in which
such Debt Security becomes payable as a result of such election or such
cessation of usage based on the applicable market exchange rate. "Conversion
Event" means the cessation of use of (a) a currency, currency unit or composite
currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (b) the ECU both
within the European Monetary System and
16
for the settlement of transactions by public institutions of or within the
European Communities, or (c) any currency unit or composite currency other than
the ECU for the purposes for which it was established. Unless otherwise provided
in the applicable Prospectus Supplement, all payments of principal of (and
premium, if any) and interest on any Debt Security that is payable in a foreign
currency that ceases to be used by its government of issuance shall be made in
U.S. dollars.
If the Company effects covenant defeasance with respect to any Debt
Securities and such Debt Securities are declared due and payable because of the
occurrence of any event of default other than the event of default described in
clause (iv) under "-Events of Default, Notice and Waiver" with respect to
specified sections of an Indenture (which sections would no longer be applicable
to such Debt Securities) or described in clause (vii) under "-Events of Default,
Notice and Waiver" with respect to any other covenant as to which there has been
covenant defeasance, the amount in such currency, currency unit or composite
currency in which such Debt Securities are payable, and Government Obligations
on deposit with the applicable Indenture Trustee, will be sufficient to pay
amounts due on such Debt Securities at the time of their stated maturity but may
not be sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such event of default. However, the Company would
remain liable to make payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into Common Shares or Preferred Shares will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into Common Shares or Preferred
Shares, the conversion price (or manner of calculation thereof), the conversion
period, provisions as to whether conversion will be at the option of the holders
or the Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities and any restrictions on conversion, including restrictions directed
at maintaining the Company's REIT status.
PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium, if any) and interest on any series of Debt
Securities will be payable at the corporate trust office of the Indenture
Trustee, the address of which will be stated in the applicable Prospectus
Supplement; provided that, at the option of the Company, payment of interest may
be made by check mailed to the address of the person entitled thereto as it
appears in the applicable register for such Debt Securities or by wire transfer
of funds to such person at an account maintained within the United States.
All moneys paid by the Company to a paying agent or an Indenture Trustee
for the payment of the principal of or any premium or interest on any Debt
Security which remain unclaimed at the end of one year after such principal,
premium or interest has become due and payable will be repaid to the Company,
and the holder of such Debt Security thereafter may look only to the Company for
payment thereof.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary identified in the applicable
Prospectus Supplement relating to such series. Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the applicable Prospectus Supplement
relating to such series.
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DESCRIPTION OF PREFERRED SHARES
The description of the Company's preferred shares, par value $.0001 per
share ("Preferred Shares"), set forth below does not purport to be complete and
is qualified in its entirety by reference to the Company's Declaration of Trust
and Bylaws (the "Bylaws").
GENERAL
Under the Declaration of Trust, the Company has authority to issue
10,000,000 Preferred Shares from time to time, in one or more series, as
authorized by the Board of Trustees of the Company. Prior to issuance of shares
of each series, the Board of Trustees is required by the Maryland law of
Corporations and Associations and the Declaration of Trust to fix for each
series, subject to the provisions of the Declaration of Trust regarding excess
shares of beneficial interest, $.0001 par value per share ("Excess Shares"), the
terms, preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications and terms or
conditions of redemption, as are permitted by Maryland law. The Preferred Shares
will, when issued against payment therefor, be fully paid and nonassessable and
will not be subject to preemptive rights. The Board of Trustees could authorize
the issuance of Preferred Shares with terms and conditions that could have the
effect of discouraging a takeover or other transaction that holders of Common
Shares might believe to be in their best interests or in which holders of some,
or a majority, of the Common Shares might receive a premium for their shares
over the then market price of such Common Shares.
TERMS
The following description of the Preferred Shares sets forth certain
general terms and provisions of the Preferred Shares to which any Prospectus
Supplement may relate. The statements below describing the Preferred Shares are
in all respects subject to and qualified in their entirety by reference to the
applicable provisions of the Declaration of Trust and Bylaws and any applicable
amendment to the Declaration of Trust designating terms of a series of Preferred
Shares (a "Designating Amendment").
Reference is made to the Prospectus Supplement relating to the Preferred
Shares offered thereby for specific terms, including:
(1) The title and stated value of such Preferred Shares;
(2) The number of such Preferred Shares offered, the liquidation
preference per share and the offering price of such Preferred Shares;
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Shares;
(4) The date from which dividends on such Preferred Shares shall
accumulate, if applicable;
(5) The provision for a sinking fund, if any, for such Preferred
Shares;
(6) The provision for redemption, if applicable, of such Preferred
Shares;
(7) Any listing of such Preferred Shares on any securities exchange;
(8) The terms and conditions, if applicable, upon which such Preferred
Shares will be convertible into Common Shares, including the conversion
price (or manner of calculation thereof);
(9) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Shares;
(10) A discussion of federal income tax considerations applicable to
such Preferred Shares;
(11) The relative ranking and preference of such Preferred Shares as
to dividend rights and rights upon liquidation, dissolution or winding-up
of the affairs of the Company;
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(12) Any limitations on issuance of an series of Preferred Shares
ranking senior to or on a parity with such series of Preferred Shares as to
dividend rights and rights upon liquidation, dissolution or winding-up of
the affairs of the Company; and
(13) Any limitations on direct or beneficial ownership and
restrictions on transfer, in each case as may be appropriate to preserve
the status of the Company as a REIT.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Shares will, with respect to dividend rights and rights upon liquidation,
dissolution or winding-up of the Company, rank (i) senior to all classes or
series of Common Shares of the Company, and to all equity securities ranking
junior to such Preferred Shares with respect to dividend rights or rights upon
liquidation, dissolution or winding-up of the Company, (ii) on a parity with all
equity securities issued by the Company the terms of which specifically provide
that such equity securities rank on a parity with the Preferred Shares with
respect to dividend rights or rights upon liquidation, dissolution or winding-up
of the Company; and (iii) junior to all equity securities issued by the Company
the terms of which specifically provide that such equity securities rank senior
to the Preferred Shares with respect to dividend rights or rights upon
liquidation, dissolution or winding-up of the Company. The term "equity
securities" does not include convertible debt securities.
DIVIDENDS
Holders of the Preferred Shares of each series will be entitled to receive,
when, as and if declared by the Board of Trustees of the Company, out of assets
of the Company legally available for payment, cash dividends at such rates and
on such dates as will be set forth in the applicable Prospectus Supplement. Each
such dividend shall be payable to holders of record as they appear on the share
transfer books of the Company on such record dates as shall be fixed by the
Board of Trustees of the Company.
Dividends on any series of the Preferred Shares may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Trustees of the Company fails
to declare a dividend payable on a dividend payment date on any series of the
Preferred Shares for which dividends are noncumulative, then the holders of such
series of the Preferred Shares will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Company will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment date.
If Preferred Shares of any series are outstanding, no dividends will be
declared or paid or set apart for payment on any capital shares of the Company
of any other series ranking, as to dividends, on a parity with or junior to the
Preferred Shares of such series for any period unless (i) if such series of
Preferred Shares has a cumulative dividend, full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof is set apart for such payment on the Preferred Shares of
such series for all past dividend periods and the then current dividend period
or (ii) if such series of Preferred Shares does not have a cumulative dividend,
full dividends for the then current dividend period have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for such payment on the Preferred Shares of such
series. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon Preferred Shares of any series and the shares
of any other series of Preferred Shares ranking on a parity as to dividends with
the Preferred Shares of such series, all dividends declared upon Preferred
Shares of such series and any other series of Preferred Shares ranking on a
parity as to dividends with such Preferred Shares shall be declared pro rata so
that the amount of dividends declared per share of Preferred Shares of such
series and such other series of Preferred Shares shall in all cases bear to each
other the same ratio that accrued dividends per share on the Preferred Shares of
such series (which shall not include any accumulation in respect of unpaid
dividends for prior dividend periods if such Preferred Shares does not have a
cumulative dividend) and such other series of Preferred Shares bear to each
19
other. No interest, or sum or money in lieu of interest, shall be payable in
respect or any dividend payment or payments on Preferred Shares of such series
which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Shares has a cumulative dividend, full cumulative
dividends on the Preferred Shares of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
is set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends on the Preferred Shares of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof is set apart for payment for the then current dividend
period, no dividends (other than in Common Shares or other capital shares in the
Company ranking junior to the Preferred Shares of such series as to dividends
and upon liquidation) shall be declared or paid or set aside for payment nor
shall any other distribution be declared or made upon the Common Shares, or any
other capital shares of the Company ranking junior to or on a parity with the
Preferred Shares of such series as to dividends or upon liquidation, nor shall
any Common Shares, or any other capital shares of the Company ranking junior to
or on a parity with the Preferred Shares of such series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such shares) by the Company (except by conversion into or
exchange for other capital shares of the Company ranking junior to the Preferred
Shares of such series as to dividends and upon liquidation).
Any dividend payment made on shares of a series of Preferred Shares shall
first be credited against the earliest accrued but unpaid dividend due with
respect to shares of such series which remains payable.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred
Shares will be subject to mandatory redemption or redemption at the option of
the Company, as a whole or in part, in each case upon the terms, at the times
and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Shares that is
subject to mandatory redemption will specify the number of such Preferred Shares
that shall be redeemed by the Company in each year commencing after a date to be
specified, at a redemption price per share to be specified, together with an
amount equal to all accrued and unpaid dividends thereon (which shall not, if
such Preferred Shares does not have a cumulative dividend, include any
accumulation in respect of unpaid dividends for prior dividend periods) to the
date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Shares of any series is payable only from the net
proceeds of the issuance of capital shares of the Company, the terms of such
Preferred Shares may provide that, if no such capital shares shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, such Preferred Shares shall
automatically and mandatorily be converted into the applicable capital shares of
the Company pursuant to conversion provisions specified in the applicable
Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if a series of Preferred Shares
has a cumulative dividend, full cumulative dividends on all shares of all such
series of Preferred Shares shall have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for all past dividend periods and the then current dividend period, and
(ii) if a series of Preferred Shares does not have a cumulative dividend, full
dividends on all Preferred Shares of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for the then current dividend period, no shares of such
series of Preferred Shares shall be redeemed unless all outstanding Preferred
Shares of such series are simultaneously redeemed; provided, however, that the
foregoing shall not prevent the purchase or acquisition of Preferred Shares of
such series to preserve the REIT status of the Company or pursuant to a purchase
or exchange offer made on the same terms to holders of all outstanding Preferred
Shares of such series. In addition, unless (a) if such series of Preferred
Shares has a cumulative dividend, full cumulative dividends on all outstanding
shares of such series of Preferred Shares
20
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past dividend
periods and the then current dividend period, and (b) if such series of
Preferred Shares does not have a cumulative dividend, full dividends on the
Preferred Shares of such series have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period, the Company shall not purchase or
otherwise acquire directly or indirectly any Preferred Shares of such series
(except by conversion into or exchange for capital shares of the Company ranking
junior to the Preferred Shares of such series as to dividends and upon
liquidation); provided, however, that the foregoing shall not prevent the
purchase or acquisition of Preferred Shares of such series to preserve the REIT
status of the Company or pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Preferred Shares of such series.
If fewer than all of the outstanding Preferred Shares of any series are to
be redeemed, the number of shares to be redeemed will be determined by the
Company and such shares may be redeemed pro rata from the holders of record of
such shares in proportion to the number of such shares held or for which
redemption is requested by such holder (with adjustments to avoid redemption of
fractional shares) or by an other equitable manner determined by the Company.
Notice of redemption will be mailed at least 15 days but not more than 60
days before the redemption date to each holder of record of Preferred Shares of
any series to be redeemed at the address shown on the share transfer books of
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of shares and series of the Preferred Shares to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such Preferred
Shares are to be surrendered for payment of the redemption price; (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date; and (vi) the date upon which the holder's conversion rights, if any, as to
such shares shall terminate. If fewer than all the Preferred Shares of any
series are to be redeemed, the notice mailed to each such holder thereof shall
also specify the number of Preferred Shares to be redeemed from each such
holder. If notice of redemption of any Preferred Shares has been given and if
the funds necessary for such redemption have been set aside by the Company in
trust for the benefit of the holders of any Preferred Shares so called for
redemption, then from and after the redemption date dividends will cease to
accrue on such Preferred Shares, and all rights of the holders of such shares
will terminate, except the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding-up of
the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any Common Shares or any other class or series of capital
shares of the Company ranking junior to the Preferred Shares in the distribution
of assets upon any liquidation, dissolution or winding-up of the Company, the
holders of each series of Preferred Shares shall be entitled to receive out of
assets of the Company legally available for distribution to shareholders
liquidating distributions in the amount of the liquidation preference per share,
if any, set forth in the applicable Prospectus Supplement, plus an amount equal
to all dividends accrued and unpaid thereon (which shall not include any
accumulation in respect of unpaid noncumulative dividends for prior dividend
periods). After payment of the full amount of the liquidating distributions to
which they are entitled, the holders of Preferred Shares will have no right or
claim to any of the remaining assets of the Company. In the event that, upon any
such voluntary or involuntary liquidation, dissolution or winding-up, the
available assets of the Company are insufficient to pay the amount of the
liquidating distributions on all outstanding Preferred Shares and the
corresponding amounts payable on all shares of other classes or series of
capital shares of the Company ranking on a parity with the Preferred Shares in
the distribution of assets, then the holders of the Preferred Shares and all
other such classes or series of capital shares shall share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
If liquidating distributions shall have been made in full to all holders of
Preferred Shares, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital shares ranking junior to
the Preferred Shares upon liquidation, dissolution or winding-up, according to
their
21
respective rights and preferences and in each case according to their respective
number of shares. For such purposes, the consolidation or merger of the Company
with or into any other corporation, trust or entity, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Company, shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Company.
VOTING RIGHTS
Holders of the Preferred Shares will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Unless provided otherwise for any series of Preferred Shares, so long as
any Preferred Shares of a series remain outstanding, the Company will not,
without the affirmative vote or consent of the holders of a percentage to be
specified in the applicable Prospectus Supplement of the shares of such series
of Preferred Shares outstanding at the time, given in person or by proxy, either
in writing or at a meeting (such series voting separately as a class), (i)
authorize or create, or increase the authorized or issued amount of any class or
series of capital shares ranking prior to such series of Preferred Shares with
respect to payment of dividends or the distribution of assets upon liquidation,
dissolution or winding-up or reclassify any authorized capital shares of the
Company into such shares, or create, authorize or issue any obligation or
security convertible into or evidencing the right to purchase any such shares;
or (ii) amend, alter or repeal the provisions of the Declaration of Trust or the
Designating Amendment for such series of Preferred Shares, whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of such series of
Preferred Shares or the holders thereof; provided, however, with respect to the
occurrence of any of the Events set forth in (ii) above, so long as the
Preferred Shares remain outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of an Event the Company may not be
the surviving entity, the occurrence of any such Event shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
power of holders of Preferred Shares, and provided further that (x) any increase
in the amount of the authorized Preferred Shares or the creation or issuance of
any other series of Preferred Shares, or (y) any increase in the amount of
authorized shares of such series or any other series of Preferred Shares, in
each case ranking on a parity with or junior to the Preferred Shares of such
series with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding-up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of Preferred Shares shall
have been redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred Shares
is convertible into Common Shares will be set forth in the applicable Prospectus
Supplement relating thereto. Such terms will include the number of Common Shares
into which the Preferred Shares are convertible, the conversion price (or manner
of calculation thereof), the conversion period, provisions as to whether
conversion will be at the option of the holders of the Preferred Shares or the
Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such series of
Preferred Shares.
RESTRICTIONS ON OWNERSHIP
For the Company to qualify as a REIT under 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, including any Preferred Shares of the Company.
Therefore, the Designating Amendment for each series of Preferred Shares may
contain provisions
22
restricting the ownership and transfer of the Preferred Shares. The applicable
Prospectus Supplement will specify any additional ownership limitation relating
to a series of Preferred Shares. See "Restrictions on Transfers of Capital
Shares and Anti-Takeover Provisions."
TRANSFER AGENT
The transfer agent and registrar for the Preferred Shares will be set forth
in the applicable Prospectus Supplement.
TERMS OF CLASS A SENIOR CUMULATIVE CONVERTIBLE PREFERRED SHARES
In December 1996, the Company entered into an agreement with Five Arrow
Realty Securities L.L.C. ("Five Arrows") providing for the sale of up to
2,000,000 of the Company's Class A Senior Cumulative Convertible Preferred
Shares ("Convertible Preferred Shares"). Under the terms of the agreement, the
Company sold all 2,000,000 Convertible Preferred Shares to Five Arrows at three
closings during 1997 for an aggregate price of $25 million. The Convertible
Preferred Shares, which are convertible into Common Shares on a one-for-one
basis at $12.50 per share, subject to adjustment, are entitled to quarterly
distributions equal to the greater of $.295 per share or the product of 1.05 and
the per share quarterly distribution on Common Shares. The Convertible Preferred
Shares may be redeemed by the Company after five years at a 6% premium over the
liquidation preference of $12.50 per share (plus accrued and unpaid dividends),
with such premium declining to zero on or after December 31, 2011. In certain
instances, including a change of control of the Company (as defined in the
agreement with Five Arrows), a holder of Convertible Preferred Shares may
require the Company to redeem its shares at a price equal to $13.75 per share
plus any accrued dividends. Each Convertible Preferred Share is entitled to one
vote per share and holders thereof are entitled to vote on all matters submitted
to a vote of holders of outstanding Common Shares. In connection with such sale,
the Company has entered into certain related agreements with Five Arrows,
providing, among other things for certain demand and piggyback registration
rights with respect to such shares and the right to designate a member or
members of the Board of Trustees of the Company. Five Arrows designee, John D.
McGurk, is currently serving as a member of the Board of Trustees of the
Company.
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DESCRIPTION OF COMMON SHARES
The description of the Company's Common Shares of beneficial interest, par
value $.0001 per share ("Common Shares"), set forth below does not purport to be
complete and is qualified in its entirety by reference to the Company's
Declaration of Trust and Bylaws.
GENERAL
Under the Declaration of Trust, the Company has authority to issue
40,000,000 Common Shares, par value $.0001 per share. Under Maryland law,
shareholders generally are not responsible for a corporation's debts or
obligations.
TERMS
Subject to the preferential rights of any other shares or series of equity
securities and to the provisions of the Declaration of Trust regarding Excess
Shares, holders of Common Shares are entitled to receive dividends on Common
Shares if, as and when authorized and declared by the Board of Trustees of the
Company out of assets legally available therefor and to share ratably in the
assets of the Company legally available for distribution to its shareholders in
the event of its liquidation, dissolution or winding-up after payment of, or
adequate provision for, all known debts and liabilities of the Company 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
of the Company have a right.
Subject to the provisions of the 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 provided with respect to
any other class or series of shares, the holders of Common Shares will possess
the exclusive voting power. There is no cumulative voting in the election of
Trustees, which means that the holders of a majority of the 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 Common Shares have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any securities of the Company.
The Company furnishes its shareholders with annual reports containing
audited consolidated financial statements and an opinion thereon expressed by an
independent public accounting firm and quarterly reports for the first three
quarters of each fiscal year containing unaudited financial information.
Subject to the provisions of the Declaration of Trust regarding Excess
Shares, all Common Shares will have equal dividend, distribution, liquidation
and other rights and will have no preference, appraisal or exchange rights.
Pursuant to the Maryland Law of Corporations and Associations, 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 the declaration of trust. However, the Company's
Declaration of Trust provides that such actions, with the exception of certain
amendments to the Declaration of Trust for which a higher vote requirement has
been set, shall 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 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 Shares
and Anti-Takeover Provisions."
24
TRANSFER AGENT
The transfer agent and registrar for the Common Shares is ChemicalMellon
Shareholder Services LLC.
RESTRICTIONS ON TRANSFERS OF CAPITAL SHARES
AND ANTI-TAKEOVER PROVISIONS
RESTRICTIONS RELATING TO REIT STATUS
For the Company to qualify as a REIT under the Code, among other things,
not more than 50% in value of its outstanding capital shares 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
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). To assist
the Company in continuing to remain a qualified REIT, the 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% (the
"Ownership Limit") of the Company's equity shares, defined as Common Shares or
Preferred Shares. The Board of Trustees may waive the Ownership Limit if
evidence satisfactory to the Board of Trustees and the Company's tax counsel is
presented that the changes in ownership will not then or in the future
jeopardize the Company's 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 the disqualification of the Company as a REIT, including any transfer that
results in the equity shares being owned by fewer than 100 persons or results in
the Company being "closely held" within the meaning of Section 856(h) of the
Code, shall be null and void, and the intended transferee will acquire no rights
to the equity shares. The foregoing restrictions on transferability and
ownership will not apply if the Board of Trustees determines that it is no
longer in the best interests of the Company 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 the Company as trustee
of a trust for the exclusive benefit of the transferees to whom such capital
shares 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 the
discovery by the Company that equity shares have been transferred in violation
of the provisions of the Declaration of Trust shall be repaid to the Company
upon demand. The Excess Shares are not treasury shares, but rather constitute a
separate class of issued and outstanding shares of the Company. The original
transferee-shareholder may, at any time the Excess Shares are held by the
Company 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 the 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 the 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 the option of the Company, to have acted as an
agent on behalf of the Company in acquiring the Excess Shares and to hold the
Excess Shares on behalf of the Company.
25
In addition to the foregoing transfer restrictions, the Company will have
the right, for a period of 90 days during the time any Excess Shares are held by
the Company 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 the Declaration of Trust) of the equity
shares on the date the Company exercises its option to purchase. The 90-day
period begins on the date on which the Company receives written notice of the
transfer or other event resulting in the exchange of equity shares for Excess
Shares.
Each shareholder shall upon demand be required to disclose to the Company
in writing any information with respect to the direct, indirect and constructive
ownership of beneficial interests as the 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 limitation may have the effect of precluding acquisition of
control of the Company unless the Board of Trustees determines that maintenance
of REIT status is no longer in the best interests of the Company.
Authorized Capital
The Company has an aggregate of 40,000,000 authorized Common Shares,
40,000,000 Excess Shares, 2,000,000 of which have been designated Excess Class A
Preferred Shares, par value $.0001 per share and 10,000,000 undesignated
Preferred Shares available for issuance in its Declaration of Trust, 2,000,000
of which have been designated Class A Senior Cumulative Convertible Preferred
Shares, $.0001 par value per share. Such shares (other than reserved shares) may
be issued from time to time by the Company in the discretion of the 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 shall be
fixed by the Board of Trustees. Also, the Board of Trustees is authorized to
classify and reclassify any unissued capital shares 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. Such authority includes, without
limitation, subject to the provisions of the Declaration of Trust, authority to
classify or reclassify any such 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 such class.
In certain circumstances, the issuance of Preferred Shares, or the exercise by
the Board of Trustees of such rights to classify or reclassify shares, could
have the effect of deterring individuals or entities from making tender offers
for the Common Shares or seeking to change incumbent management.
Maryland Corporations and Associations Law
The Law of Corporations and Associations of the State of Maryland includes
certain other provisions which may also discourage a change in control of
management of the Company. Maryland law provides that a Maryland real estate
investment trust may not engage in any "business combination" with any
"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. Unless an
exemption applies, the Company may not engage in any business combination with
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 unless it is recommended by the 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 outstanding voting shares of the Company, and (ii)
66 2/3% of the votes entitled to be cast by all holders of outstanding shares of
voting shares other than voting shares held by the interested stockholder. The
voting requirements do not apply at any time to business combinations with an
interested stockholder or its affiliates if approved by the 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 the shareholders in exchange for the Company's shares, the
voting requirements do not apply if certain "fair price" conditions are met.
26
FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
The following discussion summarizes the material federal income tax
considerations to a prospective holder of Common Shares. 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 for all security holders in the Company. It does
not discuss all of the aspects of federal income taxation that may be relevant
to a prospective security holder in light of his or her particular circumstances
or to certain types of security holders 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. If the Company offers one or more series of Preferred Shares or Debt
Securities, then there may be tax consequences for the holders of such
Securities not discussed herein. For a discussion of any such additional
consequences, see the applicable Prospectus Supplement.
The information in this section is based on the Code (including the
provisions of the Taxpayer Relief Act of 1997 (the "1997 Act"), several of which
are described herein), current, temporary and proposed Treasury Regulations, the
legislative history of the Code, current administrative interpretations and
practices of the IRS (including its practices and policies as endorsed in
private letter rulings, which are not binding on the IRS except with respect to
the taxpayer that receives such a ruling), and court decisions, all as of the
date hereof. No assurance can be given that future legislation, Treasury
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. The Company has not received any rulings from the IRS
concerning the tax treatment of the Company. 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 will be sustained by a court if so
challenged.
EACH PROSPECTIVE PURCHASER OF THE SECURITIES 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 SECURITIES 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. The Company elected to be taxed as a REIT under Sections 856
through 860 of the Code effective for its taxable year ended December 31, 1993.
The Company believes that it was organized, and has operated, in such a manner
so as to qualify for taxation as a REIT under the Code and intends to conduct
its operations so as to continue to qualify for taxation as a REIT. No
assurance, however, can be given that the Company has 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 depends upon the Company's
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 circumstances of the Company, no assurance can
be given that the actual results of the Company's 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
27
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 the Company qualifies for taxation as a REIT, it generally will not be
subject to federal corporate income taxes on its net income that is currently
distributed to shareholders. This treatment substantially eliminates the "double
taxation" (at the corporate and shareholder levels) that generally results from
investment in a corporation. However, the Company will be subject to federal
income tax as follows: first, the Company will be taxed at regular corporate
rates on any undistributed REIT taxable income, including undistributed net
capital gains. Second, under certain circumstances, the Company may be subject
to the "alternative minimum tax" on its items of tax preference. Third, if the
Company has (i) 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 (ii) other nonqualifying income from foreclosure property, it will be subject
to tax at the highest corporate rate on such income. Fourth, if the Company has
net income from prohibited transactions (which are, in general, certain sales or
other dispositions of property held primarily for sale to customers in the
ordinary course of business other than foreclosure property), such income will
be subject to a 100% tax. Fifth, if the Company should fail to satisfy the 75%
gross income test or the 95% gross income test (as discussed below), but
nonetheless has maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on an amount equal
to (a) the gross income attributable to the greater of the amount by which the
Company fails the 75% or 95% test multiplied by (b) a fraction intended to
reflect the Company's profitability. Sixth, if the Company should fail to
distribute during each calendar year at least the sum of (i) 85% of its REIT
ordinary income for such year, (ii) 95% of its REIT capital gain net income for
such year, and (iii) any undistributed taxable income from prior periods, the
Company would be subject to a 4% excise tax on the excess of such required
distribution over the amounts actually distributed. Seventh, if the Company
acquires 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
the Company's hands is determined by reference to the basis of the asset (or any
other property) in the hands of the C corporation, and the Company recognizes
gain on the disposition of such asset during the 10-year period beginning on the
date on which such asset was acquired by the Company, then, to the extent of
such property's "built-in gain" (the excess of the fair market value of such
property at the time of the acquisition by the Company over the adjusted basis
of such property at such time), such gain will be subject to tax at the highest
regular corporate rate applicable (as provided in Internal Revenue Service
regulations that have not yet been promulgated).
Requirements for Qualification. A REIT is a corporation, trust or
association (i) which is managed by one or more trustees or directors, (ii) the
beneficial ownership of which is evidenced by transferable shares, or by
transferable certificates of beneficial interest, (iii) which would be taxable
as a domestic corporation, but for Sections 856 through 859 of the Code, (iv)
which is neither a financial institution nor an insurance company subject to
certain provisions of the Code, (v) the beneficial ownership of which is held by
100 or more persons, (vi) 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 (vii) which meets certain other tests, described below,
regarding the nature of its income and assets. The Code provides that conditions
(i) through (iv), inclusive, must be met during the entire taxable year and that
condition (v) must be met during at least 335 days of a taxable year of 12
months, or during a proportionate part of a taxable year of less than 12 months.
The Company expects to meet the ownership test immediately after the transaction
contemplated herein. The Company may redeem, at its 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, the
Company's Declaration of Trust includes restrictions regarding the transfer of
its stock that are intended to assist the Company in continuing to satisfy
requirements (v) and (vi). Moreover, for the Company's taxable years commencing
on or after January 1, 1998, if the Company complies with regulatory rules
pursuant to which it is required to send annual letters to holders of its
capital stock requesting information regarding the actual ownership of its
capital stock, and the Company does not know, or exercising reasonable diligence
would not have known, whether it failed to meet requirement (vi) above, the
Company will be treated as having met the requirement. See "Description
28
of Common Shares," "Description of Preferred Shares" and "Restrictions on
Transfers of Capital Shares and Anti-Takeover Provisions."
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 tests and assets (as discussed
below). Thus, the Company's proportionate share of the assets, liabilities, and
items of gross income of the partnerships in which the Company owns an interest
are treated as assets, liabilities and items of the Company for purposes of
applying the requirements described herein.
Income Tests. In order to maintain qualification as a REIT, the Company
annually must satisfy certain gross income requirements. First, at least 75% of
the Company's gross income (excluding gross income from prohibited transactions)
for each taxable year must be derived directly or indirectly from investments
relating to real property or mortgages on real property (including "rents from
real property" and, in certain circumstances, interest) or from certain types of
qualified temporary investments. Second, at least 95% of the Company's gross
income (excluding gross income from prohibited transactions) for each taxable
year must be derived from such real property investments, dividends, interest
and gain from the sale or disposition of stock or securities. For its tax years
ending on or before December 31, 1997, the Company was subject to a third gross
income test which required that short-term gain from the sale or other
disposition of stock or securities, gain from prohibited transactions and gain
on the sale or other disposition of real property held for less than four years
(apart from involuntary conversions and sales of foreclosure property) must have
represented less than 30% of the Company's gross income (including gross income
from prohibited transactions) for each taxable year.
Rents received by the Company will qualify as "rents from real property" in
satisfying the gross income requirements for a REIT described above only if
several conditions are met. First, the amount of rent must not be based in whole
or in part on the income or profits of any person. However, an amount received
or accrued generally will not be excluded from the term "rents from real
property" solely by reason of being based on a fixed percentage or percentages
of receipts or sales. Second, the Code provides that rents received from a
tenant will not qualify as "rents from real property" in satisfying the gross
income tests if the REIT, or an owner of 10% or more of the REIT, actually or
constructively owns 10% or more of such tenant (a "Related Party Tenant").
Third, if rent attributable to personal property, leased in connection with a
lease of real property, is greater than 15% of the total rent received under the
lease, then the portion of rent attributable to such personal property will not
qualify as "rents from real property." Finally, for rents received to qualify as
"rents from real property," the Company generally must not operate or manage the
property (subject to a de minimis exception applicable to the Company's tax
years commencing on and after January 1, 1998 as described below) or furnish or
render services to the tenants of such property, other than through an
independent contractor from whom the REIT derives no revenue. The REIT 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").
For the Company's taxable years commencing on or after January 1, 1998,
rents received generally will qualify as rents from real property
notwithstanding the fact that the Company provides 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 the Company with respect to such property (or, if
services are available only to certain tenants, possibly with respect to such
tenants). The amount that the Company 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 the Company of providing those services.
29
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for such year
if such failure was due to reasonable cause and not willful neglect, it
disclosed the nature and amounts of its items of gross income in a schedule
attached to its return, and any incorrect information on the schedule was not
due to fraud with intent to evade tax. A 100% penalty tax would be imposed on
the amount by which the Company failed the 75% or 95% test (whichever amount is
greater), less an amount which generally reflects expenses attributable to
earning the nonqualified income. No analogous relief is available for failure to
satisfy the 30% income test.
Subject to certain safe harbor exceptions, any gain realized by the Company
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 the Company's
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. The Company must also satisfy three tests relating to the
nature of its assets every quarter. First, at least 75% of the value of the
Company's total assets must be represented by real estate assets (including (i)
its allocable share of real estate assets held by partnerships in which the
Company owns an interest or held by "qualified REIT subsidiaries" (as defined in
the Code) of the Company and (ii) 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 of the Company, cash, cash items
and government securities). Second, not more than 25% of the Company's total
assets may be represented by securities other than those in the 75% asset class.
Third, of the investments included in the 25% asset class, the value of any one
issuer's securities owned by the Company may not exceed 5% of the value of the
Company's total assets and the Company may not own more than 10% of any one
issuer's outstanding voting securities. The Company expects that substantially
all of its assets will consist of (i) real properties, (ii) stock or debt
investments that earn qualified temporary investment income, (iii) other
qualified real estate assets, and (iv) cash, cash items and government
securities. The Company may also invest in securities of other entities,
provided that such investments will not prevent the Company from satisfying the
asset and income tests for REIT qualification set forth above.
If the Company inadvertently fails one or more of the asset tests at the
end of a calendar quarter, such a failure would not cause it to lose its REIT
status, provided that (i) it satisfied all of the asset tests at the close of a
preceding calendar quarter, and (ii) the discrepancy between the values of the
Company's assets and the standards imposed by the asset test either did not
exist immediately after the acquisition of any particular acquisition or was not
wholly partly caused by such an acquisition. If the condition described in
clause (ii) of the preceding sentence were not satisfied, the Company could
still avoid disqualification by eliminating any discrepancy within 30 days after
the close of the calendar quarter in which it arose.
Annual Distribution Requirement. With respect to each taxable year, the
Company must distribute to its shareholders dividends (other than capital gain
dividends) in an amount at least equal to the sum of (a) 95% of its "REIT
Taxable income" (determined without regard to the deduction for dividends paid
and by excluding any net capital gain), and (b) 95% of any after-tax net income
from foreclosure property, minus the sum of certain items of "excess noncash
income." 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. "Excess noncash
income" is the amount, if any, by which the sum of certain items of noncash
income exceeds 5% of REIT Taxable Income for the taxable year (determined
without regard to the deduction for dividends paid and by excluding any net
capital gain). With respect to the Company's taxable years commencing prior to
January 1, 1998, these items of noncash income for which relief from the
distribution requirement is provided are (i) the excess of amounts includible in
gross income due to the operation of Section 467 of the Code (relating to
deferred rental agreements) over the amounts that would have been includible
without regard to such provision, (ii) income from certain like-kind exchanges
not eligible for tax-free treatment, and (iii) the amounts includible on gross
income with respect to the amount that original issue discount on purchase money
debt obligations (but not other kinds of original
30
issue discount or market discount) exceed the amount of money and fair market
value of other property received during the taxable year under such instruments.
With respect to the Company's tax years commencing on and after January 1, 1998,
"excess noncash income" described in clause (iii) above applies equally to REITs
that use the accrual method of accounting for United States federal income tax
purposes.
The Company will be subject to tax on amounts not distributed at regular
United States federal corporate income tax rates. With respect to its taxable
years beginning on and after January 1, 1998, the Company may elect to retain
rather than distribute, net long-term capital gain, and be subject to regular
United States federal income tax thereon. For the consequences of such an
election to the REIT's shareholders, see "Taxation of Taxable Shareholders." In
addition, a nondeductible 4% excise tax is imposed on the excess of (i) 85% of
the Company's ordinary income for the year plus 95% of capital gain net income
for the year and the undistributed portion of the required distribution for the
prior year over (ii) the actual distribution to shareholders during the year (if
any). Net operating losses generated by the Company may be carried forward but
not carried back and used by the Company for 15 years (or 20 years in the case
of net operating losses generated in the Company's tax years commencing on or
after January 1, 1998) to reduce REIT Taxable Income and the amount that the
Company will be required to distribute in order to remain qualified as a REIT.
Net capital losses of the Company 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, the Company 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 (i) declared before the regular or
extended due date of the Company's tax return for such year and (ii) 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 the Company in October, November of December of a calendar year, and
payable to shareholders of record as of a specified date in such month of such
year will be deemed to have been paid by the Company (and received by
shareholders) on December 31 of such calendar year, but only if such dividend is
actually paid by the Company 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 its items of income, gain or deduction by the
IRS, the Company 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 the Company's 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.
The Company believes that it has distributed and intends to continue to
distribute to its shareholders an amount at least equal to 95% of the sum of (i)
its REIT Taxable Income (determined without regard to the deduction for
dividends paid and by excluding any net capital gains) and (ii) any after-tax
net income from foreclosure properties less any "excess noncash income," as
those amounts are determined in good faith by the Company or its independent
accountants. However, it is possible that timing differences between the accrual
of income and its actual collection, and the need to make deductible
expenditures (such as capital improvements or principal payments on debt) may
cause the Company to recognize taxable income in excess of its net cash
receipts, thus increasing the difficulty of compliance with the distribution
requirement. In order to meet the 95% requirement, the Company might find it
necessary to arrange for short-term, or possibly long-term, borrowings.
Failure to Qualify. If the Company fails to qualify as a REIT for any
taxable year, and if certain relief provisions of the Code do not apply, it
would be subject to federal income tax (including applicable alternative minimum
tax) on its taxable income at regular corporate rates. Distributions to
shareholders in any year in which the Company fails to qualify will not be
deductible by the Company nor will they be required to be made. As a result, the
Company's failure to qualify as a REIT would reduce the cash available for
distribution by the Company to its shareholders. In addition, if the Company
fails to qualify as a REIT, all distributions to
31
shareholders will be taxable as ordinary income, to the extent of the Company's
current and accumulated earnings and profits. Subject to certain limitations of
the Code, corporate distributees may be eligible for the dividends-received
deduction.
If the Company's failure to qualify as a REIT is not due to reasonable
cause but results from willful neglect, the Company 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 the Company were to fail to
qualify as a REIT in one year and subsequently requalify in a later year, the
Company might be required to recognize taxable income based on the net
appreciation in value of its assets as a condition to requalification. In the
alternative, the Company may be taxed on the net appreciation in value of its
assets if it sells properties within ten years of the date the Company
requalifies as a REIT under federal income tax laws.
TAXATION OF TAXABLE SHAREHOLDERS
As used herein, the term "U.S. shareholder" means a holder of Common or
Preferred Shares who (for United States federal income tax purposes) (i) is a
citizen or resident of the United States, (ii) is a corporation, partnership, or
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, (iii) is an estate the income of which is
subject to United States federal income taxation regardless of its source or
(iv) 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.
As long as the Company qualifies as a REIT, distributions made to the
Company's 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 deductions as to such amounts. For purposes of computing the
Company's 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, the earnings and profits of the Company will
be allocated first to the Preferred Shares and second to the Common Shares.
There can be no assurance that the Company will have sufficient earnings and
profits to cover distributions on any Preferred 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 the Company's 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 pursuant
to Section 291 of the Code. As described below, the Taxpayer Relief Act of 1997
(the "1997 Act") changed significantly the taxation of capital gains by
taxpayers who are individuals, estates, or a trust. With respect to amounts
designated as capital gain distributions, the IRS has released Notice 97-64
describing temporary regulations that will be issued to permit REITs to further
designate such capital gain dividends as (i) a 20% rate gain distribution, (ii)
an unrecaptured Section 1250 gain distribution (taxed at a rate of 25%), or
(iii) a 28% rate gain distribution. Capital gain distributions that are not
specifically designated will be characterized as a 28% rate gain distribution.
Notice 97-64 provides that a REIT must determine the maximum amounts that it may
designate as 20% and 25% rate capital gain dividends by performing the
computation required by the Code as if the REIT were an individual whose
ordinary income were subject to a marginal tax rate of at least 28%. The Notice
further provides that designations made by the REIT will be effective only to
the extent that they comply with Revenue Ruling 89-81, which requires that
distributions made to different classes of shares not be composed
disproportionately of dividends of a particular type.
Distributions in excess of 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. The Company will notify
shareholders at the end of each year as to the portions of the distributions
which constitute ordinary income,
32
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 the Company 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 (including all individuals) and 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 63(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 the Company 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 (i) the amount of cash and
the fair market value of any property received on such disposition and (ii) the
shareholder's adjusted basis of such shares. With respect to dispositions
occurring after July 28, 1997, in the case of a domestic shareholder who is an
individual or an estate or trust, such gain or loss will be long-term capital
gain or loss if such shares have been held for more than one year but not more
than 18 months and long-term capital gain or loss subject to a 20% tax rate if
such shares have been held for more than 18 months. In the case of a taxable
U.S. shareholder that is a corporation, such gain or loss 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 distribution from the Company
required to be treated by such shareholder as long-term capital gain.
Pursuant to the 1997 Act, for the Company's taxable years commencing on or
after January 1, 1998, the Company may elect to require the holders of shares to
include the Company's undistributed net long-term capital gains in their income.
If the Company makes such an election, the holders of shares will (i) include in
their income as long-term capital gains their proportionate share of such
undistributed capital gains and (ii) be deemed to have paid their proportionate
share of the tax paid by the Company on such undistributed capital gains and
thereby receive a credit or refund for such amount. A holder of shares will
increase the basis in its shares by the difference between the amount of capital
gain included in its income and the amount of tax it is deemed to have paid. The
earnings and profits of the Company will be adjusted appropriately. As described
below in "-- Recent Legislation," with respect to such long-term capital gain of
a taxable domestic shareholder that is an individual or an estate or a trust,
the IRS has authority to issue regulations that could apply the special tax rate
applicable to sales of depreciable real property by an individual or an estate
or trust to the portion of the long-term capital gains of an individual or an
estate or trust attributable to deductions for depreciation taken with respect
to depreciable real property.
BACKUP WITHHOLDING
The Company will report to its 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 at the rate of 31% 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 and certifies as to no loss of exemption from
backup withholding. Amounts withheld as backup withholding will be creditable
against the shareholder's income tax liability. In addition, the Company may be
required to withhold a portion of capital gain distributions made to any
shareholders who fail to certify their non-foreign status to the Company. 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 (i) citizens or residents of the
United States, (ii) corporations, partnerships or other entities created or
33
organized under the laws of the United States or any political subdivision
thereof, and (iii) estates or trusts the income of which is subject to United
States federal income taxation regardless of its source) and Non-U.S.
Shareholders should consult their tax advisors with respect to any such
information and backup withholding requirements.
The Treasury Department has recently finalized regulations regarding the
withholding and information reporting rules discussed above. In general, these
regulations do not alter the substantive withholding and information reporting
requirements but unify current certification procedures and forms and clarify
and modify reliance standards. These regulations generally are effective for
payments made after December 31, 1998, subject to certain transition rules.
Valid withholding certificates that are held on December 31, 1998, will remain
valid until the earlier of December 31, 1999 or the date of expiration of the
certificate under rules currently in effect (unless otherwise invalidated due to
changes in the circumstances of the person whose name is on such certificate).
TAXATION OF NON-U.S. SHAREHOLDERS
The following discussion is only a summary of the rules governing United
States federal income taxation of nonresident alien individuals, foreign
corporations, foreign partnerships or other foreign estates or trusts
(collectively, "Non-U.S. Shareholders"). 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
the Company of United States real property interests and not designated by the
Company as capital gains dividends will be treated as dividends of ordinary
income to the extent that they are made out of current or accumulated earnings
and profits of the Company. 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 current and accumulated
earnings and profits of the Company 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 in the Company, as described below.
For withholding tax purposes, the Company currently is required to treat
all distributions as if made out of its current or accumulated earnings and
profits and thus intends 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. Under the
final regulations (discussed above), generally effective for distributions on or
after January 1, 1999, the Company would be required to withhold at the 30% rate
on distributions it reasonably estimates to be in excess of the Company's
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. As a result of a
legislative change made by the Small Business Job Protection Act of 1996, it
appears that the Company will be required to withhold 10% of any distribution in
excess of the Company's current and accumulated earnings and profits.
Consequently, although the Company intends to withhold at a rate of 30% on the
entire amount of any distribution (or a lower applicable treaty rate), to the
extent that the Company does not do so, any portion of a distribution not
subject to withholding at a rate of 30% (or lower applicable treaty rate) will
be subject to withholding at a rate of 10%. 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
current or accumulated earnings and profits of the Company, and the amount
withheld exceeded the Non-U.S. Shareholder's United States tax liability, if
any.
34
For any year in which the Company qualifies as a REIT, distributions that
are attributable to gain from sales or exchanges by the Company 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 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. The Company is required by
applicable regulations to withhold 35% of any distribution that could be
designated by the Company 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.
Although the law is not entirely clear on the matter, it appears that
amounts designated by the Company pursuant to the 1997 Act as undistributed
capital gains in respect of shares would be treated with respect to Non-U.S.
Shareholders in the manner outlined in the preceding paragraph for actual
distributions by the Company of capital gain dividends. See "Taxation of
Shareholders -- Taxation of Taxable Shareholders. "Under that approach, Non-U.S.
Shareholders would be able to offset as a credit against their United States
federal income tax liability resulting therefrom their proportionate share of
the tax paid by the Company on such undistributed capital gains (and to receive
from the IRS a refund to the extent their proportionate share of such tax paid
by the Company were to exceed their actual United States federal income tax
liability).
Gain recognized by a Non-U.S. Shareholder upon a sale of shares generally
will not be taxed under FIRPTA if the Company is a "domestically controlled
REIT," defined generally as a REIT in which at all times during specified
testing period less than 50% in value of the share was held directly or
indirectly by foreign persons. It is anticipated that the Company will be a
"domestically controlled REIT." Therefore, the sale of shares will not be
subject to taxation under FIRPTA. However, gain not subject to FIRPTA will be
taxable to a Non-U.S. Shareholder if (i) 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 (ii) 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 gain is attributable to an office or
fixed place of business in the United States or such nonresident alien
individual has a "tax home" in the United States and such gain is not
attributable to an office or fixed place of business located outside the United
States or, if such gain is attributable to an office or fixed place of business
located outside the United States, it is not subject to foreign income tax equal
to at least 10% of such gain. If the gain on the sale of shares were to be
subject to taxation under FIRPTA, the Non-U.S. Shareholder will 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 Internal Revenue Service 10% of the
purchase price.
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 the intention of the Company to invest its
assets in a manner that will avoid the recognition of UBTI by the Company,
amounts distributed by the Company to Exempt Organizations generally should not
constitute UBTI. However, if an Exempt Organization finances its acquisition of
shares in the Company with debt, a portion of its income from the Company, if
any, will constitute UBTI pursuant to the "debt-financed property" rules.
Furthermore, social clubs, voluntary employee benefit associations, supplemental
unemploy-
35
ment 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 the Company as UBTI.
In addition, a pension trust that owns more than 10% of the Company is
required to treat a percentage of the dividends from the Company as UBTI (the
"UBTI Percentage") in certain circumstances. The UBTI Percentage is the gross
income derived from an unrelated trade or business (determined as if the Company
were a pension trust) divided by the gross income of the Company for the year in
which the dividends are paid. The UBTI rule applies only if (i) the UBTI
Percentage is at least 5%, (ii) the Company qualifies 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 shares of the Company 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 the Company's shares or (B) a group of pension trusts
individually holding more than 10% of the value of the Company's capital shares
collectively own more than 50% of the value of the Company's capital shares.
While an investment in the Company by an Exempt Organization generally is
not expected to result in UBTI except in the circumstances described in the
preceding paragraph, any gross UBTI that does arise from such an investment will
be combined with all other gross UBTI of the Exempt Organization for a taxable
year and reduced by all deductions attributable to the UBTI plus $1,000. Any
amount then remaining will constitute UBTI on which the Exempt Organization will
be subject to tax. If the gross income taken into account in computing UBTI
exceeds $1,000, the Exempt Organization is obligated to file a tax return for
such year on IRS Form 990-T. None of the Company, the Board of Trustees, or any
of their Affiliates expects to undertake the preparation or filing of IRS Form
990-T for any Exempt Organization in connection with an investment by such
Exempt Organization in the Common Shares. Generally, IRS Form 990-T must be
filed with the Service by April 15 of the year following the year in which it
relates.
RECENT LEGISLATION
As described above, the 1997 Act contains certain changes to the REIT
qualification requirements and to the taxation of REITs. The 1997 Act also
contains certain changes to the taxation of capital gains of individuals, trusts
and estates.
Capital Gain Rates. Subject to certain exceptions, for individuals, trusts
and estates, the maximum rate of tax on the net capital gain from a sale or
exchange occurring after July 28, 1997 of a capital asset held for more than 18
months has been reduced from 28% to 20%. The maximum rate has been reduced to
18% for capital assets acquired after December 31, 2000 and held for more than
five years. The maximum rate for capital assets held for more than one year but
not more than 18 months remains at 28%. The maximum rate for net capital gains
attributable to the sale of depreciable real property held for more than 18
months is 25% to the extent of the prior deductions for "unrecaptured Section
1250 gain" (i.e., depreciation deductions not otherwise recaptured as ordinary
income under the existing depreciation recapture rules). Capital gain from the
sale of depreciable real property held for more than 18 months allocated by the
Company to a non-corporate shareholder will be subject to the 25% rate to the
extent that the capital gain on the real property sold by the Company does not
exceed prior depreciation deductions with respect to such property. The 1997 Act
provides the IRS with authority to issue regulations that could, among other
things, apply these rates on a look-through basis in the case of "pass-through"
entities such as the Company. The taxation of capital gains of corporations was
not changed by the 1997 Act.
REIT Provisions. In addition to the provisions discussed above, the 1997
Act contains a number of technical provisions that either (i) reduce the risk
that the Company will inadvertently cease to qualify as a REIT, or (ii) provide
additional flexibility with which the Company can meet the REIT qualification
requirements. These provisions are effective for the Company's taxable years
commencing on or after January 1, 1998.
36
TAXATION OF REINVESTED DIVIDENDS
Those holders of Common Shares 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 the Company and will retain their character 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 the Company's investments
are held through partner-ships. 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 the Company's assets and items of gross income would change and might
preclude the Company from qualifying as a REIT.
Prior to January 1, 1997, an organization formed as a partnership or a
limited liability company was treated as a partnership for federal income tax
purposes rather than as a corporation only if it had no more than two of the
four corporate characteristics that the Treasury Regulations in effect at that
time used to distinguish a partnership from a corporation for tax purposes.
These four characteristics were (i) continuity of life, (ii) centralization of
management, (iii) limited liability, and (iv) free transferability of interests.
Under final Treasury Regulations which became effective January 1, 1997, the
four factor test has been eliminated and an entity formed as a partnership or as
a limited liability company will be taxed as a partnership for federal income
tax purposes, unless it specifically elects otherwise. The Regulations provide
that the IRS will not challenge the classification of an existing partnership or
limited liability company for tax periods prior to January 1, 1997 so long as
(1) the entity had a reasonable basis for its claimed classification, (2) the
entity and all its members recognized the federal income tax consequences of any
changes in the entity's classification within the 60 months prior to January 1,
1997, and (3) neither the entity nor any member of the entity had been notified
in writing on or before May 8, 1996, that the classification of the entity was
under examination by the IRS.
The Company believes that each partnership in which it holds an 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 704(c) of the Code and the regulations thereunder tend to 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 the Company (i) to be
allocated lower amounts of depreciation and other deductions for tax purposes
than would be allocated to the Company 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 the Company as a result of such sale.
PLAN OF DISTRIBUTION
The Company may sell Securities through underwriters or dealers, directly
to one or more purchasers, through agents or through a combination of any such
methods of sale.
37
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Securities, for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers, and agents that participate in the distribution
of Securities may be deemed to be underwriters under the Securities Act, and any
discounts or commissions they receive from the Company and any profit on the
resale of Securities they realize may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the applicable Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Shares which are listed on the NYSE. Any Common Shares
sold pursuant to a Prospectus Supplement will be listed on the NYSE, subject to
official notice of issuance. The Company may elect to list any series of Debt
Securities or Preferred Shares on an exchange, but is not obligated to do so. It
is possible that one or more underwriters may make a market in a series of
Securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. Therefore, no assurance can be given as to
the liquidity of, or the trading market for, the Securities.
Under agreements into which the Company may enter, underwriters, dealers
and agents who participate in the distribution of Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be tenants of, the Company in the ordinary course of
business.
In order to comply with the securities laws of certain states, if
applicable, the Securities offered hereby will be sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
states Securities may not be sold unless they have been registered or qualified
for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
EXPERTS
The consolidated financial statements of the Company incorporated into this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 1997, have been so incorporated in reliance on the report of KPMG
Peat Marwick LLP, independent certified public accountants (incorporated by
reference) and upon the authority of said firm as experts in accounting and
auditing.
LEGAL MATTERS
Certain legal matters, including the validity of the Securities and certain
tax matters, will be passed upon for the Company by Paul, Hastings, Janofsky &
Walker LLP, 399 Park Avenue, New York, New York 10022. Seth M. Zachary, a
partner of Paul, Hastings, Janofsky & Walker LLP, is presently serving as a
member of the Board of Trustees of the Company and will continue to serve as a
member of the Board of Trustees until the Company's 1998 Annual Meeting of
Shareholders. In connection with certain matters related to the laws of the
State of Maryland, Paul, Hastings, Janofsky & Walker LLP will rely on the
opinion of Piper & Marbury L.L.P., 36 South Charles Street, Baltimore, Maryland
21201.
38
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You should rely only on the information contained or incorporated by
reference in this prospectus supplement and the accompanying prospectus. Neither
we nor the underwriters have authorized any person to provide you with different
or additional information. If anyone provides you with different or additional
information, you should not rely on it. We are not, and the underwriters are
not, making an offer to sell these securities in any jurisdiction where the
offer or sale is not permitted. The information appearing in this prospectus
supplement, the accompanying prospectus and the documents incorporated by
reference herein and therein is accurate only as of their respective dates or on
other dates which are specified in those documents. Our business, financial
condition, results of operations and prospects may have changed since those
dates.
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TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
PAGE
----
About This Prospectus Supplement.......... i
Cautionary Statements Concerning Forward-
Looking Information..................... i
Prospectus Supplement Summary............. S-1
The Offering.............................. S-2
Ratios of EBITDA and Earnings to Combined
Fixed Charges and Preferred Share
Dividends............................... S-5
Risk Factors.............................. S-7
Use of Proceeds........................... S-15
Description of Series B Preferred
Shares.................................. S-16
Description of Common Shares.............. S-22
Restrictions on Transfers of Capital
Shares and Anti-Takeover Provisions..... S-22
Federal Income Tax Considerations......... S-24
Underwriting.............................. S-35
Legal Matters............................. S-37
Experts................................... S-37
Available Information..................... S-37
Incorporation of Information We File with
the SEC................................. S-38
PROSPECTUS
PAGE
----
Available Information..................... 2
Incorporation Of Certain Documents By
Reference............................... 2
The Company............................... 3
Risk Factors.............................. 4
Use Of Proceeds........................... 6
Ratio Of Earnings To Fixed Charges........ 7
Description Of Debt Securities............ 7
Description Of Preferred Shares........... 18
Description Of Common Shares.............. 24
Restrictions On Transfers Of Capital
Shares And Anti-Takeover Provisions..... 25
Federal Income Tax Considerations......... 27
Plan Of Distribution...................... 37
Experts................................... 38
Legal Matters............................. 38
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2,000,000 SHARES
(LEXINGTON CORPORATE LOGO)
LEXINGTON CORPORATE PROPERTIES TRUST
% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
LIQUIDATION PREFERENCE $25.00 PER SHARE
--------------------------------------
PROSPECTUS SUPPLEMENT
--------------------------------------
, 2003
BEAR, STEARNS & CO. INC.
SOLE BOOKRUNNING MANAGER
A.G. EDWARDS & SONS, INC.
RAYMOND JAMES
FRIEDMAN BILLINGS RAMSEY
ADVEST, INC.
BB&T CAPITAL MARKETS
FERRIS, BAKER WATTS
INCORPORATED
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