<PAGE> 1
Filed Pursuant to Rule 424(b)(5)
File No. 333-51269
SPIEKER LOGO
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED APRIL 28, 1998.
$400,000,000
SPIEKER PROPERTIES, L.P.
$200,000,000
6.80% Notes due May 1, 2004
$200,000,000
7.25% Notes due May 1, 2009
-------------------------
Spieker will pay interest on the notes on May 1 and November 1 of each
year. The first such payment will be made on November 1, 1999.
Spieker has the option to redeem, at any time, all or a portion of the
notes at the redemption price set forth in this prospectus supplement.
-------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
-------------------------
<TABLE>
<CAPTION>
PER 2004 PER 2009
NOTE TOTAL NOTE TOTAL
-------- ------------ -------- ------------
<S> <C> <C> <C> <C>
Initial public offering
price.................. 99.895% $199,790,000 99.849% $199,698,000
Underwriting discount.... 0.60% $ 1,200,000 0.65% $ 1,300,000
Proceeds, before
expenses, to Spieker... 99.295% $198,590,000 99.199% $198,398,000
</TABLE>
The initial public offering price set forth above does not include accrued
interest, if any. Interest on the notes will accrue from May 11, 1999 and must
be paid by the purchaser if the notes are delivered after May 11, 1999.
-------------------------
The underwriters expect to deliver the notes in book-entry form only
through the facilities of The Depository Trust Company against payment in New
York, New York on May 11, 1999.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
J.P. MORGAN & CO.
MORGAN STANLEY DEAN WITTER
SALOMON SMITH BARNEY
-------------------------
Prospectus Supplement dated May 6, 1999.
<PAGE> 2
THE OFFERING
For a more complete description of the terms of the notes, see "Description
of Notes."
<TABLE>
<S> <C>
SECURITIES OFFERED........................ $200,000,000 aggregate principal amount of
2004 notes and $200,000,000 aggregate
principal amount of 2009 notes.
MATURITY.................................. May 1, 2004 for the 2004 notes. May 1, 2009
for the 2009 notes.
INTEREST PAYMENT DATES.................... Interest on the notes is payable
semi-annually on May 1 and November 1 of
each year, commencing November 1, 1999.
OPTIONAL REDEMPTION....................... The notes may be redeemed at any time at our
option in whole or in part. The redemption
price will be equal to the sum of (1) the
principal amount of the notes being redeemed
plus accrued interest to the redemption date
and (2) the Make-Whole Amount, if any. See
"Description of Notes -- Optional
Redemption" for more information, including
the definition of Make-Whole Amount.
RANKING................................... The notes are unsecured obligations and will
rank on a parity with all of our other
unsecured and unsubordinated indebtedness.
The notes will be effectively subordinated
to our mortgages and other secured
indebtedness.
USE OF PROCEEDS........................... The net proceeds from the offering of the
notes will be used to repay outstanding
short-term indebtedness.
LIMITATIONS ON INCURRENCE OF DEBT......... The indenture with respect to the notes
contains various covenants limiting our
ability to incur additional debt.
</TABLE>
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<PAGE> 3
USE OF PROCEEDS
We will receive approximately $397 million in net proceeds from the sale of
the notes in this offering. We will use the net proceeds to repay short-term
indebtedness outstanding under our credit facilities. At May 5, 1999, the
weighted average interest rate of such short-term indebtedness was approximately
5.90%.
THE COMPANY AND THE OPERATING PARTNERSHIP
OVERVIEW
We are managed by our general partner, Spieker Properties, Inc., a
self-administered and self-managed equity real estate investment trust, or REIT.
We specialize in the management, leasing, acquisition and development of office
and industrial properties in California, Washington, Oregon and Idaho. We were
formed to continue and expand the real estate activities of our predecessor
firm, which was founded in 1970. Substantially all of the business activities of
Spieker Properties, Inc. are conducted through us, the operating partnership,
and at March 31, 1999 Spieker Properties, Inc. owned an approximate 87.8%
general partnership interest in us. Unless the context otherwise requires, "we"
and "us" refer to both Spieker Properties, L.P. and Spieker Properties, Inc.
At March 31, 1999, we owned and operated a portfolio of properties totaling
41.1 million square feet, consisting of 20.8 million of office and 20.3 million
of industrial income producing properties, which were 96.3% leased.
The following chart sets forth a breakdown of our portfolio by our
operating regions and submarkets. Percentages shown are based on our net
operating income for the first quarter of 1999.
<TABLE>
<CAPTION>
SEATTLE, WA/BOISE, PORTLAND, SACRAMENTO, EAST BAY- PENINSULA- SOUTH
ID 11% OR 11% CA 6% SAN SAN BAY-SA
- ------------------ --------- ----------- FRANCISCO, FRANCISCO, FRANCISCO, COUNTY, COUNTY, DIEGO,
CA 10% CA 10% CA 25% CA 8% CA 12% CA 7%
---------- ---------- ---------- ------- ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
11 11.00 6.00 10.00 10.00 25.00 8.00 12.00 7.00
<CAPTION>
SEATTLE, WA/BOISE,
ID 11%
- ------------------
<S> <C>
11
</TABLE>
S-4
<PAGE> 4
BUSINESS STRATEGY
Our principal objective is to achieve sustainable, long-term growth in
funds from operations. Consistent with this objective we seek to maximize the
return on each dollar of capital invested through the following focused and
consistent business strategies:
Quality Office and Industrial Properties
We invest in quality office and industrial properties that possess
attributes that enable the properties to be competitive in the marketplace in
both the short and long term. With approximately 30 years of experience in
owning and operating commercial properties, our management team possesses the
knowledge necessary to assess the physical and locational attributes that
determine a property's long term viability.
We focus on differentiating our properties from those of nearby
competitors, so as to maximize their attractiveness to potential users.
Important characteristics in office buildings include efficient suite layouts,
ample glass line per square foot of office space, user friendly common areas,
stairs, elevators and restrooms and convenient parking. Further differentiation
is achieved through amenities and services provided, such as on-site management,
conference rooms and health clubs.
Distribution properties are designed with high clear heights, multiple dock
facilities, appropriate truck staging and high-capacity sprinkler systems. With
light industrial or R&D properties, we also use landscaping and exterior glass
walls to increase the attractiveness of and demand for such space.
Invest in Growing Regions
We seek to invest in regions with diverse and vibrant economies that
possess strong prospects for continued economic growth. We believe that
California and the Pacific Northwest possess attributes -- high concentration of
technology industries, growing populations with a well-educated employee base,
ability to attract new capital, excellent universities, quality of life and
well-developed infrastructures -- that will contribute to continued economic
growth. Within these growing regions we focus our activities in the major
metropolitan areas of Seattle, Portland, San Francisco, San Jose, Sacramento,
Los Angeles County, Orange County and San Diego, which have proven to be desired
locations for a large number of businesses.
Submarket Concentrations
In the specific local submarkets in which we operate, we generally seek to
own a number of properties and to be one of the most significant commercial
landlords in that submarket. We believe that we have achieved significant market
penetration within a number of submarkets in which we operate. Through this
strategy, we can offer prospective tenants a variety of property options and can
accommodate the growth of existing tenants, an ability that many of our
competitors, and potential competitors, cannot offer. Such submarket
concentration also enables us to maximize synergistic opportunities and
economies of scale and allows our key operating personnel to concentrate their
expertise on specific markets and local conditions, which can be highly
competitive.
Focus on Flexible, Multi-Tenant Properties
We seek to own properties which will appeal to a broad range of potential
tenants. As such, we focus on properties which are easily divisible and can
accommodate tenants of
S-5
<PAGE> 5
various sizes. This flexibility also enables us to meet the needs of existing
tenants by being able to accommodate their inevitable expansion and contraction
needs. In addition, our experience is that such property flexibility helps us
maintain high occupancy rates, particularly when market conditions are less
favorable, and control the cost of re-leasing space.
Provide a Superior Level of Service
Our goal is to provide a superior level of service to our tenants in order
to achieve high occupancy and rental rates, as well as low turnover. To achieve
this level of service, our office property managers are located on-site,
providing tenants with convenient direct access to a management team which can
respond quickly and allow tenants to focus on their business rather than
property issues. These on-site property managers enable our properties to be
well-maintained and convey a sense of quality, order and security.
CREDIT STRENGTH
We believe that the following factors are important in assessing our
overall credit quality:
Embedded Rent Growth
As rents in many of our targeted markets have risen dramatically over the
last few years, we have achieved accelerated rollover rent growth as we mark
below-market expiring leases to current market rent levels. Rent growth,
measured as the difference between net effective (average) rents on new and
renewed leases as compared to the expiring coupon rent on those same spaces,
averaged 45% for the first quarter of 1999 and 37% for the full year 1998.
Significantly, we believe that our in-place rents are still substantially
below current market rents and there will be continued opportunities to raise
rents as leases expire. We believe that this embedded rent growth provides
meaningful built-in interest coverage protection. However, this forward-looking
statement about rents may not occur as a result of economic, competitive or
other factors affecting our properties.
Unencumbered Balance Sheet
Since our initial unsecured note offering in 1995, we have been committed
to funding our business with unsecured debt and minimizing our use of secured
debt in order to maintain financial flexibility. At March 31, 1999,
approximately 95% of our properties were unencumbered.
Diversification
We follow a policy of avoiding dependence on any particular market, project
or tenant. Our properties are located in different markets in California and the
Pacific Northwest, are typically of moderate size and the asset value of a
property is generally in the range of $10 million to $50 million.
We have over 4,500 tenants, with the average tenant occupying approximately
8,500 square feet and paying an annual net rent of approximately $98,250. The
tenant base represents a diverse cross-section of the economy and includes
local, regional, national and international companies. Our largest tenant,
Xerox, represented approximately 1.4% of our
S-6
<PAGE> 6
1998 net rental income. By industry, our tenants as of December 31, 1998 are
categorized as follows:
<TABLE>
<CAPTION>
BUSINESS SECTOR PERCENT OF NET RENTAL INCOME
--------------- ----------------------------
<S> <C>
Software.................... 11%
Hardware.................... 9
Insurance................... 6
Professional Service........ 6
Banking..................... 6
Telecom..................... 5
Securities.................. 4
Research & Development...... 4
Transportation &
Logistics................. 3
Aircraft & Auto
Manufacturing............. 3
</TABLE>
Capital Markets Access
Since Spieker Properties, Inc.'s initial public offering in November 1993,
we have consistently demonstrated our ability to access capital in various forms
in both the public and private capital markets. To date, we have raised
approximately $1.8 billion of common equity, $1.5 billion of unsecured debt and
$0.5 billion of preferred equity capital.
Experienced Management
Our senior officers and other personnel possess a wide variety of skills
that provide us with the in-house resources to add value to our properties
through the entire cycle of acquisition, development and redevelopment,
including design, financing, construction management, leasing and property
management. The 27 most senior members of management own common stock and
partnership units exchangeable for common stock that represent with a value of
approximately $200 million based on the closing price of Spieker Properties,
Inc.'s common stock on May 4, 1999.
S-7
<PAGE> 7
RECENT OPERATING RESULTS
On April 28, 1999, Spieker Properties, Inc. announced operating results for
the three months ended March 31, 1999. The following summary financial and other
data of Spieker Properties, L.P. should be read in conjunction with our
financial statements included in our periodic reports filed under the Securities
Exchange Act of 1934, which are incorporated by reference into this prospectus
supplement and the accompanying prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------------
1999 1998
---------- ----------
(AMOUNTS IN THOUSANDS)
<S> <C> <C>
OPERATING DATA:
Revenues............................................ $ 150,648 $ 125,307
Income from operations before disposition of
property and minority interests................... 47,594 37,943
Net income.......................................... 52,760 46,969
BALANCE SHEET DATA:
Investment in real estate (before accumulated
depreciation)..................................... $4,251,746 $3,827,645
Total assets........................................ 4,119,224 3,780,131
Total debt.......................................... 1,901,671 1,847,854
Partners' capital................................... 2,020,458 1,763,983
OTHER DATA:
Funds from operations............................... $ 60,196 $ 48,926
Cash flow provided (used) by:
Operating activities.............................. 81,369 86,236
Investing activities.............................. (69,735) (492,185)
Financing activities.............................. 3,078 404,363
Total rentable square footage of properties at end
of period......................................... 41,097 38,363
Occupancy rate at end of period..................... 96.3% 93.8%
Ratio of earnings to fixed charges(1)............... 2.24x 2.09x
Ratio of funds from operations to:
Interest charges(2)............................... 3.5x 3.0x
Interest charges and preferred distributions(2)... 2.5x 2.4x
</TABLE>
- -------------------------
(1) For the purpose of computing this ratio, earnings have been calculated by
adding fixed charges (excluding capitalized interest) to income from
operations, before disposition of property. Fixed charges consist of
interest costs, whether expensed or capitalized, the interest component of
rental expense and amortization of deferred financing fees.
(2) For the purpose of computing this ratio, interest charges consist of
expensed interest costs and preferred distributions are these deducted in
arriving at funds from operations.
S-8
<PAGE> 8
SUMMARY FINANCIAL AND OTHER DATA
The following summary financial and other data should be read in
conjunction with our financial statements included in our periodic reports filed
under the Securities Exchange Act of 1934, which are incorporated by reference
into this prospectus supplement and the accompanying prospectus.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------------
1998 1997 1996 1995 1994
---------- ----------- ---------- ---------- ---------
(AMOUNTS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Revenues................................ $ 561,097 $ 331,313 $ 200,699 $ 153,391 $ 121,037
Income from operations before
disposition of property, minority
interests and extraordinary items..... 163,924 110,134 65,764 30,335 13,363
Income before extraordinary items....... 185,939 130,365 74,091 30,444 13,393
Net income (loss)....................... 185,939 130,365 74,091 (10,361) 13,393
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
--------------------------------------------------------------
1998 1997 1996 1995 1994
---------- ----------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Investment in real estate (before
accumulated depreciation)............. $4,182,806 $ 3,252,572 $1,447,173 $1,098,871 $ 870,613
Net investment in real estate........... 3,942,028 3,083,521 1,319,472 974,259 770,827
Total assets............................ 4,056,870 3,242,934 1,390,314 1,011,497 809,938
Mortgage loans, net..................... 110,698 96,502 45,997 112,702 514,098
Unsecured debt.......................... 1,736,500 1,335,000 674,000 377,700 --
Total debt.............................. 1,847,198 1,431,502 719,997 490,402 514,098
Partners' capital....................... 2,021,814 1,679,841 610,928 468,576 258,760
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------------
1998 1997 1996 1995 1994
---------- ----------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C>
OTHER DATA:
Funds from Operations(1)................ $ 215,064 $ 147,912 $ 93,293 $ 61,428 $ 41,935
Cash flow provided (used) by:
Operating activities.................. 293,989 191,450 112,581 76,471 47,750
Investing activities.................. (786,502) (1,697,885) (387,567) (200,515) (161,332)
Financing activities.................. 474,801 1,499,727 296,749 121,954 97,378
Total rentable square footage of
properties at end of period........... 40,843 35,543 21,430 16,282 13,933
Occupancy rate at end of period......... 96.4% 94.5% 96.6% 96.9% 97.6%
Ratio of earnings to fixed charges(2)... 2.09x 2.52x 2.56x 1.61x 1.29x
</TABLE>
- -------------------------
(1) In February 1995, the National Association of Real Estate Investment Trusts
("NAREIT") established new guidelines clarifying its definition of Funds
from Operations and requested that REITs adopt this new definition beginning
in 1996. The new definition provides that the amortization of debt discount
and deferred financing costs is no longer to be added back to net income to
calculate Funds from Operations. In 1996, we substantially implemented the
new NAREIT definition for calculating Funds from Operations. The amounts
presented above for the years ended December 31, 1995 and 1994, have been
restated to reflect the new NAREIT definition. Funds from Operations
previously reported by us based on the old NAREIT definition were $70,790
for 1995 and $52,142 for 1994.
(2) For the purpose of computing this ratio, earnings have been calculated by
adding fixed charges (excluding capitalized interest) to income from
operations, before disposition of property. Fixed charges consist of
interest costs, whether expensed or capitalized, the interest component of
rental expense and amortization of deferred financing fees.
S-9
<PAGE> 9
DESCRIPTION OF NOTES
The following summary sets forth the material terms and provisions of the
notes and the indenture governing the notes. The following summary is qualified
in its entirety by reference to the terms and provisions of the notes and the
indenture, which are incorporated in this prospectus by reference. Capitalized
terms not otherwise defined in this section have the meanings given to them in
the notes and in the indenture. The following description of the specific terms
of the offered notes supplements, and, to the extent inconsistent, replaces the
description of the general terms and provisions of the Debt Securities set forth
in the accompanying prospectus.
GENERAL
The notes will be issued pursuant to an Indenture, dated as of December 6,
1995, as supplemented by the Fifteenth Supplemental Indenture, dated as of May
11, 1999, among us, Spieker Properties, Inc. and U.S. Bank Trust National
Association, as trustee. When we refer to the indenture, we include all
supplements to the indenture. The terms of the notes include those provisions
contained in the notes and the indenture. It also includes those terms made part
of the indenture by reference to the Trust Indenture Act of 1939, as amended.
Please refer to the notes, the indenture and the Trust Indenture Act for a
statement of all terms of the notes. Copies of the indenture and the form of the
notes are available for inspection at the office of the trustee located at One
California Street, Suite 400, San Francisco, California 94111.
PRINCIPAL: $200,000,000 for the 2004 notes and $200,000,000 for the 2009
notes.
INTEREST: Interest on the notes will accrue at the rates set forth on the
cover page of this prospectus supplement from May 11, 1999, or the most recent
interest payment date to which interest has been paid or provided for. Interest
will be payable in U.S. dollars semi-annually in arrears on May 1 and November 1
of each year, commencing November 1, 1999. The interest will be paid to the
person in whose name the applicable note is registered at the close of business
on the date fifteen calendar days preceding the applicable interest payment
date. Interest on the notes will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
MATURITY: The 2004 notes will mature on May 1, 2004. The 2009 notes will
mature on May 1, 2009.
REDEMPTION: The notes may be redeemed at our option at any time in whole or
in part. See "-- Optional Redemption".
RANKING: The notes will be our direct, unsecured and unsubordinated
obligations and will rank on a parity with all of our other unsecured and
unsubordinated indebtedness from time to time outstanding. However, the notes
will be effectively subordinated to our mortgages and other secured
indebtedness. Subject to the limitations set forth in the notes and the
indenture described below under the caption "Covenants," the indenture will
permit us to incur additional indebtedness and additional secured indebtedness.
FORM: The notes will be issued only in fully registered, book-entry form,
in denominations of $1,000 and its integral multiples, except under the limited
circumstances described below under "-- Book-Entry System".
GUARANTEE: The notes will not be guaranteed by Spieker Properties, Inc. or
any other company.
SINKING FUND: The notes will not be entitled to the benefit of any sinking
fund.
S-10
<PAGE> 10
COVENANTS
Except as provided under "Description of Debt Securities -- Certain
Covenants -- Existence," "Description of Debt Securities -- Merger,
Consolidation or Sale" and "Description of Debt Securities Events of Default,
Notice and Waiver" in the accompanying prospectus and below, the notes and the
indenture do not contain any other provisions that would afford holders of the
notes protection in the event of:
- a highly leveraged or similar transaction involving us, our management or
any affiliate of the foregoing,
- a change of control or
- a reorganization, restructuring, merger or similar transaction involving
us that may adversely affect the holders of the notes.
Our covenants described below would continue to apply in the event of a
highly leveraged or similar transaction involving us, our management, the
management of Spieker Properties, Inc. or any of our affiliates, unless waived
by holders of the notes. In addition, subject to the limitations set forth under
"Description of Debt Securities -- Merger, Consolidation or Sale" in the
accompanying prospectus, we may, in the future, enter into transactions such as
the sale of all or substantially all of our assets or a merger or consolidation
that would increase the amount of our indebtedness or substantially reduce or
eliminate our assets.
We have no present intention of engaging in a highly leveraged or similar
transaction. In addition, restrictions on ownership and transfers of Spieker
Properties, Inc.'s stock designed to preserve its status as a real estate
investment trust may act to prevent or hinder any such transactions or a change
of control.
Limitations On Incurrence of Debt. We will not, and will not permit any
subsidiary to, incur any Debt (as defined below) that is subordinate in right of
payment to the notes, if, immediately after giving effect to the incurrence of
such additional Debt, the aggregate principal amount of all of our outstanding
Debt on a consolidated basis is greater than 60% of the sum of:
(1) Total Assets (as defined below) as of the end of the calendar quarter
covered in our Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the trustee prior to
the incurrence of such additional Debt and
(2) the increase in Total Assets from the end of such quarter including,
without limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase, together with the
Total Assets, is referred to as "Adjusted Total Assets").
The foregoing limitation does not apply to the incurrence of inter-company Debt
to which the only parties are us and any of our subsidiaries, but only so long
as such Debt is held solely by us and any subsidiary.
In addition to the foregoing limitation on the incurrence of Debt, we will
not, and will not permit any subsidiary to, incur any Debt if the ratio of
Consolidated Income Available for Debt Service to the Annual Service Charge (in
each case as defined below) for the four consecutive fiscal quarters most
recently ended shall have been less than 1.5 to 1, on
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<PAGE> 11
a pro forma basis after giving effect to the incurrence of such Debt and to the
application of the proceeds. Such ratio will be calculated on the following
assumptions:
(1) such Debt and any other Debt incurred by us or our subsidiaries since
the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Debt, had occurred at
the beginning of such period,
(2) the repayment or retirement of any other Debt by us or our subsidiaries
since the first day of such four-quarter period had been incurred,
repaid or retired at the beginning of such period, except that, in
making such computation, the amount of Debt under any revolving credit
facility will be computed based upon the average daily balance of such
Debt during such period,
(3) the income earned on any increase in Adjusted Total Assets since the
end of such four-quarter period had been earned, on an annualized
basis, during such period, and
(4) in the case of any acquisition or disposition by us or any subsidiary
of any asset or group of assets since the first day of such
four-quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Debt had occurred as of the
first day of such period with the appropriate adjustments with respect
to such acquisition or disposition being included in such pro forma
calculation.
In addition to the foregoing limitations on the incurrence of Debt, we will
not, and will not permit any subsidiary to, incur any Debt secured by any
mortgage, lien, pledge, encumbrance or security interest of any kind upon any of
the property of ours or any subsidiary, whether owned at the date of the
indenture or thereafter acquired, if, immediately after giving effect to the
incurrence of such additional secured debt, the aggregate principal amount of
all outstanding secured debt is greater than 40% of Adjusted Total Assets.
For purposes of the foregoing provisions regarding the limitation on the
incurrence of Debt, Debt shall be deemed to be "incurred" by us or a subsidiary
whenever we or our subsidiary creates, assumes, guarantees or otherwise becomes
liable for such Debt.
Maintenance of Total Unencumbered Assets. We are required to maintain Total
Unencumbered Assets of not less than 165% of the aggregate outstanding principal
amount of all outstanding Unsecured Debt.
Modification and Waiver. Modification and amendment of the financial
covenants described above may be made by us and the trustee with the consent of
the holders of a majority in principal amount of the notes which are affected by
such modification and amendment. Certain modifications or amendments may not be
made without the consent of the holder of each note affected by the amendment or
modification. The holders of a majority in principal amount of the notes have
the right to waive compliance by us with certain covenants. See "Description of
Debt Securities -- Modification of the Indenture" in the accompanying
prospectus.
As used in this section:
"Annual Service Charge" as of any date means the amount which is expensed
in any 12-month period for interest on our Debt and debt of our subsidiaries.
"Consolidated Income Available For Debt Service" for any period means
Consolidated Net Income plus amounts which have been deducted for (1) interest
on our Debt and debt
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<PAGE> 12
of our subsidiaries, (2) provision for consolidated taxes based on income, (3)
amortization of Debt discount, (4) provisions for gains and losses on
properties, (5) depreciation and amortization, (6) the effect of any noncash
charge resulting from a change in accounting principles in determining
Consolidated Net Income for such period and (7) amortization of deferred
charges.
"Consolidated Net Income" for any period means the amount of consolidated
net income (or loss) for such period determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Debt" of ours or any subsidiary means any indebtedness of ours or such
subsidiary, as applicable, whether or not contingent, in respect of:
(1) borrowed money evidenced by bonds, notes, debentures or similar
instruments,
(2) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance
or any security interest existing on property owned by us or such
subsidiary,
(3) the reimbursement obligations, contingent or otherwise, in connection
with any letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(4) any lease of property by us or such subsidiary as lessee which is
reflected in our consolidated balance sheet as a capitalized lease in
accordance with generally accepted accounting principles.
In the case of items under (1) through (3) above, such indebtedness is
included as "Debt" only to the extent that any such items (other than letters of
credit) would appear as a liability on our consolidated balance sheet in
accordance with generally accepted accounting principles. "Debt" also includes,
to the extent not otherwise included, any obligation by us or such subsidiary to
be liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), indebtedness of
another person (other than us or any subsidiary).
"Total Assets" as of any date means the sum of (1) Undepreciated Real
Estate Assets and (2) all other assets of ours and our subsidiaries on a
consolidated basis determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable).
"Total Unencumbered Assets" means the sum of (1) those Undepreciated Real
Estate Assets which have not been pledged, mortgaged or otherwise encumbered by
the owner thereof to secure Debt, excluding infrastructure assessment bonds, and
(2) all other assets of ours and our subsidiaries determined in accordance with
generally accepted accounting principles (but excluding intangibles and accounts
receivable) which have not been pledged, mortgaged or otherwise encumbered by
the owner thereof to secure Debt.
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of ours and our subsidiaries' real estate assets
on such date, before depreciation and amortization, determined on a consolidated
basis in accordance with generally accepted accounting principles.
"Unsecured Debt" means Debt which is not secured by any mortgage, lien,
charge, pledge, encumbrance or security interest of any kind upon any of our
properties or properties of any subsidiary.
Please refer to the section entitled "Description of Debt
Securities -- Certain Covenants" in the accompanying prospectus for a
description of additional covenants applicable to the notes.
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Compliance with the covenants generally may not be waived by us or the
trustee unless the holders of at least a majority in principal amount of all
outstanding notes consent to such waiver. However, the defeasance and covenant
defeasance provisions of the indenture described under "Description of Debt
Securities -- Discharge, Defeasance and Covenant Defeasance" in the accompanying
prospectus will apply to the notes, including with respect to the covenants
described in this prospectus supplement. For a definition of what constitutes an
Event of Default under the indenture, see "Description of Debt
Securities -- Events of Default, Notice and Waiver" in the accompanying
prospectus.
We will deliver to the trustee, within 120 days after the end of each
fiscal year, a brief certificate as to our compliance or non-compliance with the
conditions and covenants under the indenture. Further, upon any request by us to
the trustee to take any action under the indenture, we will furnish to the
trustee (1) an officers' certificate stating that all conditions precedent, if
any, provided for in the indenture relating to the proposed action have been
complied with, and (2) an opinion of counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with.
OPTIONAL REDEMPTION
The notes may be redeemed at any time at our option, in whole or from time
to time in part, at a redemption price equal to the sum of (1) the principal
amount of the notes being redeemed plus accrued interest to the redemption date
and (2) the Make-Whole Amount (as defined below), if any.
If notice has been given as provided in the indenture and funds for the
redemption of any notes called for redemption have been made available on the
redemption date, such notes will cease to bear interest on the date fixed for
redemption. Thereafter, the only right of the holders of such notes will be to
receive payment of the redemption price.
Notice of any optional redemption will be given to holders at their
addresses, as shown in the security register for such notes, not more than 60
nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the redemption price and the
principal amount of the notes held by such holder to be redeemed.
We will notify the trustee at least 45 days prior to giving notice of
redemption (or such shorter period as is satisfactory to the trustee) of the
aggregate principal amount of notes to be redeemed and their redemption date. If
less than all of the notes are to be redeemed, the trustee shall select which
notes are to be redeemed in a manner it deems to be fair and appropriate.
As used above:
"Make-Whole Amount" means the excess of (1) the aggregate present value, on
the redemption date, of the principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or accelerated
payment) that would have been payable if such redemption or accelerated payment
had not been made, over (2) the aggregate principal amount of the notes being
redeemed or paid. Net present value shall be determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third business day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made.
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"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purpose
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the indenture, then such
other reasonably comparable index which shall be designated by us.
SATISFACTION AND DISCHARGE OF THE INDENTURE
Under specified circumstances, upon our request, the indenture will cease
to be of further effect with respect to the notes, and the trustee will execute
proper instruments acknowledging satisfaction and discharge of its indenture as
to the notes. See "Description of Debt Securities -- Discharge, Defeasance and
Covenant Defeasance" in the accompanying prospectus.
BOOK-ENTRY SYSTEM
The notes will be issued in the form of a single fully-registered note in
book-entry form (the "Global Note") which will be deposited with, or on behalf
of, The Depository Trust Company ("DTC") and registered in the name of DTC's
nominee. Except as set forth below, the Global Note may not be transferred
except as a whole among DTC and its nominees and successors.
So long as DTC or its nominee is the registered owner of the Global Note,
DTC or its nominee, as the case may be, will be considered the sole holder of
the notes for all purposes under the indenture. The beneficial owners of the
notes will be entitled only to those rights and benefits afforded to them in
accordance with DTC's regular operating procedures. Upon specified written
instructions of a Participant (defined below), DTC will have its nominee assist
Participants in the exercise of certain holders' rights, such as a demand for
acceleration or an instruction to the trustee. Except as provided below, owners
of beneficial interests in the Global Note will not be entitled to have notes
registered in their names, will not receive or be entitled to receive physical
delivery of notes in certificated form and will not be considered the registered
owners or holders of notes under the indenture.
In the event that:
(1) DTC is at any time unwilling or unable to continue as depository or if
any time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, and a successor depository is not
appointed by us within 90 days,
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(2) an Event of Default under the indenture has occurred and is continuing
and the beneficial owners representing a majority in principal amount
of the notes advise DTC to cease acting as depository or
(3) we, in our sole discretion, determine at any time that the notes shall
no longer be represented by the Global Note,
we will issue individual notes of the applicable amount and in certificated form
in exchange for a Global Note. In such instance, an owner of a beneficial
interest in the Global Note will be entitled to physical delivery of individual
notes in certificated form, equal in principal amount to such beneficial
interest and to have such notes in certificated form registered in its name.
Notes so issued in certificated form will be issued in denominations of $1,000
or any integral multiple thereof, and will be issued in registered form only,
without coupons.
The following is based on information furnished by DTC:
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement
among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of
its direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a direct Participant,
either directly or indirectly. The rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
Purchases of notes under the DTC system must be made by or though
direct Participants, which will receive a credit for the notes on DTC's
records. The ownership interest of each actual purchaser of each note is in
turn recorded on the direct and indirect Participant's records. A
beneficial owner does not receive written confirmation from DTC of its
purchase, but such beneficial owner is expected to receive a written
confirmation providing details of the transaction, as well as periodic
statements of its holdings, from the direct or indirect Participant through
which such beneficial owner entered into the transaction. Transfers of
ownership interests in notes are accomplished by entries made on the books
of Participants acting on behalf of beneficial owners. Beneficial owners do
not receive certificates representing their ownership interests in the
notes, except in the event that use of the book-entry system for the notes
is discontinued.
To facilitate subsequent transfers, the notes are registered in the
name of DTC's partnership nominee, Cede & Co. The deposit of the notes with
DTC and their registration in the name of Cede & Co. effects no change in
beneficial ownership. DTC has no knowledge of the actual beneficial owners
of the notes; DTC records reflect only the identity of the direct
Participants to whose accounts the notes are credited, which may or may not
be the beneficial owners. The Participants remain responsible for keeping
account of their holdings on behalf of their customers.
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<PAGE> 16
Conveyance of notices and other communications by DTC to direct
Participants, by direct Participants to indirect Participants, and by
direct Participants and indirect Participants to beneficial owners are
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
notes are being redeemed, DTC's practice is to determine by lot the amount
of the interest of each direct Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the
notes. Under its usual procedures, DTC mails an omnibus proxy to the issuer
as soon as possible after the record date. The omnibus proxy assigns Cede &
Co.'s consenting or voting rights to those direct Participants to whose
accounts the notes are credited on the record date (identified on a list
attached to the omnibus proxy).
Principal and interest payments on the notes will be made by us to the
trustee and from the trustee to DTC. DTC's practice is to credit direct
Participant's accounts on the payable date in accordance with their
respective holdings as shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payable date. Payments by
Participants to beneficial owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of DTC, the trustee
or us, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of principal and interest to DTC is the
responsibility of us or the trustee, disbursement of such payments to
direct Participants is the responsibility of DTC, and disbursement of such
payments to the beneficial owners is the responsibility of direct and
indirect Participants.
DTC may discontinue providing its services as securities depository
with respect to the notes at any time by giving reasonable notice to us or
the trustee. Under such circumstances, in the event that a successor
securities depository is not appointed, note certificates are required to
be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that we believe to be reliable, but we take no
responsibility for its accuracy. None of us, the underwriters or the trustee
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial interests in the Global Note, or
for maintaining, supervising or reviewing any records relating to such
beneficial interests.
FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of the material U.S. federal income
tax considerations relevant to the purchase, ownership and disposition of the
notes, but does not purport to be a complete analysis of all potential tax
consequences. The discussion is based upon the Internal Revenue Code of 1986, as
amended (the "Code"), U.S. Treasury Regulations, Internal Revenue Service
("IRS") rulings and pronouncements and judicial decisions all in effect as of
the date hereof, all of which are subject to change at any time, and any such
change may be applied retroactively in a manner that could adversely affect a
holder of the notes. The discussion does not address all of the U.S. federal
income tax consequences that may be relevant to you in view of your particular
circumstances or to holders subject to special rules, such as certain financial
institutions, insurance companies, dealers in securities, tax-exempt
organizations and persons holding the notes as part of a
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"straddle," "hedge" or "conversion transaction." In addition, this discussion is
limited to persons purchasing the notes for cash at original issue. Moreover,
the effect of any applicable state, local or foreign tax laws is not discussed.
This discussion deals only with notes held as "capital assets" within the
meaning of Section 1221 of the Code.
As used in this section, "U.S. Holder" means a beneficial owner of the
notes, who or that:
(1) is a citizen or resident of the United States,
(2) is a corporation or other entity created or organized in or under the
laws of the United States or political subdivision thereof (except, in
the case of a partnership, as the IRS provides otherwise by
regulations),
(3) is an estate the income of which is subject to U.S. federal income
taxation regardless of its source,
(4) is a trust if (A) a U.S. court is able to exercise primary supervision
over the administration of the trust and (B) one or more U.S. persons,
within the meaning of Section 7701(a)(3) of the Code ("U.S. Persons"),
have authority to control all substantial decisions of the trust, or
(5) is otherwise subject to U.S. federal income taxation on a net income
basis in respect of the notes.
As used in this section, a "Non-U.S. Holder" means a holder who or that is
not a U.S. Holder.
We have not sought and will not seek any rulings from the IRS with respect
to the matters discussed below. There can be no assurance that the IRS will not
take a different position concerning the tax consequences of the purchase,
ownership or disposition of the notes or that any such position would not be
sustained.
YOU SHOULD CONSULT YOUR OWN TAX ADVISORS WITH REGARD TO THE APPLICATION OF
THE TAX CONSIDERATIONS DISCUSSED BELOW TO YOUR PARTICULAR SITUATION AS WELL AS
THE APPLICATION OF ANY STATE, LOCAL, FOREIGN OR OTHER TAX LAWS, INCLUDING GIFT
AND ESTATE TAX LAWS.
U.S. HOLDERS
Interest. The stated interest on the notes generally will be taxable to a
U.S. Holder as ordinary income at the time that it is paid or accrued, in
accordance with the U.S. Holder's method of accounting for federal income tax
purposes. It is not anticipated that the notes will give rise to "original issue
discount" in the hands of U.S. Holders.
Sale, Retirement or Redemption of a Note. A U.S. Holder of a note will
recognize gain or loss upon the sale, redemption, retirement or other taxable
disposition of such note in an amount equal to the difference between (a) the
amount of cash and the fair market value of property received in exchange
therefor (other than amounts attributable to accrued but unpaid stated interest)
and (b) the U.S. Holder's adjusted tax basis in such note. Any gain or loss
recognized generally will be capital gain or loss. In the case of a
non-corporate U.S. Holder that has held the note for more than one year on the
date of the disposition, such gain will be subject to tax at a maximum capital
gains rate of 20%.
U.S. Holders should be aware that the resale of the notes may be affected
by the "market discount" rules of the Code under which a purchaser of a note
acquiring the note
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at a market discount generally would be required to include as ordinary income a
portion of the gain realized upon the disposition or retirement of such note, to
the extent of the market discount that has accrued but has not been included in
income while the note was held by such purchaser.
NON-U.S. HOLDERS
U.S. Income and Withholding Tax
Interest paid to Non-U.S. Holders of the notes will not be subject to U.S.
withholding tax, provided that:
(1) the Non-U.S. Holder does not actually or constructively own 10 percent
or more of our capital or profits,
(2) the Non-U.S. Holder is not a controlled foreign corporation for U.S.
federal income tax purposes that is related to us through equity
ownership, and
(3) the beneficial owner of the note provides a statement signed under
penalties of perjury that includes its name and address and certifies
that it is not a U.S. Person in compliance with applicable requirements
or an exemption is otherwise established.
If those requirements cannot be satisfied, a Non-U.S. Holder will be
subject to U.S. withholding tax at a rate of 30% (or lower treaty rate, if
applicable) on interest payments on the notes.
If a Non-U.S. Holder of a note is engaged in a trade or business in the
United States and interest on the note is effectively connected with the conduct
of such trade or business, the holder, although exempt from U.S. federal
withholding tax provided that the holder delivers a properly completed Form 4224
or W-8ECI, will be subject to U.S. federal income tax on such interest in the
same manner as if it were a U.S. Holder.
In general, any gain realized by a Non-U.S. Holder upon the sale, exchange,
redemption or other disposition of a note will not be subject to U.S. income or
withholding tax, unless (1) the gain is effectively connected with a U.S. trade
or business of the Non-U.S. Holder, or (2) the Non-U.S. Holder is an individual
who is present in the United States for a total of 183 days or more during the
taxable year in which the gain is realized and certain other conditions are
satisfied.
U.S. Estate Tax
A note held by an individual who is not a citizen or resident of the United
States at the time of his death will not be subject to U.S. federal estate tax
as a result of such individual's death, provided that, at the time of such
individual's death, the individual does not own, actually or constructively, 10%
or more of our capital or profits and payments with respect to such note would
not have been effectively connected with the conduct by such individual of a
trade or business in the United States.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Certain noncorporate U.S. Persons may be subject to IRS information
reporting and backup withholding at a rate of 31% on payments of principal and
interest on the notes,
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and the proceeds from a disposition of the notes. Backup withholding will only
be imposed where a holder:
(1) fails to furnish its taxpayer identification number ("TIN"), which, for
an individual, would ordinarily be his or her social security number,
(2) furnishes an incorrect TIN,
(3) is notified by the IRS that it has failed to properly report payments
of interest or dividends, or
(4) under certain circumstances, fails to certify, under penalties of
perjury, that it has furnished a correct TIN and has not been notified
by the IRS that it is subject to backup withholding.
We also will institute backup withholding with respect to payments made on
a note to a holder if instructed to do so by the IRS.
Interest paid with respect to a note and received by a Non-U.S. Holder will
not be subject to IRS information reporting and backup withholding if the payor
has received appropriate certification statements and provided that the payor
does not have actual knowledge that the holder is a U.S. Person. You should
consult your own tax advisors regarding your qualification for exemption from
backup withholding and the procedure for obtaining such an exemption, if
applicable.
The payment of the proceeds from the disposition of the notes to or through
the U.S. office of any broker will be subject to IRS information reporting and
possibly backup withholding unless the owner certifies as to its non-U.S. status
under penalties of perjury or otherwise establishes an exemption, provided that
the broker does not have actual knowledge that the holder is a U.S. Person or
that the conditions of any other exemption are not, in fact, satisfied. The
payment of the proceeds from the disposition of a note to or through a non-U.S.
office of a broker that is not a U.S. Person or U.S. related person will not be
subject to IRS information reporting or backup withholding. For this purpose, a
"U.S. related person" is (1) a controlled foreign corporation for U.S. federal
income tax purposes, (2) a non-U.S. Person 50% or more of whose gross income
from all sources for the three-year period ending with the close of its taxable
year preceding the payment (or for such part of the period that the broker has
been in existence) is derived from the activities that are effectively connected
with the conduct of a U.S. trade or business or (3) for payments made after
December 31, 2000, a foreign partnership with certain connections to the United
States.
In the case of the payment of proceeds from the disposition of notes to or
through a non-U.S. office of a broker that is a U.S. Person or U.S. related
person IRS information reporting (but not backup withholding) will apply to the
payment unless the broker has documentary evidence in its files that the owner
is a Non-U.S. Holder and the broker has no knowledge to the contrary.
Any amounts withheld under the backup withholding rules from a payment to a
Non-U.S. Holder will be allowed as a credit against such Non-U.S. Holder's U.S.
federal income tax liability, if any, and otherwise will be refundable, provided
that the requisite procedures are followed.
PROSPECTIVE FINAL REGULATIONS
Recently finalized Treasury Regulations ("New Regulations") modify the
requirements imposed on a Non-U.S. Holder and certain intermediaries for
establishing the recipient's
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status as a Non-U.S. Holder eligible for exception from or reduction in U.S.
withholding tax and backup withholding described above. The New Regulations are
generally effective for payments made after December 31, 2000, subject to
certain transition rules. In general, the New Regulations do not significantly
alter the substantive withholding and information reporting requirements but
rather unify current certification procedures and forms and clarify reliance
standards. In addition, the New Regulations impose more stringent conditions on
the ability of financial intermediaries acting for a Non-U.S. Holder to provide
certifications on behalf of the Non-U.S. Holder, which may include entering into
an agreement with IRS to audit certain documentation with respect to such
certifications. You should consult your own tax advisor to determine the effects
of the application of the New Regulations to your particular circumstances.
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UNDERWRITING
Spieker and the underwriters for the offering named below have entered into
an underwriting agreement and a pricing agreement with respect to the notes.
Subject to certain conditions, each underwriter has severally agreed to purchase
the principal amount of notes indicated in the following table.
<TABLE>
<CAPTION>
Principal Principal
Amount of Amount of
Underwriters 2004 Notes 2009 Notes
------------ -------------- --------------
<S> <C> <C>
Goldman, Sachs & Co................... $120,000,000 $120,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated........................ 20,000,000 20,000,000
J.P. Morgan Securities Inc............ 20,000,000 20,000,000
Morgan Stanley & Co. Incorporated..... 20,000,000 20,000,000
Salomon Smith Barney Inc.............. 20,000,000 20,000,000
------------ ------------
Total....................... $200,000,000 $200,000,000
============ ============
</TABLE>
------------------
Notes sold by the underwriters to the public will initially be offered at
the initial public offering prices set forth on the cover of this prospectus
supplement. Any notes sold by the underwriters to securities dealers may be sold
at a discount from the initial public offering prices of up to 0.35% and 0.40%
of the principal amount of the 2004 notes and 2009 notes, respectively. Any such
securities dealers may resell any notes purchased from the underwriters to
certain other brokers or dealers at a discount from the initial public offering
prices of up to 0.25% of the principal amount of each of the 2004 notes and 2009
notes. If all the 2004 notes and 2009 notes are not sold at the initial offering
prices, the underwriters may change the offering prices and the other selling
terms.
The notes are new issues of securities with no established trading market.
Spieker has been advised by the underwriters that the underwriters intend to
make a market in the notes but 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 the trading market for the notes.
In connection with the offering, the underwriters may purchase and sell
notes in the open market. These transactions may include short sales,
stabilizing transactions and purchases to cover positions created by short
sales. Short sales involve the sale by the underwriters of a greater number of
notes than they are required to purchase in the offering. Stabilizing
transactions consist of certain bids or purchases made for the purpose of
preventing or retarding a decline in the market prices of the notes while the
offering is in progress.
The underwriters also may impose a penalty bid. This occurs when a
particular underwriter repays to the underwriters a portion of the underwriting
discount received by it because the representatives have purchased notes sold by
or for the account of such underwriter in stabilizing or short covering
transactions.
These activities by the underwriters may stabilize, maintain or otherwise
affect the market prices of the notes. As a result, the prices of the notes may
be higher than the prices that otherwise might exist in the open market. If
these activities are commenced, they may be discontinued by the underwriters at
any time. These transactions may be effected in the over-the-counter market or
otherwise.
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Spieker estimates that its share of the total expenses of the offering,
excluding underwriting discounts and commissions and including registration
fees, will be approximately $160,000.
In the ordinary course of their respective businesses, certain of the
underwriters and their affiliates have engaged, and may in the future engage, in
investment banking and/or commercial banking transactions with Spieker.
Affiliates of J.P. Morgan Securities Inc. and Salomon Smith Barney Inc. are
lenders under Spieker's unsecured line of credit. To the extent the net proceeds
from the offering are used to repay indebtedness outstanding thereunder, such
affiliates will receive their share of such repayment.
Spieker has agreed to indemnify the several underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
VALIDITY OF NOTES
The validity of the notes offered by this prospectus supplement will be
passed upon for us by Sullivan & Cromwell, Los Angeles, California, and for the
underwriters by Willkie Farr & Gallagher, New York, New York. Sullivan &
Cromwell and Willkie Farr & Gallagher will rely upon the opinion of Piper &
Marbury L.L.P., Baltimore, Maryland as to certain matters of Maryland law.
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PROSPECTUS
$1,584,004,850
SPIEKER PROPERTIES, INC.
COMMON STOCK, PREFERRED STOCK,
DEPOSITARY SHARES,
[SPIEKER LOGO] WARRANTS AND GUARANTEES
SPIEKER PROPERTIES, L.P.
DEBT SECURITIES
------------------------
Spieker Properties, Inc. (the "Company") may from time to time offer in one
or more series or classes (i) shares of its common stock, par value $0.0001 per
share (the "Common Stock"), (ii) shares or fractional shares of its preferred
stock, par value $0.0001 per share (the "Preferred Stock"), (iii) shares of
Preferred Stock represented by Depositary Shares (the "Depositary Shares"), (iv)
warrants to purchase Preferred Stock or Common Stock (the "Warrants"), and (v)
unconditional guarantees (the "Guarantees") of unsecured Debt Securities (as
defined below) issued by Spieker Properties, L.P. (the "Operating Partnership")
in amounts, at prices and on terms to be determined at the time of offering,
with an aggregate public offering price of up to $770,504,850 (or its equivalent
in another currency 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 Operating
Partnership may from time to time offer in one or more series unsecured
non-convertible investment grade debt securities, which may be either senior
debt securities ("Senior Securities") or subordinated debt securities
("Subordinated Securities," and together with the Senior Securities, the "Debt
Securities"), with an aggregate public offering price of up to $813,500,000 (or
its equivalent in another currency 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 may be guaranteed by Guarantees of the Company as
to payment of principal, premium, if any, and interest. The Common Stock,
Preferred Stock, Depositary Shares, Warrants and Debt Securities (collectively,
the "Offered Securities") may be offered, separately or together, in separate
series in amounts, at prices and on terms to be set forth in one or more
supplements to the Prospectus (a "Prospectus Supplement").
The specific terms of the Offered Securities in respect to 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 Common Stock,
the specific title and any initial public offering price; (ii) in the case of
Preferred Stock, the specific title and liquidation preference, any dividend,
liquidation, redemption, conversion, voting and other rights, and any initial
public offering price; (iii) in the case of Depositary Shares, the fractional
share of Preferred Stock represented by each such Depositary Share; (iv) in the
case of Warrants, the duration, offering price, exercise price and
detachability; and (v) in the case of Debt Securities the specific title,
aggregate principal amount, 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 Operating Partnership or repayment at the option of the
holder, terms for sinking fund payments, covenants, applicability of any
Guarantees and any initial public offering price. In addition, such specific
terms may include limitations on direct or beneficial ownership and restrictions
on transfer of the Offered Securities, in each case as may be appropriate to
preserve the status of the Company as a real estate investment trust ("REIT")
for federal income tax purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered by such Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company or the Operating Partnership, or to or through
underwriters or dealers. If any agents or underwriters are involved in the sale
of any of the Offered Securities, their names, and any applicable purchase
price, fee, commission or discount arrangement between or among them, will be
set forth, or will be calculable from the information set forth, in the
applicable Prospectus Supplement. See "Plan of Distribution." No Offered
Securities may be sold without delivery of the applicable Prospectus Supplement
describing the method and terms of the offering of such series of Offered
Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS APRIL 28, 1998.
<PAGE> 24
AVAILABLE INFORMATION
The Company and the Operating Partnership are subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith the Company and the Operating Partnership
file reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and other
information filed can be inspected and copied at the Commission's Public
Reference Section, 450 Fifth Street, N.W., Washington, D.C., 20549, and at the
following regional offices of the Commission: Seven World Trade Center, 13th
Floor, New York, New York 10048 and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material can be obtained from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Commission also maintains a World Wide Web
site that contains reports, proxy and information statements and other
information regarding registrants, such as the Company and the Operating
Partnership, that file electronically with the Commission. The address of the
Commission's site is http://www.sec.gov. In addition, the Company's Common
Stock, Series B Preferred Stock and Series C Preferred Stock are listed on the
New York Stock Exchange and similar information concerning the Company can be
inspected and copied at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
The Company and the Operating Partnership have filed with the Commission
registration statements on Form S-3 (the "Registration Statements") (of which
this Prospectus is a part) under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Offered Securities. This Prospectus does
not contain all of the information set forth in the Registration Statements,
certain portions of which have been omitted as permitted by the rules and
regulations of the Commission. Statements contained in this Prospectus as to the
contents of any contract or other documents are not necessarily complete, and in
each instance reference is made to the copy of such contract or other document
filed as an exhibit to the Registration Statements, each such statement being
qualified in all respects by such reference and the exhibits and schedules
thereto. For further information regarding the Company, the Operating
Partnership and the Offered Securities, reference is hereby made to the
Registration Statements and such exhibits and schedules which may be obtained
from the Commission at its principal office in Washington, D.C. upon payment of
the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company under the
Exchange Act with the Commission and are incorporated herein by reference:
a. The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
b. The Company's Current Report on Form 8-K dated January 20, 1998 and
the Current Report on Form 8-K/A dated February 9, 1998;
c. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 1-12528);
d. The description of the Company's Series B Preferred Stock contained
in the Company's Registration Statement on Form 8-A (File No. 1-12528); and
e. The description of the Company's Series C Preferred Stock contained
in the Company's Registration Statement Form 8-A (File No. 1-12528).
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<PAGE> 25
The documents listed below have been filed by the Operating Partnership
under the Exchange Act with the Commission and are incorporated by reference
herein.
a. The Operating Partnership's Annual Report on Form 10-K for the year
ended December 31, 1997; and
b. The Operating Partnership's Current Report on Form 8-K dated
January 20, 1998 and the Current Report on Form 8-K/A dated February 9,
1998.
Each document filed by the Company or the Operating Partnership pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering of all Offered
Securities to which this Prospectus relates shall be deemed to be incorporated
by reference in this Prospectus and to be part hereof from the date of filing
such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in the applicable Prospectus Supplement) or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered upon written or oral request. Requests should be
directed to the Investor Relations Coordinator, Spieker Properties, Inc., 2180
Sand Hill Road, Menlo Park, California 94025, telephone number: (650) 854-5600.
THE COMPANY AND THE OPERATING PARTNERSHIP
Spieker Properties, Inc. (the "Company") is a self-administered and
self-managed equity real estate investment trust ("REIT") that specializes in
the acquisition, development and management of suburban office and industrial
properties. As of December 31, 1997, the Company owned income-producing
properties (the "Properties") aggregating approximately 34.5 million rentable
square feet. The Properties are located primarily in California, Washington,
Oregon and Idaho.
The Company conducts substantially all of its activities through Spieker
Properties, L.P. (the "Operating Partnership"), in which it owns an approximate
89.2% general partnership interest as of December 31, 1997. An approximate 10.8%
limited partnership interest in the Operating Partnership is owned by senior
members of the Company's management and certain outside investors as of December
31, 1997. As the sole general partner of the Operating Partnership, the Company
has control over the management of the Operating Partnership and over each of
the Properties.
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol "SPK", its Series B Preferred Stock is listed on the New York Stock
Exchange under the symbol "SPKPrB" and its Series C Preferred Stock is listed on
the New York Stock Exchange under the symbol "SPKPrC." The Company is a Maryland
corporation and the Operating Partnership is a California limited partnership.
The Company and the Operating Partnership were formed in 1993. The Company's and
the Operating Partnership's executive offices are located at 2180 Sand Hill
Road, Menlo Park, California 94025 and telephone number is (650) 854-5600.
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<PAGE> 26
The Company has elected to be taxed as a REIT under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended (the "Code"). As a REIT,
the Company generally is not subject to federal income tax on net income that it
distributes to its stockholders. REITs are subject to a number of organizational
and operational requirements, including a requirement that they currently
distribute at least 95% of their taxable income. See "Federal Income Tax
Considerations."
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<PAGE> 27
USE OF PROCEEDS
The Company intends to invest the net proceeds of any sale of Common Stock,
Preferred Stock, Depositary Shares or Warrants in the Operating Partnership.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Operating Partnership intends to use such net proceeds and the net proceeds from
the sale of any Debt Securities for general corporate purposes including,
without limitation, the acquisition and development of industrial and office
properties and the repayment of debt. Net proceeds from the sale of the Offered
Securities initially may be temporarily invested in short-term securities.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's and the Operating Partnership's ratio of earnings to fixed
charges for the years ended December 31, 1994, 1995, 1996 and 1997 was 1.29x,
1.61x, 2.56x and 2.52x, respectively. The Company's ratio of earnings to
combined fixed charges and preferred stock dividends for the years ended
December 31, 1994, 1995, 1996 and 1997 was 1.26x, 1.53x, 1.97x and 2.06x,
respectively.
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges (excluding capitalized interest) to income (loss) from
operations, before extraordinary items. Fixed charges consist of interest costs,
whether expensed or capitalized, the interest component of rental expense, and
amortization of debt discounts and deferred financing fees, whether expensed or
capitalized.
5
<PAGE> 28
SPECIAL CONSIDERATIONS
Prospective investors should carefully consider the following information
in conjunction with the other information contained in this Prospectus and the
applicable Prospectus Supplement before purchasing Offered Securities.
GENERAL REAL ESTATE INVESTMENT RISKS
Real property investments are subject to varying degrees of risk. The
yields available from investments in real estate depend on the amount of income
and capital appreciation generated by the related properties. If the Properties
do not generate sufficient income to meet operating expenses, including debt
service, ground lease payments, tenant improvements, third-party leasing
commissions and other capital expenditures, the Company's income and ability to
make distributions to its stockholders and the Operating Partnership's ability
to make payments of any interest and principal on any Debt Securities will be
adversely affected. The performance of the economy in each of the regions in
which the Properties are located affects occupancy, market rental rates and
expenses and, consequently, has an impact on the income from the Properties and
their underlying values. The financial results of major local employers also may
have an impact on the cash flow and value of certain Properties. In terms of
rentable square feet, approximately 41.4% of the Properties as of December 31,
1997, were located in the San Francisco Bay Area. As a result of this geographic
concentration, the performance of the San Francisco Bay Area commercial real
estate market will affect the value of the Properties in that area and, in turn,
the value of the Company.
Income from the Properties may be further adversely affected by the general
economic climate, local economic conditions in which the Properties are located,
such as oversupply of space or a reduction in demand for rental space, the
attractiveness of the Properties to tenants, competition from other available
space, the ability of the Company to provide for adequate maintenance and
insurance and increased operating expenses. There is also the risk that as
leases on the Properties expire, tenants will enter into new leases on terms
that are less favorable to the Company. Income and real estate values may also
be adversely affected by such factors as applicable laws (e.g., ADA and tax
laws), interest rate levels and the availability of financing. In addition, real
estate investments are relatively illiquid and, therefore, will tend to limit
the ability of the Company to vary its portfolio promptly in response to changes
in economic or other conditions.
COMPETITION
Numerous industrial and office properties compete with the Properties in
attracting tenants to lease space. Some of these competing properties are newer,
better located or better capitalized than the Company's Properties. The number
of competitive commercial properties in a particular area could have a material
effect on the Company's ability to lease space in the Properties or at newly
developed or acquired properties and on the rents charged.
ACQUISITION AND DEVELOPMENT ACTIVITIES
The Company intends to acquire existing commercial properties to the extent
that they can be acquired on advantageous terms and meet the Company's
investment criteria. Acquisitions of commercial properties entail general
investment risks associated with any real estate investment, including the risk
that investments will fail to perform as expected or that estimates of the cost
of improvements to bring an acquired property up to standards established for
the intended market position may prove inaccurate.
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<PAGE> 29
The Company intends to pursue commercial property development projects and
to develop certain landholdings as to which it has certain options. Such
projects generally require various governmental and other approvals, the receipt
of which cannot be assured. The Company's development activities will entail
certain risks, including the expenditure of funds on and devotion of
management's time to projects which may not come to fruition; the risk that
construction costs of a project may exceed original estimates, possibly making
the project uneconomic; the risk that occupancy rates and rents at a completed
project will be less than anticipated; and the risk that expenses at a completed
development will be higher than anticipated. These risks may result in a
reduction in the funds available for distribution.
DEBT FINANCING
The Company will be subject to the risks normally associated with debt
financing, including the risk that the Company's cash flow will be insufficient
to meet required payments of principal and interest, the risk that existing
indebtedness on the Properties cannot be refinanced or that the terms of such
refinancing will not be as favorable as the terms of existing indebtedness.
ENVIRONMENTAL MATTERS
Under various Federal, state and local laws, ordinances and regulations, an
owner or operator of real estate is liable for the costs of removal or
remediation of certain hazardous or toxic substances on or in such property.
Such laws often impose such liability without regard to whether the owner or
operator knew of, or was responsible for, the presence of such hazardous or
toxic substances. The presence of such substances, or the failure to properly
remediate such substances, may adversely affect the owner's or operator's
ability to sell or rent such property or to borrow using such property as
collateral. Persons who arrange for the disposal or treatment of hazardous or
toxic substances may also be liable for the costs of removal or remediation of
such substances at a disposal or treatment facility, whether or not such
facility is owned or operated by such person. Certain environmental laws impose
liability for release of asbestos-containing materials into the air, and third
parties may seek recovery from owners or operators of real properties for
personal injuries associated with asbestos-containing materials. In connection
with the ownership (direct or indirect), operation, management and development
of real properties, the Company may be considered an owner or operator of such
properties or as having arranged for the disposal or treatment of hazardous or
toxic substances and, therefore, may be potentially liable for removal or
remediation costs, as well as certain other costs, including governmental fines
and injuries to persons and property.
The Company is not aware of any environmental liability with respect to the
Properties that would have a material adverse effect on the Company's business,
assets or results of operations. There can be no assurance that such a material
environmental liability does not exist. The existence of any such material
environmental liability would have an adverse effect on the Company's results of
operations and cash flow.
GENERAL UNINSURED LOSSES/SEISMIC ACTIVITY
The Company carries comprehensive liability, fire, flood, extended coverage
and rental loss insurance with policy specifications, limits and deductibles
customarily carried for similar properties. There are, however, certain types of
extraordinary losses which may be either uninsurable, or not economically
insurable. Further, a substantial number of the Properties are located in areas
that are subject to earthquake activity. Although the Company has obtained
certain limited earthquake insurance policies, should a Property sustain damage
as a result of an earthquake, the Company may incur substantial losses
7
<PAGE> 30
due to insurance deductibles, co-payments on insured losses or uninsured losses.
Additionally, earthquake insurance may not be available for certain of the
Company's Properties, or if available, may not be available on terms acceptable
to the Company. Should an uninsured loss occur, the Company could lose its
investment in, and anticipated profits and cash flows from, a number of
Properties.
8
<PAGE> 31
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general terms and provisions of the
Indenture under which the Debt Securities are to be issued. The particular terms
of the Debt Securities will be set forth in a Prospectus Supplement relating to
such Debt Securities.
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities are to be issued under an Indenture dated December 6, 1995, as
amended or supplemented from time to time (the "Indenture"), among the Operating
Partnership, the Company and State Street Bank and Trust Company, as trustee
(together with any other trustee(s) appointed in a supplemental indenture with
respect to a particular series, the "Trustee"). As of March 31, 1998, the
Company had 13 series of debt securities aggregating approximately $1.4 billion
outstanding pursuant to the Indenture. The Indenture is available for inspection
at the corporate trust office of the Trustee, or as described above under
"Available Information." The Indenture is subject to, and governed by, the Trust
Indenture Act of 1939, as amended. The statements made hereunder relating to the
Indenture and the Debt Securities to be issued hereunder are summaries of
certain provisions thereof and do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all provisions of the
Indenture and such Debt Securities. All section references appearing herein are
to sections of the Indenture, and capitalized terms used but not defined herein
shall have the respective meanings set forth in the Indenture.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Operating
Partnership. Except for any series of Debt Securities which is specifically
subordinated to other indebtedness of the Operating Partnership, the Debt
Securities will rank pari passu with all other unsecured and unsubordinated
indebtedness of the Operating Partnership. Under the Indenture, the Debt
Securities may be issued without limit as to aggregate principal amount, in one
or more series, in each case as established from time to time in or pursuant to
authority granted by a resolution of the Board of Directors of the Company as
sole general partner of the Operating Partnership or as established in one or
more indentures supplemental to the Indenture. All Debt Securities of one series
need not be issued at the same time and, unless otherwise provided, a series may
be reopened, without the consent of the Holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series (Section
301).
The Debt Securities may be unconditionally guaranteed by the Company as to
payment of principal, premium, if any, and interest. (Section 1601).
The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
the Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee will be appointed to act with respect
to such series (Section 608). In the event that two or more persons are acting
as Trustee with respect to different series of Debt Securities, each such
Trustee shall be a trustee of a trust under the Indenture separate and apart
from the trust administered by any other Trustee (Section 609), and, except as
otherwise indicated herein, any action described herein to be taken by the
Trustee may be taken by each such Trustee with respect to, and only with respect
to, the one or more series of Debt Securities for which it is Trustee under the
Indenture.
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<PAGE> 32
TERMS
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
(1) the title of such Debt Securities, whether such Debt Securities
are Senior Securities or Subordinated Securities and whether such Debt
Securities are guaranteed by a Guarantee;
(2) the aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of
acceleration of the maturity thereof;
(4) the date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be payable;
(5) 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;
(6) the date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the Interest Payment Dates
on which any such interest will be payable, the Regular Record Dates for
such Interest Payment Dates, or the method by which such Dates shall be
determined, the Person to whom such interest shall be payable, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(7) the place or places where (i) the principal of (and premium, if
any) and interest, if any, on such Debt Securities will be payable, (ii)
such Debt Securities may be surrendered for registration of transfer,
exchange or conversion and (iii) notices or demands to or upon the
Operating Partnership in respect of such Debt Securities, any applicable
Guarantees and the Indenture may be served;
(8) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which such
Debt Securities may be redeemed, as a whole or in part, at the option of
the Operating Partnership, if the Operating Partnership is to have such an
option;
(9) the obligation, if any, of the Operating Partnership to redeem,
repay or repurchase such Debt Securities pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the period
or periods within which, or the date or dates on which, the price or prices
at which and the terms and conditions upon which such Debt Securities are
required to be redeemed, repaid or purchased, as a whole or in part,
pursuant to such obligation;
(10) if other than U.S. dollars, the currency or currencies in which
such Debt Securities are denominated and/or 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;
(11) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
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;
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<PAGE> 33
(12) any additions to, modifications of or deletions from the terms of
such Debt Securities with respect to the Events of Default or covenants or
other provisions set forth in the Indenture;
(13) whether such Debt Securities will be issued in certificated
and/or book-entry form;
(14) whether such Debt Securities will be in registered or bearer form
and, if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form, the denominations
thereof and terms and conditions relating thereto;
(15) the applicability, if any, of the defeasance and covenant
defeasance provisions of Article XIV of the Indenture, or any modification
thereof;
(16) the terms and conditions, if any, upon which such Debt Securities
may be subordinated to other indebtedness of the Operating Partnership;
(17) whether and under what circumstances the Operating Partnership
will pay Additional Amounts as contemplated in the Indenture on such Debt
Securities in respect of any tax, assessment or governmental charge and, if
so, whether the Operating Partnership will have the option to redeem such
Debt Securities in lieu of making such payment; and
(18) any other terms of such Debt Securities not inconsistent with the
provisions of the Indenture (Section 301).
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Special U.S. federal income tax,
accounting and other considerations applicable to the Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
The Indenture does not contain any provisions that would limit the ability
of the Operating Partnership to incur indebtedness or that would afford Holders
of Debt Securities protection in the event of a highly leveraged or similar
transaction involving the Operating Partnership. However, restrictions on
ownership and transfers of the Company's common stock and preferred stock,
designed to preserve the Company's status as a REIT, may prevent or hinder a
change of control. 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 Operating Partnership that are
described below, including any addition of a covenant or other provision
providing event risk or similar protection.
GUARANTEES
The Debt Securities may be unconditionally and irrevocably guaranteed by
Guarantees of the Company, on a senior or subordinated basis, which will
guarantee the due and punctual payment of principal of, premium, if any, and
interest on such Debt Securities, and the due and punctual payment of any
sinking fund payments thereon, when and as the same shall become due and payable
whether at a maturity date, by declaration of acceleration, call for redemption
or otherwise. The applicability and terms of any such Guarantee relating to a
series of Debt Securities will be set forth in the Prospectus Supplement
relating to such Debt Securities. (Section 1601).
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<PAGE> 34
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof (Section 302).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest on any series of Debt Securities
will be payable at the corporate trust office of the Trustee, provided that, at
the option of the Holder, payment of interest may be made by check mailed to the
address of the Person entitled thereto as it appears in the Security Register or
by wire transfer of funds to such Person at an account maintained within the
United States (Sections 301, 305, 307 and 1002).
All amounts paid by the Operating Partnership to a paying agent or a
Trustee for the payment of the principal of or any premium or interest on any
Debt Security which remain unclaimed at the end of two years after the
principal, premium or interest has become due and payable will be repaid to the
Operating Partnership, and the holder of the Debt Security thereafter may look
only to the Operating Partnership for payment thereof. (Section 1003).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of such Debt Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the Indenture
(Sections 101 and 307).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series, of a like aggregate principal amount
and tenor, of different authorized denominations upon surrender of such Debt
Securities at the corporate trust office of the Trustee. In addition, subject to
certain limitations imposed upon Debt Securities issued in book-entry form, the
Debt Securities of any series may be surrendered for conversion or registration
of transfer thereof at the corporate trust office of the Trustee referred to
above. Every Debt Security surrendered for conversion, redemption, registration
of transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer. No service charge will be made for any registration of
transfer or exchange of any Debt Securities, but the Operating Partnership may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (Section 305). If the applicable
Prospectus Supplement refers to any transfer agent (in addition to the Trustee)
initially designated by the Operating Partnership with respect to any series of
Debt Securities, the Operating Partnership 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 Operating
Partnership will be required to maintain a transfer agent in each Place of
Payment for such series. The Operating Partnership may at any time designate
additional transfer agents with respect to any series of Debt Securities
(Section 1002).
Neither the Operating Partnership nor the Trustee shall be required to (i)
issue, register the transfer of or exchange Debt Securities of any series during
a period beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close of
business of the day of mailing of the relevant notice of redemption; (ii)
register the transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except the unredeemed portion of any Debt Security being
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<PAGE> 35
redeemed in part; or (iii) issue, register the transfer of or exchange any Debt
Security which has been surrendered for repayment at the option of the Holder,
except that portion, if any, of such Debt Security which is not to be so repaid
(Section 305).
MERGER, CONSOLIDATION OR SALE
The Operating Partnership may consolidate with, or sell, lease or convey
all or substantially all of its assets to, or merge with or into, any other
person, provided (a) either the Operating Partnership shall be the continuing
person, or the successor (if other than the Operating Partnership) formed by or
resulting from any such consolidation or merger or which shall have received the
transfer of such assets shall expressly assume payment of the principal of (and
premium, if any) and interest on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions
contained in the Indenture; (b) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Operating Partnership or any Subsidiary as a result thereof as having been
incurred by the Operating Partnership or such Subsidiary at the time of such
transaction, no Event of Default under the Indenture, 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 of the
Company as General Partner of the Operating Partnership and an opinion of
counsel covering such conditions shall be delivered to the Trustee (Sections 801
and 803).
CERTAIN COVENANTS
Existence. Except as permitted under "Merger, Consolidation or Sale," the
Indenture requires each of the Operating Partnership and the Company (if the
Company has guaranteed any Debt Securities) to do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(partnership and statutory) and franchises; provided, however, that each of the
Operating Partnership and the Company shall not be required to preserve any
right or franchise if the Board of Directors of the Company determines that the
preservation thereof is no longer desirable in the conduct of the business of
the Operating Partnership and that the loss thereof is not disadvantageous in
any material respect to the Holders of the Debt Securities (Section 1004).
Maintenance of Properties. The Indenture requires each of the Operating
Partnership and the Company (if the Company has guaranteed any Debt Securities)
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, all as in the judgment of the Operating
Partnership 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 Operating Partnership or the Company, as the case may be, and
its Subsidiaries shall not be prevented from selling or otherwise disposing of
their properties for value in the ordinary course of business. (Section 1006).
Insurance. The Indenture requires the Operating Partnership and each of
its Subsidiaries to keep its insurable Properties insured against loss or damage
with commercially reasonable amounts and types of insurance provided by insurers
of recognized responsibility. (Section 1007).
Payment of Taxes and Other Claims. The Indenture requires each of the
Operating Partnership and the Company (if the Company has guaranteed any Debt
Securities) 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
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or any Subsidiary or upon its income, profits or property or that of 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 Operating
Partnership or any Subsidiary; provided, however, that the Operating Partnership
or the Company shall not be required to pay or discharge or cause to be paid or
discharged any tax, assessment, charge or claim whose amount or applicability is
being contested in good faith. (Section 1008).
Provision of Financial Information. The Operating Partnership will file
with the Trustee copies of annual reports, quarterly reports and other documents
(the "Financial Reports") which the Operating Partnership files with the
Commission or would be required to file with the Commission pursuant to Sections
13 or 15(d) of the Exchange Act if the Operating Partnership were subject to
such Sections; provided, however, that if the Operating Partnership is not
subject to such Sections, it may, in lieu of filing Financial Reports of the
Operating Partnership with the Trustee, file Financial Reports of the Company if
they would be materially the same as those that would have been filed by the
Operating Partnership with the Commission pursuant to Sections 13 or 15(d) of
the Exchange Act.
Additional Covenants. Reference is made to the applicable Prospectus
Supplement for information with respect to any additional covenants specific to
a particular series of Debt Securities.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Unless otherwise provided in the Prospectus Supplement, the Indenture
provides that the following events are "Events of Default" with respect to any
series of Debt Securities issued thereunder: (a) default for 30 days in the
payment of any interest on any Debt Security of such series; (b) default in the
payment of any principal of (or premium, if any, on) any Debt Security of such
series when due; (c) default in making any sinking fund payment as required for
any Debt Security of such series; (d) default in the performance of any other
covenant or warranty of the Operating Partnership or the Company contained in
the Indenture with respect to any Debt Security of such series, continued for 60
days after written notice as provided in the Indenture; (e) default in the
payment of an aggregate principal amount exceeding $10,000,000 of any evidence
of indebtedness of the Operating Partnership or the Company (if the Company or
any subsidiary of the Company has guaranteed any indebtedness of the Operating
Partnership) or any mortgage, indenture, note, bond, capitalized lease or other
instrument under which such indebtedness is issued or by which such indebtedness
is secured, such default having continued after the expiration of any applicable
grace period and having resulted in the acceleration of the maturity of such
indebtedness, but only if such indebtedness is not discharged or such
acceleration is not rescinded or annulled; (f) certain events of bankruptcy,
insolvency or reorganization, or court appointment of a receiver, liquidator or
trustee of the Operating Partnership and the Company (if the Company has
guaranteed any Debt Securities), or any Significant Subsidiary or all or
substantially all of any of their respective property; and (g) any other Event
of Default provided with respect to a particular series of Debt Securities
(Section 501). The term "Significant Subsidiary" means each significant
Subsidiary (as defined in Regulation S-X promulgated under the Securities Act)
of the Operating Partnership or the Company, as the case may be. (Section 101).
If an Event of Default under the Indenture with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms thereof) of all of the Debt Securities of that
series to be due and payable immediately by written notice thereof to the
Company (if
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the Company has guaranteed any Debt Securities under such Indenture) and the
Operating Partnership (and to the Trustee if given by the Holders). However, any
time after such a declaration of acceleration with respect to Debt Securities of
such series has been made, but before a judgment or decree for payment of the
money due has been obtained by the Trustee, the Holders of not less then a
majority in principal amount of Outstanding Debt Securities of such series may
rescind and annul such declaration and its consequences if (a) the Operating
Partnership shall have paid or deposited with the Trustee all required payments
of the principal of (and premium, if any) and interest on the Debt Securities of
such series plus certain fees, expenses, disbursements and advances of the
Trustee and (b) all Events of Default, other than the nonpayment of accelerated
principal or interest with respect to Debt Securities of such series have been
cured or waived as provided in the Indenture (Section 502). The Indenture also
provides that the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series 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
Indenture that cannot be modified or amended without the consent of the Holder
of each Outstanding Debt Security affected thereby (Section 513).
The Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the Indenture; provided, however, that the
Trustee may withhold notice to the Holders of any series of Debt Securities of
any default with respect to such series (except a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security of such
series or in the payment of any sinking fund installment in respect of any Debt
Security of such series) if the Responsible Officers of the Trustee consider
such withholding to be in the interest of such Holders (Section 601).
The Indenture provides that no Holders of Debt Securities of any series may
institute any proceedings, judicial or otherwise, with respect to the Indenture
or for any remedy thereunder, except in the case of failure of the 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 a majority
in principal amount of the Outstanding Debt Securities of that series, as well
as an offer of reasonable indemnity (Section 507). 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 date thereof (Section 508).
Subject to provisions in the Indenture relating to its duties in case of
default, the Trustee is under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any Holders of Debt
Securities of any series then Outstanding under the Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
(Section 602). The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or of exercising any trust or power conferred upon the Trustee.
However, the Trustee may refuse to follow any direction which is in conflict
with any law or the Indenture, which may involve the Trustee in personal
liability or which may be unduly prejudicial to the Holders of Debt Securities
of such series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, the Operating
Partnership and the Company (if the Company has guaranteed any Debt Securities)
must deliver to the 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 Indenture and, if so, specifying each such default and the
nature and status thereof (Section 1005).
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MODIFICATION OF THE INDENTURE
Modifications and amendments of provisions of the Indenture applicable to
any series may be made only with consent of the Holders of not less than a
majority in principal amount of all Outstanding Debt Securities which are
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each such
Debt Security affected thereby, (a) change the Stated Maturity of the principal
of, or any installment of principal of or interest (or premium, if any) on, any
such Debt Security; (b) 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; (c) 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; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security on or
after the Stated Maturity thereof; (e) reduce the above-stated percentage of
Outstanding Debt Securities of any series necessary to modify or amend the
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 Indenture; or (f) modify any of the foregoing
provisions or any of the provisions relating to the waiver of certain past
defaults or certain covenants, except to increase the required percentage to
effect such action or to provide that certain other provisions may not be
modified or waived without the consent of the Holder of such Debt Security
(Section 902).
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities of a particular series have the right to waive compliance by the
Operating Partnership or the Company with certain covenants in the Indenture
relating to such series (Section 1010).
Modifications and amendments of the Indenture may be made by the Operating
Partnership and the Company (if the Company has guaranteed any Debt Securities)
and the Trustee 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
Operating Partnership as obligor under the Indenture or succession of another
Person as Guarantor; (ii) to add to the covenants of the Operating Partnership
and the Company (if the Company has guaranteed any Debt Securities) for the
benefit of the Holders of all or any series of Debt Securities or to surrender
any right or power conferred upon the Operating Partnership or the Company in
the Indenture; (iii) to add Events of Default for the benefit of the Holders of
all or any series of Debt Securities; (iv) to add or change any provisions of
the Indenture to facilitate the issuance of Debt Securities in bearer form, or
to permit or facilitate the issuance of Debt Securities in uncertificated form,
provided that such action shall not adversely affect the interests of the
Holders of the Debt Securities of any series in any material respect; (v) to
change or eliminate any provisions of the Indenture, provided that any such
change or elimination shall become effective only when there are not Debt
Securities Outstanding of any series created prior thereto which are entitled to
the benefit of such provision; (vi) to secure the Debt Securities or Guarantees;
(vii) to establish the form or terms of Debt Securities of any series and any
related Guarantees; (viii) to provide for the acceptance of appointment by a
successor Trustee or facilitate the administration of the trust under the
Indenture by more than one Trustee; (ix) to cure any ambiguity, defect or
inconsistency in the Indenture, provided that such action shall not adversely
affect the interests of Holders of Debt Securities of any series in any material
respect; and (x) to supplement any of the provisions of the Indenture to the
extent necessary to permit or facilitate defeasance and discharge of any series
of such Debt Securities, provided that
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such action shall not adversely affect the interests of the Holders of the Debt
Securities of any series in any material respect (Section 901).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
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 a 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 Security 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
Section 301 of the Indenture, and (iv) Debt Securities owned by the Operating
Partnership or any other obligor upon the Debt Securities or any Affiliate of
the Operating Partnership or of such other obligor shall be disregarded (Section
101).
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series (Section 1501). A meeting may be called at any time
by the Trustee, and also, upon request, by the Operating Partnership or the
Holders 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 the Indenture
(Section 1502). Except for any consent that must be given by the Holder of each
Debt Security affected by certain modifications and amendments of the Indenture,
any resolution presented at a meeting or adjourned meeting duly reconvened at
which a quorum is present may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Debt Securities of that
series; provided, however, that, except as referred to above, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Debt Securities of a series may be adopted at a meeting or adjourned
meeting duly reconvened at which a quorum is present by the affirmative vote of
the Holders of such specified percentage in principal amount of the Outstanding
Debt Securities of that series. Any resolution passed or decision taken at any
meeting of Holders of Debt Securities of any series duly held in accordance with
the Indenture will be binding on all Holders of Debt Securities of that series.
The quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be Persons holding or representing a majority in principal amount
of the Outstanding Debt Securities of a series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
may be given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Debt Securities of a series, the Persons holding or
representing such specified percentage in principal amount of the Outstanding
Debt Securities of such series will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of Holders of Debt Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
the 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
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series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under the
Indenture (Section 1504).
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise provided in the Prospectus Supplement, the Operating
Partnership or the Company (if the Company has guaranteed any Debt Securities
under such Indenture) may discharge certain obligations to Holders of any series
of Debt Securities that have not already been delivered to the Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or are scheduled for redemption within one year) by
irrevocably depositing with the Trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or currencies in which
such Debt Securities are payable in an amount sufficient to pay the entire
indebtedness on such Debt Securities in respect of principal (and premium, if
any) and interest to the date of such deposit (if such Debt Securities have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be (Section 401).
The Indenture provides that, unless otherwise provided in the Prospectus
Supplement, if the provisions of Article Fourteen are made applicable to the
Debt Securities of any series pursuant to Section 301 of the Indenture, the
Operating Partnership may elect either (a) to decease and be discharged from any
and all obligations with respect to such Debt Securities (except for the
obligation to pay Additional Amounts, if any, upon the occurrence of certain
events of tax, assessment or governmental charge with respect to payments on
such Debt Securities and the obligations to register the transfer or exchange of
such Debt Securities, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities, to maintain an office or agency in respect of such Debt
Securities to compensate the Trustee and to hold moneys for payment in trust)
("defeasance") (Section 1402) or (b) to be released from its obligations with
respect to such Debt Securities under Sections 1006 through 1008, inclusive, of
the Indenture (being the restrictions described under "Certain Covenants") or,
if provided pursuant to Section 301 of the Indenture, its obligations with
respect to any other covenant, and any omission to comply with such obligations
shall not constitute a default or an Event of Default with respect to such Debt
Securities ("covenant defeasance") (Section 1403), in either case upon the
irrevocable deposit by the Operating Partnership or the Company, as the case may
be, with the Trustee, in trust, of any 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 may only be established if, among other things, the Operating
Partnership has delivered to the Trustee an Opinion of Counsel (as specified in
the 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, must refer to
and be based upon a ruling of the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after the date of the
Indenture (Section 1404).
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"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and 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 (Section 101).
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Operating Partnership or the Company, as the case may be, has deposited
funds and/or Government Obligations to effect defeasance or covenant defeasance
with respect to Debt Securities of any series, (a) the Holder of a Debt Security
of such series is entitled to, and does, elect pursuant to Section 301 of the
Indenture or the terms of such Debt Security to receive payment in a currency,
currency unit or composite currency other than that in which such deposit has
been made in respect of such Debt Security, or (b) a Conversion Event (as
defined below) occurs in respect of the currency, currency unit or composite
currency in which such deposit has been made, the indebtedness represented by
such Debt Security shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest on such Debt Security as the same becomes due out of the proceeds
yielded by converting the amount so deposited in respect of such Debt Security
into the currency, currency unit or composite currency in which such Debt
Security becomes payable as a result of such election or such cessation of usage
based on the applicable market exchange rate (Section 1405). "Conversion Event"
means the cessation of use of (i) a currency, currency unit or composite
currency either by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions or within the international banking community, (ii) the ECU either
within the European Monetary System or for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit or composite currency other than the ECU for the purposes for which it was
established. (Section 101.) 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 cease
to be used by its government of issuance shall be made in U.S. dollars.
In the event the Operating Partnership or the Company, as the case may be,
effects covenant defeasance with respect to any Debt Securities and such Debt
Securities are declared due and payable because of the occurrence of any Event
of Default other than the Event of Default described in clause (d) under "Events
of Default, Notice and Waiver" with respect to Section 1006 through 1008 of the
Indenture (which Sections would no longer be applicable to such Debt Securities)
or described in clause (g) under "Events of Default, Notice and Waiver" with
respect to any other covenant as to which there has been covenant defeasance,
the amount in such currency, currency unit or composite currency in which such
Debt Securities are payable, and Government Obligations on deposit with the
Trustee, will be sufficient to pay amounts due on such Debt Securities at the
time of their
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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 Operating Partnership and the Company (if the Company has
guaranteed any Debt Securities) 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 a particular series.
SUBORDINATION
The terms and conditions, if any, upon which the Debt Securities are
subordinated to other indebtedness of the Operating Partnership will be set
forth in the applicable Prospectus Supplement relating thereto. Such terms will
include a description of the indebtedness ranking senior to the Debt Securities,
the restrictions on payments to the Holders of such Debt Securities while a
default with respect to such senior indebtedness in continuing, the
restrictions, if any, on payments to the Holders of such Debt Securities
following an Event of Default, and provisions requiring Holders of such Debt
Securities to remit certain payments to holders of senior indebtedness.
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DESCRIPTION OF CAPITAL STOCK
GENERAL
As of April 20, 1998, the total number of shares of all classes of capital
stock that the Company had authority to issue was 1,000,000,000 shares,
consisting of (i) 653,000,000 shares of Common Stock, par value $0.0001 per
share, (ii) 2,000,000 shares of Class B Common Stock, par value $0.0001 per
share, (iii) 1,500,000 shares of Class C Common Stock, par value $0.0001 per
share, (iv) 1,000,000 shares of Series A Preferred Stock, par value $0.0001 per
share, (v) 5,000,000 shares of Series B Cumulative Redeemable Preferred Stock
("Series B Preferred Stock"), par value $0.0001 per share, (vi) 6,000,000 shares
of Series C Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"),
(vii) 1,500,000 shares of Series D Cumulative Redeemable Preferred Stock
("Series D Preferred Stock") and (viii) 330,000,000 shares of excess stock (the
"Excess Stock").
As of April 20, 1998, there were (i) 57,467,853 shares of Common Stock
issued and outstanding, (ii) 2,000,000 shares of Class B Common Stock issued and
outstanding, (iii) 1,176,470 shares of Class C Common Stock issued and
outstanding, (iv) 1,000,000 shares of Series A Preferred Stock issued and
outstanding, (v) 4,250,000 shares of Series B Preferred Stock, issued and
outstanding and (vi) 6,000,000 shares of Series C Preferred Stock issued and
outstanding. At any given time, there are reserved for issuance under the
Spieker Properties, Inc. 1993 Stock Incentive Plan (the "Plan") shares of the
Company's Common Stock equal to 9.9% of the number of shares of the Company's
Common Stock outstanding plus the number of shares of Common Stock issuable upon
conversion of partnership units in the Operating Partnership, Series A Preferred
Stock, Class B Common Stock and Class C Common Stock, and all classes of
convertible securities of the Company that may be issued in the future, as of
the last day of the immediately preceding quarter, reduced by the number of
shares of Common Stock reserved for issuance under other stock compensation
plans of the Company. As of April 20, 1998, 150,000 shares of Common Stock was
reserved for issuance under the Spieker Properties, Inc. 1993 Directors Stock
Option Plan (the "Directors Plan"). In addition, 2,531,645 shares of Common
Stock have been reserved for issuance upon the conversion of Class B Common
Stock, 1,176,470 shares of Common Stock have been reserved for issuance upon the
conversion of Class C Common Stock and 1,219,512 shares of Common Stock have
been reserved for issuance upon the conversion of the Series A Preferred Stock.
Further, as of April 20, 1998, 9,268,797 shares of Common Stock have been
reserved for issuance upon the conversion of limited partnership units in the
Operating Partnership and 1,500,000 shares of Series D Preferred Stock has been
reserved for issuance upon conversion of Series D Preferred Units in the
Operating Partnership. As of December 31, 1997, pursuant to the Plan and the
Directors Plan, options to purchase 4,146,800 shares of Common Stock were
outstanding.
COMMON STOCK
The following description of the Common Stock sets forth certain general
terms and provisions of the Common Stock to which any Prospectus Supplement may
relate, including a Prospectus Supplement providing that Common Stock will be
issuable upon conversion of Preferred Stock or Depositary Shares or upon the
exercise of Warrants issued by the Company. This description is in all respects
subject to and qualified in its entirety by reference to the applicable
provisions of the Company's Articles of Incorporation, as amended, restated and
supplemented to date (collectively, the "Charter") and its Bylaws. The Common
Stock is listed on the New York Stock Exchange under the symbol "SPK." The Bank
of New York is the Company's transfer agent.
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The holders of the outstanding Common Stock are entitled to one vote per
share for each director being elected and on all other matters voted on by
stockholders. The Charter does not provide for cumulative voting in the election
of directors.
The shares of Common Stock offered hereby will, when issued, be fully paid
and nonassessable and will not be subject to preemptive or similar rights.
Subject to the preferential rights of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and any
preferential rights of any other outstanding series of capital stock, the
holders of Common Stock are entitled to such distributions as may be declared
from time to time by the Board of Directors from funds available for
distribution to such holders. The Company currently pays regular quarterly
dividends to holders of Common Stock.
In the event of a liquidation, dissolution or winding up of the Company,
the holders of Common Stock are entitled to receive ratably the assets remaining
after satisfaction of all liabilities and payment of liquidation preferences and
accrued dividends, if any, on Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Class B Common Stock
and Class C Common Stock and any other series of capital stock that has a
liquidation preference. The rights of holders of Common Stock are subject to the
rights and preferences established by the Board of Directors for any capital
stock that may subsequently be issued by the Company.
Subject to limitations prescribed by Maryland law and the Company's
Charter, the Board of Directors is authorized to reclassify any unissued portion
of the authorized shares of capital stock to provide for the issuance of shares
in other classes or series, including other classes or series of Common Stock or
Preferred Stock, to establish the number of shares in each class or series and
to fix the designation and any preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of such class or series. The rights, preferences,
privileges and restrictions of such class or series will be fixed by the
articles supplementary relating to such class or series. A Prospectus Supplement
will specify the terms of such class or series.
CLASS B COMMON STOCK
The following description of the Company's Class B Common Stock is in all
respects subject to and qualified in its entirety by reference to the applicable
provisions of the Company's Charter, including the Articles Supplementary
applicable to the Class B Common Stock, and its Bylaws. The Company has issued
2,000,000 shares of Class B Common Stock, par value $0.0001 per share, all of
which were outstanding as of April 20, 1998.
The Class B Common Stock ranks on a parity with the Company's Common Stock
with respect to dividends. The Class B Common Stock was sold in May 1995 to an
institutional investor at a price per share of $25.00. The initial per share
dividend of the Class B Common Stock was set at $2.19 per annum, which was at a
rate that was equal to the dividend yield on shares of Common Stock sold
concurrently with the Class B Common Stock plus 0.25%. The dividend per share on
the Class B Common stock is increased or decreased by the same dollar amount as
any increase or decrease in the dividend distributions made to the holders of
Common Stock. The Company currently pays regular dividends to holders of Class B
Common Stock.
In the event of any liquidation, dissolution or winding up of the Company,
the holders of Class B Common Stock are entitled to receive, on a parity with
the holders of Class C Common Stock and prior and in preference to the holders
of Common Stock, an amount per share of Class B Common Stock equal to all
declared but unpaid dividends for each
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share of Class B Common Stock. The Class B Common Stock has not been registered
under the Securities Act. The institutional investor who purchased the shares of
Class B Common Stock has certain demand registration rights for eight years
following the May 1995 sale of such shares to register in each instance Common
Stock having a market value of $1.0 million or more. Subject to certain
limitations, the Class B Common Stock may be converted into Common Stock based
on a certain formula three years after the May 1995 sale or earlier upon the
occurrence of certain events including a change in management. Under such
formula, 2,000,000 outstanding shares of Class B Common Stock are currently
convertible into 2,531,645 shares of Common Stock. The holder of Class B Common
Stock is not entitled to vote on matters voted on by stockholders of the
Company.
CLASS C COMMON STOCK
The following description of the Company's Class C Common Stock is in all
respects subject to and qualified in its entirety by reference to the applicable
provisions of the Company's Charter, including the Articles Supplementary
applicable to the Class C Common Stock, and its Bylaws. The Company has issued
1,176,470 shares of Class C Common Stock, par value $0.0001 per share, all of
which were outstanding as of April 20, 1998.
The Class C Common Stock ranks on a parity with the Company's Common Stock
and Class B Common Stock with respect to dividends. The Class C Common Stock was
sold in March 1996 to an institutional investor at a price per share of $25.50.
The initial per share dividend of the Class C Common Stock was set at $1.73 per
annum. The dividend per share on the Class C Common Stock is increased or
decreased by the same dollar amount as any increase or decrease in the dividend
distributions made to the holders of Common Stock. The Company currently pays
regular dividends to the holder of Class C Common Stock.
In the event of any liquidation, dissolution or winding up of the Company,
the holders of Class C Common Stock are entitled to receive, on a parity with
the holders of Class B Common Stock and prior and in preference to the holders
of Common Stock, an amount per share of Class C Common Stock equal to all
declared but unpaid dividends for each share of Class C Common Stock. The Class
C Common Stock has not been registered under the Securities Act. The
institutional investor who purchased the shares of Class C Common Stock has
certain demand registration rights for eight years following the March 1996 sale
of such shares to register in each instance Common Stock having a market value
of $1.0 million or more. Subject to certain limitations, the Class C Common
Stock may be converted into Common Stock on a one-for-one basis three years
after the March 1996 sale or earlier upon the occurrence of certain events
including a change in management. The holders of Class C Common Stock are not
entitled to vote on matters voted on by stockholders of the Company.
SERIES A PREFERRED STOCK
The following description of the Company's Series A Preferred Stock is in
all respects subject to and qualified in its entirety by reference to the
applicable provisions of the Company's Charter, including the Articles
Supplementary applicable to the Series A Preferred Stock, and its Bylaws. The
Company is authorized to issue 1,000,000 shares of Series A Preferred Stock, all
of which were issued and outstanding as of April 20, 1998 and held of record by
one private investor. The Series A Preferred Stock ranks senior to the Company's
Common Stock, Class B Common Stock and Class C Common Stock as to dividends and
liquidation amounts. The dividend per share on the Series A Preferred Stock is
equal to the dividend per share on the Common Stock as multiplied by the number
of
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shares of Common Stock into which each share of Series A Preferred Stock is
convertible, provided that the dividend rate on the Series A Preferred Stock may
not be less than the initial dividend rate of $1.95 per share per annum. The
dividends on the Series A Preferred Stock are cumulative. The Company currently
pays regular dividends to holders of Series A Preferred Stock.
In the event of any liquidation, dissolution or winding up of the Company,
the holders of Series A Preferred Stock are entitled to receive on a parity with
the holders of Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock, prior and in preference to any distribution to the holders of
Common Stock, Class B Common Stock and Class C Common Stock, an amount per share
of Series A Preferred Stock equal to the sum of $25.00 and any accrued but
unpaid dividends with respect thereto. The Company may redeem, subject to
certain exceptions, from any source of funds legally available therefor, on or
at any time after May 13, 1999, any or all outstanding shares of Series A
Preferred Stock at the option of the Company by paying in cash therefor an
amount per share equal to the sum of $25.00 and any accrued but unpaid dividends
with respect thereto.
Each share of Series A Preferred Stock is convertible, at the option of the
holder thereof at any time prior to a redemption date, into shares of Common
Stock based on a certain formula. Under such formula, the 1,000,000 outstanding
shares of Series A Preferred Stock are convertible into 1,219,512 shares of
Common Stock. The holder of each share of Series A Preferred Stock has the right
to one vote for each share of Common Stock into which such Series A Preferred
Stock can be converted, and with respect to such vote, such holder has the
voting rights and powers of the holders of each share of Common Stock, and is
entitled to notice of any stockholders' meeting in accordance with the Bylaws of
the Company, and is entitled to vote, together with holders of Common Stock,
with respect to any question upon which holders of Common Stock have the right
to vote.
SERIES B PREFERRED STOCK
The following description of the Company's Series B Preferred Stock is in
all respects subject to and qualified in its entirety by reference to the
applicable provisions of the Charter, including the Company's Articles
Supplementary applicable to the Series B Preferred Stock, and its Bylaws. The
Company is authorized to issue 5,000,000 shares of Series B Preferred Stock, of
which 4,250,000 shares were issued and outstanding as of April 20, 1998. The
holders of the Series B Preferred Stock are entitled to receive cumulative,
preferential cash dividends, when and as declared by the Board of Directors, of
$2.3625 per annum per share. The Company currently pays regular dividends to
holders of Series B Preferred Stock. The Series B Preferred Stock is listed on
the New York Stock Exchange under the symbol "SPKPrB."
In the event of any liquidation, dissolution or winding up of the Company,
the holders of Series B Preferred Stock are entitled to receive on a parity with
the holders of Series A Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock, prior and in preference to any distribution to the holders of
Common Stock, Class B Common Stock and Class C Common Stock, an amount per share
of Series B Preferred Stock equal to the sum of $25.00 and any accrued but
unpaid dividends with respect thereto. The Company may redeem, subject to
certain exceptions, from any source of funds legally available therefor, on or
at any time after December 11, 2000, any or all outstanding shares of Series B
Preferred Stock at the option of the Company by paying in cash therefor an
amount per share equal to the sum of $25.00 and any accrued but unpaid dividends
with respect thereto, without interest.
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The Series B Preferred Stock is not convertible into or exchangeable for
any other property or securities of the Company at the option of the holder.
However, in order to preserve the Company's status as a REIT for federal income
tax purposes, the Series B Preferred Stock may be exchanged for Excess Stock.
See "Description of Capital Stock -- Restrictions on Ownership." Except in
limited circumstances, the holders of shares of Series B Preferred Stock have no
voting rights.
SERIES C PREFERRED STOCK
The following description of the Company's Series C Preferred Stock is in
all respects subject to and qualified in its entirety by reference to the
applicable provisions of the Charter, including the Company's Articles
Supplementary applicable to the Series C Preferred Stock, and its Bylaws. The
Company is authorized to issue 6,000,000 shares of Series C Preferred Stock, of
which 6,000,000 shares were issued and outstanding as of April 20, 1998. The
holders of the Series C Preferred Stock are entitled to receive cumulative,
preferential cash dividends, when and as declared by the Board of Directors, of
$1.96875 per annum per share. The Company currently pays regular dividends to
holders of Series C Preferred Stock. The Series C Preferred Stock is listed on
the New York Stock Exchange under the symbol "SPKPrC."
In the event of any liquidation, dissolution or winding up of the Company,
the holders of Series C Preferred Stock are entitled to receive on a parity with
the holders of Series A Preferred Stock, Series B Preferred Stock and Series D
Preferred Stock, prior and in preference to any distribution to the holders of
Common Stock, Class B Common Stock and Class C Common Stock, an amount per share
of Series C Preferred Stock equal to the sum of $25.00 and any accrued but
unpaid dividends with respect thereto. The Company may redeem, subject to
certain exceptions, from any source of funds legally available therefor, on or
at any time after October 10, 2002, any or all outstanding shares of Series C
Preferred Stock at the option of the Company by paying in cash therefor an
amount per share equal to the sum of $25.00 and any accrued but unpaid dividends
with respect thereto, without interest.
The Series C Preferred Stock is not convertible into or exchangeable for
any other property or securities of the Company at the option of the holder.
However, in order to preserve the Company's status as a REIT for federal income
tax purposes, the Series C Preferred Stock may be exchanged for Excess Stock.
See "Description of Capital Stock -- Restrictions on Ownership." Except in
limited circumstances, the holders of shares of Series C Preferred Stock have no
voting rights.
SERIES D PREFERRED STOCK
The following description of the Company's Series D Preferred Stock is in
all respects subject to and qualified in its entirety by reference to the
applicable provisions of the Charter, including the Company's Articles
Supplementary applicable to the Series D Preferred Stock, and its Bylaws. The
Company is authorized to issue 1,500,000 shares of Series D Preferred Stock, of
which no shares were issued and outstanding as of April 20, 1998. The holders of
Series D Preferred Stock are entitled to receive cumulative, preferential cash
dividends of $3.84375 per share per annum. The Series D Preferred Stock is
issuable on or after April 20, 2008, and prior thereto under certain
circumstances, to holders of Series D Preferred Units of the Operating
Partnership, which has rights similar to the Series D Preferred Stock.
In the event of any liquidation, dissolution or winding up of the Company,
the holders of Series D Preferred Stock are entitled to receive on a parity with
the holders of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock, prior and in
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preference to any distribution to the holders of Common Stock, Class B Common
Stock and Class C Common Stock, an amount per share of Series D Preferred Stock
equal to the sum of $50.00 and any accrued and unpaid dividends with respect
thereto. The Company may redeem, subject to certain exceptions, solely out of
proceeds from the sale of other capital stock of the Company, on and after April
20, 2003, any or all outstanding shares of Series D Preferred Stock at the
option of the Company for cash at a redemption price of $50.00 per share and any
accrued and unpaid dividends thereon, without interest.
The Series D Preferred Stock is not convertible into or exchangeable for
any other property, or securities of the Company at the option of the holder.
However, in order to preserve the Company's status as a REIT for federal income
tax purposes, the Series D Preferred Stock may be exchanged for Excess Stock.
See "Description of Capital Stock -- Restrictions on Ownership." Except in
limited circumstances, the holders of Series D Preferred Stock have no voting
rights.
RESTRICTIONS ON OWNERSHIP
For the Company to qualify as a REIT under the Internal Revenue Code of
1986, as amended (the "Code"), in general, not more than 50% in value of its
outstanding stock may be owned, directly or indirectly, by five or fewer
individuals (as defined in the Code) during the last half of a taxable year, the
stock must be beneficially owned by 100 or more persons during at least 335 days
of a taxable year of 12 months or during a proportionate part of a shorter
taxable year and certain percentages of the Company's gross income must be from
particular activities (see "Federal Income Tax Considerations -- Requirements
for Qualification -- Gross Income Tests"). To enable the Company to continue to
qualify as a REIT, the Charter restricts the ownership of shares of common stock
and preferred stock.
The Charter provides that, subject to certain exceptions specified in the
Charter, no stockholder may own, or be deemed to own by virtue of the
attribution provisions of the Code, more than 9.9% of the value of the
outstanding common stock and preferred stock (the "Ownership Limit"). The Board
of Directors may waive the Ownership Limit in certain limited situations if the
Board receives a ruling of the Internal Revenue Service (the "IRS") or an
opinion of counsel to the effect that such ownership will not jeopardize the
Company's status as a REIT for federal income tax purposes. As a condition to
such waiver, the Board of Directors may require representations and undertakings
from the applicant with respect to preserving the REIT status of the Company.
The Ownership Limit will not apply if the Board of Directors and the
stockholders of the Company determine that it is no longer in the best interests
of the Company to attempt to qualify, or to continue to qualify, as a REIT. If
the issuance or transfer of shares of common stock or preferred stock to any
person would cause such person to exceed the Ownership Limit (unless a waiver of
the Board of Directors has been obtained), would cause the Company to be
beneficially owned by fewer than 100 persons or cause the Company to become
"closely held" under Section 856(h) of the Code, such issuance or transfer shall
be null and void and the intended transferee will acquire no rights to such
shares.
The Charter also provides that shares involved in a transfer or change in
capital structure that results in a person owning in excess of the Ownership
Limit (unless a waiver of the Board of Directors has been obtained) or would
cause the Company to become "closely held" within the meaning of Section 856(h)
of the Code will automatically be exchanged for Excess Stock. All Excess Stock
will be transferred, without action by the stockholder, to the Company as
trustee of a trust for the exclusive benefit of the transferee or transferees to
whom the Excess Stock is ultimately transferred. While the Excess Stock is held
in trust, it will not be entitled to vote, it will not be considered for
purposes of any stockholder vote or the determination of a quorum for such vote
and it will not be entitled
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to participate in any distributions made by the Company, except upon
liquidation. The Company would have the right, for a period of 90 days during
the time the Excess Stock is held by the Company in trust, to purchase all or
any portion of the Excess Stock from the intended transferee at the lesser of
the price paid for the stock by the intended transferee and the closing market
price for the stock on the date the Company exercises its option to purchase.
The Ownership Limit provision of the Charter will not be automatically
removed even if the REIT provisions of the Code are changed so as to no longer
contain any ownership concentration limitation or if the ownership concentration
limitation is increased. Except as otherwise described above, any change in the
Ownership Limit would require an amendment to the Charter. Such amendments to
the Charter require the affirmative vote of holders owning a majority of the
total number of shares of all classes of stock outstanding and entitled to vote
thereon. In addition to preserving the Company's status as a real estate
investment trust, the Ownership Limit may have the effect of precluding an
acquisition of control of the Company.
All certificates representing shares of common stock and preferred stock
will bear a legend referring to the restrictions described above.
All persons who own of record, more than 5% of the outstanding common stock
and preferred stock (or 1% if there are more than 200 but fewer than 2,000
stockholders or one-half of 1% if there are 200 or less stockholders of record)
must file an affidavit with the Company containing the information specified in
the Charter within 30 days after January 1 of each year. Stockholders who or
that are subject to the foregoing requirements but do not comply must provide
certain information as to their stock ownership in the Company to the IRS on
their federal income tax returns. See "Federal Income Tax
Considerations - Requirements for Qualification." In addition, each stockholder
shall upon demand be required to disclose to the Company in writing such
information with respect to the direct, indirect and constructive ownership of
shares as the Board of Directors deems necessary to determine the Company's
status as a REIT and to ensure compliance with the Ownership Limit.
The articles supplementary, if applicable, for the Offered Securities may
also contain provisions that further restrict the ownership of the Offered
Securities. The applicable Prospectus Supplement will specify any additional
ownership limitation relating to the Offered Securities.
DESCRIPTION OF PREFERRED STOCK
GENERAL
Subject to limitations prescribed by Maryland law and the Company's
Charter, the Board of Directors is authorized to issue, from the authorized but
unissued shares of capital stock of the Company, Preferred Stock in such classes
or series as the Board of Directors may determine and to establish from time to
time the number of shares of Preferred Stock to be included in any such class or
series and to fix the designation and any preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption of the shares of any such class or
series, and such other subjects or matters as may be fixed by resolution of the
Board of Directors. The issuance of Preferred Stock may have the effect of
delaying, deferring or preventing a change in control of the Company.
Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The specific terms of a
particular class or series of
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Preferred Stock will be described in the Prospectus Supplement relating to that
class or series, including a Prospectus Supplement providing that Preferred
Stock may be issuable upon the exercise of Warrants issued by the Company. The
description of Preferred Stock set forth below and the description of the terms
of a particular class or series of Preferred Stock set forth in a Prospectus
Supplement do not purport to be complete and are qualified in their entirety by
reference to the articles supplementary relating to that class or series.
The preferences and other terms of the Preferred Stock of each class or
series will be fixed by the articles supplementary relating to such class or
series. A Prospectus Supplement, relating to each class or series, will specify
the terms of the Preferred Stock as follows:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such Preferred
Stock;
(3) The dividend rate(s), period(s), and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
(4) Whether such Preferred Stock is cumulative or not and, if
cumulative, the date from which dividends on such Preferred Stock shall
accumulate;
(5) The provision for a sinking fund, if any, for such Preferred
Stock;
(6) The provision for redemption, if applicable, of such Preferred
Stock;
(7) Any listing of such Preferred Stock on any securities exchange;
(8) The terms and conditions, if applicable, upon which such Preferred
Stock will be converted into Common Stock, other shares of a class or
series of Preferred Stock (including Excess Stock) of the Company or other
shares of stock, including the conversion price (or manner of calculation
thereof);
(9) A discussion of any material federal income tax considerations
applicable to such Preferred Stock;
(10) 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;
(11) The relative ranking and preferences of such Preferred Stock as
to dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company;
(12) Any limitations on issuance of any class or series of preferred
stock ranking senior to or on a parity with such class or series of
Preferred Stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company;
(13) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock; and
(14) Any voting rights of such Preferred Stock.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock 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 stock and excess stock of the Company, and to all equity
securities ranking junior to such Preferred Stock with respect to
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dividend rights and 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 Stock with respect to dividends 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 Stock with respect to
dividend rights or rights upon liquidation, dissolution or winding up of the
Company.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any shares of any class or
series of Preferred Stock are convertible into Common Stock will be set forth in
the applicable Prospectus Supplement relating thereto. Such terms will include
the number of shares of Common Stock into which the shares of Preferred Stock
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 such class or series of Preferred Stock or the Company, the
events requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such class or series of Preferred
Stock.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may issue Depositary Shares, each of which will represent a
fractional interest of a share of a particular class or series of Preferred
Stock, as specified in the applicable Prospectus Supplement. Shares of a class
or series of Preferred Stock represented by Depositary Shares will be deposited
under a separate Deposit Agreement (each, a "Deposit Agreement") among the
Company, the depositary named therein (the "Preferred Stock Depositary") and the
holders from time to time of the depositary receipts issued by the Preferred
Stock Depositary which will evidence the Depositary Shares ("Depositary
Receipts"). Subject to the terms of the Deposit Agreement, each owner of a
Depositary Receipt will be entitled, in proportion to the fractional interest of
a share of a particular class or series of Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipt, to all the rights and
preferences of the class or series of the Preferred Stock represented by such
Depositary Shares (including dividend, voting, conversion, redemption and
liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Stock by the Company to a Preferred Stock
Depositary, the Company will cause such Preferred Stock Depositary to issue, on
behalf of the Company, the Depositary Receipts. Copies of the applicable form of
Deposit Agreement and Depositary Receipt may be obtained from the Company upon
request, and the statements made hereunder relating to the Deposit Agreement and
the Depositary Receipt to be issued thereunder are summaries of certain
anticipated provisions thereof and do not purport to be complete and are subject
to, and qualified in their entirety by reference to, all of the provisions of
the applicable Deposit Agreement and related Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of a class or series of Preferred Stock
to the record
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holders of Depositary Receipts evidencing the related Depositary Shares in
proportion to the number of the such Depositary Receipts owned by such holders,
subject to certain obligations of holders to file proofs, certificates and other
information and to pay certain charges and expenses to such Preferred Stock
Depositary.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the Preferred Stock Depositary, unless such Preferred Stock
Depositary determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the Company,
sell such property and distribute the net proceeds from such sale to such
holders.
No distribution will be made in respect of any Depositary Share to the
extent that it represents any class or series of Preferred Stock converted into
Excess Stock or otherwise converted or exchanged.
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate trust office of
the Preferred Stock Depositary (unless the related Depositary Shares have
previously been called for redemption or converted or converted into Excess
Stock or otherwise), the holders thereof will be entitled to delivery at such
office, to or upon each such holder's order, of the number of whole or
fractional shares of the class or series of Preferred Stock and any money or
other property represented by the Depositary Shares evidenced by such Depositary
Receipts. Holders of Depositary Receipts will be entitled to receive whole or
fractional shares of the related class or series of Preferred Stock on the basis
of the proportion of Preferred Stock represented by each Depositary Share as
specified in the applicable Prospectus Supplement, but holders of such shares of
Preferred Stock will not thereafter be entitled to receive Depositary Shares
therefor. If the Depositary Receipts delivered by the holder evidence a number
of Depositary Shares in excess of the number of Depositary Shares representing
the number of shares of Preferred Stock to be withdrawn, the Preferred Stock
Depositary will deliver to such holder at the same time a new Depositary Receipt
evidencing such excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems shares of Preferred Stock held by the
Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of the
same redemption date the number of the Depositary Shares representing shares of
such class or series of Preferred Stock so redeemed, provided the Company shall
have paid in full to the Preferred Stock Depositary the redemption price of the
Preferred Stock to be redeemed plus an amount equal to any accrued and unpaid
dividends thereon to the date fixed for redemption. The redemption price per
Depositary Share will be equal to the corresponding proportion of the redemption
price and any other amounts per share payable with respect to such class or
series of Preferred Stock. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional Depositary Shares) or
by any other equitable method determined by the Company that will not result in
the issuance of any Excess Stock.
From and after the date fixed for redemption, all dividends in respect of
the shares of a class of series of Preferred Stock so called for redemption will
cease to accrue, the Depositary Shares so called for redemption will no longer
be deemed to be outstanding
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and all rights of the holders of the Depositary Receipts evidencing the
Depositary Shares so called for redemption will cease, except the right to
receive any moneys payable upon such redemption and any money or other property
to which the holders of such Depositary Receipts were entitled upon such
redemption upon surrender thereof to the Preferred Stock Depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of a class or
series of Preferred Stock deposited with the Preferred Stock Depositary are
entitled to vote, the Preferred Stock Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Receipts evidencing the Depositary Shares which represent such class or series
of Preferred Stock. Each record holder of Depositary Receipts evidencing
Depositary Shares on the record date (which will be the same date as the record
date for such class or series of Preferred Stock) will be entitled to instruct
the Preferred Stock Depositary as to the exercise of the voting rights
pertaining to the amount of Preferred Stock represented by such holder's
Depositary Shares. The Preferred Stock Depositary will vote the amount of such
class or series of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the amount of Preferred
Stock represented by such Depositary Shares to the extent it does not receive
specific instructions from the holders of Depositary Receipts evidencing such
Depositary Shares. The Preferred Stock Depositary will not be responsible for
any failure to carry out any instruction to vote, or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith
and does not result from negligence or willful misconduct of the Preferred Stock
Depositary.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the Company
whether voluntary or involuntary, the holders of each Depositary Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depositary Share evidenced by such Depositary
Receipt as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depositary Shares, as such, will not be convertible into Common Stock
or any other securities or property of the Company, except in connection with
certain exchanges in connection with the preservation of the Company's status as
a REIT. See "Description of Common Stock -- Restrictions on Transfer."
Nevertheless, if so specified in the applicable Prospectus Supplement relating
to an offering of Depositary Shares, the Depositary Receipts may be surrendered
by holders thereof to the applicable Preferred Stock Depositary with written
instructions to the Preferred Stock Depositary to instruct the Company to cause
conversion of a class or series of Preferred Stock represented by the Depositary
Shares evidenced by such Depositary Receipts into whole shares of Common Stock,
other shares of a class or series of Preferred Stock (including Excess Stock) of
the Company or other shares of stock, and the Company has agreed that upon
receipt of such instructions and any amounts payable in respect thereof, it will
cause the conversion thereof utilizing the same procedures as those provided for
delivery of Preferred Stock to effect such conversion. If the Depositary Shares
evidenced by a Depositary Receipt are to be converted in part only, a Depositary
Receipt or Receipts will be issued for any
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Depositary Shares not to be converted. No fractional shares of Common Stock will
be issued upon conversion, and if such conversion will result in a fractional
share being issued, an amount will be paid in cash by the Company equal to the
value of the fractional interest based upon the closing price of the Common
Stock on the last business day prior to the conversion.
AMENDMENT AND TERMINATION OF A DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing Depositary Shares which represent
the Preferred Stock and any provision of the Deposit Agreement may at any time
be amended by agreement between the Company and the Preferred Stock Depositary.
However, any amendment that materially and adversely alters the rights of the
holders of Depositary Receipts or that would be materially and adversely
inconsistent with the rights granted to the holders of the related Preferred
Stock will not be effective unless such amendment has been approved by the
existing holders of at least two-thirds of the applicable Depositary Shares
evidenced by the applicable Depositary Receipts then outstanding. No amendment
shall impair the right, subject to certain anticipated exceptions in the Deposit
Agreements, of any holder of Depositary Receipts to surrender any Depositary
Receipt with instructions to deliver to the holder the related class or series
of Preferred Stock and all money and other property, if any, represented
thereby, except in order to comply with law. Every holder of an outstanding
Depositary Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Depositary Receipt, to consent and agree to
such amendment and to be bound by the applicable Deposit Agreement as amended
thereby.
The Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the Preferred Stock Depositary if (i) such
termination is necessary to preserve the Company's status as a REIT or (ii) a
majority of each series class or of Preferred Stock subject to such Deposit
Agreement consents to such termination, whereupon the Preferred Stock Depositary
will deliver or make available to each holder of Depositary Receipts, upon
surrender of the Depositary Receipts held by such holder, such number of whole
or fractional shares of each Preferred Stock as are represented by the
Depositary Shares evidenced by such Depositary Receipts together with any other
property held by preferred Stock Depositary with respect to such Depositary
Receipts. The Company has agreed that if the Deposit Agreement is terminated to
preserve the Company's status as a REIT, then the Company will use its best
efforts to list each class or series of Preferred Stock issued upon surrender of
the related Depositary Shares. In addition, the Deposit Agreement will
automatically terminate if (i) all outstanding Depositary Shares shall have been
redeemed, (ii) there shall have been a final distribution in respect of each
class or series of Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of the Depositary Receipts evidencing the Depositary
Shares representing such class or series of Preferred Stock or (iii) each share
of the related Preferred Stock shall have been converted into stock of the
Company not so represented by Depositary Shares.
CHARGES OF A PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the Preferred Stock Depositary in
connection with the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and expenses of the
Preferred Stock Depositary for any duties requested by such
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holders to be performed which are outside of those expressly provided for in the
Deposit Agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary. A successor
Preferred Stock Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Preferred Stock Depositary under the Deposit Agreement will be
limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of a class or
series of Preferred Stock represented by the Depositary Shares), gross
negligence or willful misconduct, and the Company and the Preferred Stock
Depositary will not be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Receipts, Depositary Shares or shares of a class or
series of Preferred Stock represented thereby unless satisfactory indemnity is
furnished. The Company and the Preferred Stock Depositary may rely on written
advice of counsel or accountants, or information provided by persons presenting
shares of Preferred Stock represented thereby for deposit, holders of Depositary
Receipts or other persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be genuine and signed by
a proper party.
In the event a Preferred Stock Depositary shall receive conflicting claims,
requests or instructions from any holders of Depositary Receipts, on the one
hand, and the Company, on the other hand, the Preferred Stock Depositary shall
be entitled to act on such claims, requests or instructions received from the
Company.
DESCRIPTION OF WARRANTS
The Company has no Warrants outstanding (other than options issued under
the Company's employee stock option plan). The Company may issue Warrants for
the purchase of Preferred Stock or Common Stock. Warrants may be issued
independently or together with any other Offered Securities offered by any
Prospectus Supplement and may be attached to or separate from such Offered
Securities. Each series of Warrants will be issued under a separate warrant
agreement (each, a "Warrant Agreement") to be entered into between the Company
and a warrant agent specified in the applicable Prospectus Supplement (the
"Warrant Agent"). The Warrant Agent will act solely as an agent of the Company
in connection with the Warrants of such series and will not assume any
obligation or relationship of agency or trust for or with any provisions of the
Warrants offered hereby. Further terms of the Warrants and the applicable
Warrant Agreements will be set forth in the applicable Prospectus Supplement.
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The applicable Prospectus Supplement will describe the terms of the
Warrants in respect of which this Prospectus is being delivered, including,
where applicable, the following: (1) the title of such Warrants; (2) the
aggregate number of such Warrants; (3) the price or prices at which such
Warrants will be issued; (4) the designation, terms and number of shares of
Preferred Stock or Common Stock purchasable upon exercise of such Warrants; (5)
the designation and terms of the Offered Securities, if any, with which such
Warrants are issued and the number of such Warrants issued with each such
Offered Security; (6) the date, if any, on and after which such Warrants and the
related Preferred Stock or Common Stock will be separately transferable; (7) the
price at which each share of Preferred Stock or Common Stock purchasable upon
exercise of such Warrants may be purchased; (8) the date on which the right to
exercise such Warrants shall commence and the date on which such right shall
expire; (9) the minimum or maximum amount of such Warrants which may be
exercised at any one time; (10) information with respect to book-entry
procedures, if any; (11) a discussion of certain federal income tax
considerations; and (12) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants.
CERTAIN PROVISIONS OF THE COMPANY'S CHARTER AND BYLAWS
Certain provisions of the Company's Charter and Bylaws might discourage
certain types of transactions that involve an actual or threatened change of
control of the Company. The Ownership Limit may delay or impede a transaction or
a change in control of the Company that might involve a premium price for the
Company's capital stock or otherwise be in the best interest of the
stockholders. See "Description of Capital Stock -- Restrictions on Ownership."
Pursuant to the Company's Charter and Bylaws, the Company's Board of Directors
is divided into three classes of directors, each class serving staggered
three-year terms. In addition, directors may only be removed for cause and with
the vote of 80% of the shares eligible to vote in the election of directors.
These provisions may reduce the possibility of a tender offer or an attempt to
change control of the Company. The issuance of Preferred Stock by the Board of
Directors may also have the effect of delaying, deferring or preventing a change
in control of the Company. See "Description of Preferred Stock -- General."
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of material federal income tax considerations is
based on current law and does not purport to deal with all aspects of taxation
that may be relevant to particular stockholders in light of their personal
investment or tax circumstances, or to certain types of stockholders (including
insurance companies, financial institutions and broker-dealers) subject to
special treatment under the federal income tax laws. Certain federal income tax
considerations relevant to holders of the Offered Securities will be provided in
the applicable Prospectus Supplement relating thereto.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT HIS OWN TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OF THE PURCHASE, OWNERSHIP AND
SALE OF THE OFFERED SECURITIES.
GENERAL
The Company believes that since its formation it has operated in a manner
that permits it to satisfy the requirements for taxation as a REIT under the
applicable provisions of the Code. The Company intends to continue to operate to
satisfy such requirements. No assurance can be given, however, that such
requirements will be satisfied.
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The provisions of the Code, Treasury Regulations promulgated thereunder and
other federal income tax laws relating to qualification and operation as a REIT
are highly technical and complex. The following sets forth the material aspects
of the laws that govern the federal income tax treatment of a REIT and its
stockholders. This summary is qualified in its entirety by the applicable Code
provisions, rules and Treasury Regulations thereunder, and administrative and
judicial interpretations thereof. Morrison & Foerster LLP has acted as special
tax counsel to the Company in connection with the Company's election to be taxed
and operated as a REIT.
In the opinion of Morrison & Foerster LLP, commencing with the Company's
taxable year ended December 31, 1993, the Company has been organized in
conformity with the requirements for qualification as a REIT, and its method of
operation has and will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code. It must be emphasized that
this opinion is based on various assumptions and is conditioned upon certain
representations made by the Company as to factual matters. Moreover, such
qualification and taxation as a REIT depends upon the Company's ability to meet,
through actual annual operating results, distribution levels and diversity of
stock ownership, the various qualification tests imposed under the Code
discussed below, the results of which will not be reviewed by Morrison &
Foerster LLP. Accordingly, no assurance can be given that the actual results of
the Company's operations for any particular taxable year will satisfy such
requirements. See "-- Failure to Qualify."
In brief, if certain detailed conditions imposed by the REIT provisions of
the Code are satisfied, entities, such as the Company, that invest primarily in
real estate and that otherwise would be treated for federal income tax purposes
as corporations, are generally not taxed at the corporate level on their "REIT
taxable income" that is currently distributed to stockholders. This treatment
substantially eliminates the "double taxation" (i.e., taxation at both the
corporate and stockholder levels) that generally results from investing in
corporations.
If the Company fails to qualify as a REIT in any year, however, it will be
subject to federal income tax as if it were a domestic corporation, and its
stockholders will be taxed in the same manner as stockholders of ordinary
corporations. In this event, the Company could be subject to potentially
significant tax liabilities and the amount of cash available for distribution to
its stockholders could be reduced.
TAXATION OF THE COMPANY
In any year in which the Company qualifies as a REIT, in general, it will
not be subject to federal income tax on that portion of its net income that it
distributes to stockholders. 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 real estate investment trust taxable income,
including undistributed net capital gains. (However, a REIT can elect to "pass
through" any of its taxes paid on its undistributed net capital gains income to
its stockholders on a pro rata basis.) 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 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 property held for at least four years, foreclosure
property, and property involuntarily converted), such income will be subject to
a 100% tax. Fifth, if the Company should fail to satisfy the 75% or the 95%
tests (as discussed below), and has nonetheless maintained its qualification as
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a REIT because certain other requirements have been satisfied, it will be
subject to a 100% tax on the net income attributable to the greater of the
amount by which the REIT fails the 75% or 95% test. Sixth, if the Company should
fail to distribute during each calendar year at least the sum of (i) 85% of its
ordinary income for such year, (ii) 95% of its net capital gain 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., generally a corporation 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 REIT, then, to the extent of any
built-in gain at the time of acquisition, such gain will be subject to tax at
the highest regular corporate rate.
REQUIREMENTS FOR QUALIFICATION
The Code defines a REIT as a corporation, trust or association (1) which is
managed by one or more trustees or directors; (2) the beneficial ownership of
which is evidenced by transferable shares, or by transferable certificates of
beneficial interest; (3) which would be taxable as a domestic corporation, but
for Sections 856 through 860 of the Code; (4) which is neither a financial
institution nor an insurance company subject to certain provisions of the Code;
(5) the beneficial ownership of which is held by 100 or more persons; (6) 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) at any time
during the last half of each taxable year; and (7) which meets certain other
tests, described below, regarding the nature of income and assets. The Code
provides that conditions (1) to (4), inclusive, must be met during the entire
taxable year and that condition (5) must be met during at least 335 days of a
taxable year of 12 months, or during a proportionate part of a taxable year of
less than 12 months. Beginning in 1998, a REIT's failure to satisfy condition
(6) during a taxable year will not result in its disqualification as REIT under
the Code for such taxable year as long as (i) the REIT satisfies the stockholder
demand statement requirements described in the succeeding paragraph and (ii) the
REIT did not know, or exercising reasonable diligence would not have known,
whether it had failed condition (6). The Treasury has proposed legislation that
would also prevent any "person" (i.e., an individual, corporation, partnership
or trust) from possessing more than 50% of the total combined voting power of
all classes of voting stock or more than 50% of the total value of shares of all
classes of stock of a REIT.
In order to ensure compliance with the ownership tests described above, the
Company has placed certain restrictions on the transfer of the Common Stock and
Preferred Stock to prevent further concentration of stock ownership. Moreover,
to evidence compliance with these requirements, the Company must maintain
records which disclose the actual ownership of its outstanding Common Stock and
Preferred Stock. In fulfilling its obligations to maintain records, the Company
must and will demand written statements each year from the record holders of
designated percentages of its Common Stock and Preferred Stock disclosing the
actual owners of such Common Stock and Preferred Stock. A list of those persons
failing or refusing to comply with such demand must be maintained as part of the
Company's records. A stockholder failing or refusing to comply with the
Company's written demand must submit with his federal income tax returns a
similar statement disclosing the actual ownership of Common Stock and Preferred
Stock and certain other information. In addition, the Company's Charter provides
restrictions regarding the transfer of its shares that are intended to assist
the Company in continuing to satisfy the share ownership requirements. See
"Description of Capital Stock -- Restrictions on Ownership."
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Although the Company intends to satisfy the stockholder demand statement
requirements described in the preceding paragraph, beginning in 1998, its
failure to satisfy these requirements will not result in its disqualification as
a REIT under the Code but may result in the imposition of IRS penalties against
the Company.
In the case of a REIT that is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
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 gross income of a partnership shall retain the same character in the
hands a partner qualifying as a REIT for purposes of Section 856 of the Code,
including satisfying the gross income tests and the asset tests, described
below. Thus, the Company's proportionate share of the assets, liabilities and
items of income of the Operating Partnership will be treated as assets,
liabilities and items of income of the Company for purposes of applying the
requirements described below.
ASSET TESTS
At the close of each quarter of the Company's taxable year, the Company
must satisfy two tests relating to the nature of its assets. First, at least 75%
of the value of the Company's total assets must be represented by interests in
real property, interests in mortgages on real property, shares in other REITs,
cash, cash items and government securities (as well as certain temporary
investments in stock or debt instruments purchased with the proceeds of new
capital raised by the Company). Second, although the remaining 25% of the
Company's assets generally may be invested without restriction, securities in
this class may not exceed either (i) 5% of the value of the Company's total
assets as to any one nongovernment issuer, or (ii) 10% of the outstanding voting
securities of any one issuer. The Treasury has proposed legislation that also
would prohibit a REIT from owning securities in a corporation representing more
than 10% of the corporation's vote or value. The Company's investment in the
Properties through its interest in the Operating Partnership constitutes
qualified assets for purposes of the 75% asset test. In addition, the Company
may own 100% of "qualified REIT subsidiaries," which are, in general, 100%
owned, corporate subsidiaries of a REIT. All assets, liabilities, and items of
income, deduction, and credit of such a qualified REIT subsidiary will be
treated as owned and realized directly by the Company. The Company's investment
in preferred stock of Spieker Northwest, Inc. is not a qualifying asset for
purposes of the 75% asset test. The Company expects, however, that such
investment will continue to represent less than 5% of the Company's total assets
and, together with any other nonqualifying assets, will continue to represent
less than 25% of the Company's total assets.
GROSS INCOME TESTS
There are three separate percentage tests (two beginning in 1998) relating
to the sources of the Company's gross income which must be satisfied for each
taxable year. For purposes of these tests, where the Company invests in a
partnership, the Company will be treated as receiving its share of the income
and loss of the partnership, and the gross income of the partnership will retain
the same character in the hands of the Company as it has in the hands of the
partnership. See "-- Tax Aspects of the Company's Investment in the Operating
Partnerships -- General."
The 75% Test. At least 75% of the Company's gross income for the taxable
year must be "qualifying income." Qualifying income generally includes (i) rents
from real property (except as modified below); (ii) interest on obligations
collateralized by mortgages on, or interests in, real property; (iii) gains from
the sale or other disposition of interests in real property and real estate
mortgages, other than gain from property held primarily for sale to customers in
the ordinary course of the Company's trade or business ("dealer property");
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(iv) dividends or other distributions on shares in other REITs, as well as gain
from the sale of such shares; (v) abatements and refunds of real property taxes;
(vi) income from the operation, and gain from the sale, of property acquired at
or in lieu of a foreclosure of the mortgage collateralized by such property
("foreclosure property"); and (vii) commitment fees received for agreeing to
make loans collateralized by mortgages on real property or to purchase or lease
real property.
Rents received from a tenant will not, however, qualify as rents from real
property in satisfying the 75% test (or the 95% test described below) if the
Company, or an owner of 10% or more of the Company, directly or constructively
owns 10% or more of such tenant (a "related party tenant"). In addition, 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. Moreover, an amount received or accrued generally will
not qualify as rents from real property (or as interest income) for purposes of
the 75% test and 95% test (described below) if it is based in whole or in part
on the income or profits of any person. Rent or interest will not be
disqualified, however, solely by reason of being based on a fixed percentage or
percentages of receipts or sales. Finally, for rents received to qualify as
rents from real property, the Company generally must not operate or manage the
property or furnish or render services to tenants, other than through an
"independent contractor" from whom the Company derives no revenue. The
"independent contractor" requirement, however, does not apply to the extent that
the services provided by the Company are "usually or customarily rendered" in
connection with the rental of space for occupancy only, and are not otherwise
considered "rendered to the occupant." For both the related party tenant rules
and determining whether an entity qualifies as an independent contractor of a
REIT, certain attribution rules of the Code apply, pursuant to which shares of a
REIT held by one entity are deemed held by another.
In general, if a REIT provides impermissible services to its tenants, all
of the rent from those tenants can be disqualified from satisfying the 75% test
and 95% test (described below). However, rents will not be disqualified if a
REIT provides de minimis, impermissible services. For this purpose, services
provided to tenants of a property are considered de minimis where income derived
from the services rendered equals 1% or less of all income derived from the
property (threshold determined on a property-by-property basis). For purposes of
the 1% threshold, the amount treated as received for any service shall not be
less than 150% of the direct cost incurred in furnishing or rendering the
service.
The Company, through the Operating Partnership (which is not an independent
contractor of the Company), will provide certain services with respect to the
Properties and any newly acquired Properties. The Company believes that the
services provided by the Operating Partnership are usually or customarily
rendered in connection with the rental of space of occupancy only, and therefore
that the provision of such services will not cause the rents received with
respect to the Properties to fail to qualify as rents from real property for
purposes of the 75% and 95% tests. The Company does not intend to rent to
related party tenants or to charge rents that would not qualify as rents from
real property because the rents are based on the income or profits of any person
(other than rents that are based on a fixed percentage or percentages of
receipts or sales).
The 95% Test. In addition to deriving 75% of its gross income from the
sources listed above, at least 95% of the Company's gross income for the taxable
year must be derived from the above-described qualifying income, or from
dividends, interest or gains from the sale or disposition of stock or other
securities that are not dealer property. Dividends from a corporation other than
a REIT and interest on any obligation not collateralized by an interest on real
property are included for purposes of the 95% test, but not for purposes of the
75% test. For purposes of determining whether the Company complies with the 75%
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and 95% tests, gross income does not include income from "prohibited
transactions." A "prohibited transaction" is a sale of dealer property,
generally excluding certain property held by the Company for at least four years
and foreclosure property. See "-- Taxation of the Company" and "-- Tax Aspects
of the Company's Investment in the Operating Partnership -- Sale of the
Properties."
The Company believes that it and the Operating Partnership has held and
managed the Properties in a manner that has given rise to rental income
qualifying under the 75% and 95% tests. Gains on sales of the Properties will
generally qualify under the 75% and 95% tests.
Even if the Company fails to satisfy one or both of the 75% or 95% tests
for any taxable year, it may still qualify as a REIT for such year if it is
entitled to relief under certain provisions of the Code. These relief provisions
will generally be available if: (i) the Company's failure to comply was due to
reasonable cause and not to willful neglect; (ii) the Company reports the nature
and amount of each item of its income included in the 75% and 95% tests on a
schedule attached to its tax return; and (iii) any incorrect information on this
schedule is not due to fraud with intent to evade tax. It is not possible,
however, to state whether in all circumstances the Company would be entitled to
the benefit of these relief provisions. If these relief provisions apply, the
Company will, however, still be subject to a special tax upon the greater of the
amount by which it fails either the 75% or 95% test for that year.
The 30% Test. For each taxable year ending on or before December 31, 1997,
the Company must have derived less than 30% of its gross income from the sale or
other disposition of (i) real property held for less than four years (other than
foreclosure property and involuntary conversions), (ii) stock or securities held
for less than one year, and (iii) property in a prohibited transaction. The 30%
test has been repealed, effective for tax years beginning after December 31,
1997.
ANNUAL DISTRIBUTION REQUIREMENTS
The Company, in order to qualify as a REIT, is required to distribute
dividends (other than capital gain dividends) to its stockholders each year in
an amount equal to at least (A) the sum of (i) 95% of the Company's REIT taxable
income (computed without regard to the dividends paid deduction and the REIT's
net capital gain) and (ii) 95% of the net income (after tax), if any, from
foreclosure property, minus (B) the sum of certain items of non-cash income.
Such distributions must be paid in the taxable year to which they relate, or in
the following taxable year if declared before the Company timely files its tax
return for such year and if paid on or before the first regular dividend payment
after such declaration. To the extent that the Company does not distribute all
of its net capital gain or distributes at least 95%, but less than 100%, of its
REIT taxable income, as adjusted, it will be subject to tax on the undistributed
amount at regular capital gains or ordinary corporate tax rates, as the case may
be. (However, a REIT can elect to "pass through" any of its taxes paid on its
undistributed net capital gains income to its stockholders on a pro rata basis.)
Furthermore, if the REIT should fail to distribute during each calendar year at
least the sum of (i) 85% of its ordinary income for such year, (ii) 95% of its
net capital gain income for such year, and (iii) any undistributed taxable
income from prior periods, the REIT would be subject to a 4% excise tax on the
excess of such required distribution over the amounts actually distributed. For
these and other purposes, dividends declared by a REIT in October, November or
December of one taxable year and payable to a stockholder of record on a
specific date in any such month shall be treated as both paid by the REIT and
received by the stockholder during such taxable year, provided that the dividend
is actually paid by the REIT by January 31 of the following taxable year.
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The Company believes that it has made timely distributions sufficient to
satisfy the annual distribution requirements. In this regard, the partnership
agreement of the Operating Partnership authorizes the Company, as general
partner, to take such steps as may be necessary to cause the Operating
Partnership to distribute to its partners an amount sufficient to permit the
Company to meet these distribution requirements. It is possible that in the
future the Company may not have sufficient cash or other liquid assets to meet
the 95% distribution requirement, due to timing differences between the actual
receipt of income and actual payment of expenses on the one hand, and the
inclusion of such income and deduction of such expenses in computing the
Company's REIT taxable income on the other hand. Further, as described below, it
is possible that, from time to time, the Company may be allocated a share of net
capital gain attributable to the sale of depreciated property that exceeds its
allocable share of cash attributable to that sale. To avoid any problem with the
95% distribution requirement, the Company will closely monitor the relationship
between its REIT taxable income and cash flow and, if necessary, will borrow
funds (or cause the Operating Partnership or other affiliates to borrow funds)
in order to satisfy the distribution requirement. The Company (directly or
through the Operating Partnership) may be required to borrow funds at times when
market conditions are not favorable.
If the Company fails to meet the 95% distribution requirement as a result
of an adjustment to the Company's tax return by the IRS, the Company may
retroactively cure the failure by paying a "deficiency dividend" (plus
applicable penalties and interest) within a specified period.
FAILURE TO QUALIFY
If the Company fails to qualify for taxation as a REIT in any taxable year
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to stockholders in any year in which the
Company fails to qualify will not be deductible by the Company, nor will they be
required to be made. In such event, to the extent of the Company's current and
accumulated earnings and profits, all distributions to stockholders will be
taxable as ordinary income, and, subject to certain limitations in the Code,
corporate distributees may be eligible for the dividends received deduction.
Unless entitled to relief under specific statutory provisions, the Company will
also be disqualified from taxation as a REIT for the four taxable years
following the year during which qualification was lost. It is not possible to
state whether the Company would be entitled to such statutory relief.
TAX ASPECTS OF THE COMPANY'S INVESTMENT IN THE OPERATING PARTNERSHIP
The following discussion summarizes certain federal income tax
considerations applicable solely to the Company's investment in the Operating
Partnership. The discussion does not cover state or local tax laws or any
federal tax laws other than income tax laws.
GENERAL
The Company holds a direct ownership interest in the Operating Partnership.
In general, partnerships are "pass-through" entities which are not subject to
federal income tax. Rather, partners are allocated their proportionate shares of
the items of income, gain, loss, deduction and credit of a partnership, and are
potentially subject to tax thereon, without regard to whether the partners
receive a distribution from the partnership. The Company includes its
proportionate share of the foregoing Operating Partnership items for purposes of
the various REIT income tests and in the computation of its REIT taxable income.
See "-- Taxation of the Company" and "-- Requirements for Qualification -- Gross
Income Tests." Any resultant increase in the Company's REIT taxable income
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increases its distribution requirements (see "-- Requirements for
Qualification -- Annual Distribution Requirements"), but is not subject to
federal income tax in the hands of the Company provided that such income is
distributed by the Company to its stockholders. Moreover, for purposes of the
REIT asset tests (see "-- Requirements for Qualification -- Asset Tests"), the
Company includes its proportionate share of assets held by the Operating
Partnership.
TAX ALLOCATIONS WITH RESPECT TO THE PROPERTIES
Pursuant to Section 704(c) of the Code, income, gain, loss and deduction
attributable to appreciated or depreciated property that is contributed to a
partnership in exchange for an interest in the partnership (such as certain of
the Properties), must be allocated in a manner such that the contributing
partner is charged with, or benefits from, respectively, the unrealized gain or
unrealized loss associated with the property at the time of the contribution.
The amount of such unrealized gain or unrealized loss is generally equal to the
difference between the fair market value of contributed property at the time of
contribution, and the adjusted tax basis of such property at the time of
contribution (a "Book-Tax Difference"). Such allocations are solely for federal
income tax purposes and do not affect the book capital accounts or other
economic or legal arrangements among the partners. The Operating Partnership was
initially formed by way of contributions of appreciated property (including
certain of the Properties). Consequently, the partnership agreement of the
Operating Partnership requires such allocations to be made in a manner
consistent with Section 704(c) of the Code.
In general, the limited partners of the Operating Partnership will be
allocated lower amounts of depreciation deductions for tax purposes and
increased taxable income and gain on sale by the Operating Partnership of the
contributed assets (including certain of the Properties). This will tend to
eliminate the Book-Tax Difference over the life of the Operating Partnership.
However, the special allocation rules under Section 704(c) of the Code do not
always entirely rectify 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 assets in the hands of the Operating Partnership may
cause the company to be allocated lower depreciation and other deductions, and
possibly greater amounts of taxable income in the event of a sale of such
contributed assets in excess of the economic or book income allocated to it as a
result of such sale. This may cause the Company to recognize taxable income in
excess of cash proceeds, which might adversely affect the Company's ability to
comply with the REIT distribution requirements. See "-- Requirements for
Qualification -- Annual Distribution Requirements." In addition, the application
of Section 704(c) of the Code to the Operating Partnership is not entirely clear
and may be affected by authority that may be promulgated in the future.
SALE OF THE PROPERTIES
Generally, any gain realized by the Operating Partnership on the sale of
property held by the Operating Partnership will be capital gain, except for any
portion of such gain that is treated as certain depreciation or cost recovery
recapture. The Company's share of any gain realized by the Operating Partnership
on the sale of any dealer property generally will be treated as income from a
prohibited transaction that is subject to a 100% penalty tax. See "Taxation of
the Company" and "-- Requirements for Qualification -- Gross Income Tests -- The
95% Test." Under existing law, whether property is dealer property is a question
of fact that depends on all the facts and circumstances with respect to the
particular transaction. The Operating Partnership intends to hold the Properties
for investment with a view to long-term appreciation, to engage in the business
of acquiring, developing, owning and operating the Properties, and to make such
occasional sales of the
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Properties as are consistent with the Company's investment objectives. Based
upon such investment objectives, the Company believes that in general the
Properties should not be considered dealer property and that the amount of
income from prohibited transactions, if any, will not be material.
TAXATION OF STOCKHOLDERS
TAXATION OF TAXABLE U.S. STOCKHOLDERS
IN GENERAL
As used herein, "U.S. Stockholder" means a holder of Company stock who or
that (i) is a citizen or resident of the United States, (ii) is a corporation or
other entity created or organized in or under the laws of the United States or
political subdivision thereof (except, in the case of a partnership, the
Treasury provides otherwise by Treasury Regulations), (iii) is an estate the
income of which is subject to U.S. federal income taxation regardless of its
source, (iv) is a trust if (A) a U.S. court is able to exercise primary
supervision over the administration of the trust and (B) one more U.S. persons,
within the meaning of Section 7701(a)(30) of the Code, have authority to control
all substantial decisions of the trust, or (v) is otherwise subject to U.S.
federal income taxation on a net income basis in respect of Company stock.
As long as the Company qualifies as a REIT, distributions made to the
Company's taxable U.S. Stockholders 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. U.S. Stockholders that are corporations will
not be entitled to a dividends received deduction. To the extent that the
Company makes distributions in excess of current and accumulated earnings and
profits, these distributions are treated first as a tax-free return of capital
to the stockholder, reducing the tax basis of a U.S. Stockholder's Company stock
by the amount of such distribution (but not below zero), with distributions in
excess of the U.S. Stockholders tax basis taxable as capital gains (if the
Company stock is held as a capital asset). In addition, any dividend declared by
the Company in October, November or December of any year and payable to a U.S.
Stockholder of record on a specific date in any such month shall be treated as
both paid by the Company and received by the U.S. Stockholder on December 31 of
such year, provided that the dividend is actually paid by the Company during
January of the following calendar year. U.S. Stockholders may not include in
their individual income tax returns any net operating losses or capital losses
of the Company.
In general, distributions which are designed by the Company as capital gain
dividends will be taxed to U.S. Stockholders as gain from the sale of assets
held for greater than 1 year, or "long-term term capital gain," without regard
to the period for which a U.S. Stockholder has held his stock upon which the
capital gain dividend is paid. However, corporate U.S. Stockholders may be
required to treat up to 20% of certain capital gain dividends as ordinary
income.
The Taxpayer Relief Act of 1997 (the "1997 Act") created several new
categories of capital gains applicable to noncorporate taxpayers. Under prior
law, noncorporate taxpayers generally were taxed at a maximum rate of 28% on net
capital gain (generally, the excess of net long-term capital gain over net
short-term capital loss). Noncorporate taxpayers are now generally taxed at a
maximum rate of 20% on net capital gain attributable to gains realized on the
sale of property held for greater than 18 months, and a maximum rate of 28% on
net capital gain attributable to gain realized on the sale of property held for
greater than 1 year and 18 months or less. In addition, a 25% rate now applies
to noncorporate taxpayers on certain gains realized on the sale of real
property. The 1997 Act retains the treatment of short-term capital gain and did
not affect the taxation of corporate taxpayers.
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The Treasury is authorized to issue Treasury Regulations for application of
the reduced capital gains tax rates enacted under the 1997 Act to pass-through
entities, including REITs and partnerships (such as the Operating Partnership).
The IRS recently issued a notice, applicable until the Treasury issues such
Treasury Regulations, which permits (but does not require) the Company to
designate the portion of its capital gain dividends, if any, to which the 28%,
25% and 20% rates (described in the preceding paragraph) apply in the hands of
noncorporate U.S. Stockholders, based on the net amount of each class of capital
gain realized by the Company.
The Company may elect to retain, rather than distribute as a capital gain
dividend, its net long-term capital gains. In such event, the Company would pay
tax on such retained net long-term capital gains. In addition to the extent
designated by the Company, a U.S. Stockholder generally would (i) include his
proportionate share of such undistributed long-term capital gains in computing
his long-term capital gains in his return for his taxable year in which the last
day of the Company's taxable year falls (subject to certain limitations as to
the amount so includable), (ii) be deemed to have paid the capital gains tax
imposed on the Company on the designated amounts included in such U.S.
Stockholder's long-term capital gains, (iii) receive a credit or refund for such
amount of tax deemed paid by the U.S. Stockholder, (iv) increase the adjusted
basis of his shares by the difference between the amount of such includable
gains and the tax deemed to have been paid by him, and (v) in the case of a U.S.
Stockholder that is a corporation, appropriately adjust its earnings and profits
for the retained capital gains in accordance with Treasury Regulations (which
have not yet been issued).
In general, any loss upon a sale or exchange of Company stock by a U.S.
Stockholder who has held such stock for six months or less (after applying
certain holding period rules) will be treated as a long-term capital loss, to
the extent of distributions from the Company required to be treated by such
stockholder as long-term capital gain.
INFORMATION REPORTING AND BACKUP WITHHOLDING
The Company will report to its U.S. Stockholders and to 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 U.S.
Stockholder may be subject to backup withholding at the rate of 31% with respect
to dividends paid and redemption proceeds unless such U.S. Stockholder (a) is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact, or (b) provides a taxpayer identification number (which,
for an individual, will ordinarily be his U.S. Social Security number),
certifies as to no loss of exemption from backup withholding, and otherwise
complies with applicable requirements of the backup withholding rules. The
Company may also institute backup withholding with respect to a U.S. Stockholder
if instructed to do so by the IRS. A U.S. Stockholder that does not provide the
Company with its correct taxpayer identification number may also be subject to
penalties imposed by the IRS. Any amount paid as backup withholding will be
creditable against the stockholder's federal income tax liability, if any, and
otherwise be refundable.
TAXATION OF TAX-EXEMPT STOCKHOLDERS
Based upon a published ruling by the IRS, distribution by the Company to a
U.S. Stockholder that is a tax-exempt entity will not constitute "unrelated
business taxable income" ("UBTI") provided that the tax-exempt entity has not
financed the acquisition of its shares with "acquisition indebtedness" within
the meaning of the Code and the shares are not otherwise used in an unrelated
trade or business of the tax-exempt entity.
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Notwithstanding the preceding paragraph, however, a portion of the
dividends paid by the Company may be treated as UBTI to certain domestic private
pension trusts if the Company is treated as a "pension-held REIT." The Company
believes that it is not, and does not expect to become a "pension-held REIT." If
the Company were to become a pension-held REIT, these rules generally would only
apply to certain pension trusts that held more than 10% of the Company's stock.
TAXATION OF NON-U.S. STOCKHOLDERS
The following is a discussion of certain anticipated U.S. federal income
tax consequences of the ownership and disposition of the Company's stock
applicable to Non-U.S. Stockholders of such stock. A "Non-U.S. Stockholder" is
any person who or that is not a U.S. Stockholder. The discussion is based on
current law and is for general information only. The discussion addresses only
certain and not all aspects of U.S. federal income taxation.
DISTRIBUTIONS FROM THE COMPANY
1. Ordinary Dividends. The portion of dividends received by Non-U.S.
Stockholders payable out of the Company's current and accumulated earnings and
profits which are not attributable to capital gains of the Company and which are
not effectively connected with a U.S. trade or business of the Non-U.S.
Stockholder will be subject to U.S. withholding tax at the rate of 30% (unless
reduced by treaty). In general, Non-U.S. Stockholders will not be considered
engaged in a U.S. trade or business solely as a result of their ownership of
stock of the Company. In cases where the dividend income from a Non-U.S.
Stockholder's investment in stock of the company is effectively connected with
the Non-U.S. Stockholder's conduct of a U.S. trade or business (or, if an income
tax treaty applies, is attributable to a U.S. permanent establishment of the
Non-U.S. Stockholder), the Non-U.S. Stockholder generally will be subject to
U.S. tax at graduated rates, in the same manner as U.S. Stockholders are taxed
with respect to such dividends (and may also be subject to the 30% branch
profits tax in the case of a Non-U.S. Stockholder that is a foreign
corporation).
2. Non-Dividend Distributions. Unless the Company's stock constitutes a
USRPI (as defined below), distributions by the Company which are not paid out of
the current and accumulated earnings and profits of the company will not be
subject to U.S. income or withholding tax. If it cannot be determined at the
time a distribution is made whether or not 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 dividends. However, the
Non-U.S. Stockholder may seek a refund of such amounts from the IRS if it is
subsequently determined that such distribution was, in fact, in excess of
current and accumulated earnings and profits of the Company. If the Company's
stock constitutes a USRPI, such distribution shall be subject to 10% withholding
tax and may be subject to additional taxation under FIRPTA (as defined below).
The Company expects to withhold U.S. income tax at the rate of 30% on the
gross amount of any distributions of ordinary income made to a Non-U.S.
Stockholder unless (i) a lower treaty rate applies and proper certification is
provided or (ii) the Non-U.S. Stockholder files an IRS Form 4224 with the
Company claiming that the distribution is effectively connected with the
Non-U.S. Stockholder's conduct of a U.S. trade or business (or, if an income tax
treaty applies, is attributable to a U.S. permanent establishment of the
Non-U.S. Stockholder). Pursuant to current Treasury Regulations, dividends paid
to an address in a country outside the United States are generally presumed to
be paid to a resident of such country for purposes of ascertaining the
requirement of withholding discussed above and the applicability of an income
tax treaty rate. However, under
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temporary Treasury Regulations, certain Non-U.S. Stockholders who seek to claim
the benefit of an applicable treaty rate are required to satisfy certain
residency and other requirements.
3. Capital Gain Dividends. Under the Foreign Investment in Real Property
Tax Act of 1980 ("FIRPTA"), a distribution made by the Company to a Non-U.S.
Stockholder, to the extent attributable to gains ("USRPI Capital Gains") from
dispositions of United States Real Property Interests ("USRPIs"), which includes
the Properties, will be considered effectively connected with a U.S. trade or
business of the Non-U.S. Stockholder and therefore will be subject to U.S.
income tax at the rate applicable to U.S. individuals or corporations, without
regard to whether such distribution is designated as a capital gain dividend. In
addition, the Company will be required to withhold tax equal to 35% of the
amount of dividends to the extent such dividends constitute USRPI Capital Gains.
Distributions subject to FIRPTA may also be subject to a 30% branch profits in
tax in the hands of a corporate Non-U.S. Stockholder that is not entitled to
treaty exemption.
Distributions attributable to the Company's capital gains, which are not
USRPI Capital Gains, generally will not be subject to taxation, unless (i)
investment in the shares is effectively connected with the Non-U.S.
Stockholder's U.S. trade or business (or, if an income tax treaty applies, is
attributable to a U.S. permanent establishment of the Non-U.S. Stockholder), in
which case the Non-U.S. Stockholder will be subject to the same treatment as
U.S. stockholders with respect to such gain (except that a corporate U.S.
Stockholder may also be subject to the 30% branch profits tax), or (ii) the
Non-U.S. Stockholder is a non-resident alien individual who is present in the
United States for 183 days or more during the taxable year and either has a "tax
home" in the United States or sold his or her shares of Company stock under
circumstances in which the sale was attributable to a U.S. office, in which case
the non-resident alien individual will be subject to a 30% tax on the
individual's capital gains.
Disposition of Stock of the Company. Unless the Company's stock constitutes
a USRPI, a sale of such stock by a Non-U.S. Stockholder generally will not be
subject to U.S. taxation under FIRPTA. The stock will not constitute a USRPI if
the Company is a "domestically controlled REIT." A domestically controlled REIT
is a REIT in which, at all times during a specified testing period, less than
50% in value of its shares is held directly or indirectly by Non-U.S.
Stockholders. The Company believes that it is, and it expects to continue to be
a domestically controlled REIT, and therefore that the sale of the Company's
stock will not be subject to taxation under FIRPTA. Because the Company's stock
will be publicly traded, however, no assurance can be given the Company will
continue to be a domestically controlled REIT.
If the Company does not constitute a domestically controlled REIT, a
Non-U.S. Stockholder's sale of stock generally will still not be subject to tax
under FIRPTA as a sale of a USRPI provided that (i) the stock is "regularly
traded" (as defined by applicable Treasury Regulations) on an established
securities market and (ii) the selling Non-U.S. Stockholder held 5% or less of
the Company's outstanding stock at all times during a specified testing period.
If gain on the sale of stock of the Company were subject to taxation under
FIRPTA, the Non-U.S. Stockholder would be subject to the same treatment as a
U.S. Stockholder with respect to such gain (subject to applicable alternative
minimum tax and a special alternative minimum tax in the case of nonresident
alien individuals) and the purchaser of the stock could be required to withhold
10% of the purchase price and remit such amount to the IRS.
New Withholding Regulations. Final Treasury regulations dealing with
withholding tax on income paid to foreign persons and related matters (the "New
Withholding
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Regulations") were recently promulgated. In general, the New Withholding
Regulations do not significantly alter the substantive withholding and
information reporting requirements, but unify current certification procedures
and forms and clarify reliance standards. For example, the New Withholding
Regulations adopt a certification rule which was in the proposed regulations
under which a Non-U.S. Stockholder who wishes to claim the benefit of an
applicable treaty rate with respect to dividends received from a U.S.
corporation will be required to satisfy certain certification and other
requirements. In addition, the New Withholding Regulations require a corporation
that is a REIT to treat as a dividend the portion of a distribution that is not
designated as a capital gain dividend or return of basis and apply the 30%
withholding tax (subject to any applicable deduction or exemption) to such
portion, and to apply the FIRPTA withholding rules (discussed above) with
respect to the portion of the distribution designated by the REIT as capital
gain dividend. The New Withholding Regulations will generally be effective for
payments made after December 31, 1999, subject to certain transition rules.
EXCEPT FOR THIS PARAGRAPH, THE DISCUSSION SET FORTH ABOVE UNDER "TAXATION OF
NON-U.S. STOCKHOLDERS" DOES NOT TAKE THE NEW WITHHOLDING REGULATIONS INTO
ACCOUNT. PROSPECTIVE NON-U.S. STOCKHOLDERS ARE STRONGLY URGED TO CONSULT THEIR
OWN TAX ADVISORS WITH RESPECT TO THE IMPACT TO THEM OF THE NEW WITHHOLDING
REGULATIONS.
OTHER TAX CONSIDERATIONS
DIVIDEND REINVESTMENT PROGRAM
Under the Company's dividend reinvestment program, stockholders
participating in the program will be deemed to have received the gross amount of
any cash distributions which would have been paid by the Company to such
stockholders had they not elected to participate. These deemed distributions
will be treated as actual distributions from the Company to the participating
stockholders and will retain the character and tax effect applicable to
distributions from the Company generally. See "Federal Income Tax
Considerations -- Taxation of Stockholders." Participants in the dividend
reinvestment program are subject to federal income tax on the amount of the
deemed distributions to the extent that such distributions represent dividends
or gains, even though they receive no cash. Shares of Company Stock received
under the program will have a holding period beginning with the day after
purchase, and a tax basis equal to their cost (which is the gross amount of the
deemed distribution).
POSSIBLE LEGISLATIVE OR OTHER ACTIONS AFFECTING TAX CONSIDERATIONS
Prospective investors should recognize that the present federal income tax
treatment of an investment in the Company may be modified by legislative,
judicial or administrative action at any time, and that any such action may
affect investments and commitments previously made. The rules dealing with
federal income taxation are constantly under review by persons involved in the
legislative process and by the IRS and the U.S. Treasury Department, resulting
in revisions of regulations and revised interpretations of established concepts
as well as statutory changes. Revisions in federal tax laws and interpretations
thereof could adversely affect the tax consequences of an investment in the
Company.
STATE AND LOCAL TAXES
The Company and its stockholders may be subject to state or local taxation
in various jurisdictions, including those in which it or they transact business
or reside. The state and local tax treatment of the Company and its stockholders
may not conform to the federal income tax consequences discussed above.
Consequently, prospective stockholders should
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consult their own tax advisers regarding the effect of state and local tax laws
on an investment in the Common Stock of the Company.
PLAN OF DISTRIBUTION
The Company and the Operating Partnership may sell the Offered Securities
to one or more underwriters for public offering and sale by them or may sell the
Offered Securities to investors directly or through agents, which agents may be
affiliated with the Company or the Operating Partnership. Any such underwriter
or agent involved in the offer and sale of the Offered Securities will be named
in the applicable Prospectus Supplement.
Sales of Offered Securities offered pursuant to any applicable Prospectus
Supplement may be effected from time to time in one or more transactions at a
fixed price or prices which may be changed, at prices related to the prevailing
market prices at the time of sale, or at negotiated prices. The Company and the
Operating Partnership also may, from time to time, authorize underwriters acting
as the Company's agents to offer and sell the Offered Securities upon the terms
and conditions as set forth in the applicable Prospectus Supplement. In
connection with the sale of Offered Securities, underwriters may be deemed to
have received compensation from the Company or from the Operating Partnership in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of Offered Securities for whom they may act as
agent. Underwriters may sell Offered Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by the Company or the Operating
Partnership to underwriters or agents in connection with the offering of Offered
Securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
Prospectus Supplement. Underwriters, dealers and agents participating in the
distribution of the Offered Securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the Offered Securities may be deemed to be underwriting discounts and
commissions under the Securities Act. Underwriters, dealers and agents may be
entitled, under agreements entered into with the Company and the Operating
Partnership, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act. Any such
indemnification agreements will be described in the applicable Prospectus
Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Offered Securities will be a new issue with no established trading
market, other than the Common Stock, Series B Preferred Stock and Series C
Preferred Stock which are listed on the New York Stock Exchange. Any shares of
Common Stock, Series B Preferred Stock and Series C Preferred Stock sold
pursuant to a Prospectus Supplement will be listed on such exchange, subject to
official notice of issuance. The Company or the Operating Partnership may elect
to list any other series of Preferred Stock and any series of Debt Securities,
Depository Shares or Warrants on any exchange, but neither is obligated to do
so. It is possible that one or more underwriters may make a market in a series
of Offered 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 the trading market for the Offered Securities.
If so indicated in the applicable Prospectus Supplement, the Company or the
Operating Partnership, as the case may be, may authorize dealers acting as the
Company's or the Operating Partnership's agents to solicit offers by certain
institutions to purchase Offered Securities from the Company or the Operating
Partnership at the public
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offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than, and the aggregate principal amount of Offered Securities
sold pursuant to Contracts shall be not less nor more than, the respective
amounts stated in the applicable Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions but will in all cases be subject
to the approval of the Company or the Operating Partnership, as the case may be.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Offered Securities covered by its Contracts shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Offered Securities
are being sold to underwriters, the Company or the Operating Partnership, as the
case may be, shall have sold to such underwriters the total principal amount of
the Offered Securities less the principal amount thereof covered by Contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for, the Company or the
Operating Partnership in the ordinary course of business.
EXPERTS
The audited financial statements and schedules incorporated by reference in
this Prospectus and elsewhere in the Registration Statement to the extent and
for the periods indicated in their reports have been audited by Arthur Anderson
LLP, independent public accountants, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports.
VALIDITY OF THE OFFERED SECURITIES
The validity of the Offered Securities will be passed upon for the Company
and the Operating Partnership by Sullivan & Cromwell, Los Angeles, California.
Sullivan & Cromwell will rely as to all matters of Maryland law upon the opinion
of Piper & Marbury L.L.P. The description of the Company's qualification and
taxation as a REIT under the Code contained in this Prospectus under the caption
entitled "Federal Income Tax Considerations -- General" is based upon the
opinion of Morrison & Foerster LLP.
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- ---------------------------------------------------------
- ---------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY INFORMATION
OR TO REPRE-
SENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST NOT RELY ON ANY
UNAUTHORIZED INFOR-
MATION OR REPRESENTATIONS. THIS PROSPECTUS IS AN OFFER TO SELL ONLY THE NOTES
OFFERED HEREBY, BUT ONLY UNDER CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS
LAWFUL TO DO SO. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS CURRENT ONLY AS
OF ITS DATE.
------------------------------
TABLE OF CONTENTS
Prospectus Supplement
<TABLE>
<CAPTION>
Page
----
<S> <C>
The Offering............................ S-2
Use of Proceeds......................... S-3
The Company and the Operating
Partnership........................... S-3
Recent Operating Results................ S-7
Summary Financial and Other Data........ S-8
Description of Notes.................... S-9
Federal Income Tax Considerations....... S-16
Underwriting............................ S-21
Validity of Notes....................... S-22
</TABLE>
Prospectus
<TABLE>
<CAPTION>
Page
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<S> <C>
Available Information................... 2
Incorporation of Certain Documents by
Reference............................. 2
The Company and the Operating
Partnership........................... 3
Use of Proceeds......................... 5
Ratio of Earnings to Fixed Charges...... 5
Special Considerations.................. 6
Description of Debt Securities.......... 9
Description of Capital Stock............ 21
Description of Preferred Stock.......... 27
Description of Depositary Shares........ 29
Description of Warrants................. 33
Certain Provisions of the Company's
Charter and Bylaws.................... 34
Federal Income Tax Considerations....... 34
Plan of Distribution.................... 47
Experts................................. 48
Validity of the Offered Securities...... 48
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$400,000,000
SPIEKER PROPERTIES, L.P.
$200,000
6.80% NOTES DUE MAY 1, 2004
$200,000
7.25% NOTES DUE MAY 1, 2009
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LOGO
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GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
J.P. MORGAN & CO.
MORGAN STANLEY DEAN WITTER
SALOMON SMITH BARNEY
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