As filed with the Securities and Exchange Commission on August ___, 1997
Registration No. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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U.S. RESTAURANT PROPERTIES, INC.
(Exact name of Registrant as specified in its charter)
MARYLAND 75-2687420
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation ororganization)
5310 HARVEST HILL ROAD
SUITE 270, L.B. 168
DALLAS, TEXAS 75230
(972) 387-1487
(Address, including zip code, and telephone number, including area code, of
Registrants' principal executive offices)
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ROBERT J. STETSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
5310 HARVEST HILL ROAD
SUITE 270, L.B. 168
DALLAS, TEXAS 75230
(972) 387-1487
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
KENNETH L. BETTS, ESQ.
WINSTEAD SECHREST & MINICK P.C.
1201 ELM STREET, SUITE 5400
DALLAS, TEXAS 75270
(214) 745-5400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time
to time or at one time after the effective date of the Registration Statement as
determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. |_| ________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| ________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |X|
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(CALCULATION OF REGISTRATION FEE TABLE APPEARS ON NEXT PAGE.)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C>
Title of Each Class of Securities to be Registered(1) Proposed Maximum Offering Price(2) Amount of Registration Fee(3)
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Common Stock, par value $.001 per share(4)..........
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Common Stock Warrants(5)............................
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Preferred Stock, par value $.001 per share(6).......
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Depositary Shares Representing Preferred Stock(7)...
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Total...................................... $150,000,000 $45,455
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</TABLE>
(1) The Common Stock, Common Stock Warrants, Preferred Stock and Depositary
Shares (collectively, the "Offered Securities") registered hereunder may
be sold separately, together or as units with other Offered Securities
registered hereunder.
(2) The aggregate maximum public offering price of all Offered Securities
issued pursuant to this Registration Statement, including any of such
securities issued upon exchange for or conversion into any other of such
securities, will not exceed $ .
(3) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended. (4) Such indeterminate number of shares of
Common Stock as may from time to time be issued at indeterminate
prices or issuable upon conversion of Preferred Stock or Depositary
Shares registered hereunder or upon exercise of the Common Stock Warrants
registered hereunder, as the case may be.
(5) Such indeterminate amount and number of Common Stock Warrants,
representing rights to purchase Common Stock registered hereunder.
(6) Such indeterminate number of shares of Preferred Stock as may from time
to time be issued at indeterminate prices.
(7) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts, representing a fractional interest of a share of
Preferred Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
Subject to Completion
Preliminary Prospectus Dated August , 1997
PROSPECTUS
$150,000,000
U.S. RESTAURANT PROPERTIES, INC.
Common Stock, Common Stock Warrants, Preferred
Stock and Depositary Shares
U.S. Restaurant Properties, Inc. (together with its subsidiaries, the
"Company") may from time to time offer in one or more series (i) shares of its
common stock, par value $.001 per share (the "Common Stock"); (ii) warrants to
purchase Common Stock (the "Common Stock Warrants"); or (iii) shares or
fractional shares of its preferred stock, par value $.001 per share (the
"Preferred Stock"), which may be issued in the form of depositary shares (the
"Depositary Shares") evidenced by depositary receipts, with an aggregate public
offering price of up to $150,000,000. The Common Stock, Common Stock Warrants,
Preferred Stock and Depositary Shares (collectively, the "Offered Securities")
may be offered separately or together, in separate series, in amounts, at prices
and on terms to be determined at the time of offering and set forth in one or
more supplements to this Prospectus (each, a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of 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,
any public offering price; (ii) in the case of Common Stock Warrants, the
duration, offering price, exercise price and detachability features; (iii) in
the case of Preferred Stock, the specific title, any distribution, liquidation,
redemption, conversion, voting and other rights and any initial public offering
price; and (iv) in the case of Depositary Shares, the fractional share of
Preferred Stock represented by each such Depositary Share. 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, concerning all material 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 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.
<PAGE>
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 , 1997
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<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITERS, AGENTS OR DEALERS.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER
TO BUY SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AT ANY
TIME SUBSEQUENT TO THE DATE HEREOF.
AVAILABLE INFORMATION
In connection with the conversion of U.S. Restaurant Properties Master
L.P. (the "Predecessor") into a real estate investment trust, the Company has
succeeded to the business, operations, assets and liabilities of the Predecessor
and is the successor registrant to the Predecessor for purposes of the
Securities Act of 1933, as amended (the "Securities Act"), and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Company is, and prior
to the conversion the Predecessor was, subject to the informational requirements
of the Exchange Act and, in accordance therewith, the Company files, and prior
to the conversion the Predecessor filed, reports, proxy statements and other
information, with the Securities and Exchange Commission (the "Commission"). The
Company's Registration Statement on Form S-3 (the "Registration Statement"), the
exhibits and schedules forming a part thereof and the reports, proxy statements
and other information filed by the Company and the Predecessor can be obtained
from the web site that the Commission maintains at http://www.sec.gov, or can be
inspected and copied, at the prescribed rates, at the public reference
facilities of the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's regional offices at Seven World Trade
Center, Suite 1300, New York, New York 10048, and Northwestern Atrium Center,
500 West Madison Street, Chicago, Illinois 60661. The Common Stock is listed on
the New York Stock Exchange (the "NYSE") and similar information concerning the
Company may be inspected at the offices of the NYSE at 20 Broad Street, New
York, New York 10005.
This Prospectus constitutes a part of the Registration Statement filed
by the Company with the Commission under the Securities Act. This Prospectus
omits certain of the information contained in the Registration Statement and the
exhibits and schedules thereto, in accordance with the rules and regulations of
the Commission. For further information concerning the Company and the Offered
Securities, reference is hereby made to the Registration Statement and the
exhibits and schedules filed therewith, which may be inspected without charge at
the office of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
and copies of which may be obtained from the Commission at prescribed rates. Any
statements contained herein concerning the provisions of any document are not
necessarily complete and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company or the
Predecessor (Commission File No. 1-9079) under the Exchange Act with the
Commission and are incorporated herein by reference:
(a) The Predecessor's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, as amended by the Form 10-K/A
filed May 2, 1997;
(b) The Predecessor's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997;
(c) The Predecessor's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997;
(d) The Predecessor's Current Report on Form 8-K dated April 14,
1997, as amended by the Form 8-K/A filed May 30, 1997;
(e) The Predecessor's Current Report on Form 8-K dated August 21,
1997;
(f) The Company's Current Report on Form 8-K dated August 22,
1997; and
(g) The Company's Registration Statement on Form 8-A filed
February 20, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Offered Securities shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from the
respective dates of filing such documents.
Any statement or information contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed modified or
superseded for the purposes of this Prospectus to the extent that a statement
contained herein or in any 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.
The Company hereby undertakes to provide without charge to each person
to whom this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents incorporated by reference herein
(not including any exhibits to the information that is incorporated by reference
unless such exhibits are specifically incorporated by reference to the
information that this Prospectus incorporates). Requests should be directed to:
U.S. Restaurant Properties, Inc., 5310 Harvest Hill Road, Suite 270, Dallas,
Texas 75230, Attention: Michael D. Warren, telephone (972) 387-1487.
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<PAGE>
FORWARD-LOOKING INFORMATION
Certain information both included and incorporated by reference herein
may contain forward-looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act, and as such may involve
known and unknown risks, uncertainties and other factors which may cause the
actual results, performance or achievements of the Company to be materially
different from future results, performance or achievements expressed or implied
by such forward-looking statements. Forward-looking statements, which are based
on certain assumptions and describe future plans, strategies and expectations of
the Company, are generally identifiable by use of the words "may," "will,"
"should," "expect," "anticipate," "estimate," "believe," "intend" or "project"
or the negative thereof or other variations thereon or comparable terminology.
Factors which could have a material adverse effect on the operations and future
prospects of the Company include, but are not limited to, changes in: economic
conditions generally and the real estate market specifically,
legislative/regulatory changes (including changes to laws governing the taxation
of REITs), availability of capital, interest rates, competition, supply and
demand for properties in current and proposed market areas of the Company and
general accounting principles, policies and guidelines applicable to REITs.
These risks and uncertainties should be considered in evaluating any
forward-looking statements contained herein.
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<PAGE>
In connection with the conversion of U.S. Restaurant Properties Master
L.P. (the "Predecessor") into a real estate investment trust (a "REIT"), U.S.
Restaurant Properties, Inc. (together with its subsidiaries, the "Company") will
succeed to the operations of the Predecessor through the merger (the "Merger")
of a partnership subsidiary of the Company with and into the Predecessor with
the Predecessor being the surviving entity. Unless otherwise indicated, all
information presented in this Prospectus assumes that the Merger has been
completed.
THE COMPANY
The Company, a fully integrated, self-administered and self-managed
REIT, acquires, owns, manages and selectively develops income-producing
properties that it leases on a triple net basis primarily to operators of
national and regional fast food and casual dining chain restaurants such as
Burger King(R), Arby's(R), Dairy Queen(R), Grandy's(R) and Pizza Hut(R). At July
31, 1997, the Company's portfolio consisted of 494 restaurant properties located
in 44 states operated by approximately 200 operators and representing over 45
franchise affiliations. Approximately 99.5% of the Company's portfolio is leased
with an average remaining lease term of over ten years.
The Company, together with its predecessors, has been engaged in the
business of leasing restaurant properties since 1986. Prior to 1994, the
Company's portfolio was limited to approximately 125 Burger King(R) restaurant
properties. In May 1994, existing management assumed control of the Company and
began restructuring operations in a manner that has allowed the Company to
implement a number of new strategies intended to encourage Company growth. These
strategies have involved the Company in new property acquisitions, merchant
banking activities in which the Company acquires entire restaurant chains but
retains only the real estate in order to enhance investment returns, new
property developments of co-branded service centers, securing a $95 million
revolving line of credit and the Merger.
The business and operations of the Company are conducted through U.S.
Restaurant Properties Operating L.P. (the "Operating Partnership"). The
Operating Partnership is a totally-owned Delaware limited partnership subsidiary
of the Company. The Operating Partnership does not conduct any operations that
are independent from those of the Company.
The Company is a Maryland corporation which has elected to be taxed as
a REIT for federal income tax purposes for the year ending December 31, 1997.
The Common Stock is traded on the NYSE under the symbol "USV." The principal
executive offices of the Company are located at 5310 Harvest Hill Road, Suite
270, Dallas, Texas 75230. The telephone number is (972) 387-1487.
USE OF PROCEEDS
Except as otherwise provided in the applicable Prospectus Supplement,
the Company intends to use the net proceeds from any sale of the Offered
Securities for working capital and for general corporate purposes, which may
include the repayment of indebtedness, the financing of capital
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<PAGE>
commitments and possible future acquisitions associated with the continued
expansion of the Company's business.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to combined fixed charges for the periods shown:
<TABLE>
<CAPTION>
Years ended December 31, Six Months ended
-------------------------- ----------------
1992 1993 1994 1995 1996 6/30/96 6/30/97
---- ---- ---- ---- ---- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges 20.73x 42.60x 55.86x 20.77x 3.74x 4.02x 2.06x
</TABLE>
The ratios of earnings to fixed charges were computed by dividing the
Company's earnings by fixed charges. For this purpose, earnings have been
calculated by adding fixed charges (excluding capitalized interest) to pretax
income from continuing operations. Fixed charges consist of interest costs,
whether expensed or capitalized, the interest component of rental expense, if
any, and amortization of deferred financing costs (including amounts
capitalized). To date, the Company has not issued any Preferred Stock;
therefore, the ratios of earnings to combined fixed charges and Preferred Stock
distributions are the same as the ratios of earnings to fixed charges.
Prior to 1995, the operations of, and the amount of indebtedness which
could be incurred by, the Predecessor were limited by its partnership agreement.
In connection with the restructuring of its operations in 1995, the
Predecessor's partnership agreement was amended to permit the expansion of its
portfolio. Since that time, the Predecessor's acquisitions have been funded
through a mixture of debt and equity, resulting in an increased fixed charge for
interest expense.
DESCRIPTION OF COMMON STOCK
GENERAL
Under the Company's Amended Articles of Incorporation (the "Charter"),
the Company has authority to issue 60 million shares of capital stock, par value
$.001 per share, with 45 million of such shares designated as Common Stock. Upon
completion of the Merger, the Company will have outstanding 7,875,004 shares of
Common Stock. Under Maryland law, stockholders generally are not responsible for
a corporation's debts or obligations. The following descriptions do not purport
to be complete and are subject to, and qualified in their entirety by reference
to, the more complete descriptions thereof set forth in the following documents:
(i) the Charter and (ii) the Company's By-Laws (the "By-Laws"), which documents
are exhibits to the Registration Statement of which this Prospectus is a part.
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<PAGE>
TERMS
Subject to the preferential rights of any other shares or series of
capital stock and to the provisions of the Charter regarding excess stock
("Excess Stock"), holders of shares of Common Stock will be entitled to receive
distributions on shares of Common Stock if, as and when authorized and declared
by the Board of Directors out of assets legally available therefor and to share
ratably in the assets of the Company legally available for distribution to its
stockholders in the event of its liquidation, dissolution or winding up after
payment of, or adequate provision for, all known debts and liabilities of the
Company.
Subject to the provisions of the Charter regarding Excess Stock, each
outstanding share of Common Stock entitles the holder to one vote on all matters
submitted to a vote of stockholders, including the election of directors, and,
except as otherwise required by law or except as provided with respect to any
other class or series of stock, the holders of such shares will possess the
exclusive voting power. There is no cumulative voting in the election of
directors, which means that the holders of a majority of the outstanding shares
of Common Stock, together with any other voting stock of the Company, can elect
all of the directors then standing for election and the holders of the remaining
shares will not be able to elect any directors.
Holders of Common Stock have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any securities of the Company,
except that Common Stock is convertible into Excess Stock as provided in the
Charter.
The Company intends to furnish its stockholders with annual reports
containing audited consolidated financial statements and an opinion thereon
expressed by an independent public accounting firm and quarterly reports for the
first three quarters of each fiscal year containing unaudited financial
information.
Subject to the provisions of the Charter regarding Excess Stock, shares
of Common Stock will have equal distribution, liquidation and other rights, and
will have no preference, appraisal or exchange rights.
Pursuant to the Maryland General Corporation Law ("MGCL"), a
corporation generally cannot dissolve, amend its charter, merge, sell all or
substantially all of its assets, engage in a share exchange or engage in similar
transactions outside the ordinary course of business unless approved by the
affirmative vote of stockholders holding at least two-thirds of the shares
entitled to vote on the matter unless a lesser percentage (but not less than a
majority of all of the votes entitled to be cast on the matter) is set forth in
the corporation's charter. The Charter provides that in such situations the
approval of a majority of the total number of the shares entitled to vote on
the matter is required.
Provisions of the Charter described below under "Restrictions on
Transfers of Capital Stock," together with other provisions of the Charter and
of the MGCL, may discourage a takeover or other transaction which holders of
some, or a majority, of the shares of Common Stock might believe to be
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<PAGE>
in their best interests or in which holders of some, or a majority, of the
shares of Common Stock might receive a premium for their shares of Common
Stock over the then-prevailing market price of such shares of Common Stock.
RESTRICTIONS ON TRANSFER AND OWNERSHIP
Following the Merger, the Company will elect to be treated as a REIT
for federal income tax purposes. For the Company to qualify as a REIT under the
Internal Revenue Code of 1986, as amended (the "Code"), not more than 50% in
value of its outstanding shares of capital stock may be owned, directly or
indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of a taxable year. To assist the Company
in meeting this requirement, the Charter contains certain provisions restricting
certain transfers and limiting the beneficial ownership, directly or indirectly,
of the Company's Common Stock. See "Restrictions on Transfers of Capital Stock."
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is American Stock
Transfer and Trust Company.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue Common Stock Warrants for the purchase of Common
Stock. 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 Common
Stock 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
Common Stock Warrants of such series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
Common Stock Warrants. The following description of the Common Stock Warrants
sets forth certain general terms and provisions of the Common Stock Warrants to
which any Prospectus Supplement may relate. The statements below describing the
Common Stock Warrants and the applicable Warrant Agreements are in all respects
subject to and qualified in their entirety by any further terms and provisions
that may be set forth in any applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of the
Common Stock Warrants in respect of which this Prospectus is being delivered,
including, where applicable, the following: (i) the title of such Common Stock
Warrants; (ii) the aggregate number of such Common Stock Warrants; (iii) the
price or prices at which such Common Stock Warrants will be issued; (iv) the
designation, number and terms of the shares of Common Stock purchasable upon
exercise of such Common Stock Warrants; (v) the designation and terms of the
other Offered Securities with which such Common Stock Warrants are issued and
the number of such Common Stock Warrants issued with each such Offered
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<PAGE>
Security; (vi) the date, if any, on and after which such Common Stock Warrants
and the related Common Stock will be separately transferable; (vii) the price at
which each share of Common Stock purchasable upon exercise of such Common Stock
Warrants may be purchased; (viii) the date on which the right to exercise such
Common Stock Warrants shall commence and the date on which such right shall
expire; (ix) the minimum or maximum amount of such Common Stock Warrants which
may be exercised at any one time; (x) information with respect to book-entry
procedures, if any; (xi) a discussion of all material federal income tax
considerations; and (xii) any other terms of such Common Stock Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Common Stock Warrants.
Each Common Stock Warrant will entitle the holder thereof to purchase
such number of shares of Common Stock, as the case may be, at such exercise
price as shall, in each case, be set forth in, or calculable from, the
applicable Prospectus Supplement relating to the offered Common Stock Warrants.
Prior to the exercise of any Common Stock Warrants, holders of such Common Stock
Warrants will not have any rights of holders of Common Stock, including the
right to receive payments of distributions, if any, on such Common Stock, or to
exercise any applicable right to vote. After the close of business on the
expiration date of any series of Common Stock Warrants (or such later date to
which such expiration date may be extended by the Company), unexercised Common
Stock Warrants will become void.
Common Stock Warrants may be exercised by delivering to the Warrant
Agent payment, as provided in the applicable Prospectus Supplement, of the
amount required to purchase the Common Stock purchasable upon such exercise and
otherwise by following the procedures specified in such Prospectus Supplement.
The Warrant Agreements may be amended or supplemented without the
consent of the holders of the Common Stock Warrants issued thereunder to effect
changes that are not inconsistent with the provisions of the Common Stock
Warrants and that do not adversely affect the interests of the holders of the
Common Stock Warrants.
Reference is made to the section captioned "Description of Common
Stock" for a general description of the Common Stock to be acquired upon the
exercise of the Common Stock Warrants, including a description of certain
restrictions on the ownership or transfer of Common Stock.
DESCRIPTION OF PREFERRED STOCK
GENERAL
Under the Charter, the Company has authority to issue 10 million shares
of Preferred Stock, none of which is outstanding as of the date of this
Prospectus. Prior to issuance of shares of each series, the Board of Directors
is required by the MGCL and the Charter to fix for each series, subject to the
provisions of the Charter regarding Excess Stock, the number of shares to be
included in each series and the preferences, conversion or other rights, voting
powers, restrictions (including restrictions on transfers
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of shares), limitations as to dividends, qualifications and terms or conditions
of redemption, and to file articles supplementary to the Charter (the "Articles
Supplementary") reflecting such terms, preferences and other rights. Except as
may be expressly provided with respect to any class or series of Preferred
Stock, no holder of the Preferred Stock will have any preemptive rights. The
Board of Directors could authorize the issuance of shares of Preferred Stock
with terms and conditions that could have the effect of discouraging a takeover
or other transaction which holders of some, or a majority, of the shares of
Common Stock might believe to be in their best interests or in which holders of
some, or a majority, of the shares of Common Stock might receive a premium for
their shares of Common Stock over the then-prevailing market price of such
shares of Common Stock.
TERMS
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. The statements below describing the Preferred Stock are
in all respects subject to and qualified in their entirety by reference to the
applicable provisions of the Charter and the By-Laws and any Articles
Supplementary designating the terms of a series of Preferred Stock.
Reference is made to the Prospectus Supplement relating to the
Preferred Stock offered thereby for the specific terms thereof, including, where
applicable, the following:
(1) The title 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 distribution rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred
Stock;
(4) The date from which distributions on such Preferred Stock
shall accumulate, if applicable;
(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 convertible into Common Stock,
including the conversion price or rate (or manner of
calculation thereof);
(9) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
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(10) A discussion of all material federal income tax considerations
applicable to such Preferred Stock;
(11) The relative ranking and preference of such Preferred Stock as
to distribution rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company;
(12) Any limitations on issuance of any series of Preferred Stock
ranking senior to or on a parity with such series of Preferred
Stock as to distribution rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company; and
(13) Any limitations on direct or beneficial ownership and
restrictions on transfer, in each case as may be appropriate
to preserve the status of the Company as a REIT.
RANK
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Stock will, with respect to distribution rights and rights upon
liquidation, dissolution or winding up of the Company, rank (i) senior to the
Common Stock and to all equity securities ranking junior to such Preferred Stock
with respect to distribution rights or rights upon liquidation, dissolution or
winding up of the Company; (ii) on a parity with all equity securities issued by
the Company, the terms of which specifically provide that such equity securities
rank on a parity with the Preferred Stock with respect to distribution 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 distribution rights or rights upon liquidation,
dissolution or winding up of the Company.
DISTRIBUTIONS
Holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors, out of assets of
the Company legally available for payment,
cash distributions at such rates and on such dates as will be set forth in the
applicable Prospectus Supplement. Each such distribution shall be payable to
holders of record as they appear on the stock transfer books of the Company on
such record dates as shall be fixed by the Board of Directors.
Distributions on any series of the Preferred Stock may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement.
Distributions, if cumulative, will be cumulative from and after the date set
forth in the applicable Prospectus Supplement. If the Board of Directors fails
to declare a distribution payable on a distribution payment date on any series
of the Preferred Stock for which distributions are noncumulative, then the
holders of such series of the Preferred Stock will have no right to receive a
distribution in respect of the distribution period ending on such distribution
payment date, and the Company will have no obligation to pay the distribution
accrued for such period, whether or not distributions on such series are
declared payable on any future distribution payment date.
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If Preferred Stock of any series is outstanding, no distributions will
be declared or paid or set apart for payment on any capital stock of the Company
of any other series ranking, as to distributions, on a parity with or junior to
the Preferred Stock of such series for any period, unless (i) if such series of
Preferred Stock has a cumulative distribution, full cumulative distributions
have been or contemporaneously are declared and paid, or declared and a sum
sufficient for the payment thereof is set apart for such payment on the
Preferred Stock of such series for all past distribution periods and the then
current distribution period, or (ii) if such series of Preferred Stock does not
have a cumulative distribution, full distributions for the then current
distribution period have been or contemporaneously are declared and paid, or
declared and a sum sufficient for the payment thereof is set apart for such
payment on the Preferred Stock of such series. When distributions are not paid
in full (or a sum sufficient for such full payment is not so set apart) upon
Preferred Stock of any series and the shares of any other series of Preferred
Stock ranking on a parity as to distributions with the Preferred Stock of such
series, all distributions declared upon Preferred Stock of such series and any
other series of Preferred Stock ranking on a parity as to distributions with
such Preferred Stock shall be declared pro rata so that the amount of
distributions declared per share of Preferred Stock of such series and such
other series of Preferred Stock shall in all cases bear to each other the same
ratio that accrued distributions per share on the Preferred Stock of such series
(which shall include any accumulation in respect of unpaid distributions for
prior distribution periods if such Preferred Stock provides for a cumulative
distribution) and such other series of Preferred Stock bear to each other. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any distribution payment or payments on Preferred Stock of such series that may
be in arrears.
Except as provided in the immediately preceding paragraph, unless (i)
if such series of Preferred Stock has a cumulative distribution, full cumulative
distributions on the Preferred Stock of such series have been or
contemporaneously are declared and paid, or declared and a sum sufficient for
the payment thereof is set apart for payment for all past distribution periods
and the then current distribution period, or (ii) if such series of Preferred
Stock does not have acumulative distribution, full distributions on the
Preferred Stock of such series have been or contemporaneously are declared and
paid, or declared and a sum sufficient for the payment thereof is set apart for
payment for the then current distribution period, no distributions (other than
in shares of Common Stock or other shares of capital stock ranking junior to the
Preferred Stock of such series as to distributions and upon liquidation) shall
be declared or paid or set aside for payment nor shall any other distribution
be declared or made upon the Common Stock or any other capital stock of the
Company ranking junior to or on a parity with the Preferred Stock of such
series as to distributions or upon liquidation, nor shall any shares of Common
Stock or any other shares of capital stock of the Company ranking junior to or
on a parity with the Preferred Stock of such series as to distributions or upon
liquidation, be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such shares) by the Company (except by conversion into or
exchange for other capital stock of the Company ranking junior to the Preferred
Stock of such series as to distributions and upon liquidation).
Any distribution payment made on shares of a series of Preferred Stock
shall first be credited against the earliest accrued but unpaid distribution due
with respect to shares of such series that remain payable.
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REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred
Stock will be subject to mandatory redemption or redemption at the option of the
Company, as a whole or in part, in each case upon the terms, at the times and at
the redemption prices set forth in such Prospectus Supplement.
The applicable Prospectus Supplement relating to a series of Preferred
Stock that is subject to mandatory redemption will specify the number of shares
of such Preferred Stock that shall be redeemed by the Company in each year
commencing after a date to be specified, at a redemption price per share to be
specified, together with an amount equal to all accrued and unpaid distributions
thereon (which shall not, if such Preferred Stock does not have a cumulative
distribution, include any accumulation in respect of unpaid distributions for
prior distribution periods) to the date of redemption. The redemption price may
be payable in cash or other property, as specified in the applicable Prospectus
Supplement. If the redemption price for Preferred Stock of any series is payable
only from the net proceeds of the issuance of shares of capital stock of the
Company, the terms of such Preferred Stock may provide that if no such shares of
capital stock shall have been issued, or to the extent the net proceeds from any
issuance are insufficient to pay in full the aggregate redemption price then
due, such Preferred Stock shall automatically and mandatorily be converted into
the applicable shares of capital stock of the Company pursuant to conversion
provisions specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if a series of Preferred
Stock has a cumulative distribution, full cumulative distributions on all
outstanding shares of such series of Preferred Stock shall have been or
contemporaneously are declared and paid, or declared and a sum sufficient for
the payment thereof set apart for payment for all past distribution periods
and the then current distribution period, or (ii) if a series of Preferred
Stock does not have a cumulative distribution, full distributions on all
shares of the Preferred Stock of such series have been or contemporaneously
are declared and paid, or declared and a sum sufficient for the payment
thereof set apart for payment for the then current distribution period, no
shares of such series of Preferred Stock shall be redeemed unless all
outstanding shares of Preferred Stock of such series are simultaneously
redeemed; provided, however, that the foregoing shall not prevent the purchase
or acquisition of Preferred Stock of such series to preserve the REIT status of
the Company or pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding shares of Preferred Stock of such series. In
addition, unless (i) if such series of Preferred Stock has a cumulative
distribution, full cumulative distributions on all outstanding shares of such
series of Preferred Stock have been or contemporaneously are declared and paid,
or declared and a sum sufficient for the payment thereof set apart for payment
for all past distribution periods and the then current distribution period, or
(ii) if such series of Preferred Stock does not have a cumulative distribution,
full distributions on the Preferred Stock of such series have been or
contemporaneously are declared and paid, or declared and a sum sufficient for
the payment thereof set apart for payment for the then current distribution
period, the Company shall not purchase or otherwise acquire directly or
indirectly any shares of such series of Preferred Stock (except by conversion
into or exchange for capital shares of the Company ranking junior to the
Preferred Stock of such series as to distributions and upon liquidation);
provided, however, that the foregoing shall not prevent the purchase or
acquisition of shares of Preferred Stock of such series to preserve the REIT
status of the Company or pursuant to a purchase
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or exchange offer made on the same terms to holders of all outstanding shares
of Preferred Stock of such series.
If fewer than all of the outstanding shares of Preferred Stock of any
series are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares held
or for which redemption is requested by such holder (with adjustments to avoid
redemption of fractional shares) or by any other equitable manner determined by
the Company.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of record of Preferred Stock
of any series to be redeemed at the address shown on the stock transfer books of
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of shares and series of the Preferred Stock to be redeemed; (iii) the redemption
price; (iv) the place or places where certificates for such Preferred Stock are
to be surrendered for payment of the redemption price; (v) that distributions on
the shares to be redeemed will cease to accrue on such redemption date; and (vi)
the date upon which the holder's conversion rights, if any, as to such shares
shall terminate. If fewer than all the shares of Preferred Stock of any series
are to be redeemed, the notice mailed to each such holder thereof shall also
specify the number of shares of Preferred Stock to be redeemed from each such
holder. If notice of redemption of any Preferred Stock has been given and if
the funds necessary for such redemption have been set aside by the Company
in trust for the benefit of the holders of any Preferred Stock so called for
redemption, then from and after the redemption date distributions will cease
to accrue on such Preferred Stock, and all rights of the holders of such
shares will terminate, except the right to receive the redemption price.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Company, then, before any distribution or payment shall
be made to the holders of any Common Stock or any other class or series of
capital stock of the Company ranking junior to the Preferred Stock in the
distribution of assets upon any liquidation, dissolution or winding up of the
Company, the holders of each series of Preferred Stock shall be entitled to
receive out of assets of the Company legally available for distribution to
stockholders liquidating distributions in the amount of the liquidation
preference per share, if any, set forth in the applicable Prospectus Supplement,
plus an amount equal to all distributions accrued and unpaid thereon (which
shall include any accumulation in respect of unpaid cumulative distributions for
prior distribution periods). After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Preferred Stock will
have no right or claim to any of the remaining assets of the Company. In the
event that, upon any such voluntary or involuntary liquidation, dissolution or
winding up, the available assets of the Company are insufficient to pay the
amount of the liquidating distributions on all outstanding shares of Preferred
Stock and the corresponding amounts payable on all shares of other classes or
series of capital stock of the Company ranking on a parity with the Preferred
Stock in the distribution of assets, then the holders of the Preferred Stock and
all other such classes or series of capital stock ranking on parity with the
Preferred Stock shall share
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ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled.
If liquidating distributions shall have been made in full to all
holders of Preferred Stock, the remaining assets of the Company shall be
distributed among the holders of any other classes or series of capital stock
ranking junior to the Preferred Stock upon liquidation, dissolution or winding
up, according to their respective rights and preferences and in each case
according to their respective number of shares. For such purposes, the
consolidation or merger of the Company with or into any other corporation, trust
or entity, or the sale, lease or conveyance of all or substantially all of the
property or business of the Company, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
VOTING RIGHTS
Holders of the Preferred Stock will not have any voting rights, except
as set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Unless provided otherwise for any series of Preferred Stock, so long as
any shares of Preferred Stock of a series remain outstanding, the Company will
not, (i) without the affirmative vote or consent of the holders of at least a
majority of the shares of such series of Preferred Stock outstanding at the
time, given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class), authorize or create, or increase the
authorized or issued amount of, any class or series of capital stock ranking
senior to such series of Preferred Stock with respect to payment of
distributions or the distribution of assets upon liquidation, dissolution or
winding up of the Company or reclassify any authorized capital stock of the
Company into such shares, or create, authorize or issue any obligation or
security convertible into or evidencing the right to purchase any such shares,
or (ii) without the affirmative vote or consent of the holders of at least a
majority of the shares of such series of Preferred Stock outstanding at the
time, given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class), amend, alter or repeal the provisions of
the Charter or the Articles Supplementary for such series of Preferred Stock,
whether by merger, consolidation or otherwise (an "Event"), so as to materially
and adversely affect any right, preference, privilege or voting power of such
series of Preferred Stock or the holders thereof; provided, however, with
respect to the occurrence of any Event set forth in (ii) above, so long as the
Preferred Stock remains outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of an Event the Company may not be
the surviving entity, the occurrence of any such Event shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
power of holders of Preferred Stock, and provided further that (i) any increase
in the amount of the authorized Preferred Stock or the creation or issuance of
any other series of Preferred Stock or (ii) any increase in the amount of
authorized shares of such series or any other series of Preferred Stock, in each
case ranking on a parity with or junior to the Preferred Stock of such series
with respect to payment of distributions or the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
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The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of such series of Preferred Stock
shall have been redeemed or called for redemption and sufficient funds shall
have been deposited in trust to effect such redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred
Stock is 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 rate (or manner of calculation thereof), the conversion
period, provisions as to whether conversion will be at the option of the holders
of the Preferred Stock or the Company, the events requiring an adjustment of the
conversion price and the provisions affecting conversion in the event of the
redemption of such series of Preferred Stock.
RESTRICTIONS ON TRANSFER AND OWNERSHIP
The provisions contained in the Charter restricting certain transfers
and limiting the beneficial ownership, directly or indirectly, of the Company's
outstanding capital stock will effect any shares of Preferred Stock that may
from time to time be issued by the Company. See "Restrictions on Transfers of
Capital Stock."
TRANSFER AGENT
The transfer agent and registrar for the Preferred Stock will be set
forth in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may issue receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fractional interest of a share of a
particular series of Preferred Stock, as specified in the applicable Prospectus
Supplement. Shares of Preferred Stock of each series represented by Depositary
Shares will be deposited under a separate deposit agreement (each, a "Deposit
Agreement") among the Company, the depositary named therein (a "Preferred Stock
Depositary") and the holders from time to time of the Depositary Receipts.
Subject to the terms of the applicable Deposit Agreement, each owner of a
Depositary Receipt will be entitled, in proportion to the fractional interest of
a share of a particular series of Preferred Stock represented by the Depositary
Shares evidenced by such Depositary Receipt, to all the rights and preferences
of the Preferred Stock represented by such Depositary Shares (including
distribution, voting, conversion, redemption and liquidation rights).
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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 Deposit Agreements and
the Depositary Receipts 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.
DISTRIBUTIONS
A Preferred Stock Depositary will be required to distribute all cash
distributions received in respect of the applicable Preferred Stock to the
record holders of Depositary Receipts evidencing the related Depositary Shares
in proportion to the number of 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, a Preferred Stock
Depositary will be required to 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 such Preferred Stock Depositary, unless such Preferred
Stock Depositary determines that it is not feasible to make such distribution,
in which case such 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 Preferred Stock which has been converted or
exchanged.
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate trust office
of the applicable Preferred Stock Depositary (unless the related Depositary
Shares have previously been called for redemption or converted), 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 applicable
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 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 applicable Preferred Stock Depositary will be
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required to 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 a
Preferred Stock Depositary, such Preferred Stock Depositary will be required to
redeem as of the same redemption date the number of Depositary Shares
representing shares of the Preferred Stock so redeemed, provided the Company
shall have paid in full to such Preferred Stock Depositary the redemption price
of the Preferred Stock to be redeemed plus an amount equal to any accrued and
unpaid distributions thereon to the date fixed for redemption. The redemption
price per Depositary Share will be equal to the redemption price and any other
amounts per share payable with respect to the 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 preserves the REIT status of the Company.
From and after the date fixed for redemption, all distributions in
respect of the shares 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 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 applicable Preferred Stock
Depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
applicable Preferred Stock are entitled to vote, a Preferred Stock Depositary
will be required to mail the information contained in such notice of meeting to
the record holders of the Depositary Receipts evidencing the Depositary Shares
which represent such 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 the Preferred Stock) will be entitled to instruct such
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.
Such Preferred Stock Depositary will be required to vote the amount 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 such Preferred Stock Depositary in order to enable such
Preferred Stock Depositary to do so. Such Preferred Stock Depositary will be
required to 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. A
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 such action or non-action is in good faith and does not result from
negligence or willful misconduct of such Preferred Stock Depositary.
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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. 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 such
Preferred Stock Depositary to instruct the Company to cause conversion of the
Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipts into whole shares of Common Stock, other shares of Preferred
Stock of the Company or other shares of stock, and the Company will agree 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 new Depositary Receipt or Depositary Receipts will be issued for any
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
Any form of Depositary Receipt evidencing Depositary Shares which will
represent Preferred Stock and any provision of a Deposit Agreement will be
permitted at any time to be amended by agreement between the Company and the
applicable 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 holders of Depositary
Receipts to surrender any Depositary Receipt with instructions to deliver to the
holder the related Preferred Stock and all money and other property, if any,
represented thereby, except in order to comply with any applicable 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.
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A Deposit Agreement will be permitted to be terminated by the Company
upon not less than 30 days' prior written notice to the applicable 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 of Preferred Stock affected
by such termination consents to such termination, whereupon such Preferred Stock
Depositary will be required to 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 Preferred Stock as are
represented by the Depositary Shares evidenced by such Depositary Receipts
together with any other property held by such Preferred Stock Depositary
with receipts to such Depositary Receipts. The Company will agree that
if a Deposit Agreement is terminated to preserve the Company's status as a
REIT, then the Company will use its best efforts to list the Preferred Stock
issued upon surrender of the related Depositary Shares on a national
securities exchange. In addition, a Deposit Agreement will automatically
terminate if (i) all outstanding Depositary Shares thereunder shall have been
redeemed; (ii) there shall have been a final distribution in respect of the
related 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 Depositary Receipts evidencing the Depositary Shares
representing such 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 a Deposit Agreement. In addition,
the Company will pay the fees and expenses of a Preferred Stock Depositary in
connection with the performance of its duties under a Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and expenses of a
Preferred Stock Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the applicable
Deposit Agreement.
RESIGNATION AND REMOVAL OF A PREFERRED STOCK DEPOSITARY
A Preferred Stock Depositary will be permitted to resign at any time by
delivering to the Company notice of its election to do so, and the Company will
be permitted at any time to remove a 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 will be
required to be appointed within 60 days after delivery of the notice of
resignation or removal and will be required to 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 million.
MISCELLANEOUS
A Preferred Stock Depositary will be required to forward to holders of
Depositary Receipts any reports and communications from the Company which are
received by such Preferred Stock Depositary with respect to the related
Preferred Stock.
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Neither a 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 a Deposit Agreement. The obligations
of the Company and a Preferred Stock Depositary under a 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 Preferred
Stock represented by the applicable Depositary Shares), gross negligence or
willful misconduct, and neither the Company nor any applicable Preferred Stock
Depositary will be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Receipts, Depositary Shares or shares of Preferred
Stock represented thereby unless satisfactory indemnity is furnished. The
Company and any Preferred Stock Depositary will be permitted to 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, such Preferred Stock Depositary
shall be entitled to act on such claims, requests or instructions received from
the Company.
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK
For the Company to maintain its status as a REIT under the Code, shares
of Common Stock must be beneficially owned by 100 or more persons during at
least 335 days of the taxable year of 12 months (other than the first year) or
during a proportionate part of a shorter taxable year. Also, not more than 50%
of the value of the outstanding shares of capital stock may be owned, directly
or indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of a taxable year (other than the first
year) or during a proportionate part of a shorter taxable year.
Because the Board of Directors believes it is essential for the Company
to qualify as a REIT, the Charter, subject to certain exceptions, provides that
no holder may own, or be deemed to own by virtue of the attribution provisions
of the Code, more than (i) 8.75% of the number of issued and outstanding shares
of Common Stock of the Company, except for QSV Properties, Inc. ("QSV") which
may own initially no more than 15% of the number of such outstanding shares, or
(ii) 9.8% of the number of outstanding shares of Preferred Stock of any series
of Preferred Stock (together, the "Ownership Limit").
Any purported transfer of shares of Common Stock that would (i) result
in a person (other than QSV with respect to shares of Common Stock) owning,
directly or indirectly, shares of Common Stock or Preferred Stock in excess of
the Ownership Limit, (ii) result in QSV owning, directly or indirectly, in
excess of 15% of the number of outstanding shares of Common Stock (or the
decreased percentage that may be applicable), (iii) result in the Common Stock
and Preferred Stock being owned by fewer than 100 persons (determined without
reference to any rules of attribution), (iv) result in the Company being
"closely held" within the meaning of Section 856(h) of the Code, or (v) cause
the Company to
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own, directly or constructively, 10% or more of the ownership interests in
a tenant of the Company's or the Operating Partnership's real property, within
the meaning of Section 856(d)(2)(B) of the Code, shall be null and void, and the
intended transferee will acquire no rights in such shares of Common Stock or
Preferred Stock. Such Common Stock or Preferred stock will be designated as
Excess Stock and will be transferred automatically to a trust (the "Trust")
effective on the day before the purported transfer of such Common Stock or
Preferred Stock. The record holder of the shares of Common Stock or Preferred
Stock that are designated as Excess Stock (the "Prohibited Owner") will be
required to submit such number of shares of Common Stock or Preferred Stock to
the Company for registration in the name of the Trust. The Trustee of the Trust
will be designated by the Company, but will not be affiliated with the Company
or any Prohibited Owner. The beneficiary of the Trust (the "Beneficiary") will
be one or more not-for-profit organizations that are named by the Company.
Excess Stock will remain issued and outstanding shares of Common Stock
or Preferred Stock and will be entitled to the same rights and privileges as all
other shares of the same class or series. The Trust will receive all dividends
and distributions on the Excess Stock and will hold such dividends and
distributions in trust for the benefit of the Beneficiary. The Trustee will vote
all Excess Stock. The Trustee will designate a permitted transferee of the
Excess Stock, provided that the permitted transferee (i) purchases such Excess
Stock for valuable consideration and (ii) acquires such Excess Stock without
such acquisition resulting in a transfer to another Trust and resulting in the
redesignation of such shares of Common Stock or Preferred Stock as Excess Stock.
The Prohibited Owner with respect to Excess Stock will be required to
repay the Trust the amount of any dividends or distributions received by the
Prohibited Owner (i) that are attributable to any Excess Stock and (ii) the
record date for which was on or after the date that such shares became Excess
Stock. The Prohibited Owner generally will receive from the Trustee the lesser
of (a) the price per share such Prohibited Owner paid for the shares of Common
Stock or Preferred Stock that were designated as Excess Stock (or, in the case
of a gift or devise, the Market Price (as defined below) per share on the date
of such transfer) and (b) the price per share received by the Trustee from the
sale of such Excess Stock. Any amounts received by the Trustee in excess of the
amounts to be paid to the Prohibited Owner will be distributed to the
Beneficiary.
The Excess Stock will be deemed to have been offered for sale to the
Company, or its designee, at a price per share equal to the lesser of (i) the
price per share in the transaction that created such Excess Stock (or, in the
case of a gift or devise, the Market Price per share on the date of such
transfer) or (ii) the Market Price per share on the date that the Company, or
its designee, accepts such offer. The Company will have the right to accept such
offer for a period of 90 days after the later of (i) the date of the purported
transfer which resulted in such Excess Stock and (ii) the date the Company
determines in good faith that a transfer resulting in such Excess Stock
occurred.
"Market Price" means the average of the Closing Prices for the ten
consecutive trading days immediately preceding the relevant date. "Closing
Price" on any day means the last sale price, regular way on such day, or, if no
such sale takes place on that day, the average of the closing bid and asked
prices, regular way, in either case as reported on the principal consolidated
transaction reporting system
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with respect to securities listed or admitted to trading on the NYSE, or if the
affected class or series of capital stock is not so listed or admitted to
trading, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities
exchange (including the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotation System) on which the affected
class or series of capital stock is listed or admitted to trading or, if the
affected class or series of capital stock is not so listed or admitted to
trading, the last quoted price or, if not quoted, the average of the high bid
and low asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System or, if such
system is no longer in use, the principal automated quotation system then
in use or, if the affected class or series of capital stock is not so
quoted by any such system, the average of the closing bid and asked prices as
furnished by a professional market maker selected by the Board making a market
in the affected class or series of capital stock, or, if there is no such market
maker or such closing prices otherwise are not available, the fair market value
of the affected class or series of capital stock as of such day, as determined
by the Board in its discretion.
Any person who acquires or attempts to acquire shares of Common Stock
or Preferred Stock in violation of the foregoing restrictions, or any person who
owned shares of Common Stock or Preferred Stock that were transferred to a
Trust, will be required (i) to give immediate written notice to the Company of
such event and (ii) to provide to the Company such other information as the
Company may request in order to determine the effect, if any, of such transfer
on the Company's status as a REIT.
All certificates representing shares of Common Stock will bear a legend
referring to the restrictions described above.
All persons who own, directly or by virtue of the attribution
provisions of the Code, more than 5% (or such other percentage between 0.5% and
5%, as provided in the rules and regulations promulgated under the Code) of the
number or value of the outstanding shares of Common Stock of the Company must
give a written notice to the Company by January 31 of each year stating the name
and address of such person, the number of shares of each class or series so
owned and a description of how such shares are owned. 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 of Common Stock as the Board of Directors deems reasonably necessary
to comply with the provisions of the Code applicable to a REIT, to comply with
the requirements of any taxing authority or governmental agency or to determine
any such compliance.
These ownership limitations could have the effect of discouraging a
takeover or other transaction in which holders of some, or a majority, of shares
of Common Stock might believe to be in their best interests or in which holders
of some, or a majority, of the shares of Common Stock might receive a premium
for their shares over the then-prevailing market price of such shares of Common
Stock or which such holders might believe to be otherwise in their best
interest.
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PLAN OF DISTRIBUTION
The Company may sell the Offered Securities through underwriters or
dealers, directly to one or more purchasers (including executive officers of the
Company or other persons that may be deemed affiliates of the Company), through
agents or through a combination of any such methods of sale. Any underwriter
involved in the offer and sale of the Offered Securities will be named in the
applicable Prospectus Supplement.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of the sale, at prices related
to such prevailing market prices or at negotiated prices. Further, the
distribution of any Common Stock in one or more special offerings pursuant to a
dividend reinvestment plan or other similar plan of the Company may be effected
from time to time at a fixed price or prices, which may be changed, at market
prices prevailing at the time of the sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or from purchasers of the
Offered Securities, for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell the 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 agents. Underwriters, dealers and
agents that participate in the distribution of the Offered Securities may be
deemed to be underwriters under the Securities Act, and any discounts or
commissions they receive from the Company and any profit on the resale of the
Offered Securities they realize may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement,
each series of the Offered Securities will be a new issue with no established
trading market, other than the Common Stock which is listed on the NYSE. Any
shares of Common Stock sold pursuant to a Prospectus Supplement will be listed
on the NYSE, subject to official notice of issuance. The Company may elect to
list any series of Common Stock Warrants, Preferred Stock or Depositary Shares
on an exchange, but is not obligated to do so. It is possible that one or more
underwriters may make a market in a series of the 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, or the trading market for, the Offered Securities.
Under agreements into which the Company may enter, underwriters,
dealers and agents who participate in the distribution of the Offered Securities
may be entitled to indemnification by the Company, as the case may be, against
certain liabilities, including liabilities under the Securities Act.
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Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be tenants of, the Company in the ordinary course of
business.
FEDERAL INCOME TAX CONSIDERATIONS
Upon completion of the Merger, the Company will elect to be treated as
a REIT for federal income tax commencing with its taxable year ending December
31, 1997. Based on certain assumptions and representations that are summarized
below, Winstead Sechrest & Minick P.C., counsel to the Company, is of the
opinion that beginning with its taxable year ending December 31, 1997, the
Company has been organized in conformity with the requirements for qualification
as a REIT and that its proposed method of operations described in this
Prospectus will enable it to satisfy the requirements for such qualification.
The rules governing REITs are highly technical and require ongoing compliance
with a variety of tests that depend, among other things, on future operating
results. Winstead Sechrest & Minick P.C. will not monitor the Company's
compliance with these requirements. While the Company expects to satisfy these
tests, and will use its best efforts to do so, no assurance can be given that
the Company will qualify as a REIT for any particular year, or that the
applicable law will not change and adversely affect the Company and its
stockholders. See "--Failure to Qualify as a REIT." The Taxpayer Relief Act of
1997 (the "Tax Act") contained several provisions affecting REIT's and is
generally effective January 1, 1998. The following is a summary of the material
federal income tax considerations affecting the Company as a REIT and its
stockholders:
REIT QUALIFICATION. Entities like the Company that invest principally
in real estate and that otherwise would be taxed as regular corporations may
elect to be treated as REITs when they satisfy certain detailed requirements
imposed by the Code. If the Company qualifies for taxation as a REIT, it
generally will not be subject to corporate income tax to the extent the Company
currently distributes its REIT taxable income to its stockholders. This
treatment effectively eliminates the "double taxation" (i.e., taxation at both
the corporate and stockholder levels) imposed on investments in most
corporations. A qualifying REIT, however, may be subject to certain excise and
other taxes, as well as to normal corporate tax on taxable income that is not
currently distributed to its stockholders. See "-- Taxation of the Company as a
REIT." In addition, if the Company fails to qualify as a REIT in any taxable
year, it will be subject to federal income tax at regular corporate rates on all
of its taxable income.
GENERAL QUALIFICATION REQUIREMENTS. The Company must be organized as an
entity that would, if it does not maintain its REIT status, be taxable as a
regular corporation. It cannot be a financial institution or an insurance
company. The Company must be managed by one or more directors. The Company's
taxable year must be the calendar year. The Company expects to meet each of
these requirements. The Company also expects to satisfy the requirements that
are separately described below concerning share ownership and reporting, the
nature and amounts of the Company's income and assets and the levels of required
annual distributions.
SHARE OWNERSHIP; REPORTING. Beneficial ownership of the Company must be
and is evidenced by transferable shares. The Company's capital stock must be
held by at least 100 persons during at least
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335 days of a taxable year of 12 months or during a proportionate part of a
taxable year of less than 12 months. Not more than 50% of the value of the
shares of capital stock of the Company may be held, directly or indirectly,
applying certain constructive ownership rules, by five or fewer individuals at
any time during the last half of each of the Company's taxable years. The
Company is not required to satisfy the 100 person and 50% tests until its second
taxable year for which an election is made to be taxed as a REIT. The Company
believes that its shares of Common Stock will be owned by a sufficient number
of investors and in appropriate proportions to permit it to satisfy these
requirements. To protect against violations of these requirements, the Articles
will provide that no person is permitted to own (applying certain constructive
ownership tests) more than 8.75% of the outstanding Common Stock (except
for QSV which can initially own up to 15% of the outstanding Common Stock,
subject to reduction under certain circumstances) or 9.8% of the outstanding
Preferred Stock. In addition, the Articles will contain restrictions on
transfers of capital stock, as well as provisions that automatically convert
shares of stock into nonvoting, non-dividend paying Excess Stock to the extent
that the ownership otherwise might jeopardize the Company's REIT status.
To monitor the Company's compliance with the share ownership
requirements, the Company is required to and will maintain records disclosing
the actual ownership of common shares. To do so, the Company will demand written
statements each year from the record holders of certain percentages of shares in
which the record holders are to disclose the actual owners of the shares (i.e.,
the persons required to include in gross income the REIT dividends). A list of
those persons failing or refusing to comply with this demand will be maintained
as part of the Company's records. Stockholders who fail or refuse to comply with
the demand must submit a statement with their tax returns disclosing the actual
ownership of the shares and certain other information.
SOURCES OF GROSS INCOME. In order to qualify as a REIT for a particular
year, the Company also must meet three tests governing the sources of its
income. These tests are designed to ensure that a REIT derives its income
principally from passive real estate investments. In evaluating a REIT's income,
the REIT will be treated as receiving its proportionate share of the income
produced by any partnership in which the REIT invests, and any such income will
retain the character that it has in the hands of the partnership. The Code
allows the Company to own and operate a number of its properties through
wholly-owned subsidiaries which are "qualified REIT subsidiaries." The Code
provides that a qualified REIT subsidiary is not treated as a separate
corporation, and all of its assets, liabilities and items of income, deduction
and credit are treated as assets, liabilities and such items of the REIT.
75% GROSS INCOME TEST. At least 75% of a REIT's gross income for each
taxable year must be derived from specified classes of income that principally
are real estate related. The permitted categories of principal importance to the
Company are: (i) rents from real property; (ii) interest on loans secured by
real property; (iii) gain from the sale of real property or loans secured by
real property (excluding gain from the sale of property held primarily for sale
to customers in the ordinary course of the Company's trade or business, referred
to below as "dealer property"); (iv) income from the operation and gain from the
sale of certain property acquired in connection with the foreclosure of a
mortgage securing that property ("foreclosure property"); (v) distributions on,
or gain from the sale of, shares of other qualifying REITs; (vi) abatements and
refunds of real property taxes; and (vii) "qualified temporary
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investment income" (described below). In evaluating the Company's compliance
with the 75% income test (as well as the 95% income test described below), gross
income does not include gross income from "prohibited transactions."
A prohibited transaction is one involving a sale of dealer property,
not including foreclosure property and certain dealer property held by
the Company for at least four years.
The Company expects that substantially all of its operating gross
income will be considered rent from real property. Rent from real property is
qualifying income for purposes of the 75% income test only if certain conditions
are satisfied. Rent from real property includes charges for services customarily
rendered to tenants, and rent attributable to personal property leased together
with the real property so long as the personal property rent is less than 15% of
the total rent. The Company does not expect to earn material amounts in these
categories. Rent from real property generally does not include rent based on the
income or profits derived from the property. The Company does not intend to
lease property and receive rentals based on the tenant's net income or profit.
However, rent based on a percentage of gross income is permitted as rent from
real property and the Company will have leases where rent is based on a
percentage of gross income. Also excluded from "rents from real property" is
rent received from a person or corporation in which the Company (or any of its
10% or greater owners) directly or indirectly through the constructive ownership
rules contained in Section 318 of the Code, owns a 10% or greater interest
("Related Party Tenant Rent"). The Company, through such attribution rules, owns
greater than a 10% interest in one tenant which leases three (3) Burger King
restaurant properties from the Operating Partnership. However, such
non-qualifying income is less than 3.5% of total gross income of the Operating
Partnership. A third exclusion covers amounts received with respect to real
property if the Company furnishes services to the tenants or manages or operates
the property, other than through an "independent contractor" from whom the
Company does not derive any income. The obligation to operate through an
independent contractor generally does not apply, however, if the services
provided by the Company are "usually or customarily rendered" in connection with
the rental of space for occupancy only and are not considered rendered primarily
for the convenience of the tenant (applying standards that govern in evaluating
whether rent from real property would be unrelated business taxable income
when received by a tax exempt owner of the property). The Tax Act provides a de
minimis rule for non-customary services which is effective for taxable years
beginning after August 5, 1997. If the value of the non-customary service income
with respect to a property (valued at no less than 150% of the Company's direct
cost of performing such services is 1% or less of the total income derived from
the property, then all rental income except the non-customary service income
will qualify as "rents from real property." This provision will be effective for
the Company's taxable year ending December 31, 1998.
The Company will, in most instances, directly operate and manage its
assets without using an "independent contractor." The Company believes that the
only material services to be provided to tenants will be those usually or
customarily rendered in connection with the rental of space for occupancy only.
The Company will not provide services that might be considered rendered
primarily for the convenience of the tenants, such as hotel, health care or
extensive recreational or social services. Consequently, the Company believes
that substantially all of its rental income will be qualifying income under the
75% income test, and that the Company's provision of services will not cause the
rental income to fail to be included under that test.
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Upon the Company's ultimate sale of properties, any gains realized also
are expected to constitute qualifying income, as gain from the sale of real
property (not involving a prohibited transaction).
95% GROSS INCOME TEST. In addition to earning 75% of its gross income
from the sources listed above, at least an additional 20% of the Company's gross
income for each taxable year must come either from those sources, or from
dividends, interest or gains from the sale or other disposition of stock or
other securities that do not constitute dealer property. This test permits a
REIT to earn a significant portion of its income from traditional "passive"
investment sources that are not necessarily real estate related. The term
"interest" (under both the 75% and 95% tests) does not include amounts that are
based on the income or profits of any person, unless the computation is based
only on a fixed percentage of receipts or sales.
FAILING THE 75% OR 95% TESTS; REASONABLE CAUSE. As a result of the 75%
and 95% tests, REITs generally are not permitted to earn more than 5% of their
gross income from active sources (such as brokerage commissions or other fees
for services rendered) the Company may receive certain types of such income.
This type of income will not qualify for the 75% test or 95% test but is not
expected to be significant and such income and other nonqualifying income
(including Related Party Tenant Rent, as discussed above) are expected to be at
all times less than 5% of the Company's annual gross income. While the Company
does not anticipate that it will earn substantial amounts of nonqualifying
income, if nonqualifying income exceeds 5% of the Company's gross income, the
Company could lose its status as a REIT. The Company may establish subsidiaries
of which the Company will hold less than 10% of the Voting Stock to hold assets
generating non-qualifying income. The gross income generated by these
subsidiaries would not be included in the Company's gross income. However,
dividends from such subsidiaries to the Company would be included in the
Company's gross income and qualify for the 95% income test.
If the Company fails to meet either the 75% or 95% income tests during
a taxable year, it may still qualify as a REIT for that year if (i) it reports
the source and nature of each item of its gross income in its federal income tax
return for that year; (ii) the inclusion of any incorrect information in its
return is not due to fraud with intent to evade tax; and (iii) the failure to
meet the tests is due to reasonable cause and not to willful neglect. However,
in that case the Company would be subject to a 100% tax based on the greater of
the amount by which it fails either the 75% or 95% income tests for such year.
See "-- Taxation of the Company as a REIT."
30% INCOME TEST. The Company also must earn less than 30% of its gross
income from the sale or other disposition of: (i) real property and loans
secured by real property held for less than four years (other than foreclosure
property and involuntarily conversions), (ii) stock or securities held by the
Company for less than one year and (iii) property in a prohibited transaction.
The 30% income test does not have a reasonable cause exception as do the 75% and
95% income tests. Consequently, a failure to meet the 30% income test would
terminate the Company's status as a REIT. Because the Company expects to hold
its assets for long-term investment and does not anticipate selling them within
four years, the Company expects to comply with this requirement. The Tax Act
repeals the 30% gross income test
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for taxable years beginning after its enactment on August 5, 1997. Thus,
the 30% gross income test will apply only to the Company's taxable year ending
December 31, 1997.
CHARACTER OF ASSETS OWNED. On the last day of each calendar quarter,
the Company also must meet two tests concerning the nature of its investments.
First, at least 75% of the value of the total assets of the Company generally
must consist of real estate assets, cash, cash items (including receivables) and
government securities. For this purpose, "real estate assets" include interests
in real property, interests in loans secured by mortgages on real property or by
certain interests in real property, shares in other REITs and certain options,
but exclude mineral, oil or gas royalty interests. The temporary investment of
new capital in debt instruments also qualifies under this 75% asset test, but
only for the one-year period beginning on the date the Company receives the new
capital. Second, although the balance of the Company's assets generally may be
invested without restriction, the Company will not be permitted to own (i)
securities of any one non-governmental issuer that represent more than 5% of the
value of the Company's total assets or (ii) more than 10% of the outstanding
voting securities of any single issuer. A REIT, however, may own 100% of the
stock of a qualified REIT subsidiary, in which case the assets, liabilities and
items of income, deduction and credit of the subsidiary are treated as those of
the REIT. In evaluating a REIT's assets, if the REIT invests in a partnership,
it is deemed to own its proportionate share of the assets of the partnership.
The Company anticipates that it will comply with these asset tests.
While some portion of its assets initially may be invested in qualifying
temporary debt investments, substantially all of the Company's investments will
be in properties which should represent qualifying real estate assets.
ANNUAL DISTRIBUTIONS TO STOCKHOLDERS. To maintain REIT status, the
Company generally must distribute to its stockholders in each taxable year at
least 95% of its net ordinary income (capital gain is not required to be
distributed). More precisely, the Company must distribute an amount equal to (i)
95% of the sum of (a) its "REIT Taxable Income" before deduction of dividends
paid and excluding any net capital gain and (b) any net income from foreclosure
property less the tax on such income, minus (ii) certain limited categories of
"excess noncash income" (including as a result of the Tax Act, inter alia,
cancellation of indebtedness and original issue discount income). REIT Taxable
Income is defined to be the taxable income of the REIT, computed as if it were
an ordinary corporation, with certain modifications. For example, the deduction
for dividends paid is allowed, but neither net income from foreclosure property,
nor net income from prohibited transactions, is included. In addition, the REIT
may carry over, but not carry back, a net operating loss for 15 years following
the year in which it was incurred.
A REIT may satisfy the 95% distribution test with dividends paid during
the taxable year and with certain dividends paid after the end of the taxable
year. Dividends paid in January that were declared during the last calendar
quarter of the prior year and were payable to stockholders of record on a date
during the last calendar quarter of that prior year are treated as paid on
December 31 of the prior year (for both the Company and its stockholders). Other
dividends declared before the due date of the Company's tax return for the
taxable year (including extensions) also will be treated as paid in the prior
year for the Company if they are paid (i) within 12 months of the end of such
taxable year and
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(ii) no later than the Company's next regular distribution payment. Dividends
that are paid after the close of a taxable year and do not qualify under the
rule governing payments made in January that is described above will be
taxable to the shareholders in the year paid, even though they may be taken
into account by the Company for a prior year. A nondeductible excise tax equal
to 4% will be imposed on the Company for each calendar year to the extent
that dividends declared and distributed or deemed distributed before
December 31 are less than the sum of (a) 85% of the Company's "ordinary income"
plus (b) 95% of the Company's capital gain net income plus (c) any undistributed
income from prior periods.
The Company will be taxed at regular corporate rates to the extent that
it retains any portion of its taxable income (e.g., if the Company distributes
only the required 95% of its taxable income, it would be taxed on the retained
5%). Under certain circumstances the Company may not have sufficient cash or
other liquid assets to meet the distribution requirement. This could arise
because of competing demands for the Company's funds, or due to timing
differences between tax reporting and cash receipts and disbursements (i.e.,
income may have to be reported before cash is received, or expenses may have to
be paid before a deduction is allowed). Although the Company does not anticipate
any difficulty in meeting this requirement, no assurance can be given that
necessary funds will be available. In the event that such circumstances do
occur, then in order to meet the 95% distribution requirement, the Company may
cause the Operating Partnership to arrange for short-term, or possibly
long-term, borrowings to permit the payment of required dividends.
If the Company fails to meet the 95% distribution requirement because
of an adjustment to the Company's taxable income by the IRS, the Company may be
able to cure the failure retroactively by paying a "deficiency dividend" (as
well as applicable interest and penalties) within a specified period.
TAXATION OF THE COMPANY AS A REIT. The Company will adopt the calendar
year for federal income tax purposes, and will use the accrual method of
accounting. For each taxable year in which the Company qualifies as a REIT, it
generally will be taxed only on the portion of its taxable income that it
retains (which will include any undistributed net capital gain), because the
Company will be entitled to a deduction for dividends paid to shareholders
during the taxable year. A dividends paid deduction is not available for
dividends that are considered preferential within any given class of shares or
as between classes except to the extent such class is entitled to such
preference. The Company does not anticipate that it will pay any such
preferential dividends. The Articles provide for the automatic exchange of
outstanding shares for Excess Stock in circumstances in which the Company's REIT
status might otherwise be put into jeopardy (i.e., if a person attempts to
acquire a block of shares that would be sufficient to cause the Company to fail
the requirement that five or fewer individuals may not own more than 50% of the
value of the outstanding shares). Because Excess Stock will represent a separate
class of outstanding shares, the fact that those shares will not be entitled to
dividends should not adversely affect the Company's ability to deduct its
dividend payments.
Even if it qualifies as a REIT, the Company will be subject to tax in
certain circumstances. The Company would be subject to tax on any income or gain
from foreclosure property at the highest corporate rate (currently 35%). A
confiscatory tax of 100% applies to any net income from prohibited
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transactions. In addition, if the Company fails to meet either the 75% or 95%
source of income tests described above, but still qualifies for REIT status
under the reasonable cause exception to those tests, a 100% tax would be
imposed equal to the amount obtained by multiplying (i) the greater of the
amount, if any, by which it failed either the 75% income test or the 95%
income test, times (ii) the ratio of the Company's REIT Taxable Income to the
Company's gross income (excluding capital gain and certain other items).
The Company also will be subject to the alternative minimum tax on items of tax
preference (excluding items specifically allocable to the Company's
stockholders). Finally, under regulations that are to be promulgated, the
Company also may be taxed at the highest regular corporate tax rate on any
built-in gain (i.e., the excess of value over adjusted tax basis)
attributable to assets that the Company acquires in certain tax-free
corporate transactions, to the extent the gain is recognized during the first
ten years after the Company acquires such assets.
FAILURE TO QUALIFY AS A REIT. For any taxable year in which the Company
fails to qualify as a REIT and certain relief provisions do not apply, it would
be taxed at regular corporate rates on all of its taxable income. Distributions
to its stockholders would not be deductible in computing that taxable income,
and distributions would no longer be required to be made. Any corporate level
taxes generally would reduce the amount of cash available to the Company for
distribution to its stockholders and, because the stockholders would continue to
be taxed on the distributions they receive, the net after tax yield to the
shareholders from their investment in the Company likely would be reduced
substantially. As a result, the Company's failure to qualify as a REIT during
any taxable year could have a material adverse effect upon the Company and its
stockholders. If the Company loses its REIT status, unless certain relief
provisions apply, the Company will not be eligible to elect REIT status again
until the fifth taxable year which begins after the first year for which the
Company's election was terminated.
TAXATION OF STOCKHOLDERS. Distributions generally will be taxable to
stockholders as ordinary income to the extent of the Company's earning and
profits. Dividends declared during the last quarter of a calendar year and
actually paid during January of the immediately following calendar year are
generally treated as if received by the stockholders on December 31 of the
calendar year during which they were declared. Distributions paid to
stockholders will not constitute passive activity income, and as a result
generally cannot be offset by losses from passive activities of a stockholder
who is subject to the passive activity rules. Distributions designated by the
Company as capital gains dividends generally will be taxed as long term capital
gains to stockholders to the extent that the distributions do not exceed the
Company's actual net capital gain for the taxable year. Corporate stockholders
may be required to treat up to 20% of any such capital gains dividends as
ordinary income. The Tax Act provides that beginning with the taxable year ended
December 31, 1998, if the Company elects to retain and pay income tax on any net
long-term capital gain, stockholders of the Company would include in their
income as long-term capital gain their proportionate share of such net long-term
capital gain. Such stockholders would receive a credit for such stockholder's
proportionate share of the tax paid by the Company on such retained capital
gains and an increase in basis in the stock of the Company in an amount equal to
the difference between the undistributed long-term capital gains and the amount
of tax paid by the Company. Distributions by the Company, whether characterized
as ordinary income or as capital gains, are not eligible for the dividends
received deduction for corporations. Stockholders are not permitted to deduct
losses or loss carry-forwards of the Company. Future regulations may require
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that the stockholders take into account, for purposes of computing their
individual alternative minimum tax liability, certain tax preference items of
the Company.
The Company may generate cash in excess of its net earnings. If the
Company distributes cash to stockholders in excess of the Company's current and
accumulated earnings and profits (other than as a capital gain dividend), the
excess cash will be deemed to be a return of capital to each stockholder to the
extent of the adjusted tax basis of the shareholder's shares. Distributions in
excess of the adjusted tax basis will be treated as gain from the sale or
exchange of the shares of stock. A stockholder who has received a distribution
in excess of current and accumulated earnings and profits of the Company
may, upon the sale of the shares, realize a higher taxable gain or a smaller
loss because the basis of the shares as reduced will be used for purposes of
computing the amount of the gain or loss.
Generally, gain or loss realized by a stockholder upon the sale of
Common Stock will be reportable as capital gain or loss. If a stockholder
receives a long-term capital gain dividend from the Company and has held the
shares of stock for six months or less, any loss incurred on the sale or
exchange of the shares is treated as a long-term capital loss, to the extent of
the corresponding long-term capital gain dividend received.
In any year in which the Company fails to qualify as a REIT, the
stockholders generally will continue to be treated in the same fashion described
above, except that none of the Company dividends will be eligible for treatment
as capital gains dividends, corporate stockholders will qualify for the
dividends received deduction and the stockholders will not be required to report
any share of the Company's tax preference items.
BACKUP WITHHOLDING. The Company will report to its stockholders and the
IRS the amount of dividends paid during each calendar year and the amount of tax
withheld, if any. If a stockholder is subject to backup withholding, the Company
will be required to deduct and withhold from any dividends payable to that
stockholder a tax of 31%. These rules may apply (i) when a stockholder fails to
supply a correct taxpayer identification number, (ii) when the IRS notifies the
Company that the stockholder is subject to the rules or has furnished an
incorrect taxpayer identification number, or (iii) in the case of corporations
or others within certain exempt categories, when they fail to demonstrate that
fact when required. A stockholder that does not provide a correct taxpayer
identification number may also be subject to penalties imposed by the IRS. Any
amount withheld as backup withholding may be credited against the stockholder's
federal income tax liability. The Company also may be required to withhold a
portion of capital gain distributions made to stockholders who fail to certify
their non-foreign status to the Company.
TAXATION OF TAX EXEMPT ENTITIES. In general, a tax exempt entity that
is a stockholder of the Company will not be subject to tax on distributions from
the Company or gain realized on the sale of shares. In Revenue Ruling 66-106,
the IRS specifically confirmed that a REIT's distributions to a tax exempt
employees' pension trust did not constitute unrelated business taxable income
("UBTI"). A tax exempt entity may be subject to UBTI, however, to the extent
that it has financed the acquisition of its shares with "acquisition
indebtedness" within the meaning of the Code. The Revenue Reconciliation Act
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of 1993 has modified the rules for tax exempt employees' pension and profit
sharing trusts which qualify under Section 401(a) of the Code and are exempt
from tax under Section 501(a) of the Code ("qualified trusts") for tax years
beginning after December 31, 1993. Under the new rules, in determining
the number of stockholders a REIT has for purposes of the "50% test" described
above under "--REIT Qualification-- Share Ownership; Reporting," generally,
any stock held by a qualified trust will be treated as held directly by its
beneficiaries in proportion to their actuarial interests in such trust and
will not be treated as held by such trust.
A qualified trust owning more than 10% of a REIT may be required to
treat a percentage of dividends from the REIT as UBTI. The percentage is
determined by dividing the REIT's gross income (less direct expenses related
thereto) derived from an unrelated trade or business for the year (determined as
if the REIT were a qualified trust) by the gross income of the REIT for the year
in which the dividends are paid. However, if this percentage is less than 5%,
dividends are not treated as UBTI. These UBTI rules apply only if the REIT
qualifies as a REIT because of the change in the 50% test discussed above and if
the trust is "predominantly held" by qualified trusts. A REIT is predominantly
held by qualified trusts if at least one pension trust owns more than 25% of the
value of the REIT or a group of pension trusts each owning more than 10% of the
value of the REIT collectively own more than 50% of the value of the REIT. The
Company does not expect to meet either of the requirements.
For social clubs, voluntary employee benefit associations, supplemental
unemployment benefit trusts and qualified group legal services plans exempt from
federal income taxation under Sections 501(c)(7), (c)(9), (c)(17) and (c)(20) of
the Code, respectively, income from an investment in the Company will constitute
UBTI unless the organization is able to deduct an amount properly set aside or
placed in reserve for certain purposes so as to offset the unrelated business
taxable income generated by the investment in the Company. These prospective
investors should consult their own tax advisors concerning the "set aside" and
reserve requirements.
TAXATION OF FOREIGN INVESTORS. The rules governing federal income
taxation of nonresident alien individuals, foreign corporations, foreign
partnerships and other foreign stockholders (collectively, "Non-U.S.
Stockholders") are complex and no attempt will be made herein to provide more
than a summary of such rules. Prospective Non-U.S. Stockholders should consult
with their own tax advisors to determine the impact of federal, state and local
income tax laws with regard to an investment in shares of Common Stock,
including any reporting requirements, as well as the tax treatment of such an
investment under the laws of their home country.
Dividends that are not attributable to gain from sales or exchanges by
the Company of United States real property interests and not designated by the
Company as capital gain dividends will be treated as dividends of ordinary
income to the extent that they are made out of current or accumulated earnings
and profits of the Company. Such dividends ordinarily will be subject to a
withholding tax equal to 30% of the gross amount of the dividend unless an
applicable tax treaty reduces or eliminates that tax. However, if income from
the investment in the Common Stock is treated as effectively connected with the
Non-U.S. Stockholder's conduct of a United States trade or business, the
Non-U.S. Stockholder generally will be subject to a tax at graduated rates, in
the same manner as U.S. stockholders are taxed
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with respect to such dividends (and may also be subject to the 30% branch
profits tax in the case of a stockholder that is a foreign corporation). The
Company expects to withhold United States income tax at the rate of 30% on the
gross amount of any such dividends paid to a Non-U.S. Stockholder unless
(i) the Non-U.S. Stockholder files on IRS Form 1001 claiming that a lower
treaty rate applies or (ii) the Non-U.S. Stockholder files an IRS Form 4224
with the Company claiming that the dividend is effectively connected income.
Dividends in excess of current and accumulated earnings and profits of the
Company will not be taxable to a stockholder to the extent that they do not
exceed the adjusted basis of the stockholder's shares, but rather will reduce
the adjusted basis of such shares. To the extent that such dividends exceed the
adjusted basis of a Non-U.S. Stockholder's shares of stock, they will give rise
to tax liability if the Non-U.S. Stockholder would otherwise be subject to tax
on any gain from the sale or disposition of his shares, as described below. If
it cannot be determined at the time a dividend is paid whether or not such
dividend will be in excess of current and accumulated earnings and profits, the
dividends will be subject to such withholding. The Company does not intend to
make quarterly estimates of that portion of dividends that are in excess of
earnings and profits, and, as a result, all dividends will be subject to such
withholding. However, the Non-U.S. Stockholder may seek a refund of such amounts
from the IRS.
For any year in which the Company qualifies as a REIT, dividends that
are attributable to gain from sales or exchanges by the Company of United States
real property interests will be taxed to a Non-U.S. Stockholder under the
provisions of the Foreign Investment in Real Property Tax Act of 1980
("FIRPTA"). Under FIRPTA, those dividends are taxed to a Non-U.S. Stockholder as
if such gain were effectively connected with a United States business. Non-U.S.
Stockholders would thus be taxed at the normal capital gain rates applicable to
U.S. stockholders (subject to applicable alternative minimum tax and a special
alternative minimum tax in the case of nonresident alien individuals). Also,
dividends subject to FIRPTA may be subject to a 30% branch profits tax in the
hands of a corporate Non-U.S. Stockholder not entitled to treaty exemption. The
Company is required by the Code and applicable Treasury Regulations to withhold
35% of any dividend that could be designated by the Company as a capital gain
dividend. This amount is creditable against the Non-U.S. Stockholder's FIRPTA
tax liability.
Gain recognized by a Non-U.S. Stockholder upon a sale of shares
generally will not be taxed under FIRPTA if the Company is a "domestically
controlled REIT," defined generally as a REIT in which at all times during a
specified testing period less than 50% in value of the shares was held directly
or indirectly by foreign persons. It is currently anticipated that the Company
will be a "domestically controlled REIT," and therefore the sale of shares will
not be subject to taxation under FIRPTA. Because the shares of Common Stock will
be publicly traded, however, no assurance can be given that the Company will
remain a "domestically controlled REIT." However, gain not subject to FIRPTA
will be taxable to a Non-U.S. Stockholder if (i) investment in the shares of
Common Stock is effectively connected with the Non-U.S. Stockholder's United
States trade or business, in which case the Non-U.S. Stockholder will be subject
to the same treatment as U.S. stockholders with respect to such gain (and may
also be subject to the 30% branch profits tax in the case of a corporate
Non-U.S. Stockholder, or (ii) the Non-U.S. Stockholder is a nonresident alien
individual who was present in the United States for 183 days or more during the
taxable year and has a "tax home" in the United States, in which case the
nonresident alien individual will be subject to a 30% tax on the individual's
capital gains. If the
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Company were not a domestically controlled REIT, whether or not a Non-U.S.
Stockholder's sale of shares of Common Stock would be subject to tax under
FIRPTA would depend on whether or not the shares of Common Stock were regularly
traded on an established securities market (such as the NYSE) and on the size
of selling Non-U.S. Stockholder's interest in the Company. If the gain on the
sale of shares were to be subject to taxation under FIRPTA, the Non-U.S.
Stockholder will be subject to the same treatment as U.S. stockholders 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 such shares of Common Stock may be required to withhold
10% of the gross purchase price.
Upon the death of a foreign individual stockholder, the investor's
shares will be treated as part of the investor's U.S. estate for purposes of the
U.S. estate tax, except as may be otherwise provided in an applicable estate tax
treaty.
STATE AND LOCAL TAXES. The Company and its stockholders may be subject
to state or local taxation in various state or local jurisdictions, including
those in which it or they transact business or reside. Consequently, prospective
stockholders should consult their own tax advisors regarding the effect of state
and local tax laws on an investment in the Company.
LEGAL MATTERS
The validity of the Offered Securities issued hereunder, as well as
legal matters described under "Federal Income Tax Considerations," will be
passed upon for the Company by Winstead Sechrest & Minick P.C., Dallas, Texas,
and certain legal matters will be passed upon for any underwriters, dealers or
agents by the counsel named in the applicable Prospectus Supplement. Winstead
Sechrest & Minick P.C. will rely as to certain matters of Maryland law on the
opinion of Piper & Marbury L.L.P., Baltimore, Maryland.
EXPERTS
The consolidated financial statements of the Predecessor as of December 31,
1996 and 1995, the related consolidated statements of income, partners' capital
and cash flows for each of the three years in the period ended December 31, 1996
which are incorporated herein by reference from the Predecesso's Annual Report
on Form 10-K and the balance sheet of the Company as of February 4, 1997, which
is incorporated herein by reference from the Company's Current Report on Form
8-K dated August 22, 1997, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports which are incorporated by
reference herein, and have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in accounting and auditing.
The financial statements listed below of the following entities which
are incorporated herein by reference from the Predecessor's Current Report on
Form 8-K dated August 21, 1997 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports which are incorporated by
reference herein, and have been so incorporated in reliance upon the reports of
such firm given upon
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<PAGE>
their authority as experts in accounting and auditing: (i) Charleston's of
Norman, Inc. Statement of Revenues and Certain Expenses for the fifty-two
week period ended March 23, 1997; (ii) Statement of Revenues and
Certain Expenses of the Property Sold to U.S. Restaurant Properties Master L.P.
by David E. Rodgers - Trustee for the year ended December 31, 1996; (iii)
Statement of Revenues and Certain Expenses of Magazine Company Property Sold to
U.S. Restaurant Properties Master L.P. for the year ended December 31, 1996;
(iv) Statement of Revenues and Certain Expenses of Ribbit Holdings, Inc.
Property Sold to U.S. Restaurant Properties Master L.P. for the nine months
ended June 30, 1997; (v) Combined Statement of Revenues and Certain Expenses of
Selected Properties Sold to U.S. Restaurant Properties Master L.P. (Taco Cabana
Acquisition) for the year ended December 31, 1996; (vi) Combined Statement of
Revenues and Certain Expenses of BCL II, L.P. Properties Sold to U.S. Restaurant
Properties Master L.P. for the year ended December 31, 1996; and (vii) Combined
Statement of Revenues and Certain Expenses of Selected Properties Sold to U.S.
Restaurant Properties Master L.P. (Midon Acquisition) for the year ended
December 31, 1996.
The financial statements listed below of the following entities which are
incorporated herein by reference from the Predecessor's Current Report on Form
8-K dated April 14, 1997 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports which are incorporated by reference herein
and have been so incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing: (i) Combined
Statement of Revenues and Certain Expenses of RR Restaurant 1986-1 Properties
Sold to U.S. Restaurant Properties Master L.P. for the year ended December 31,
1996; (ii) Selected Properties Sold to U.S. Restaurant Properties Master L.P.
(Bruegger's Acquisition) for the year ended December 31, 1996; and (iii)
Statement of Revenues and Certain Expenses of Tulip Properties Limited Property
Sold to U.S.Restaurant Properties Master L.P. for the year ended December 31,
1996.
The audit of the Statement of Revenues and Direct Operating Expenses
Applicable to Seventy-Five Arby's Restaurant Properties Acquired by U.S.
Restaurant Properties Master L.P. for the year ended December 28, 1996 which has
been incorporated herein by reference from the Predecessor's Current Report on
Form 8-K dated April 14, 1997, has been audited by Coopers & Lybrand L.L.P.,
independent auditors, as stated in their reports and included and incorporated
herein by reference, and have been so included and incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses (not including
underwriting commissions and fees) in connection with the issuance and
distribution of the securities being registered hereunder. Except for the
Securities and Exchange Commission registration fee and the NASD filing fee, all
amounts are estimates.
Securities and Exchange Commission
registration fee......................................... $45,455
NASD filing fee............................................
NYSE filing fees............................................ _______*
Accounting fees and expenses................................ _______*
Attorneys' fees and expenses................................ _______*
Blue sky fees and expenses.................................. _______*
Miscellaneous expenses...................................... _______*
Total.............................................. $_______*
- ---------------------
* To be filed by amendment or by a current report on Form 8-K
pursuant to the Securities Exchange Act of 1934, as
appropriate.
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Charter obligates the Company to indemnify and advance
expenses to present and former directors and officers to the maximum extent
permitted by Maryland law. The Maryland General Corporation Law (the "MGCL")
permits a corporation, subject to certain limitations, to indemnify its present
and former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities, unless it is established that (i)
the act or omission of the director or officer was material to the matter giving
rise to the proceeding and (a) was committed in bad faith or (b) was the result
of active and deliberate dishonesty, (ii) the director or officer actually
received an improper personal benefit in money, property or services or (iii) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. The Company's Board of
Directors may make further provision for indemnification of directors and
officers as may be permitted by law.
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The MGCL permits the Charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(i) it is proved that the person actually received an improper benefit or profit
in money, property or services or (ii) a judgment or other final adjudication is
entered in a proceeding based on a finding that the person's action, or failure
to act, was the result of active and deliberate dishonesty and was material to
the cause of action adjudicated in the proceeding. The Charter contains a
provision providing for elimination of the liability of its directors or
officers to the Company or its stockholders for money damages to the maximum
extent permitted by Maryland law from time to time.
ITEM 16. EXHIBITS.
1.1 Form of Underwriting Agreement (for Common Stock)*
1.2 Form of Underwriting Agreement (for Common Stock Warrants)*
1.3 Form of Underwriting Agreement (for Preferred Stock)*
3.1 Amended Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-4 (File No. 333-21403))
3.2 By-Laws of the Company (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-4 (File No. 333-21403))
3.3 Form of Articles Supplementary of the Company (for Preferred Stock)*
3.4 Form of Amended and Restated Agreement of Limited Partnership of the
Operating Partnership*
4.1 Specimen of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-4 (File
No. 333-21403))
4.2 Form of Common Stock Warrant Agreement*
4.3 Form of Preferred Stock Certificate*
4.4 Form of Deposit Agreement (for Preferred Stock)*
5.1 Opinion of Winstead Sechrest & Minick P.C.
8.1 Opinion of Winstead Sechrest & Minick P.C. re: tax matters
12 Calculation of Ratios of Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Winstead Sechrest & Minick P.C. (contained in its opinions
filed as Exhibits 5.1 and 8.1)
24 Powers of Attorney (included on page II-5)
-----------------------------
* To be filed by amendment or by a current report on Form 8-K
pursuant to the Securities Exchange Act of 1934, as
appropriate.
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<PAGE>
ITEM 17. UNDERTAKINGS.
(a) Each of the undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that subparagraphs (i) and (ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
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<PAGE>
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form
F-3.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants' annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at the time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions, or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrants of expenses incurred or paid by a director, officer
or controlling person of the registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrants will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on August ____, 1997.
U.S. RESTAURANT PROPERTIES, INC.
By:
---------------------------------
Robert J. Stetson
President and Chief Executive Officer
Each of the undersigned directors and officers of U.S. Restaurant
Properties, Inc. hereby appoints each of Robert J. Stetson and Fred H. Margolin
to sign on his behalf all pre-effective and post-effective amendments to this
Registration Statement and to carry out any other acts and sign any other
documents that such individual considers necessary or advisable in connection
with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
Signature Title Date
--------- ----- ----
- ----------------- President and Chief Executive ___________, 1997
Robert J. Stetson Officer and Director
(Principal Executive Officer
and Principal Financial Officer)
- ----------------- Chairman of the Board of ___________, 1997
Fred H. Margolin Directors, Secretary and
Treasurer
- ----------------- Director ___________, 1997
Gerald H. Graham
- ----------------- Director ___________, 1997
David K. Rolph
- ----------------- Director ___________, 1997
Darry L. Rolph
- ----------------- Director ___________, 1997
Eugene G. Taper
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description Page No.
------- ----------- --------
<S> <C> <C>
1.1 Form of Underwriting Agreement (for Common Stock)*
1.2 Form of Underwriting Agreement (for Common Stock Warrants)*
1.3 Form of Underwriting Agreement (for Preferred Stock)*
3.1 Amended Articles of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-4 (File No. 333-21403))
3.2 By-Laws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-4 (File No.
333-21403))
3.3 Form of Articles Supplementary of the Company (for Preferred Stock)*
3.4 Form of Amended and Restated Agreement of Limited Partnership of
the Operating Partnership*
4.1 Specimen of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-4
(File No. 333-21403))
4.2 Form of Common Stock Warrant Agreement*
4.3 Form of Preferred Stock Certificate*
4.4 Form of Deposit Agreement (for Preferred Stock)*
5.1 Opinion of Winstead Sechrest & Minick P.C.
8.1 Opinion of Winstead Sechrest & Minick P.C. re: tax matters
12 Calculation of Ratios of Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Winstead Sechrest & Minick P.C. (contained in its opinions
filed as Exhibits 5.1 and 8.1)
24 Powers of Attorney (included on page II-5)
</TABLE>
- -------------------------------
* To be filed by amendment or by a current report on Form 8-K pursuant to
the Securities Exchange Act of 1934, as appropriate.
II-6
EXHIBIT 5.1
Direct Dial: (214) 745-5724
[email protected]
August 22, 1997
U.S. Restaurant Properties, Inc.
5310 Harvest Hill Road
Suite 270, L.B. 168
Dallas, TX 75230
Ladies and Gentlemen:
We have acted as counsel to U.S. Restaurant Properties, Inc., a
Maryland corporation (the "Company"), in connection with the Company's
registration statement on Form S-3 filed of even date herewith with the
Securities and Exchange Commission (as the same may be amended or supplemented
from time to time, the "Registration Statement"), under the Securities Act of
1933, as amended (the "Act"), including the prospectus included therein at the
time the Registration Statement is declared effective (the "Prospectus"), for
offering by the Company from time to time of up to $175,000,000 aggregate
initial offering price of (a) shares of common stock, par value $0.001 per share
(the "Common Stock"); (b) warrants to purchase Common Stock (the "Common Stock
Warrants") and (c) shares or fractional shares of preferred stock, par value
$0.001 per share (the "Preferred Stock"), which may be issued in the form of
depositary shares (the "Depositary Shares") evidenced by depositary receipts
(the "Depositary Receipts"). The Common Stock, the Common Stock Warrants, the
Preferred Stock and the Depositary Shares are collectively referred to as the
"Securities." The Registration Statement provides that the Securities may be
offered separately or together, in separate series, in amounts, at prices and on
terms to be determined at the time of offering and set forth in one or more
supplements to the Prospectus (each, a "Prospectus Supplement"). This opinion is
being provided at your request in connection with the filing of the Registration
Statement.
Each series of Common Stock 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
(each, a "Warrant Agent"). Shares of Preferred Stock of each series represented
by Depositary Shares will be deposited under a separate deposit agreement (each,
a "Deposit Agreement"), among the Company, the depositary named therein (each, a
"Depositary") and the holders from time to time of the Depositary Receipts.
In rendering the opinions expressed herein, we have examined the
Registration Statement, the Company's Amended Articles of Incorporation (the
"Articles") and Bylaws and certain minutes of corporate proceedings and/or
written consents of the Company's Board of Directors. We have also examined and
relied as to factual matters upon the representations, warranties and
<PAGE>
U.S. Restaurant Properties, Inc.
August 22, 1997
Page 2
other statements contained in originals or copies, certified or otherwise
identified to our satisfaction, of such records, documents, certificates and
other instruments as in our judgment are necessary or appropriate to enable us
to render the opinions expressed below.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the authenticity of all documents, certificates
and instruments submitted to us as originals and the conformity with originals
of all documents submitted to us as copies.
We assume that (i) prior to the issuance of any shares of Common Stock
or Preferred Stock (or Securities convertible into shares of Common Stock or
Preferred Stock), there will exist, under the Articles, the requisite number of
authorized but unissued shares of Common Stock or Preferred Stock, as the case
may be; and (ii) appropriate certificates representing shares of Common Stock or
Preferred Stock, as the case may be, will be executed and delivered upon
issuance and sale of any such shares, and will comply with all applicable
requirements of Maryland law.
We assume that the issuance, sale, amount and terms of the Securities
to be offered from time to time will be authorized and determined by proper
action of the Board of Directors of the Company, in accordance with the
parameters described in the Registration Statement (each, a "Board Action") and
in accordance with the Articles, the Bylaws and applicable Maryland law, as the
case may be.
To the extent that the obligations of the Company under a Warrant
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the applicable Warrant Agent is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; that
the applicable Warrant Agent is duly qualified to engage in the activities
contemplated by the Warrant Agreement; that the Warrant Agreement has been duly
authorized, executed and delivered by the applicable Warrant Agent and
constitutes the legally valid and binding obligation of such Warrant Agent
enforceable against such Warrant Agent in accordance with its terms; that the
applicable Warrant Agent is in compliance, generally, with respect to acting as
Warrant Agent under the Warrant Agreement, with all applicable laws and
regulations; and that the applicable Warrant Agent has the requisite
organizational and legal power and authority to perform its obligations under
the Warrant Agreement.
To the extent that the obligations of the Company under a Deposit
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the applicable Depositary is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization; that the
applicable Depositary is duly qualified to engage in the activities contemplated
by the Deposit Agreement; that the applicable Deposit Agreement has been duly
authorized, executed and delivered by the applicable Depositary and constitutes
the legally valid and binding obligation of such Depositary enforceable against
such Depositary in accordance with its terms; that the applicable Depositary is
in compliance, generally, with respect to acting as Depositary under the Deposit
Agreement, with all applicable laws and regulations;
<PAGE>
U.S. Restaurant Properties, Inc.
August 22, 1997
Page 3
and that the applicable Depositary has the requisite organizational and legal
power and authority to perform its obligations under the applicable Deposit
Agreement.
Based upon the foregoing, and such examination of law as we have deemed
necessary, we are of the opinion that:
1. When the Registration Statement has become effective under the
Act and payment for such shares of Common Stock has been made
(a) in the manner contemplated by the applicable Board Action,
the Registration Statement, the Prospectus or the applicable
Prospectus Supplement and, if applicable, an underwriting
agreement relating to the issuance of such shares, or (b)
pursuant to (i) the conversion of validly issued and fully paid
and non-assessable shares of Preferred Stock in accordance with
the established terms of such Preferred Stock, or (ii) the
exercise of validly issued Common Stock Warrants in accordance
with the terms of an applicable Warrant Agreement, such shares
of Common Stock issued thereby will be duly authorized, validly
issued, fully paid and non-assessable by the Company.
2. When the Registration Statement has become effective under the
Act, the Common Stock Warrants have been (a) duly established by
the related Warrant Agreement and (b) duly authenticated by the
applicable Warrant Agent and duly authorized and established by
the applicable Board Action, and warrant certificates
representing the Common Stock Warrants have been duly executed
and delivered on behalf of the Company against payment therefor
in accordance with the terms and provisions of the applicable
Board Action, the Warrant Agreement and as contemplated by the
Registration Statement, the Prospectus or the applicable
Prospectus Supplement and, if applicable, an underwriting
agreement relating to the issuance of such Common Stock Warrants,
the Common Stock Warrants will be duly authorized and will
constitute valid and binding obligations of the Company.
3. When the Registration Statement has become effective under the
Act and a series of the Preferred Stock has been duly authorized
and established in accordance with the applicable Board Action,
the terms of the Articles and applicable Maryland law, and upon
payment for such shares (a) in the manner contemplated by the
applicable Board Action, the Registration Statement, the
Prospectus or the applicable Prospectus Supplement and, if
applicable, an underwriting agreement relating to the issuance
of such Preferred Stock, or (b) pursuant to the exchange of
validly issued and fully paid Depositary Shares in accordance
with the terms of an applicable valid and binding Deposit
Agreement, such shares of Preferred Stock issued thereby will be
duly authorized, validly issued, fully paid and non-assessable.
4. When the Registration Statement has become effective under the
Act, the Depositary Shares have been duly authorized and
established in accordance with
<PAGE>
U.S. Restaurant Properties, Inc.
August 22, 1997
Page 4
the applicable Board Action, and the Depositary Receipts in
the form contemplated and authorized by a Deposit Agreement
have been duly executed and delivered by the applicable
Depositary and delivered to and paid for by the purchasers
thereof in the manner contemplated by such Board Action, the
Registration Statement, the Prospectus or the applicable
Prospectus Supplement and, if applicable, an underwriting
agreement relating to the issuance of such Depositary Shares,
such Depositary Shares will be validly issued and will entitle
the holders thereof to the rights specified in the Depositary
Receipts and such Deposit Agreement.
The opinions stated herein relating to the validity and binding nature
of obligations of the Company are subject to (i) the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
Our opinion is limited in all respects to the federal law of the United
States and the laws of the State of Texas and the corporate law of the State of
Delaware. To the extent that the opinions set forth herein are dependent on the
laws of the State of Maryland, we have relied, with your permission, solely on
our review of the Maryland General Corporation Law.
We hereby consent to the reference to us under the caption "Federal
Income Tax Considerations" in the Registration Statement, and to the filing of
this opinion as an Exhibit to the Registration Statement, without implying or
admitting that we are experts within the meaning of the Securities Act of 1933,
as amended, with respect to any part of the Registration Statement.
Very truly yours,
WINSTEAD SECHREST & MINICK P.C.
By:/s/ Kenneth L. Betts
---------------------
Kenneth L. Betts
EXHIBIT 8.1
Direct Dial: (214) 745-5342
[email protected]
August 22, 1997
U.S. Restaurant Properties, Inc.
5310 Harvest Hill Road
Suite 270, L.B. 168
Dallas, Texas 75230
Ladies and Gentlemen:
We have acted as counsel to U.S. Restaurant Properties, Inc. (the
"Company") in connection with the Registration Statement on Form S-3 filed of
even date herewith with the Securities and Exchange Commission (as the same may
be amended or supplemented from time to time, the "Registration Statement").
This opinion relates to certain federal income tax matters in connection with
the Registration Statement. Capitalized terms not otherwise defined herein shall
have the meanings ascribed thereto in the Registration Statement.
For the purpose of rendering our opinion, we have examined and are
relying upon the truth, accuracy and completeness, at all relevant times, of the
statements and representations contained in the following documents:
1. The Amended Articles of Incorporation and the Bylaws of the Company;
2. The Registration Statement and the Prospectus filed therewith;
3. Representations made to us by the Company through Robert J. Stetson,
Chief Executive Officer and President, and Fred H. Margolin, Chairman of the
Board and Treasurer, of the Company and QSV Properties, Inc., in those certain
Certificates to Counsel (the "Certificates") dated of even date herewith and
delivered to us in connection with the Registration Statement and this letter.
4. The Third Amended and Restated Agreement of Limited Partnership of
U.S. Restaurant Properties Operating L.P. (the "Operating Partnership"); and
5. Such other documents, records and instruments as we have deemed
necessary in order to enable us to render the opinion referred to in this
letter.
In connection with rendering this opinion, we have assumed to be true
and are relying upon, without any independent investigation or review thereof,
the following:
<PAGE>
U.S. Restaurant Properties, Inc.
August 22, 1997
Page 2
1. The authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies,
and authenticity of the originals of such documents.
2. The genuineness of all signatures, the due authorization,
execution and delivery of all documents by all parties thereto and the due
authority of all persons executing such documents.
3. All representations and statements set forth in such documents
are true and correct;
4. All obligations imposed by any such documents on the parties
thereto have been or will be performed or satisfied in accordance with their
terms; and
5. The Company will file a proper election to be taxed as a REIT
with its timely filed federal income tax return for the taxable year ending
December 31, 1997, and that the Company will not cause such election to be
terminated or revoked.
6. The beneficial ownership of the Company will be held by 100 or
more persons for at least 335 days during the 1998 tax year and each
tax year thereafter.
7. The Operating Partnership will be operated in accordance
with applicable state partnership statutes, the Operating Partnership
Agreement and the statements and representations made in the Registration
Statement.
8. For each taxable year, less than 10% of the Operating
Partnership's and the Company's gross income will be derived from sources other
than (i) real property rental income and gain from sale or other disposition of
real property, as required by Section 7704(d) of the Code, or (ii) other items
of "qualifying income" within the meaning of Section 7704(d) of the Code.
We have further assumed the accuracy of the statements and descriptions
of the Company's and the Operating Partnership's intended activities as
described in the Registration Statement and the Prospectus and that the Company
and the Operating Partnership will operate in accordance with the method of
operation described in the Registration Statement and the Prospectus.
Based upon our examination of the foregoing items, subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we are
of opinion that, commencing with the Company's taxable year ending December 31,
1997, the Company will be organized in conformity with the requirements for
qualification as a REIT under the Code and the proposed method of operation
described in the Prospectus included in the Registration Statement will enable
the Company to satisfy the requirements for such qualification under the Code
for its taxable year ending December 31, 1997 and for subsequent taxable years.
In addition to the assumptions set forth above, this opinion is subject
to the following exceptions, limitations and qualifications:
<PAGE>
U.S. Restaurant Properties, Inc.
August 22, 1997
Page 3
1. Our opinions expressed herein are based upon interpretation of the
current provisions of the Code and existing judicial decisions, administrative
regulations and published rulings and procedures. Our opinions are not binding
upon the Internal Revenue Service or courts and there is no assurance that the
Internal Revenue Service will not successfully challenge the conclusions set
forth herein. The Internal Revenue Service has not yet issued regulations or
administrative interpretations with respect to various provisions of the Code
relating to REIT qualification. Consequently, no assurance can be given that
future legislative, judicial or administrative changes, on either a prospective
or retroactive basis, would not adversely affect the accuracy of the conclusions
stated herein. We undertake no obligation to advise you of changes in law which
may occur after the date hereof.
2. Our opinions are limited to the federal income tax matters addressed
herein, and no other opinions are rendered with respect to any other matter not
specifically set forth in the foregoing opinion.
3. Our opinions are limited in all respects to the federal law of the
United States and the laws of the State of Texas, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction.
4. (a) The Company's qualification and taxation as a real estate
investment trust depend upon the Company's ability to satisfy, through
actual operating results, the applicable asset composition, source of
income, stockholder diversification, distribution, record keeping and
other requirements of the Code necessary to qualify and be taxed as a
REIT.
(b) The Company's qualification and taxation as a real estate
investment trust also depends upon the Operating Partnership's and the
Company's ability to satisfy, through actual operating results, source
of income and other requirements of the Code necessary to qualify and
be taxed as a partnership.
The foregoing opinions are based upon the proposed method of operation
as described in the Registration Statement and facts stated in the Certificates
and other documents described herein. We undertake no obligation to review at
any time in the future whether the Company or the Operating Partnership has
fulfilled the requirements listed in this paragraph 4 and, consequently, no
assurance can be given that the actual results of the Company's or the Operating
Partnership's operations for any taxable year will satisfy the requirements of
the Code necessary to qualify or be taxed as a REIT or a partnership, as
applicable.
5. In the event any one of the statements, representations, warranties
or assumptions we have relied upon to issue this opinion is incorrect in a
material respect, our opinions might be adversely affected and may not be relied
upon.
<PAGE>
U.S. Restaurant Properties, Inc.
August 22, 1997
Page 4
We hereby consent to the reference to us under the caption "Federal
Income Tax Considerations" in the Registration Statement, and to the filing of
this opinion as an Exhibit to the Registration Statement, without implying or
admitting that we are experts within the meaning of the Securities Act of 1933,
as amended, with respect to any part of the Registration Statement.
Very truly yours,
WINSTEAD SECHREST & MINICK P.C.
By:/s/ Thomas R. Helfand
---------------------
Thomas R. Helfand
U.S. RESTAURANT PROPERTIES
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
Years ended December 31, Six months ended
------------------------------------------------------ --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1992 1993 1994 1995 1996 6/30/96 6/30/97
---- ---- ---- ---- ---- ------- -------
Net Income before extraordinary 2,485,713 4,527,598 4,932,670 5,222,588 7,472,531 3,184,694 4,098,746
charges
Fixed Charges:
Interest Expense 126,018 108,825 89,914 262,404 2,558,334 1,011,747 3,702,797
Amortization of Debt issue
costs - - - 1,436 161,957 42,491 144,754
Preferred Stock Dividend
Requirements - - - - - - -
Rent Exp. Portion
Representing Interest - - - 375 4,800 1,073 8,546
--------------------------------------------------------------------------------------
Total Fixed Charges 126,018 108,825 89,914 264,215 2,725,091 1,055,311 3,856,097
Less Preferred Stock Dividend
Requirements - - - - - - -
--------------------------------------------------------------------------------------
Earnings 2,611,731 4,636,423 5,022,584 5,486,803 10,197,622 4,240,005 7,954,843
======================================================================================
Ratio of Earnings to Fixed Charges 20.73 42.60 55.86 20.77 3.74 4.02 2.06
</TABLE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of U.S. Restaurant Properties, Inc. on Form S-3 of our report dated February 28,
1997, appearing in the Annual Report on Form 10-K of U.S. Restaurant Properties
Master L.P. for the year ended December 31, 1996; and our report dated February
5, 1997, (June 27, 1997, as to Note 4), appearing in the Current Report on Form
8-K dated August 22, 1997, of U.S. Restaurant Properties, Inc. on the February
4, 1997, balance sheet of U.S. Restaurant Properties, Inc.; and our report dated
May 8, 1997, with respect to the combined statement of revenues and certain
expenses of RR Restaurant 1986-1 Properties Sold to U.S. Restaurant Properties
Master L.P. for the year ended December 31, 1996, our report dated May 22, 1997,
with respect to the combined statement of revenues and certain expenses of
Selected Properties Sold to U.S. Restaurant Properties Master L.P. (Bruegger's
Acquisition) for the year ended December 31, 1996, and our report dated May 27,
1997, with respect to the statement of revenues and certain expenses of Tulip
Properties Limited Property Sold to U.S. Restaurant Properties Master L.P. for
the year ended December 31, 1996, appearing in the Current Report on Form 8-K
dated April 14, 1997; and our report dated August 14, 1997 , with respect to the
statement of revenues and certain expenses of Charleston's of Norman, Inc. for
the fifty-two week period ended March 23, 1997, our report dated June 25, 1997,
with respect to the statement of revenues and certain expenses of the Property
Sold to U.S. Restaurant Properties Master L.P. by David E. Rodgers - Trustee for
the year ended December 31, 1996, our report dated June 25, 1997, with respect
to the statement of revenues and certain expenses of the Magazine Company
Property Sold to U.S. Restaurant Properties Master L.P. for the year ended
December 31, 1996, our report dated August 18, 1997, with respect to the
statement of revenues and certain expenses of the Ribbit Holdings, Inc. Property
Sold to U.S. Restaurant Properties Master L.P. for the nine months ended June
30, 1997, our report dated July 2, 1997, with respect to the combined statement
of revenue and certain expenses of Selected Properties Sold to U.S. Restaurant
Properties Master L.P. (Taco Cabana Acquisition) for the year ended December 31,
1996, our report dated August 19, 1997, with respect to the combined statement
of revenues and certain expenses of BCL II, L.P. Properties Sold to U.S.
Restaurant Properties Master L.P. for the year ended December 31, 1996, and our
report dated August 20, 1997, with respect to the combined statement of revenues
and certain expenses of Selected Properties Sold to U.S. Restaurant Properties
Master L.P. (Midon Acquisition) for the year ended December 31, 1996, appearing
in the Current Report on Form 8-K dated August 21, 1997; and to the reference to
us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Dallas, Texas
August 20, 1997
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
U.S. Restaurant Properties Master L.P. on Form S-3 of our report dated May 28,
1997, on our audit of the Statement of Revenues and Direct Operating Expenses
Applicable to Seventy-Five Arby's Restaurant Properties Acquired by U.S.
Restaurant Properties Master L.P. for the year ended December 28, 1996.
We also consent to the reference to our firm under the caption
"Experts".
COOPERS & LYBRAND L.L.P.
Atlanta, Georgia
August 18, 1997
