<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
=========
[X] Quarterly report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended SEPTEMBER 30, 1995, or
==================
[ ] Transition report pursuant to section 13 or 15(d) of the
Securities Exchange Act of 1934
COMMISSION FILE NUMBER 1-13318
==============================
REALTY INCOME CORPORATION
=========================
(Exact name of registrant as specified in its charter)
DELAWARE
========
(State or other jurisdiction of incorporation or organization)
33-0580106
==========
(I.R.S. Employer Identification No.)
220 WEST CREST STREET, ESCONDIDO, CALIFORNIA 92025
===================================================
(Address of principal executive offices)
(619) 741-2111
==============
(Registrant's telephone number)
Indicate by checkmark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES [X] NO [ ]
Number of shares outstanding of common stock as of November 13,
1995: Common Stock, $1.00 par value; 22,836,237
Page 1 of 72
Exhibit Index located on Page 28
<PAGE>
PART I. ITEM 1. FINANCIAL STATEMENTS
REALTY INCOME CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
===========================
September 30, 1995 And December 31, 1994
(dollars in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
1995 1994
==== ====
<S> <C> <C>
ASSETS
Real Estate, at Cost:
Land $ 144,794 $ 122,059
Buildings and Improvements 361,228 328,644
--------- ---------
Real Estate, at Cost 506,022 450,703
Less - Accumulated Depreciation
and Amortization 122,455 112,169
--------- ---------
Net Real Estate, at Cost 383,567 338,534
Cash and Cash Equivalents 2,831 11,673
Accounts Receivable 809 1,266
Other Assets 2,125 1,295
Goodwill 22,601 --
--------- ---------
TOTAL ASSETS $ 411,933 $ 352,768
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities
Accounts Payable and Accrued Expenses $ 1,026 $ 658
Due to Advisor -- 34
Distributions Payable 3,168 2,925
Other Liabilities 4,300 1,119
Notes Payable 12,597 12,616
Line of Credit Payable 44,600 --
--------- ---------
TOTAL LIABILITIES 65,691 17,352
--------- ---------
</TABLE>
Continued on next page
Page 2 of 72
<PAGE>
REALTY INCOME CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets (continued)
=======================================
September 30, 1995 And December 31, 1994
(dollars in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
1995 1994
==== ====
<S> <C> <C>
Stockholders' Equity
Common Stock, Par Value $1.00 Per
Share, 40,000,000 Shares Authorized,
20,436,237 and 19,502,091
Shares Issued and Outstanding in 1995
and 1994, respectively 20,436 19,502
Preferred Stock, Par Value $1.00 Per
Share, 5,000,000 Shares Authorized,
No Shares Issued or Outstanding -- --
Capital in Excess of Par Value 472,029 452,996
Accumulated Distributions in Excess
of Net Income (146,223) (137,082)
--------- ---------
TOTAL STOCKHOLDERS' EQUITY 346,242 335,416
Commitments and Contingencies
--------- ---------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $ 411,933 $ 352,768
========= =========
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
Page 3 of 72
<PAGE>
REALTY INCOME CORPORATION AND SUBSIDIARIES
Consolidated Statements Of Operations
=====================================
For The Three And Nine Months Ended September 30, 1995 And 1994
(dollars in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Nine
Three Months Nine Months
Months Ended Months Ended
Ended 9/30/94 Ended 9/30/94
9/30/95 (Note 2) 9/30/95 (Note 2)
======= ======== ======= ========
<S> <C> <C> <C> <C>
REVENUES
Rental $ 13,023 $ 11,894 $ 37,001 $ 35,407
Interest 48 266 204 703
Other 31 17 68 78
---------- ---------- ---------- ----------
13,102 12,177 37,273 36,188
---------- ---------- ---------- ----------
EXPENSES
Depreciation
and
Amortization 3,863 3,449 10,793 10,362
Advisor Fees 753 1,385 3,661 3,971
General and
Administrative 1,329 1,318 3,050 2,811
Interest 1,016 119 1,910 134
REIT Trans-
action Costs -- 11,201 -- 11,201
---------- ---------- ---------- ----------
6,961 17,472 19,414 28,479
---------- ---------- ---------- ----------
Income (Loss)
Before Gain
(Loss) on
Sales of
Properties 6,141 (5,295) 17,859 7,709
Gain (Loss) on
Sales of
Properties (21) -- 56 366
---------- ---------- ---------- ----------
NET INCOME
(LOSS) $ 6,120 $ (5,295) $ 17,915 $ 8,075
========== ========== ========== ==========
</TABLE>
Continued on next page
Page 4 of 72
<PAGE>
REALTY INCOME CORPORATION AND SUBSIDIARIES
Consolidated Statements Of Operations (continued)
=================================================
For The Three And Nine Months Ended September 30, 1995 And 1994
(dollars in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Nine
Three Months Nine Months
Months Ended Months Ended
Ended 9/30/94 Ended 9/30/94
9/30/95 (Note 2) 9/30/95 (Note 2)
======= ======== ======= ========
<S> <C> <C> <C> <C>
Net Income
Per Share
(Note 4) $ 0.31 -- $ 0.91 --
========== ========== ========== ==========
Weighted
Average
Number of
Shares
Outstanding
(Note 4) 19,949,843 -- 19,653,479 --
========== ========== ========== ==========
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
Page 5 of 72
<PAGE>
REALTY INCOME CORPORATION AND SUBSIDIARIES
Consolidated Statements Of Cash Flows
=====================================
For The Nine Months Ended September 30, 1995 And 1994
(dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
1994
1995 (Note 2)
==== ========
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 17,915 $ 8,075
Adjustments to Net Income:
Depreciation and Amortization 10,793 10,362
Gain on Sales of Properties (56) (366)
Provision for Impairment Loss -- 135
Changes in Assets and Liabilities
(net of the Merger with R.I.C.
Advisor, Inc.):
Change in Accounts Receivable
and Other Assets (772) 2,552
Change in Due to Advisor (32) (718)
Change in Other Liabilities 520 2,020
--------- ---------
Net Cash Provided by
Operating Activities 28,368 22,060
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from Sales of Properties 463 1,563
Investments in Properties (56,107) (141)
--------- ---------
Net Cash Provided by (Used in)
Investing Activities (55,644) 1,422
--------- ---------
</TABLE>
Continued on next page
Page 6 of 72
<PAGE>
REALTY INCOME CORPORATION AND SUBSIDIARIES
Consolidated Statements Of Cash Flows (continued)
=================================================
For The Nine Months Ended September 30, 1995 And 1994
(dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
1994
1995 (Note 2)
==== ========
<S> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES:
Cash Acquired from Advisor Merger 647 --
Proceeds from Lines of Credit 44,600 625
Payments of Lines of Credit -- (880)
Payment of Distributions (26,813) (35,886)
Payments in lieu of Promissory Notes
and Fractional Shares -- (1,521)
--------- ---------
Net Cash Provided by (Used in)
Financing Activities 18,434 (37,662)
--------- ---------
Net Decrease in Cash and
Cash Equivalents (8,842) (14,180)
Cash and Cash Equivalents,
Beginning of Period 11,673 29,329
--------- ---------
Cash and Cash Equivalents,
End of Period $ 2,831 $ 15,149
========= =========
</TABLE>
For supplemental disclosure of cash flow information, see Note 7.
The accompanying Notes to Consolidated Financial Statements
are an integral part of these statements.
Page 7 of 72
<PAGE>
REALTY INCOME CORPORATION AND SUBSIDIARIES
Notes To Consolidated Financial Statements
==========================================
September 30, 1995
(Unaudited)
1. Management Statement
- - ------------------------
The financial statements of Realty Income Corporation ("Realty
Income" or the "Company") were prepared from the books and
records of the Company without audit or verification and in the
opinion of management include all adjustments (consisting of only
normal recurring accruals) necessary to present a fair statement
of results for the interim periods presented. Readers of this
quarterly report should refer to the audited financial statements
of the Company for the year ended December 31, 1994, which are
included in the Company's 1994 Annual Report on Form 10-K/A, as
certain disclosures which would substantially duplicate those
contained in such audited financial statements have been omitted
from this report.
Certain of the 1994 balances have been reclassified to conform to
1995 presentation. The reclassifications had no effect on
stockholders' equity or net income (loss).
2. Organization and Operation
- - ------------------------------
The Company was organized in the state of Delaware on
September 9, 1993 to facilitate the merger, which was effected on
August 15, 1994 (the "Consolidation"), of 10 privately-held real
estate limited partnerships and 15 publicly-held real estate
limited partnerships (the "Partnerships") with and into Realty
Income. Realty Income invests in commercial real estate and has
elected to be taxed as a real estate investment trust ("REIT").
The Consolidation was accounted for as a reorganization of
affiliated entities under common control in a manner similar to a
pooling-of-interests. Under this method, the assets and
liabilities of the Partnerships were carried over at their
historical book values and their operations have been recorded on
a combined historical basis. The pooling-of-interests method of
accounting also requires the reporting of the results of
operations as though the entities had been combined as of the
beginning of the earliest period presented. Accordingly, the
results of operations for the three and nine month period ended
September 30, 1994 comprise those of the separate entities
combined from the beginning of the period through August 15, 1994
and those of the Company from August 16, 1994 through
Page 8 of 72
<PAGE>
September 30, 1994. Prior to the Consolidation, the Company had
no significant operations; therefore, the combined operations for
the periods prior to the Consolidation represent the operations
of the Partnerships. The Consolidation did not require any
material adjustments to conform the accounting policies of the
separate entities to that of the Company. All intercompany
transactions and balances have been eliminated.
3. Acquisition of R.I.C. Advisor, Inc.
- - ---------------------------------------
On August 17, 1995, the Company acquired all of the outstanding
capital stock of R.I.C. Advisor, Inc. (the "Advisor") for 990,704
shares of the Company's common stock valued at approximately
$21.2 million. The acquisition was accounted for using the
purchase method. Accordingly, the purchase price was allocated
to assets acquired based on their estimated fair values. This
treatment resulted in approximately $22.7 million in cost in
excess of net assets acquired. Such excess is being amortized on
a straight line basis over 25 years.
The following unaudited pro forma summary presents information as
if the acquisition had occurred at the beginning of each period
presented. The pro forma information is provided for information
purposes only. It is based on historical information and does
not necessarily reflect the actual results that would have
occurred nor is it necessarily indicative of future results of
operations of the combined company. The Advisor had several
non-recurring expenses during 1994 and 1995 which negatively
impacted net income and net income per share amounts.
For the Nine Months Ended September 30, 1995 and 1994
(Unaudited)
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
Proforma Proforma
1995 1994
==== ====
<S> <C> <C>
Revenues $ 37,483 $ 36,015
Net Income 16,495 5,298
-------- --------
Net Income Per Share $ 0.81 N/A
-------- --------
</TABLE>
Page 9 of 72
<PAGE>
4. Net Income Per Share
- - ------------------------
The computation of net income per share for the three and nine
months ended September 30, 1995 is based upon 19,503,080
outstanding shares for the period January 1, 1995 through
August 17, 1995 and 20,436,237 shares for the period August 18,
1995 through September 30, 1995 of Realty Income's common stock.
An adjustment of 471 shares, for options vested, was added to the
weighted average number of shares outstanding for the third
quarter of 1995. Prior to the Consolidation on August 15, 1994,
the capital of the Partnerships consisted of limited partner
units and general partners interest with no long term debt. In
the Consolidation, limited partners exchanged their units for
shares of common stock or Variable Rate Senior Notes of the
Company due 2001 (the "Notes"). The general partners did not
receive any shares or Notes for their general partner interests.
Due to these changes in capital structure, which were caused by
the Consolidation, and additional expenses associated with the
operations of a publicly traded REIT, net income (loss) per share
would not be comparable or meaningful for the three and nine
months ended September 30, 1994.
5. Credit Facility Available for Acquisitions
- - ----------------------------------------------
In November 1994, the Company obtained a $100 million,
three-year, revolving, unsecured acquisition credit facility from
The Bank of New York, as agent, and several major U.S. and
non-U.S. banks. This credit facility has been and is anticipated
to continue to be used to acquire additional retail properties.
The credit facility currently bears interest at 1.375% over the
London Interbank Offered Rate ("LIBOR") and offers the Company
other interest rate options. A commitment fee of 0.35% or less,
per annum, accrues on the average amount of the unused available
credit commitment. The credit facility is subject to various
leverage and interest coverage ratio limitations. As of
September 30, 1995 and December 31, 1994, the outstanding balance
on the credit facility was $44,600,000 and $0, respectively. The
effective interest rate at September 30, 1995 was 7.28%.
Interest of $29,000 and $187,000 was capitalized on properties
under construction during the three and nine months ended
September 30, 1995. No interest was capitalized in 1994.
Page 10 of 72
<PAGE>
6. Notes Payable
- - -----------------
In connection with the Consolidation, certain investors elected
to receive Notes totaling $12,597,000. The Notes mature on
June 30, 2001 and the interest rate is adjusted quarterly. The
interest rate on the Notes was 7.50% and 6.94% at September 30,
1995 and December 31, 1994, respectively. On October 2, 1995 the
interest rate adjusted to 7.44%.
7. Properties
- - --------------
A. At September 30, 1995, the Company owned a diversified
portfolio of 676 properties in 42 states consisting of over 4.6
million square feet of leasable space. Of the Company's
properties, 666 are single tenant properties with the remaining
properties being multi-tenant properties. Over 99% (663) of the
single tenant properties were leased at September 30, 1995. The
remaining three single tenant properties are vacant and available
for lease. The average remaining lease term for all leases on
the Company's 666 single tenant properties, is approximately 9.4
years as of September 30, 1995.
Page 11 of 72
<PAGE>
Completed retail properties acquired during the quarter ended
September 30, 1995 include:
<TABLE>
<CAPTION>
INDUSTRY TENANT CITY/STATE AMOUNT
======== ====== ========== ======
<S> <C> <C> <C>
Automotive Econo Lube
N' Tune San Antonio, TX $ 636,000
Convenience Pantry Henderson, KY 740,000
Convenience Pantry Owensboro, KY 950,000
Convenience Pantry Cary, NC 1,275,000
Convenience Pantry Greenville, NC 845,000
Convenience Pantry Greenville, NC 630,000
Convenience Pantry Jacksonville, NC 680,000
Convenience Pantry Columbia, SC 600,000
Convenience Pantry Johns Island, SC 520,000
Convenience Pantry Lexington, SC 800,000
Convenience Pantry Myrtle Beach, SC 730,000
Convenience Pantry North Charleston, SC 1,050,000
Convenience Pantry Summerville, SC 630,000
Convenience Pantry La Vergne, TN 990,000
Convenience Pantry Shelbyville, TN 665,000
Restaurant DF&R Oklahoma City, OK 760,000
-----------
Subtotal 12,501,000
-----------
</TABLE>
Page 12 of 72
<PAGE>
Land acquired and/or buildings under construction funded during
the quarter ended September 30, 1995:
<TABLE>
<CAPTION>
INDUSTRY TENANT CITY/STATE AMOUNT
======== ====== ========== ======
<S> <C> <C> <C>
Automotive R&S Strauss Cherry Hill, NJ 500,000
Automotive R&S Strauss Philadelphia, PA 79,000
Convenience Dairy Mart Perrysburg, OH 212,000
Restaurant Golden Corral St. Charles, MO 73,000
Restaurant Golden Corral Omaha, NE 202,000
Restaurant Golden Corral Amherst, NY 193,000
Restaurant Golden Corral Memphis, TN 511,000
Interest capitalized 29,000
Capitalized expenditures relating to existing
properties 200,000
-----------
Subtotal 1,999,000
-----------
TOTAL $14,500,000
===========
</TABLE>
B. Realty Income industry diversification by number of
properties:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1995 DECEMBER 31, 1994
NUMBER OF PERCENTAGE NUMBER OF PERCENTAGE
INDUSTRY PROPERTIES OF TOTAL PROPERTIES OF TOTAL
======== ========== ========== ========== ==========
<S> <C> <C> <C> <C>
Child Care 320 47% 321 51%
Restaurant 175 26% 164 26%
Automotive 130 19% 128 20%
Convenience 32 5% 1 0%
Home Furnishings 4 1% 0 0%
Other 15 2% 16 3%
--- ---- --- ----
Total 676 100% 630 100%
=== ==== === ====
</TABLE>
Page 13 of 72
<PAGE>
8. Supplemental Disclosure of Cash Flow Information
- - ----------------------------------------------------
A. The merger of the Advisor into the Company on August 17, 1995
resulted in the following:
<TABLE>
<S> <C>
Increases in:
Other Assets $ (1,143,000)
Goodwill (21,184,000)
Common Stock retired after the merger (1,230,000)
Increases/(Decrease) in:
Other Liabilities 3,029,000
Due to Advisor (2,000)
Common Stock 991,000
Capital in Excess of Par Value 20,186,000
------------
Cash Acquired from Merger $ 647,000
============
</TABLE>
After the merger, shares acquired by the Company in the merger
were retired resulting in the following decreases:
<TABLE>
<S> <C>
Common Stock $ (58,000)
Capital in Excess of Par Value (1,172,000)
------------
Total $ (1,230,000)
============
</TABLE>
In 1995, Other Assets of $1,526,000 were reclassified to
Goodwill.
B. In 1995, the following increases (decreases) occurred
resulting from exchanges of Notes Payable for Common Stock:
<TABLE>
<S> <C>
Notes Payable $ (19,000)
Common Stock 1,000
Capital in Excess of Par Value 19,000
</TABLE>
Page 14 of 72
<PAGE>
C. In August 1994, the following increases occurred resulting
from exchanges of limited partnership units for Notes Payable and
Common Stock:
<TABLE>
<S> <C>
Notes Payable $ 13,086,000
Common Stock 19,478,000
Capital in Excess of Par Value 452,534,000
</TABLE>
9. Related Party Transactions
- - ------------------------------
A. Advisory Agreement
On August 15, 1994, in connection with the Consolidation, the
Company entered into an advisory agreement under which R.I.C.
Advisor, Inc. advised the Company with respect to its investments
and assumed day-to-day management of the Company.
On April 28, 1995 the Company signed an agreement and plan of
merger with the Advisor (the "Agreement"). The Agreement
provided for the merger of the Advisor into Realty Income,
pursuant to which all of the outstanding common stock of the
Advisor would be converted into up to 990,704 shares of common
stock of Realty Income.
On August 17, the Advisor was merged into the Company. The
Company issued 990,704 shares of common stock as consideration
for the outstanding common stock of the Advisor. The Advisor had
held 57,547 shares of common stock of the Company which were
retired. As part of the merger, the advisory agreement was
terminated.
B. Related Party Transactions Prior to the Consolidation
Cash Distributions - the Advisor and William E. and Evelyn J.
Clark, the former general partners of the Partnerships,
collectively, received approximately 1.0% of the Partnerships'
distributions. For the three and nine months ended September 30,
1994, general partners' distributions totaled $118,000 and
$336,000, respectively.
Management Fees - the Advisor received management fees of
approximately 1.5% of gross receipts of the Partnerships. For
the three and nine months ended September 30, 1994, management
fees totaled $92,000 and $432,000, respectively.
Page 15 of 72
<PAGE>
Administrative Expenses - the Advisor received reimbursements for
personnel and overhead costs incurred to administer the
operations of the Partnerships. For the three and nine months
ended September 30, 1994, reimbursements totaled $558,000 and
$2,804,000, respectively.
The administrative expenses and management fees described in the
preceding paragraphs are included in Advisor Fees in the
accompanying consolidated statements of operations for the three
and nine months ended September 30, 1994.
10. Distributions Paid And Payable
- - ----------------------------------
For the nine months ended September 30, 1995, the Company paid
monthly distributions of $0.15 per share from January through
July and increased its monthly distributions to $0.155 per share
in August and September. The distributions for the nine months
totaled $1.36 per share.
As of September 30, 1995, distributions of $0.155 per share were
declared and payable on October 16, 1995 to stockholders of
record on October 2, 1995. On October 17, 1995, distributions of
$0.155 per share were declared and payable on November 15, 1995
to stockholders of record on November 1, 1995.
11. Commitments and Contingencies
- - ----------------------------------
As of September 30, 1995, the Company had entered into agreements
with unrelated parties to acquire three properties to be
purchased under sale/leaseback agreements for an estimated
aggregate amount of $4.6 million and to fund four buildings under
construction on land owned by the Company for an estimated
aggregate amount of $2.0 million.
The Company is a defendant in a civil action concerning a
transaction in which certain of the Company's predecessor
partnerships acquired an interest in three private limited
partnerships previously owned by the plaintiff. In 1992, the
court awarded a judgment against the plaintiff and in favor of
the Company. The plaintiff has appealed the judgment. The
Company believes the plaintiff's appeal is without merit and will
continue to vigorously defend this action.
In the ordinary course of its business, the Company is a party to
various legal actions which the Company believes are routine in
nature and incidental to the operation of the business of the
Company. The Company believes that the outcome of the
proceedings will not have a material adverse effect upon its
operations or financial condition.
Page 16 of 72
<PAGE>
PART I. ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General
- - -------
Realty Income Corporation ("Realty Income" or the "Company") was
organized to operate as an equity real estate investment trust
(REIT). The Company is a fully integrated, self-administered and
self-managed REIT. The Company is the nation's largest publicly
traded owner of freestanding, single-tenant, retail properties
diversified geographically and by industry and operated under
triple-net lease agreements and, through its predecessors, has
been in the real estate investment business since 1969.
Realty Income concentrates its investments in triple-net leased
retail properties used in various industries. As of October 31,
1995, the Company owned a diversified portfolio of 676 properties
in 42 states consisting of over 4.6 million square feet of
leasable space. As of October 31, 1995, the portfolio consisted
of 320 child care centers, 175 restaurant facilities, 130
after-market automotive retail locations, 32 convenience stores,
4 home furnishings stores and 15 other properties. Of the 676
properties, 617 or 91% are leased to national or major regional
retail chain operators; 35 or 5% are leased to franchisees of
retail chain operators; 21 or 3% are leased to other tenant
types; and three or less than 1% are available for lease. Six
hundred sixty four properties (over 98%) were leased to tenants
under triple-net leases at October 31, 1995. Triple-net leases
typically require the tenant to be responsible for substantially
all property operating costs including, but not limited to,
property taxes, insurance, maintenance and structural repairs.
The average remaining lease term (excluding extension options)
for all leases on the Company's properties, excluding ten
multi-tenant properties, is approximately 9.3 years as of
October 31, 1995.
Realty Income was organized in the state of Delaware on
September 9, 1993 to facilitate the consolidation of the Company
with 25 public and private real estate limited partnerships (the
"Partnerships") formed between 1970 and 1989 (the
"Consolidation"). The Consolidation occurred on August 15, 1994.
The Company's common stock is listed and traded on the New York
Stock Exchange (NYSE) under the symbol "O."
Investors in the Partnerships who elected to invest in the equity
of the Company received a total of 19,503,080 shares of common
stock. Certain investors elected to receive Variable Rate Senior
Notes (the "Notes") totaling $12,597,000. The Notes are due in
2001 and are listed on the NYSE under the symbol "O01." In 1994
Page 17 of 72
<PAGE>
the Company paid $987,000 in cash in lieu of issuing promissory
notes and $517,000 in cash in lieu of issuing fractional shares.
In accordance with the Company's certificate of incorporation and
bylaws, the responsibility for the management and control of the
Company's operations is vested in its board of directors. Prior
to August 18, 1995, the Company's day-to-day affairs were managed
by R.I.C. Advisor, Inc. (the "Advisor") which provided advice and
assistance regarding acquisitions of properties by the Company
and performed the day-to-day management of the Company's
properties and business. On August 17, 1995, the Advisor was
merged with and into the Company (the "Merger") and the advisory
agreement between the Company and the Advisor was terminated.
The Company issued 990,704 shares of common stock as
consideration for the outstanding common stock of the Advisor.
The Advisor had held 57,547 shares of common stock of the Company
which were retired after the merger. As a result of the Merger,
the Company is a fully integrated, self-administered and
self-managed REIT.
Liquidity and Capital Resources
- - -------------------------------
The Company was organized for the purpose of operating as an
equity real estate investment trust which acquires and leases
properties and distributes to stockholders, in the form of
monthly cash distributions, a substantial portion of its net cash
flow generated from lease revenue. The Company intends to retain
an appropriate amount of cash as working capital reserves. At
September 30, 1995, the Company had cash and cash equivalents
totaling $2.8 million.
In November 1994 the Company entered into a $100 million
three-year, revolving, unsecured acquisition credit facility.
This facility has been and is expected to be used to acquire
additional retail properties leased to national and regional
retail chains under long term lease agreements. The line
currently bears interest at 1.375% over the London Interbank
Offered Rate ("LIBOR") and offers the Company other interest rate
options. As of November 10, 1995, $55.4 million was available to
the Company under the credit facility.
The Company expects to meet its long-term capital needs for the
acquisition of properties through the issuance of public or
private debt or equity. On August 3, 1995, the Company filed a
universal shelf registration statement with the Securities and
Exchange Commission covering up to $200 million in value of
common stock, preferred stock or debt securities.
Page 18 of 72
<PAGE>
On November 6, 1995, the Company issued 2,400,000 shares of
common stock at a price of $19.65 per share. The shares were
issued pursuant to the registration statement and a related
prospectus supplement. The net proceeds from this offering will
be used to repay the outstanding borrowings under the acquisition
credit facility and, to the extent that the net proceeds of the
offering exceed the outstanding borrowings, for other general
corporate purposes, which may include property acquisitions.
During the nine months ended September 30, 1995, the Company
purchased 48 properties for $55.9 million. The 48 properties and
$55.9 million invested consist of 44 retail properties ($53.1
million) and four properties currently under development ($2.8
million). All of the above mentioned properties, including the
properties under development, are leased with terms of 10 to 20
years. The properties were purchased with $11.3 million of cash
on hand and $44.6 million from the acquisition credit facility.
The Company invested an additional $230,000 in existing
properties.
Cash distributions paid for the nine months ended September 30,
1995 and 1994 were $26.8 million and $35.9 million, respectively.
Of these distributions, $8.9 million and $27.8 million,
respectively, represented return of capital.
For the nine months ended September 30, 1995, the Company paid
monthly distributions of $0.15 per share from January through
July and increased its monthly distributions to $0.155 per share
in August and September. The distributions for the nine months
totaled $1.36 per share. Of the $1.36 in distributions per
share, $0.45 represents return of capital for book purposes. In
September and October 1995, the Company declared two additional
monthly distributions of $0.155 per share payable on October 16
and November 15, 1995. It is currently unknown what percentage,
if any, of the October and November 1995 distributions will
consist of return of capital. Management of the Company believes
that cash provided from operating activities will be sufficient
to meet operating requirements and provide the level of
stockholder distributions required to maintain its status as a
REIT.
As a result of the Merger with the Advisor, the amount of the
earnings and profits of the Advisor (the "Acquired Earnings")
carried over from the Advisor to the Company. In addition to the
distribution requirements to maintain its status as a REIT, the
Company must distribute or be deemed to have distributed all of
the Acquired Earnings on or before December 31, 1995 to retain
its REIT status. Accordingly, the Company will be required to
accurately determine the amount of the Acquired Earnings. At the
Company's request, KPMG Peat Marwick LLP ("KPMG") performed
Page 19 of 72
<PAGE>
certain procedures relating to the amount of the Acquired
Earnings as of August 17, 1995 (the date of the Merger); KPMG
concluded that the Acquired Earnings did not exceed $5,000,000.
Such conclusion was based on the Advisor's tax returns as filed
with the Internal Revenue Service (the "IRS"), certain other
information provided by the Advisor and other assumptions and
qualifications which were set forth in KPMG's report. However,
KPMG's conclusion is not binding on the IRS, and calculation of
the amount of the Acquired Earnings involves the application of
certain complex and technical provisions of the Code and also
requires that certain complex factual determinations be made.
Furthermore, the amount of distributions required to eliminate
the Acquired Earnings will in part depend on the Company's income
through December 31, 1995. As a result, there can be no
assurance that the IRS will not challenge the positions taken by
the Advisor in the tax returns provided to KPMG or KPMG's
conclusion regarding the amount of the Acquired Earnings or
subsequently determine that the Company failed to distribute all
the Acquired Earnings. In the event the IRS makes such a
determination, the Company would lose its REIT qualification for
the year of the Merger and, perhaps, for subsequent years, which
would have a material adverse effect on the financial position
and results of operations of the Company and its ability to make
distributions to stockholders and debt service payments.
The Company is exploring its alternatives with respect to making
distributions sufficient to eliminate the Acquired Earnings and,
based on its monthly distribution history, the Company will be
required to make, or be deemed to make, additional distributions
to stockholders in order to eliminate the Acquired Earnings. The
Company may accomplish these additional distributions (i) by
increasing its monthly distribution, (ii) by making special
distributions during 1995, (iii) by causing certain monthly or
special distributions paid in January 1996 to relate back to 1995
for income tax purposes (in which case such distributions would
be deemed to have been paid in 1995 for income tax purposes), or
(iv) by some combination of the foregoing. In this regard, the
Company has applied for a ruling from the IRS relating to the
distribution of the Acquired Earnings which, if granted as
requested, would substantially reduce or eliminate the need to
make, or be deemed to make, any special cash distributions or to
increase the amount of its monthly distributions in order to
eliminate the Acquired Earnings. Accordingly, there can be no
assurance that the Company will be required to make or will make
any special cash distributions, or will be required to increase
or will increase the amount of its monthly distributions, in
order to eliminate the Acquired Earnings. However, even if the
ruing is granted, the Company expects that it will be required to
cause certain monthly distributions which it expects to make in
January 1996 to relate back to 1995 for income tax purposes (in
Page 20 of 72
<PAGE>
which case such distributions would be treated for income tax
purposes as having been received by stockholders on December 31,
1995). If this were to occur, stockholders would be required to
include those distributions, to the extent they represent
dividend income or capital gain, in their taxable income for
1995, even though actually received by stockholders in 1996. In
any event, as a result of the Merger, the Company's stockholders
will recognize additional dividend income in 1995 to the extent
of the Acquired Earnings.
Management believes that the Company's cash provided from
operating activities and borrowing capacity are sufficient to
meet its liquidity needs for the foreseeable future.
Results of Operations
- - ---------------------
Comparison of the three and nine months ended September 30, 1995
and 1994
Prior to the Consolidation on August 15, 1994, the capital of the
Partnerships consisted of limited partner units and general
partner interests with no long term debt. In the Consolidation,
limited partners exchanged their units for shares of common stock
or Notes of the Company. The general partners did not receive
any shares or Notes for their general partner interests. Due to
these changes in capital structure, which were caused by the
Consolidation, and additional expenses associated with the
operations of a publicly traded REIT, the results of operations
for the three and nine months ended September 30, 1995 and 1994
are not necessarily comparable.
Rental revenue was $13.0 million for the quarter ended
September 30, 1995 versus $11.9 million for the comparable
quarter in 1994. Rental revenue was $37.0 million for the nine
months ended September 30, 1995 versus $35.4 million for the
comparable nine months in 1994. The increase in the 1995 rental
revenue was primarily due to the acquisition of additional
properties.
Vacant properties are a factor in determining revenue generated
and property expenses paid by the Company. At September 30,
1995, the Company had three properties that were not under lease
as compared to four properties at September 30, 1994. All of the
remaining properties are under lease agreements with third party
tenants.
Depreciation and amortization was $3.9 million for the quarter
ended September 30, 1995 versus $3.4 million for the comparable
quarter in 1994. Depreciation and amortization was $10.8 million
Page 21 of 72
<PAGE>
for the nine months ended September 30, 1995 versus $10.4 million
for the comparable nine months in 1994. The increase in the 1995
depreciation and amortization was primarily due to the
acquisition of additional properties and amortization of goodwill
recognized in connection with the merger of the Advisor.
Advisor fees decreased by $632,000 in the third quarter of 1995
as compared to the third quarter of 1994. Advisor fees decreased
by $310,000 in the nine months ended September 30, 1995 as
compared to the nine months ended September 30, 1994. On
August 17, 1995 the Advisor was merged into the Company. The
advisor fees for the three and nine months ended September 30,
1995 were calculated in accordance with the terms of the Advisory
Agreement which became effective August 15, 1994 and was
terminated on August 17, 1995. After August 17, 1995, the
Company became a fully integrated, self-administered and
self-managed REIT. The advisor fees for the quarter and nine
months ended September 30, 1994 do not include distributions of
$118,000 and $336,000, respectively, paid to the general
partners of the Partnerships. Distributions paid to the general
partners of the Partnerships were a component of the formula used
to determine the advisor fee after the Consolidation on
August 15, 1994. Prior to August 15, 1994, advisor fees were
calculated in accordance with the terms of the Partnership
agreements of the Partnerships.
General and administrative expenses were $1.3 million in the
third quarter of 1995 and 1994. An $11,000 increase in general
and administrative expenses was due to a $199,000 increase in
administrative expenses reduced by a $188,000 decrease in
property operating expenses. The increase in administrative
expenses was due to additional expenses associated with the
operations of a publicly traded REIT including, but not limited
to, transfer agent fees, NYSE fees, board of directors fees and
property acquisition expenses. The decrease in property
operating expenses was primarily due to the decline in expenses
associated with vacant and underperforming properties.
General and administrative expenses were $3.1 million in the nine
months ended September 30, 1995 versus $2.8 million in the
comparable nine month of 1994. The $239,000 increase in general
and administrative expenses was due to a $688,000 increase in
administrative expenses reduced by a $449,000 decrease in
property operating expenses. The increase in administrative
expenses was due to additional expenses associated with the
operations of a publicly traded REIT including, but not limited
to, transfer agent fees, NYSE fees, board of directors fees and
property acquisition expenses. The reduction in property
Page 22 of 72
<PAGE>
operating expenses was primarily due to the decline in expenses
associated with vacant and underperforming properties.
After August 17, 1995, when the Advisor merged into the Company,
general and administrative expenses include costs for management,
accounting systems, professional and support personnel and office
facilities. Prior to August 17, 1995 these costs were the
responsibility of the Advisor.
In accordance with FAS 121, provision is made for impairment loss
if estimated future operating cash flows (undiscounted and
without interest charges) over a long-term holding period plus
estimated disposition proceeds (undiscounted) are less than
current book value. In August 1994, a $135,000 charge was made
to general and administrative expenses to reduce the net carrying
value of one property. No charge was recorded in 1995.
Interest expense was $1.0 million for the quarter ended
September 30, 1995 as compared to $119,000 for the comparable
quarter in 1994. The $897,000 increase was primarily due to
interest on the acquisition credit facility from borrowings used
to acquire properties in 1995. During the quarter ended
September 30, 1995, $29,000 of interest was capitalized. No
interest was capitalized in 1994.
Interest expense was $1.9 million for the nine months ended
September 30, 1995 as compared to $134,000 for the comparable
nine months in 1994. The $1.8 million increase was primarily due
to interest on the acquisition credit facility from borrowings
used to acquire properties in 1995. During the nine months ended
September 30, 1995, $187,000 of interest was capitalized. No
interest was capitalized in 1994.
Interest expense is expected to be lower in the fourth quarter of
1995 and the first quarter of 1996 because the net proceeds from
the 2.4 million shares issued on November 6, 1995 will be used to
repay approximately $44.1 million of the outstanding borrowings
under the acquisition credit facility.
Total operating expenses were $7.0 million during the quarter
ended September 30, 1995 versus $6.3 million for the comparable
quarter in 1994. The majority of the increase in operating
expenses relates to an increase in interest expense of $897,000.
Total operating expenses were $19.4 million during the nine
months ended September 30, 1995 versus $17.3 million for the
comparable nine months in 1994. The majority of the increase in
operating expenses relates to an increase in interest expense of
$1.8 million.
Page 23 of 72
<PAGE>
For the three and nine months ended September 30, 1994, REIT
transaction costs aggregating $11.2 million represented
nonrecurring costs incurred to effect the Consolidation. Under
the pooling-of-interests method of accounting for the
Consolidation, these costs were charged to expense upon
consummation of the Consolidation. Such costs included, but were
not limited to, fees paid to underwriters, attorneys, and
accountants, as well as costs associated with obtaining a
fairness opinion, soliciting the shareholders, and registering
and listing the common stock and the notes on the NYSE.
For the three months ended September 30, 1995, the Company had
net income of $6.1 million compared to a net loss of $5.3 million
for the same period in 1994. The third quarter of 1994 was
negatively impacted by the REIT transaction costs of $11.2
million. Income for the third quarter of 1994 excluding the REIT
transaction costs was $5.9 million.
For the nine months ended September 30, 1995, the Company had net
income of $17.9 million compared to $8.1 million for the same
period in 1994. The net income for 1994 was negatively impacted
by the REIT transaction costs of $11.2 million. Income for the
first nine months of 1994 excluding the REIT transaction costs
was $19.3 million.
Impact of Inflation
- - -------------------
Tenant leases generally provide for increases in rent as a result
of increases in the tenant's sales volumes or increases in the
consumer price index. Management expects that inflation will
cause these lease provisions to result in increases in rent over
time. However, inflation and increased costs may have an adverse
impact on the tenants if increases in the tenant's operating
expenses exceed increases in revenues. Over 98% of the
properties are leased to tenants under triple-net leases in which
the tenant is responsible for substantially all property costs
and expenses. These features in the leases reduce the Company's
exposure to rising expenses due to inflation.
Funds from Operations
- - ---------------------
Funds from operations ("FFO") for the third quarter of 1995 was
$10.0 million versus $9.4 million during the third quarter of
1994. FFO for the nine months ended September 30, 1995 was $28.7
million versus $29.3 million during the comparable nine months of
1994. FFO is calculated by adding depreciation and amortization
to net income (loss) before gain (loss) on sales of properties
Page 24 of 72
<PAGE>
and the one-time REIT transaction costs associated with the
Consolidation in August 1994.
Management considers FFO to be an appropriate measure of the
performance of an equity REIT. Funds from operations is used by
financial analysts in evaluating REITs and can be one measure of
a REIT's ability to make cash distribution payments.
Presentation of this information provides the reader with an
additional measure to compare the performance of different REITs.
FFO is not necessarily indicative of cash flow available to fund
cash needs and should not be considered as an alternative to net
income as an indication of the Company's performance or to cash
flow from operating, investing, and financing activities as a
measure of liquidity or ability to make cash distributions.
PART II. OTHER INFORMATION
ITEM 4. Submission of Matters to a Vote of Security Holders
The annual meeting of stockholders of Realty Income Corporation
was held on August 17, 1995 for the purpose of electing a board
of directors and voting on the proposals described below.
Proxies for the meeting were solicited pursuant to Section 14(a)
of the Securities Exchange Act of 1934 and there was no
solicitation in opposition to management's solicitations.
Proposal one: Adoption and approval of the Agreement and Plan of
Merger dated as of April 28, 1995 (the "Merger"), as amended,
among the Company, R.I.C. Advisor, Inc. and the shareholders of
R.I.C. Advisor, Inc. with and into the Company, with the Company
continuing as the surviving corporation.
<TABLE>
<CAPTION>
SHARES SHARES SHARES BROKER
VOTED FOR AGAINST ABSTAIN NON-VOTES
========= ======= ======= =========
<S> <C> <C> <C>
11,161,163 738,096 887,755 1,781,650
</TABLE>
Proposal two: Approval of an amendment to the Amended and
Restated Bylaws of the Company to exclude the Merger from the
provisions of Section 7(b) of the Bylaws which require the
Company to obtain an appraisal of any property being purchased by
the Company from related or affiliated parties.
Page 25 of 72
<PAGE>
<TABLE>
<CAPTION>
SHARES SHARES SHARES BROKER
VOTED FOR AGAINST ABSTAIN NON-VOTES
========= ======= ======= =========
<S> <C> <C> <C>
10,931,953 912,531 942,530 1,781,650
</TABLE>
Proposal three: All of management's nominees for directors as
listed in the proxy statement were elected with the following
vote:
<TABLE>
<CAPTION>
SHARES WITHHOLD
VOTED FOR AUTHORITY
========= =========
<S> <C> <C>
Donald R. Cameron 13,964,687 603,977
William E. Clark 13,956,614 612,050
Roger P. Kuppinger 13,964,545 604,119
Thomas A. Lewis 13,961,503 607,161
Michael D. McKee 13,963,037 605,627
</TABLE>
ITEM 6. Exhibits and Reports on Form 8-K
A. Exhibits:
<TABLE>
<CAPTION>
Exhibit No. Description
=========== ===========
<S> <C>
2.1 Agreement and Plan of Merger dated as of April
28, 1995 (incorporated by reference to Appendix A
to the Company's definitive Proxy Statement filed
June 30, 1995)
3.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the
Company's Form 10-Q for the quarter ended
September 30, 1994)
3.2 Amended and Restated Bylaws of Realty Income
Corporation, as amended
27 Financial Data Schedule*
</TABLE>
* Electronically filed with the Securities and Exchange
Commission only
Page 26 of 72
<PAGE>
B. One report on Form 8-K was filed during the quarter for which
this report is filed.
A report on Form 8-K dated August 17, 1995 was filed on
September 5, 1995 reporting that on August 17, 1995 Realty Income
Corporation merged with R.I.C. Advisor, Inc.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly
authorized.
REALTY INCOME CORPORATION
<TABLE>
<S> <C>
(Signature and Title) /s/ GARY M. MALINO
Date: November 14, 1995 ------------------------
Gary M. Malino
Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
</TABLE>
Page 27 of 72
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
=========== =========== ====
<S> <C> <C>
2.1 Agreement and Plan of Merger dated
as of April 28, 1995 (incorporated
by reference to Appendix A to the
Company's definitive Proxy Statement
filed June 30, 1995)..........................N/A
3.1 Amended and Restated Certificate of
Incorporation (incorporated by
reference to Exhibit 3.1 to the
Company's Form 10-Q for the quarter
ended September 30, 1994).....................N/A
3.2 Amended and Restated Bylaws of Realty
Income Corporation, as amended.................29
27 Financial Data Schedule*.......................72
* Electronically filed with the Securities and Exchange
Commission only.
Page 28 of 72
<PAGE>
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS OF REALTY INCOME CORPORATION
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS........................................33
ARTICLE II - OFFICES...........................................40
Section 1. Registered Office...............................40
Section 2. Other Office....................................40
ARTICLE III - MEETINGS OF STOCKHOLDERS.........................40
Section 1. Place of Meetings...............................40
Section 2. Annual Meeting of Stockholders..................40
Section 3. Quorum; Adjourned Meetings and
Notice Thereof..................................40
Section 4. Voting..........................................41
Section 5. Proxies.........................................41
Section 6. Special Meetings................................41
Section 7. Notice of Stockholder's Meetings................42
Section 8. Maintenance and Inspection of
Stockholder List................................42
Section 9. Stockholder Action by Written
Consent Without a Meeting.......................42
Section 10. Inspectors of Election..........................43
Section 11. Duties..........................................43
ARTICLE IV - DIRECTORS.........................................44
Section 1. Number of Directors.............................44
Section 2. Nomination......................................44
Section 3. Vacancies.......................................45
Section 4. Powers..........................................46
Section 5. Place of Directors' Meetings....................46
Section 6. Regular Meetings................................46
Section 7. Special Meetings................................46
Section 8. Quorum..........................................46
Section 9. Action Without Meeting..........................46
Section 10. Telephonic Meetings.............................46
Section 11. Committees of Directors.........................47
Section 12. Minutes of Committee Meetings...................48
Section 13. Compensation of Directors.......................48
Section 14. Indemnification.................................48
Page 29 of 72
<PAGE>
ARTICLE V - OFFICERS...........................................51
Section 1. Officers........................................51
Section 2. Election of Officers............................51
Section 3. Subordinate Officers............................51
Section 4. Compensation of Officers........................52
Section 5. Term of Office; Removal and Vacancies...........52
Section 6. Chairman of the Board...........................52
Section 7. President.......................................52
Section 8. Vice President..................................52
Section 9. Secretary.......................................53
Section 10. Assistant Secretaries...........................53
Section 11. Treasurer.......................................53
Section 12. Assistant Treasurer.............................54
ARTICLE VI - CERTIFICATES OF STOCK.............................54
Section 1. Certificates....................................54
Section 2. Signatures on Certificates......................54
Section 3. Statement of Stock Rights,
Preferences, Privileges.........................54
Section 4. Lost Certificates...............................55
Section 5. Transfers of Stock..............................55
Section 6. Fixing Record Date..............................55
Section 7. Registered Stockholders.........................56
ARTICLE VII - INVESTMENT POLICY AND RESTRICTIONS...............56
Section 1. Investment......................................56
Section 2. Tax Treatment as a REIT.........................57
Section 3. No Liability to Qualify as REIT.................57
Section 4. Specific Investments............................57
Section 5. Reserves........................................57
Section 6. Investment Restrictions.........................57
Section 7. Restrictions Upon Dealings Between
the Corporation and Interested Parties..........58
Section 8. Corporation's Right to Borrow Funds.............59
Section 9. Pursuit of Ancillary Services...................60
Section 10. Investment in Corporation's Shares..............62
ARTICLE VIII - INDEPENDENT ACTIVITIES..........................62
Section 1. Shares Held by Directors and Officers...........62
Section 2. Business Interests and Investments
of Directors....................................62
Section 3. Other Business Relationships of Director........62
Page 30 of 72
<PAGE>
ARTICLE IX - THE ADVISOR.......................................63
Section 1. Engagement of Advisor...........................63
Section 2. Advisory Contract...............................63
Section 3. Change of Advisors..............................64
ARTICLE X - SELF-ADMINISTERED REIT.............................64
ARTICLE XI - GENERAL PROVISIONS................................65
Section 1. Dividends.......................................65
Section 2. Payment of Dividends; Directors'
Discretion to Establish Reserves................65
Section 3. Duties..........................................65
Section 4. Checks..........................................66
Section 5. Fiscal Year.....................................66
Section 6. Corporate Seal..................................66
Section 7. Manner of Giving Notice.........................66
Section 8. Waiver of Notice................................66
Section 9. Annual Statement................................66
ARTICLE XII - AMENDMENTS.......................................67
Section 1. Amendment by Directors or Stockholders..........67
ARTICLE XIII - MISCELLANEOUS...................................67
Section 1. Provisions in Conflict With
Law or Regulations..............................67
Section 2. Reliance Upon Legal Advice......................68
Section 3. Delaware Law to Govern..........................68
Section 4. Effectiveness of Certain Provisions.............68
CERTIFICATE OF SECRETARY.......................................69
Page 31 of 72
<PAGE>
AMENDED AND RESTATED BY-LAWS
OF
REALTY INCOME CORPORATION
Page 32 of 72
<PAGE>
AMENDED AND RESTATED BY-LAWS
OF
REALTY INCOME CORPORATION
ARTICLE I
DEFINITIONS
===========
Whenever used in these By-Laws, unless the context otherwise
requires, the terms defined in this Article I shall have the
following respective meanings:
"ADVISOR" means R.I.C. Advisor, Inc. or any other Person
(other than a Director, officer or employee of the Corporation)
responsible for directing or performing the day-to-day business
affairs of the Corporation, including a Person or entity to which
the Advisor subcontracts substantially all such functions.
"AFFILIATE" of a Person means (a) any other Person directly
or indirectly controlling, controlled by and under common control
with such Person, (b) any other Person owning or controlling ten
percent (10%) or more of the outstanding voting securities of
such Person, (c) any officer, director or general partner of such
Person, or (d) if such Person is an officer, director or general
partner, any Person for which such Person acts as an officer,
director or general partner. For purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"),
as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or
otherwise.
"ANCILLARY SERVICES" means any business activity rendered in
connection with, or incidental to, the Corporation's primary
activity of leasing its properties, which generates revenue for
the Corporation that would be treated by the IRS as Nonqualifying
Income, including, but not limited to, the sale of goods and
services to its tenants and others.
"APPRAISED VALUE" means the value of a property as
determined by an appraisal made by one or more independent
qualified appraisers selected in accordance with procedures
established by the Board (and a majority of the Independent
Directors as to any proposed acquisition from R.I.C. Advisor,
Inc., any other Advisor, a Director or an officer or any
Affiliate thereof).
Page 33 of 72
<PAGE>
"BOARD" means the Board of Directors of the Corporation, as
constituted from time to time.
"BY-LAWS" means the Amended and Restated By-Laws of the
Corporation, as in effect from time to time.
"CALIFORNIA PARTNERSHIPS" means RIC 1, RIC 2, RIC 3, RIC 6,
RIC 7, RIC 8, RIC 10, RIC 11, RIC Associates 1, RIC Associates 2,
RIC 12, RIC 13, RIC 14, RIC 15, RIC 16, RIC 17, RIC 18, RIC 19,
RIC 20, RIC 21, RIC 22, RIC 23, RIC 24, RIC 25, and RIC 26, each
of which was organized as a California limited partnership under
the California Uniform Limited Partnership Act or the California
Revised Limited Partnership Act.
"CERTIFICATE OF INCORPORATION" shall mean the Amended and
Restated Certificate of Incorporation of Realty Income
Corporation, as in effect from time to time.
"CHAIRMAN OF THE BOARD" shall have the meaning assigned to
such term in Section 6 of Article V hereof.
"CODE" means the Internal Revenue Code of 1986, as it may be
amended from time to time.
"COMMON STOCK" means the Common Stock of the Corporation,
par value $1.00 per share.
"CONSOLIDATION" means the following interdependent
transactions, each of which is to be closed concurrently, (a) the
merger of the Corporation with each of the California
Partnerships whose Limited Partners approve such Partnership's
participation in the Consolidation; and (b) the acquisition by
the Corporation of all the assets, subject to existing
liabilities, of each of the foregoing California Partnerships.
"CONSOLIDATION EXPENSES" means all costs and expenses
incurred by the California Partnerships and the Corporation in
preparation for, and in the completion of, each of the
transactions contemplated in connection with the Consolidation
(including, without limitation, the Solicitation Expenses).
"CONSOLIDATION PROPERTIES" means the real estate assets, and
related personal property, acquired by the Corporation from the
Participating Partnerships as a result of the Consolidation.
"CORPORATION" means Realty Income Corporation, a Delaware
corporation.
"DIRECTORS" means the directors of the Corporation's Board.
Page 34 of 72
<PAGE>
"GENERAL PARTNERS" means, with respect to each of the
California Partnerships, the parties serving as general partners
of that Partnership.
"INDEBTEDNESS" of any Person means the principal of,
premium, if any, and interest on, (i) all indebtedness of such
Person (including Indebtedness of others guaranteed by such
Person), whether outstanding on the date of the Indenture or
thereafter created, incurred or assumed which is (A) for money
borrowed or (B) evidenced by a note or similar instrument given
in connection with the acquisition of any businesses, properties
or assets of any kind and (ii) amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation.
"INDEBTEDNESS RESTRICTION" means the restriction placed upon
the Corporation's authority to borrow funds set forth in Section
8 of Article VII.
"INDENTURE" means the Indenture between the Corporation and
the Chemical Trust Company of California pursuant to which the
Notes are to be issued as the same may be amended or supplemented
from time to time.
"INDEPENDENT DIRECTORS" means with respect to any
transaction proposed between the Corporation and another party
(the "Contracting Party"), those Directors who:
(a) do not serve as directors, officers, partners or
trustees of, or in any similar capacity of control with respect
to, the Contracting Party;
(b) do not own, directly or indirectly, have a beneficial
interest in, or have the right to vote, any of the equity and/or
debt securities of the Contracting Party; provided, however, that
the ownership, control of or interest in less than one percent of
the outstanding debt and/or equity securities of the Contracting
Party shall not cause a Director to lose his status as an
Independent Director if the Contracting Party is a public company
and the Director's interest is disclosed to the Board of
Directors before any action is taken with respect to the proposed
transaction; and
(c) are not otherwise affiliated with the Contracting
Party.
"INTERESTED PARTY" of the Corporation shall have the meaning
ascribed to such term in Section 7 of Article VII.
"IRS" means the United States Internal Revenue Service.
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"LIMITED PARTNERS" means, with respect to each of the
California Partnerships, the Persons admitted from time to time
to that Partnership as limited partners, whether as initial,
additional or substitute Limited Partners, and Persons who have
acquired Units but have not yet been admitted as substitute
Limited Partners. References to "Limited Partners" which do not
make specific reference to the Limited Partners of an identified
California Partnership shall be understood to refer to the
Limited Partners of all the California Partnerships.
"MAJORITY VOTE" means the consent of Limited Partners
holding at least a majority of the outstanding Units of a
particular California Partnership (or, in the case of RIC 1,
sixty percent (60%) of the outstanding Units of that California
Partnership) or the consent, either in person or by proxy, of
stockholders holding a majority of the Shares in the Corporation,
as the case may be.
"NONPARTICIPATING PARTNERSHIP" means any California
Partnership whose Limited Partners do not, by a Majority Vote,
approve participation in the Consolidation.
"NONQUALIFYING INCOME" means income not described in Section
856(c)(2) of the Code, or any successor provision.
"NOTES" means the Variable Rate Senior Notes Due 2001 and,
unless the context otherwise requires, the promissory notes, to
be issued by the Corporation pursuant to the Indenture to the
Participating Limited Partners who elect to receive Notes in
exchange for their Units rather than Shares.
"PARTNERSHIP AGREEMENT" of each California Partnership means
its amended and restated (where applicable) certificate and
agreement of limited partnership, the provisions of which govern
the rights and obligations of its respective partners.
"PARTICIPATING LIMITED PARTNER" means a Limited Partner of a
Participating Partnership.
"PARTICIPATING PARTNERSHIP" means any California Partnership
whose Limited Partners approve, by a Majority Vote, the
Partnership's participation in the Consolidation.
"PERSON" means an individual, a corporation, limited
partnership, general partnership, joint stock company or an
association, a joint venture, trust, bank, trust company, land
trust, business trust or an estate, or any other entity and
governmental agency and any political subdivision thereof, and
also includes a group as that term is defined for purposes of
Section 13(d)(3) of the Securities Act.
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"PORTFOLIO APPRAISAL" means the portfolio appraisals of the
real estate assets of each of the California Partnerships
prepared by Cushman & Wakefield, Inc. in connection with the
Consolidation as of the respective appraisal dates.
"PREFERRED STOCK" means the Preferred Stock of the
Corporation, par value $1.00 per share, authorized to be issued
in one or more series under the Certificate of Incorporation.
"PRESIDENT" shall have the meaning assigned to such term in
Section 7 of Article V.
"REIT" means a real estate investment trust under Sections
856 to 860 the Code or any successor provisions.
"REIT PROVISIONS OF THE CODE" means Part II, Subchapter M of
Chapter 1 of the Code, as now enacted or hereafter amended, or
successor statutes, relating to REITs.
"R.I.C. ADVISOR, INC." means R.I.C. Advisor, Inc., a
California corporation (originally named Realty Income
Corporation).
"RIC 1" means Northridge Bell, Limited, a California limited
partnership.
"RIC 2" means Tustin Bell, Ltd., a California limited
partnership.
"RIC 3" means Marina Bell, Ltd., a California limited
partnership.
"RIC 6" means Fullerton Commercial Property, Ltd., a
California limited partnership.
"RIC 7" means Chino Commercial Property, Ltd., a California
limited partnership.
"RIC 8" means R.I.C. 76, Ltd., a California limited
partnership.
"RIC 10" means R.I.C. 781, Ltd., a California limited
partnership.
"RIC 11" means Garden Grove BYH, Ltd., a California limited
partnership.
"RIC ASSOCIATES 1" means R.I.C. Associates #1, Ltd., a
California limited partnership.
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"RIC ASSOCIATES 2" means R.I.C. Associates #2, Ltd., a
California limited partnership.
"RIC 12" means R.I.C. 79, Ltd., a California limited
partnership.
"RIC 13" means R.I.C. 81, Ltd., a California limited
partnership.
"RIC 14" means R.I.C. 14, Ltd., a California limited
partnership.
"RIC 15" means R.I.C. 15 Ltd., a California limited
partnership.
"RIC 16" means R.I.C. 16 Ltd., a California limited
partnership.
"RIC 17" means R.I.C. 17 Ltd., a California limited
partnership.
"RIC 18" means R.I.C. 18 Ltd., a California limited
partnership.
"RIC 19" means R.I.C. 19 Ltd., a California limited
partnership.
"RIC 20" means R.I.C. 20, Ltd., a California limited
partnership.
"RIC 21" means R.I.C. 21, Ltd., a California limited
partnership.
"RIC 22" means R.I.C. 22, Ltd., a California limited
partnership.
"RIC 23" means R.I.C. 23, Ltd., a California limited
partnership.
"RIC 24" means R.I.C. 24, Ltd., a California limited
partnership.
"RIC 25" means R.I.C. 25, Ltd., a California limited
partnership.
"RIC 26" means R.I.C. 26, Ltd., a California limited
partnership.
"SECRETARY" shall have the meaning assigned to such term in
Section 9 of Article V.
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"SOLICITATION EXPENSES" means the direct solicitation
compensation (if any) payable to broker-dealers for assistance in
soliciting consents from the Limited Partners of the California
Partnerships and direct marketing expenses related thereto, such
as telephone calls, broker-dealer fact sheets, legal and other
fees related solely to the solicitation of consents.
"SUBSIDIARY" means, with respect to any Person, any other
Person of which more than 50% of (i) the equity or other
ownership interest or (ii) the total voting power of shares of
capital stock or other ownership interests entitled (without
regard to the occurrence of any contingency) to vote in the
election of directors, managers, trustees or general or managing
partners thereof is at the time owned by such Person or one or
more of the other Subsidiaries of such Person or a combination
thereof.
"TOTAL ASSETS" of the Corporation means, as of the date the
amount is to be determined, the aggregate Portfolio Appraisal
value of the Consolidation Properties owned by the Corporation
and its consolidated Subsidiaries as of such date, plus the
aggregate purchase price (or the appraised value in the case of
property for property exchanges) of real estate properties
acquired after the Consolidation and owned by the Corporation or
any of its consolidated Subsidiaries as of such date, plus the
book value of the Corporation and its consolidated Subsidiaries'
other assets (other than unamortized acquisition fees) as of such
date (determined on a consolidated basis in accordance with (to
the extent applicable) generally accepted accounting principles).
"TREASURER" shall have the meaning assigned to such term in
Section 11 of Article V.
"UNITS" means the outstanding limited partnership interests
of each California Partnership.
"VICE PRESIDENT" shall have the meaning assigned to such
term in Section 8 of Article V.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person,
any other Person all the outstanding (i) equity or other
ownership interest or (ii) voting power of shares of capital
stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of
directors, managers, trustees or general or managing partners
thereof (in each case other than directors' qualifying shares) is
owned at such time by such Person or by one or more Wholly-Owned
Subsidiaries of such Person or by such Person and one or more
Wholly-Owned Subsidiaries of such Person.
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ARTICLE II
OFFICES
=======
Section 1. REGISTERED OFFICE.
The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. OTHER OFFICE.
The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE III
MEETING OF STOCKHOLDERS
=======================
Section 1. PLACE OF MEETINGS.
Meetings of stockholders shall be held at any place within
or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders'
meetings shall be held at the principal executive office of the
Corporation.
Section 2. ANNUAL MEETING OF STOCKHOLDERS.
The annual meeting of stockholders shall be held each year
on a date and a time designated by the Board of Directors. At
each annual meeting directors shall be elected and any other
proper business may be transacted. The first annual meeting of
stockholders shall be held within thirteen (13) months after the
organization of the Corporation. Each subsequent annual meeting
shall be held within thirteen (13) months after the last annual
meeting.
Section 3. QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF.
A majority of the stock issued and outstanding and entitled
to vote at any meeting of stockholders, the holders of which are
present in person or represented by proxy, shall constitute a
quorum for the transaction of business except as otherwise
provided by law, by the Certificate of Incorporation, or by these
By-Laws. A quorum, once established, shall not be broken by the
withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until
adjournment. If, however, such quorum shall not be present or
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represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented.
At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the
adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote thereat.
Section 4. VOTING.
When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by
express provision of the statutes, or the Certificate of
Incorporation, or these By-Laws, a different vote is required in
which case such express provision shall govern and control the
decision of such question.
Section 5. PROXIES.
At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing
a date not more than three (3) years prior to said meeting,
unless said instrument provides for a longer period. All proxies
must be filed with the Secretary of the Corporation at the
beginning of each meeting in order to be counted in any vote at
the meeting. Each stockholder shall have one vote for each share
of stock having voting power, registered in his name on the books
of the Corporation on the record date set by the Board of
Directors as provided in Article VI, Section 6 hereof. All
elections shall be had and all questions decided by a plurality
vote.
Section 6. SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, shall be called by the President or
the Secretary at the request in writing of the Chairman of the
Board, the President, or a majority of the Directors. Such
request shall state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the
notice.
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Section 7. NOTICE OF STOCKHOLDER'S MEETINGS.
Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be
given which notice shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. The written notice of
any meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting. If mailed, notice is given
when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the
records of the Corporation.
Section 8. MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST.
The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is
present.
Section 9. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING.
Unless otherwise provided in the Certificate of
Incorporation, or any rules of any stock exchange on which the
Corporation's Common Stock may be listed, any action required to
be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or
special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not
consented in writing.
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Section 10. INSPECTORS OF ELECTION.
In advance of any meeting of stockholders, the Board shall
appoint one or more Persons to act as inspectors of election at
such meeting and to make a written report thereof. The Board may
designate one (1) or more Persons to serve as alternate
inspectors to serve in place of any inspector who is unable or
fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the chairman of such meeting shall
appoint one or more Persons to act as inspector of elections at
such meeting.
Section 11. DUTIES.
The inspectors shall:
(a) Ascertain the number of shares of capital stock of the
Corporation outstanding and the voting power of each such share;
(b) Determine the shares of capital stock represented at
the meeting and the validity of proxies and ballots;
(c) Count all votes and ballots;
(d) Determine and retain for a reasonable period of time a
record of the disposition of any challenges made to any
determination by them; and
(e) Certify their determination of the number of shares of
capital stock represented at the meeting and their count of the
votes and ballots.
The validity of any proxy or ballot shall be determined by
the inspectors of election in accordance with the applicable
provisions of the Delaware General Corporation Law as then in
effect. In determining the validity of any proxy transmitted by
telegram, cablegram or other electronic transmission, the
inspectors shall record in writing the information upon which
they relied in making such determination. Each inspector of
elections shall, before entering upon the discharge of his or her
duties, take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of
his or her ability. The inspectors of election may appoint or
retain other persons to assist them in the performance of their
duties.
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ARTICLE IV
DIRECTORS
=========
Section 1. NUMBER OF DIRECTORS.
The number of directors which shall constitute the whole
Board shall be five (5), except for the initial Board which shall
be two (2). The initial directors shall have the power to
appoint the three (3) additional directors. The directors need
not be stockholders. The number of directors may be increased or
decreased by a majority of the Board of Directors; PROVIDED, that
the number of directors will not be less than one (1) nor more
than five (5) at any one time. The directors shall be elected at
the annual meeting of the stockholders, except as provided in
Section 2 of this Article, and each director elected shall hold
office until the next annual meeting of the stockholders or until
his or her successor is elected and qualified; PROVIDED, HOWEVER,
that unless otherwise restricted by the Certificate of
Incorporation or By-Laws, any director or the entire Board of
Directors may be removed, either with or without cause, from the
Board of Directors at any meeting of stockholders by a majority
of the stock represented and entitled to vote thereat.
Section 2. NOMINATION.
Only persons who are nominated in accordance with the
following procedures shall be eligible for election as Directors.
Nominations for the election of Directors may be made (a) by or
at the direction of the Board or (b) by any stockholder of record
entitled to vote for the election of Directors at such meeting;
PROVIDED, HOWEVER, that a stockholder may nominate persons for
election as Directors only if written notice (in accordance with
this Section) of such stockholder's intention to make such
nominations is received by the Secretary not later than (i) with
respect to an election to be held at an annual meeting of the
stockholders, not fewer than sixty (60) nor more than ninety (90)
days prior to the date of the annual meeting of stockholders as
scheduled by the Board of Directors for such annual meeting (or
if less than sixty (60) days' notice or prior public disclosure
of the date of the annual meeting is given or made to the
stockholders, not later than the tenth day following the day on
which such notice of the date of the annual meeting was mailed or
such public disclosure was made) and (ii) with respect to an
election to be held at a special meeting of the stockholders for
the election of Directors, the close of business on the seventh
business day following the date on which notice of such meeting
is first given to stockholders. Any such stockholder's notice
shall set forth (a) the name and address of the stockholder who
intends to make a nomination; (b) a representation that the
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stockholder is entitled to vote at such meeting and a statement
of the number of shares of capital stock of the Corporation which
are beneficially owned by the stockholder; (c) a representation
that the stockholder intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the
notice; (d) as to each person the stockholder proposes to
nominate for election or re-election as a Director, the name and
address of such person and such other information regarding such
nominee as would be required in a proxy statement filed pursuant
to proxy rules of the Securities and Exchange Commission had such
nominee been nominated by the Board, and a description of any
arrangements or understandings, between the stockholder and such
nominee and any other Persons (including their names), pursuant
to which the nomination is to be made; and (e) the consent of
each such nominee to serve as a Director if elected. If the
facts warrant, the Board, or the chairman of a stockholders'
meeting at which Directors are to be elected, shall determine and
declare that a nomination was not made in accordance with the
foregoing procedure and, if it is so determined, the defective
nomination shall be disregarded. The right of stockholders to
make nominations pursuant to the foregoing procedure is subject
to the rights (if any) of the holders of any class or series of
stock having a preference over the Common Stock as to dividends
or upon liquidation to nominate or elect directors. The
procedures set forth in this Section for nomination for the
election of Directors by stockholders are in addition to, and not
in limitation of, any procedures now in effect or hereafter
adopted by or at the direction of the Board or any committee
thereof.
Section 3. VACANCIES.
Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office,
or otherwise, and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The directors so chosen
shall hold office until the next annual election of directors and
until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as
constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the
shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any
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such vacancies or newly created directorships, or to replace the
directors chosen by the directors then in office.
Section 4. POWERS.
The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In
addition to the powers and authorities by these By-Laws expressly
conferred upon them, the Board may exercise all such powers of
the Corporation and do all such lawful acts and things as are not
by statute or by the Certificate of Incorporation or by these By-
Laws directed or required to be exercised or done by the
stockholders.
Section 5. PLACE OF DIRECTORS' MEETINGS.
The Directors may hold their meetings and have one or more
offices, and keep the books of the Corporation, outside of the
State of Delaware.
Section 6. REGULAR MEETINGS.
Regular meetings of the Board of Directors may be held
without notice at such time and place as shall from time to time
be determined by the Board.
Section 7. SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called by
the President on forty-eight (48) hours' notice to each director,
either personally or by mail or by telegram; special meetings
shall be called by the President or the Secretary in like manner
and on like notice on the written request of two directors unless
the Board consists of only one director; in which case special
meetings shall be called by the President or Secretary in like
manner or on like notice on the written request of the sole
director.
Section 8. QUORUM.
At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business, and the
vote of a majority of the directors present at any meeting at
which there is a quorum, shall be the act of the Board of
Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws.
If a quorum shall not be present at any meeting of the Board of
Directors the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the
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meeting, until a quorum shall be present. If only one director
is authorized, such sole director shall constitute a quorum.
Section 9. ACTION WITHOUT MEETING.
Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members
of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes
of proceedings of the Board or committee.
Section 10. TELEPHONIC MEETINGS.
Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, members of the Board of
Directors, or any committee designated by the Board of Directors,
may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
such meeting.
Section 11. COMMITTEES OF DIRECTORS.
The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees,
each such committee to consist of one or more of the directors of
the Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee
shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease
or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution,
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or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so
provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
Section 12. MINUTES OF COMMITTEE MEETINGS.
Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
Section 13. COMPENSATION OF DIRECTORS.
Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending
committee meetings.
Section 14. INDEMNIFICATION.
(a) To the fullest extent permitted under the General
Corporation Law of Delaware, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she
acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with
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respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
(b) To the fullest extent permitted under the General
Corporation Law of Delaware, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor
by reason of the fact that he or she is or was a director,
officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests
of the Corporation and except that no such indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation
unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or
agent of the Corporation shall be successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to in paragraphs (a) and (b), or in defense of any claim, issue
or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
(d) Any indemnification under paragraphs (a) and (b)
(unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because he or she has met the
applicable standard of conduct set forth in paragraphs (a) and
(b). Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2)
if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
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(e) Expenses (including attorney's fees) incurred in
defending a civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the manner
provided in paragraph (d) upon receipt of an undertaking by or on
behalf of the director or officer, employee or agent to repay
such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as
authorized in this Section 14.
(f) The indemnification and the advancement of expenses
provided by this Section 14 shall not be deemed exclusive of any
other rights to which those indemnified or seeking advancement of
expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) The Board of Directors may authorize, by a vote of a
majority of a quorum of the Board of Directors, the Corporation
to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her
in any such capacity, or arising out of his or her status as
such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions
of this Section 14.
(h) For the purposes of this Section 14, references to "the
Corporation" shall include, in addition to the resulting
Corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Section
14 with respect to the resulting or surviving Corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
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(i) For purposes of this Section 14, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving
at the request of the Corporation" shall include service as a
Director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he or she reasonably believed to be
in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner
"not opposed to the best interests of the Corporation" as
referred to in this section.
ARTICLE V
OFFICERS
========
Section 1. OFFICERS.
The officers of this Corporation shall be chosen by the
Board of Directors and shall include a President, a Secretary,
and a Treasurer. The Corporation may also have at the discretion
of the Board of Directors such other officers as are desired,
including a Chairman of the Board, one or more Vice Presidents,
one or more Assistant Secretaries and Assistant Treasurers, and
such other officers as may be appointed in accordance with the
provisions of Section 3 hereof. In the event there are two or
more Vice Presidents, then one or more may be designated as
Executive Vice President, Senior Vice President, or other similar
or dissimilar titles. At the time of the election of officers,
the Directors may by resolution determine the order of their
rank. Any number of offices may be held by the same person,
unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. ELECTION OF OFFICERS.
The Board of Directors, at its first meeting after each
annual meeting of stockholders, shall choose the officers of the
Corporation.
Section 3. SUBORDINATE OFFICERS.
The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices
for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board.
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Section 4. COMPENSATION OF OFFICERS.
The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors.
Section 5. TERM OF OFFICE; REMOVAL AND VACANCIES.
The officers of the Corporation shall hold office until
their successors are chosen and qualify in their stead. Any
officer elected or appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the
Board of Directors. If the office of any officer or officers
becomes vacant for any reason, the vacancy shall be filled by the
Board of Directors.
Section 6. CHAIRMAN OF THE BOARD.
The Chairman of the Board, if such an officer be elected,
shall, if present, preside at all meetings of the Board of
Directors and exercise and perform such other powers and duties
as may be from time to time assigned to him or her by the Board
of Directors or prescribed by these By-Laws. If there is no
President, the Chairman of the Board shall in addition be the
Chief Executive Officer of the Corporation and shall have the
powers and duties prescribed in Section 7 of this Article V.
Section 7. PRESIDENT.
Subject to such supervisory powers, if any, as may be given
by the Board of Directors to the Chairman of the Board, if there
be such an officer, the President shall be the Chief Executive
Officer of the Corporation and shall, subject to the control of
the Board of Directors, have general supervision, direction and
control of the business and officers of the Corporation. He or
she shall preside at all meetings of the stockholders and, in the
absence of the Chairman of the Board, or if there be none, at all
meetings of the Board of Directors. He or she shall be an ex-
officio member of all committees and shall have the general
powers and duties of management usually vested in the office of
President and Chief Executive Officer of corporations, and shall
have such other powers and duties as may be prescribed by the
Board of Directors or these By-Laws.
Section 8. VICE PRESIDENT.
In the absence or disability of the President, the Vice
Presidents in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the
Board of Directors, shall perform all the duties of the
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President, and when so acting shall have all the powers of and be
subject to all the restrictions upon the President. The Vice
Presidents shall have such other duties as from time to time may
be prescribed for them, respectively, by the Board of Directors.
Section 9. SECRETARY.
The Secretary shall attend all sessions of the Board of
Directors and all meetings of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for
that purpose, and shall perform like duties for the standing
committees when required by the Board of Directors. He or she
shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors
or these By-Laws. He or she shall keep in safe custody the seal
of the Corporation, and when authorized by the Board, affix the
same to any instrument requiring it, and when so affixed it shall
be attested by his or her signature or by the signature of an
Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the
Corporation and to attest the affixing by his or her signature.
Section 10. ASSISTANT SECRETARIES.
The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors, or if there be no such determination, the Assistant
Secretary designated by the Board of Directors, shall, in the
absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may
from time to time prescribe.
Section 11. TREASURER.
The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation
and shall deposit all moneys, and other valuable effects in the
name and to the credit of the Corporation, in such depositories
as may be designated by the Board of Directors. He or she shall
disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an
account of all of his or her transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board
of Directors, he or she shall give the Corporation a bond, in
such sum and with such surety or sureties as shall be
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satisfactory to the Board of Directors, for the faithful
performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
his or her possession or under his or her control belonging to
the Corporation.
Section 12. ASSISTANT TREASURER.
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of
Directors, or if there be no such determination, the Assistant
Treasurer designated by the Board of Directors, shall, in the
absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board of Directors may
from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
=====================
Section 1. CERTIFICATES.
Every holder of stock of the Corporation shall be entitled
to have a certificate signed by, or in the name of the
Corporation by, the Chairman or Vice Chairman of the Board of
Directors, or the President or a Vice President, and by the
Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder
in the Corporation.
Section 2. SIGNATURES ON CERTIFICATES.
Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent,
or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he or she were such
officer, transfer agent, or registrar at the date of issue.
Section 3. STATEMENT OF STOCK RIGHTS, PREFERENCES,
PRIVILEGES.
If the Corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the
powers, designations, preferences and relative, participating,
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optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of
stock, provided that, except as otherwise provided in section 202
of the General Corporation Law of Delaware, in lieu of the
foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who
so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 4. LOST CERTIFICATES.
The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the Person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall
require and/or to give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 5. TRANSFERS OF STOCK.
Subject to the provisions of the Certificate of
Incorporation, upon surrender to the Corporation, or the transfer
agent of the Corporation, of a certificate for shares duly
endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction
upon its books.
Section 6. FIXING RECORD DATE.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the
stockholders, or any adjournment thereof, or to express consent
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to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may
fix a record date which shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting, nor more
than sixty (60) days prior to any other action. A determination
of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; PROVIDED, HOWEVER, that the Board of Directors may fix a
new record date for the adjourned meeting.
Section 7. REGISTERED STOCKHOLDERS.
The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim or interest in such share on the part of
any other person, whether or not it shall have express or other
notice thereof, save as expressly provided by the laws of the
State of Delaware.
ARTICLE VII
INVESTMENT POLICY AND RESTRICTIONS
==================================
Section 1. INVESTMENT.
The Corporation intends to invest, directly or indirectly,
in such real estate investments as may be approved by the Board
from time to time. In order to create an initial investment
portfolio, the Corporation intends to acquire the properties and
other assets, subject to existing liabilities, of the California
Partnerships whose Limited Partners approve the Consolidation.
Subject to the restrictions of this Article VII, the
Corporation's investments may be acquired in such manner, through
such means and upon such terms and conditions as may be
determined by the Board, and such investments may include, but
are not limited to, direct acquisitions by the Corporation of
real estate interests as well as investments in corporations,
business trusts, general partnerships, limited partnerships,
joint ventures or other legal entities and other investments.
All investments made by the Corporation, except those pursuant to
Article VII, Section 4, must be approved by a majority of the
Directors or made in accordance with guidelines approved by the
Board and which are in effect at the time the investments are
made by the Corporation's management.
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Section 2. TAX TREATMENT AS A REIT.
As soon as the Corporation commences doing business, the
Corporation shall use its best efforts to be eligible for tax
treatment as a REIT under the Code, shall make such elections and
filings, and take such other actions as may be necessary, to be
treated as a REIT under the Code, and shall thereafter conduct
its business to continue to qualify as a REIT under the REIT
Provisions of the Code.
Section 3. NO LIABILITY TO QUALIFY AS REIT.
Although a general purpose of the Corporation is to qualify
as a REIT under the REIT Provisions of the Code, no Director,
officer, employee, agent or independent contractor of the
Corporation shall be liable for any act or omission resulting in
the loss of tax benefits under the Code.
Section 4. SPECIFIC INVESTMENTS.
Pending investment or reinvestment of the Corporation's
assets in the type of investments described in Article VII,
Section 1, the Corporation may invest its assets in investments
such as: (a) United States government securities, (b) bankers'
acceptances, (c) certificates of deposit, (d) bank repurchase
agreements covering securities of the United States government or
governmental agencies, (e) commercial paper rated A-1 (or the
equivalent) or better by Moody's Investors Services, Inc. or any
other nationally-recognized rating agency, (f) interest-bearing
time deposits in banks and thrift institutions, (g) money market
funds, (h) mortgage-backed or related securities issued or
guaranteed by the United States government or its agencies, (i)
debt securities or equity securities collateralized by debt
securities rated A-1 (or the equivalent) or better by Moody's
Investors Services, Inc. or any other nationally-recognized
rating agency, (j) other short- or medium-term liquid investments
or hybrid debt/equity securities approved by the Board, with the
advice of the Advisor, or (k) any combination of the foregoing
investments.
Section 5. RESERVES.
The Corporation may retain, as a permanent reserve, such
funds as the Board deems reasonable, in cash and in the types of
investments described in Section 4 of this Article VII.
Section 6. INVESTMENT RESTRICTIONS.
The Corporation shall not:
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(a) Invest in foreign currency, bullion, commodities or
commodity future contracts;
(b) Invest in contracts for the sale of real estate;
(c) Engage in underwriting or the agency distribution of
securities issued by others;
(d) Issue "redeemable securities" (as defined in Section
2(a)(32) of the Investment Company Act of 1940, as amended),
"face amount certificates of the installment type" (as defined in
Section 2(a)(15) thereof) or "periodic payment plan certificates"
(as defined in Section 2(a)(27) thereof); or
(e) Engage in short sales or trading activities in
securities, except for purposes of hedging the Company's short-
term investments and obligations.
Section 7. RESTRICTIONS UPON DEALINGS BETWEEN THE
CORPORATION AND INTERESTED PARTIES.
(a) GENERAL RESTRICTIONS. Except as provided in this
Section 7, the Corporation shall not engage in a transaction
described in this Section 7 with any Director, officer, the
Advisor, any Person owning or controlling ten percent (10%) or
more of any class of the Corporation's outstanding voting
securities, or any Affiliate of any of the aforementioned
(individually, the "Interested Party" and collectively, the
"Interested Parties"), except in compliance with the restrictions
contained in this Section 7. Any transaction between the
Corporation and any of the Interested Parties made in compliance
with the requirements of this Section 7 shall be valid
notwithstanding such relationship, and such Interested Party
shall not be under any disability from or have any liability as a
result of entering into any such transaction with the
Corporation.
(b) SALES TO THE CORPORATION. Except as provided in this
Paragraph (b), the Corporation shall not purchase property from
any of the Interested Parties, unless:
(i) Such transaction involves the acquisition of
assets or properties from any of the California Partnerships,
which transactions constitute a part of the Consolidation; or
(ii) As to any transaction not included within
Paragraph (i) above, after disclosure to the Board of the
interest of the Interested Party in the proposed transaction, a
majority of Directors not otherwise interested in such
transaction (including a majority of the Independent Directors)
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has in good faith determined that (x) the property is being
offered to the Corporation upon terms fair and commercially
reasonable to the Corporation and at a price not greater than the
cost of such asset to the selling party or its Appraised Value,
and (y) the cost of such property and any improvements thereof is
clearly established at the time of the proposed transaction and,
regardless of such property's Appraised Value, if such cost is
less than the price to be paid by the Corporation, some material
change has occurred to the property which would increase its
value after the selling party acquired an interest therein. The
passage of time, increases in gross revenues, substantial
repairs, rehabilitation or improvements, and the receipt of
permits, consents, approvals, licenses and other authorizations
from governmental agencies or bodies, may be regarded as events
increasing the value of the property and supporting a price in
excess of the selling entity's costs.
(c) SALES BY THE CORPORATION. The Corporation shall not
sell property to any Interested Parties, unless the interest of
any such Interested Party in such proposed transaction has been
disclosed to the Board and a majority of Directors not otherwise
interested in such transaction (including a majority of the
Independent Directors) have determined in good faith that the
transaction is fair, competitive and commercially reasonable to
the Corporation and on terms and conditions not less favorable
than the terms and conditions that would have been made available
from unaffiliated third parties.
(d) LOANS TO THE CORPORATION. The Corporation shall not
borrow funds from, any of the Interested Parties unless, after
disclosure to the Board of the interest of the Interested Party
in the proposed transaction, a majority of Directors not
otherwise interested in such transaction (including a majority of
the Independent Directors) have determined in good faith that the
transaction is fair, competitive and commercially reasonable to
the Corporation and on terms and conditions no less favorable to
the Corporation than loans between unaffiliated lenders and
borrowers under the same circumstances; PROVIDED, HOWEVER, that
nothing in this Paragraph (d) shall be deemed to prohibit,
restrict or otherwise limit the Corporation's right to issue
Notes to the Limited Partners of the Participating Partnerships
as contemplated by the Consolidation.
Section 8. CORPORATION'S RIGHT TO BORROW FUNDS.
Subject to the restrictions contained in this Section 8, the
Corporation may, at any time, at the discretion of the Board,
create, incur, assume, guarantee, extend the maturity of or
otherwise become liable with respect to any Indebtedness, on a
secured or unsecured basis, and in connection therewith execute,
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issue and deliver promissory notes, commercial paper, notes,
debentures, bonds and other debt obligations (which may be
convertible into shares of capital stock or other equity
interests or be issued together with warrants to acquire shares
of capital stock or other equity interests). Notwithstanding the
foregoing, the Corporation and its Subsidiaries shall not,
however, directly or indirectly, create, incur, assume,
guarantee, extend the maturity of or otherwise become liable with
respect to any Indebtedness (other than Indebtedness between the
Corporation and any of its Wholly-Owned Subsidiaries), if, as a
result of such event and after giving pro forma effect to the
issuance of such Indebtedness, the consolidated Indebtedness of
the Corporation and its consolidated Subsidiaries computed in
accordance with generally accepted accounting principles would
exceed fifty percent (50%) of Total Assets prior to such event,
except for (a) Indebtedness incurred to finance all or a portion
of the Consolidation Expenses; (b) Indebtedness incurred to
refinance Indebtedness previously incurred by the Corporation or
any of its Subsidiaries (which Indebtedness was permitted at the
time it was incurred); provided however, that this clause (b)
shall not include the refinancing of Indebtedness incurred by the
Corporation or its Subsidiaries to finance all or a portion of
the Consolidation Expenses; and (c) Indebtedness incurred to make
distributions to stockholders in order to preserve the
eligibility of the Corporation as a REIT under the REIT
Provisions of the Code. The restriction upon the Corporation's
authorization to borrow funds is to be applied at the time the
borrowing is obtained by the Corporation. Any borrowing by the
Corporation permitted at the time such borrowing is made does not
become unauthorized, or constitute a violation of these By-Laws,
even if, subsequent to the Corporation's borrowing such funds,
the Corporation's Indebtedness exceeds the applicable limitation,
whether or not such excess is due, in whole or in part, to any
accrued but unpaid interest, late fees or penalties, finance
charges or other amounts due with respect to the Corporation's
new borrowing or previous borrowings. Notwithstanding any other
provision of these By-Laws, the Board at any time may amend these
By-Laws to increase, decrease or dispense with the requirements
of this Section 8 of Article VII. The Board shall review the
status of Corporation's Indebtedness at least quarterly.
Section 9. PURSUIT OF ANCILLARY SERVICES.
(a) The Corporation may provide any Ancillary Services to
its tenants or others as long as the Board believes in good faith
that the Corporation's pursuit of such Ancillary Services would
not jeopardize the Corporation's qualification as a REIT under
the Code.
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(b) In the event that the Corporation's pursuit of one or
more of the Ancillary Services might jeopardize the qualification
of the Corporation as a REIT under the Code, the Corporation may,
in lieu of offering such Ancillary Services directly:
(i) Restructure the manner in which such Ancillary
Services are offered to the Corporation's tenants or others,
alter the pricing of other Ancillary Services or take such other
action as the Corporation deems necessary;
(ii) Invest in one or more other entities which
directly provide the Ancillary Services to the Corporation's
tenants or others; or
(iii) Permit others, including Interested Parties, to
offer the Ancillary Services to the Corporation's customers or
others or to use the Corporation's properties as a site for
offering such services, if such permission is granted in
compliance with the terms of Paragraph (c) of this Section 9;
PROVIDED, HOWEVER, that, in each such instance, the Board has
received an opinion from tax counsel or a ruling from the IRS
that such action, subject to the qualifications and restrictions
imposed by the Board, and such other assumptions as the Board may
reasonably establish, would not disqualify the Corporation from
taxation as a REIT under the Code.
(c) The Corporation may permit one or more third parties in
addition to the Advisor (including entities in which a Director,
officer or an Affiliate thereof has an interest), to offer
Ancillary Services to its customers or others, or to use the
Corporation's properties as a site for offering such Ancillary
Services, if the Board has in good faith made the following
determinations:
(i) The Corporation does not wish, or consider it
advisable, to offer the Ancillary Services directly to its
tenants or others or has determined that rendering such Ancillary
Services would jeopardize the qualification of the Corporation as
a REIT under the Code;
(ii) Permitting others to render such Ancillary
Services would likely increase the rental revenues or other
income derived from the ownership of the Corporation's
properties, enhance the competitiveness of the Corporation or
otherwise provide economic benefits, directly or indirectly, to
the Corporation; and
(iii) The party or parties rendering the Ancillary
Services are competent to do so, have experience in rendering
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such Ancillary Services and have entered into a written contract
with the Corporation with respect to the provision of the
Ancillary Services, having terms and conditions deemed fair and
equitable by the Board.
Section 10. INVESTMENT IN CORPORATION'S SHARES.
The Corporation may, at any time, at the discretion of the
Board, invest in any class or series of the Common Stock or
Preferred Stock, or in any of its promissory notes, commercial
paper, Notes, debentures, bonds or other debt obligations, for
the purpose of supporting the value of any such securities or for
any other purpose.
ARTICLE VIII
INDEPENDENT ACTIVITIES
======================
Section 1. SHARES HELD BY DIRECTORS AND OFFICERS.
Any Director or officer may acquire, own, hold and dispose
of shares of capital stock in the Corporation, for his or her
individual account, and may exercise all rights of a stockholder
to the same extent and in the same manner as if he or she were
not a Director or officer.
Section 2. BUSINESS INTERESTS AND INVESTMENTS OF DIRECTORS.
Subject to the limitations contained in this Section 2, any
Director who is not an officer of the Corporation may have
personal business interests and may engage in personal business
activities, which interests and activities may include the
acquisition, syndication, holding, management, operation or
disposition, for his or her own account or for the account of
others, of interests in real property or Persons engaged in the
real estate business, even if the same directly compete with the
actual business being conducted by the Corporation, and is not
required to present to the Corporation any business opportunity
which comes to him or her even though such opportunity is within
the Corporation's investment policies.
Section 3. OTHER BUSINESS RELATIONSHIPS OF DIRECTOR.
Subject to the provisions of Article VII, any Director or
officer may be interested as trustee, officer, director,
stockholder, partner, member, advisor or employee, or otherwise
have a direct or indirect interest in any Person who may be
engaged to render advice or services to the Corporation, and may
receive compensation from such Person as well as compensation as
Director, officer or otherwise hereunder, and no such activity
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shall be deemed to conflict with his or her duties and powers as
Director or officer.
ARTICLE IX
THE ADVISOR
===========
Section 1. ENGAGEMENT OF ADVISOR.
The Corporation intends to engage the Advisor to provide
investment advice, to provide administrative services, and to
conduct the day-to-day affairs of the Corporation. The Board
shall have the power to engage the Advisor in accordance with
conditions set forth in this Article IX.
Section 2. ADVISORY CONTRACT.
The Board is authorized to enter into an advisory contract,
which shall be terminable by the Corporation, or the Advisor upon
sixty (60) days' written notice with or without cause (subject to
the payment of any required termination fees), with the Advisor
for an initial term of not to exceed one year, which term may be
extended (automatically or otherwise) for successive one-year
terms. The Directors shall have a fiduciary duty to the
stockholders to supervise the relationship of the Corporation
with the Advisor. The Independent Directors shall not less than
annually review and determine that the compensation which the
Corporation contracts to pay to the Advisor is reasonable in
relation to the nature and quality of services performed. The
Independent Directors shall also supervise the performance of the
Advisor and the compensation paid to it by the Corporation to
determine that the provisions of such contract are being carried
out. The findings of the Independent Directors shall be recorded
in the minutes of the Directors. Each such determination shall
be based on factors deemed relevant by the Independent Directors,
including but not limited to:
(a) the size of the advisory fee in relation to the size,
composition and profitability of the portfolio of the
Corporation;
(b) the success of the Advisor in generating opportunities
that meet the investment objectives of the Corporation;
(c) the rates charged to other REITs and to investors other
than REITs by advisors performing similar services;
(d) additional revenues realized by the Advisor and its
Affiliates through their relationship with the Corporation,
Page 63 of 72
<PAGE>
including loan administration, underwriting or broker
commissions, servicing, engineering, inspection and other fees,
whether paid by the Corporation or by others with whom the
Corporation does business;
(e) the quality and extent of service and advice furnished
by the Advisors;
(f) the performance of the investment portfolio of the
Corporation, including income, conservation or appreciation of
capital, frequency of problem investments and competence in
dealing with distress situations; and
(g) the quality of the portfolio of the Corporation in
relation to the investments generated by the Advisor for its own
account.
Section 3. CHANGE OF ADVISORS.
Any advisory contract with the Advisor shall provide that in
the event of the termination of such contract, the Advisor will
cooperate with the Corporation and take all reasonable steps
requested to assist the Directors in making an orderly transition
of the advisory function. The Board of Directors shall determine
that any successor Advisor possess sufficient qualifications to
perform the advisory function for the Corporation and to justify
the compensation provided for in its advisory contract with the
Corporation.
ARTICLE X
SELF-ADMINISTERED REIT
======================
Notwithstanding the provisions of Article IX, which confirm
the intention of the Corporation to engage an Advisor, the
Corporation may elect to operate as a self-administered REIT upon
a majority vote of Directors (including a majority of Independent
Directors), in which event the Corporation will not engage an
Advisor to be responsible for the day-to-day business affairs of
the Corporation and for providing investment advice on the
acquisition, development, management, finance and disposition of
the Corporation's assets, but such management functions will be
performed, in whole or in part, by the Corporation's officers and
employees. Subject to the terms of this Article X, the Board
shall determine the extent to which services necessary, advisable
or prudent to the Corporation's business, including services
related to the acquisition, development, financing, management,
administration and disposition of the Corporation's assets,
should be performed internally by the Corporation's officers and
Page 64 of 72
<PAGE>
employees or handled through the engagement of independent
consultants, experts, contractors or other agents.
ARTICLE XI
GENERAL PROVISIONS
==================
Section 1. DIVIDENDS.
Dividends upon the capital stock of the Corporation, subject
to the provisions of the Certificate of Incorporation, if any,
may be declared by the Board of Directors at any regular or
special meeting, pursuant to law. Dividends may be paid in cash,
in property, or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation.
Section 2. PAYMENT OF DIVIDENDS; DIRECTORS' DISCRETION TO
ESTABLISH RESERVES.
Before payment of any dividend there may be set aside out of
any funds of the Corporation available for dividends such sum or
sums as the Directors from time to time, in their absolute
discretion, think proper as a reserve fund to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the
Directors shall think conducive to the interests of the
Corporation, and the Directors may abolish any such reserve.
Section 3. DUTIES.
For the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board
may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than thirty (30) (or the
maximum number permitted by applicable law) days prior to such
action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the
close of business on the day on which the Board adopts the
resolution relating thereto. Any distribution of income or
capital assets of the Corporation to stockholders will be
accompanied by a written statement disclosing the source of the
funds distributed. If, at the time of distribution, this
information is not available, a written explanation of the
relevant circumstances will accompany the distribution and a
written statement disclosing the source of funds distributed will
Page 65 of 72
<PAGE>
be sent to the stockholders not later than sixty (60) days after
the close of the fiscal year in which the distribution was made.
Section 4. CHECKS.
All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 5. FISCAL YEAR.
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 6. CORPORATE SEAL.
The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words
"Corporate Seal, Delaware." Said seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
Section 7. MANNER OF GIVING NOTICE.
Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is
required to be given to any Director or stockholder, it shall not
be construed to mean personal notice, but such notice may be
given in writing, by mail, addressed to such Director or
stockholder, at his or her address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to Directors may
also be given by telegram.
Section 8. WAIVER OF NOTICE.
Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation
or of these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed to be equivalent.
Section 9. ANNUAL STATEMENT.
The Board shall cause an annual report to be sent to the
stockholders not later than one hundred twenty (120) days after
the close of the fiscal year adopted by the Corporation. This
report shall be sent at least thirty (30) days before the annual
meeting of stockholders to be held during the next fiscal year
Page 66 of 72
<PAGE>
and in the manner specified in Section 7 of Article XI hereof for
giving notice to stockholders of the Corporation. The annual
report shall contain financial statements prepared in accordance
with generally accepted accounting principles which are audited
and reported on by independent certified public accountants. So
long as the Corporation engages an Advisor to administer its
affairs, the annual report shall include the aggregate amount of
advisory fees and the aggregate amount of other fees paid to the
Advisor and its Affiliates, including fees or charges paid to the
Advisor and its Affiliates by third parties doing business with
the Corporation.
ARTICLE XII
AMENDMENTS
==========
Section 1. AMENDMENT BY DIRECTORS OR STOCKHOLDERS.
These By-Laws may be amended or repealed and new By-Laws may
be adopted by a majority of the Board; PROVIDED, HOWEVER, that
Section 3 of Article VI (relating to the written statement the
Corporation is required to furnish to stockholders), Article VII
except for Section 8 thereof (relating to investment policy and
restrictions), Section 9 of Article XI (relating to an annual
report), the definitions in Article I, to the extent that such
definitions are to be used in any of the Sections cited in this
Article XII (relating to amendments to the By-Laws), may not be
amended, repealed or modified, or inconsistent provisions adopted
with respect thereto, without the affirmative vote of the
stockholders holding a majority of the outstanding shares of each
class entitled to vote. The stockholders may also amend and
repeal these By-Laws or adopt new By-Laws. All By-Laws made by
the Board may be amended or repealed by the stockholders.
ARTICLE XIII
MISCELLANEOUS
=============
Section 1. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
The provisions of these By-Laws are separable, and if the
Board shall determine, with the advice of counsel, that any one
or more of such provisions (the "Conflicting Provisions") are in
conflict with the REIT Provisions of the Code, the Delaware
General Corporation Law or other applicable federal or Delaware
laws and regulations, the Conflicting Provisions shall be deemed
never to have constituted a part of these By-Laws; PROVIDED,
HOWEVER, that such determination of the Directors shall not
affect or impair any of the remaining provisions of these By-Laws
or render invalid or improper any action taken or omitted
Page 67 of 72
<PAGE>
(including, but not limited to, the election of Directors) prior
to such determination. Such determination shall become effective
when a certificate, signed by a majority of the Directors setting
forth any such determination and reciting that it was duly
adopted by the Directors, shall be filed with the books and
records of the Corporation. The Directors shall not be liable
for failure to make any determination under this Section 1 of
Article XIII. Nothing in this Section 1 shall in any way limit
or affect the rights of the Directors or the stockholders to
amend these By-Laws.
Section 2. RELIANCE UPON LEGAL ADVICE.
The Directors, including the Independent Directors, may
retain one or more legal counsel to assist them in making any
determination required by them, or which they are permitted to
make, pursuant to the terms of these By-Laws. Such directors
shall not be liable for any loss caused by or resulting from any
action taken or omitted in reliance upon any legal opinion
rendered by such counsel, so long as the selection of the legal
counsel and reliance on the advice was in good faith.
In making any such determinations, the Directors shall not,
however, be obligated to follow the advice of any legal counsel
engaged to advise them.
Section 3. DELAWARE LAW TO GOVERN.
Unless the context requires otherwise, the general
provisions, rules of construction and definitions in the Delaware
General Corporation Law shall govern the construction of these
By-Laws.
Section 4. EFFECTIVENESS OF CERTAIN PROVISIONS.
The provisions of Section 10 of Article III, Article VII,
Article IX and Article X of these By-Laws shall become effective
immediately upon consummation of the Consolidation but shall have
no effect prior to that date.
Page 68 of 72
<PAGE>
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am duly elected and acting Secretary of Realty
Income Corporation, a Delaware corporation; and
(2) That the foregoing bylaws, comprising 31 pages,
constitute the bylaws of said corporation as duly adopted by the
written consent of the stockholders of said corporation as of
June 6, 1994.
IN WITNESS WHEREOF, I have hereunto subscribed my name this
6th day of June, 1994.
/s/THOMAS A. LEWIS
- - --------------------------
Thomas A. Lewis, Secretary
Page 69 of 72
<PAGE>
AMENDMENT TO BYLAWS OF REALTY INCOME CORPORATION
Section 7(b)(i) of Realty Income Corporation's bylaws has
been amended to read in its entirety as follows:
(b) Sales to the Corporation. Except as provided in this
Paragraph (b), the Corporation shall not purchase property from
any of the Interested Parties, unless:
(i) Such transaction involves the acquisition of
assets or properties from any of the California Partnerships,
which transactions constitute a part of the Consolidation, or the
acquisition of or merger with R.I.C. Advisor, Inc. so long as the
approval of such transaction is recommended by a majority vote of
a committee comprising the independent members of, and is
approved by, the Board of Directors following the receipt by the
Board of a favorable report as to the fairness to the
stockholders of the Corporation of the consideration to be paid
in connection with such transaction, and so long as such
transaction is approved by stockholders holding at least a
majority of the shares of Common Stock of the Corporation.
Page 70 of 72
<PAGE>
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am duly elected and acting Secretary of Realty
Income Corporation, a Delaware corporation; and
(2) That Article VII, Section 7(b)(i) of the bylaws of said
corporation has been duly amended as set forth on the foregoing
page by vote of the stockholders at the annual meeting of the
stockholders of said corporation on August 17, 1995.
IN WITNESS WHEREOF, I have hereunto subscribed my name this
17th day of August, 1995.
/s/MICHAEL R. PFEIFFER
- - ------------------------------
Michael R. Pfeiffer, Secretary
Page 71 of 72
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<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> SEP-30-1995
<CASH> 2,831,000
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0
0
<OTHER-SE> 325,806,000
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