<PAGE> 1
As filed with the Securities and Exchange Commission on December 23, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN INDUSTRIAL PROPERTIES REIT
(Exact Name of Registrant as Specified in its Charter)
TEXAS 75-6335572
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification Number)
6210 N. BELTLINE ROAD 75063
SUITE 170 (Zip Code)
IRVING, TEXAS
(Address of Principal
Executive Officers)
DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE TRUST MANAGERS
(Full Title of the Plan)
CHARLES W. WOLCOTT
CHIEF EXECUTIVE OFFICER
AMERICAN INDUSTRIAL PROPERTIES REIT
6210 N. BELTLINE, SUITE 170
IRVING, TEXAS 75063
(Name and Address of Agent for Service)
(972) 756-6000
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
BRYAN L. GOOLSBY
GINA E. BETTS
LIDDELL, SAPP, ZIVLEY, HILL
& LABOON, L.L.P.
2001 ROSS AVENUE, SUITE 3000
DALLAS, TEXAS 75201
(214) 849-5500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities to be Amount to be Offering Price Per Aggregate Registration
registered Registered Share Offering Price Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation $1,000,000 N/A N/A $278
Obligations (1)
=================================================================================================================
</TABLE>
(1) Represents obligations of the Registrant to make distributions of deferred
compensation in the future in cash in accordance with the terms of the
Deferred Compensation Plan for Non-Employee Trust Managers of the
Registrant (the "Plan").
<PAGE> 2
REGISTRATION STATEMENT ON FORM S-8
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I of Form S-8 to be contained in a prospectus
meeting the requirements of Section 10(a) of the Securities Act of 1933 is
omitted from this Registration Statement in accordance with the Note to
Part I of Form S-8.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Incorporated by reference in this Registration Statement are the
following documents filed with the Securities and Exchange Commission (the
"Commission"):
(a) American Industrial Properties REIT's (the "Trust") Annual Report
on Form 10-K for the fiscal year ended December 31, 1997;
(b) The Trust's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998; and
(c) The Trust's Current Reports on Form 8-K, including any amendments
thereto, filed on January 20, 1998, February 13, 1998, February
25, 1998, March 23, 1998, April 20, 1998, May 14, 1998, May 22,
1998, June 17, 1998, August 5, 1998, September 17, 1998, October
23, 1998, October 29, 1998 and November 24, 1998.
All documents subsequently filed by the Trust pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall also be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The obligations registered hereunder (the "Obligations") are general,
unsecured obligations of the Trust to pay deferred compensation in the future in
accordance with the terms of the Trust's Deferred Compensation Plan for Non-
Employee Trust Managers (the "Plan"), which is filed as Exhibit 4 to this
Registration Statement. The Plan sets forth a description of the Obligations and
is incorporated herein by reference in its entirety in response to this Item 4,
pursuant to Rule 411(b)(3) promulgated under the Securities Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsections (B) and (O) of Section 9.20 of the Texas Real Estate
Investment Trust Act, as amended (the "Act"), empowers a real estate investment
trust to indemnify any person who was, is, or is threatened to be made a named
defendant or respondent in any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit, or proceeding, or any inquiry
or investigation that can lead to such an action, suit or proceeding because the
person is or was a trust manager, officer, employee or agent of the real estate
investment trust or is or was serving at the request of the real estate
investment trust as a trust manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another real
estate investment trust, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, against
expenses (including court costs and attorney fees), judgments, penalties, fines
and settlements provided that he conducted himself in good faith and reasonably
believed his conduct was in, or in the case
<PAGE> 4
of non-trust manager indemnitees, not opposed to, the best interests of the real
estate investment trust, and in the case of any criminal proceeding, had no
reasonable cause to believe that his conduct was unlawful.
The Act further provides that, except to the extent otherwise permitted
by the Act, a person may not be indemnified in respect of a proceeding in which
the person is found liable on the basis that personal benefit was improperly
received by him or in which the person is found liable to the real estate
investment trust. Indemnification pursuant to Subsection (B) of Section 9.20 of
the Act is limited to reasonable expenses actually incurred and may not be made
in respect of any proceeding in which the person has been found liable for
willful or intentional misconduct in the performance of his duty to the real
estate investment trust if he is found liable to the real estate investment
trust or liable on the basis that an improper personal benefit was received.
Subsection (C) of Section 15.10 of the Act provides that a trust
manager shall not be liable for any claims or damages that may result from his
acts in the discharge of any duty imposed or power conferred upon him by the
real estate investment trust, if, in the exercise of ordinary care, he acted in
good faith and in reliance upon information, opinions, reports, or statements,
including financial statements and other financial data, concerning the real
estate investment trust, that were prepared or presented by officers or
employees of the real estate investment trust, legal counsel, public
accountants, investment bankers, or certain other professionals, or a committee
of trust manager of which the trust manager is not a member. In addition, no
trust manager shall be liable to the real estate investment trust for any act,
omission, loss, damage, or expense arising from the performance of his duty to a
real estate investment trust, save only for his own willful misfeasance, willful
malfeasance or gross negligence.
Article Sixteen of the Trust's Third Amended and Restated Declaration
of Trust provides that the Trust shall indemnify officers and trust managers, as
set forth below:
(a) The Trust shall indemnify, to the fullest extent that
indemnification is permitted by Texas law in accordance with the
Trust's Bylaws, every person who is or was a trust manager or officer
of the Trust and any person who is or was serving at the request of the
Trust or its corporate predecessor as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary
of another real estate investment trust, foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise with respect to all
reasonable costs and expenses incurred by such person as a result of
such person being made or threatened to be made a defendant or
respondent in an action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such
action, suit or proceeding, and any inquiry or investigation that could
lead to such an action, suit or proceeding, by reason of his holding or
having held a position named above in this paragraph as well as against
all judgments, penalties, fines and amounts paid in settlement.
(b) If the indemnification provided in paragraph (a) is either
(i) insufficient to cover all costs and expenses incurred by any person
named in such paragraph as a result of such person being made or
threatened to be made a defendant or respondent in a proceeding by
reason of his holding or having held a position named in such paragraph
or (ii) not permitted by Texas law, the Trust shall indemnify, to the
fullest extent that indemnification is permitted by Texas law, every
person who is or was a trust manager or officer of the Trust and any
person who is or was serving at the request of the Trust or its
corporate predecessor as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another
real estate investment trust, foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise with respect to all costs and expenses
incurred by such person as a result of such person being made or
threatened to be made a defendant or respondent in a proceeding by
reason of his holding or having held a position named above in this
paragraph.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE> 5
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 The Trust's Third Amended and Restated Declaration of Trust
(filed as Exhibit 3.1 to the Trust's Registration Statement on
Form S-4 dated July 22, 1997 (Registration No. 33-31823), and
incorporated by reference herein)
3.2 The Trust's Fifth Amended and Restated Bylaws (filed as
Exhibit 3.1 to the Trust's Current Report on Form 8-K dated
January 29, 1998 (File No. 1-09016) and incorporated by
reference herein)
4 The Trust's Deferred Compensation Plan for Non-Employee Trust
Managers
5 Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
23.1 Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
(included in their opinion filed as Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Easley, Endres, Parkhill & Brackendorff, P.C.
23.4 Consent of KPMG Peat Marwick LLP
23.5 Consent of Deloitte & Touche LLP
23.6 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (included on signature page)
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes as follows:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
4. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
<PAGE> 6
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
5. To deliver or cause to be delivered with the prospectus, to each
person whom the prospectus is sent or given, the latest annual report, to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act or 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
6. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Dallas, state of Texas, on this 21st day of December,
1998.
AMERICAN INDUSTRIAL PROPERTIES REIT
By: /s/ Charles W. Wolcott
-------------------------------------
Charles W. Wolcott
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each of the undersigned officers and
directors of the registrant hereby constitutes Charles W. Wolcott and Marc A.
Simpson, any of whom may act, his true and lawful attorneys-in-fact with full
power to sign for him and in his name in the capacities indicated below and to
file any and all amendments to the registration statement filed herewith, making
such changes in the registration statement as the registrant deems appropriate,
and generally to do all such things in his name and behalf in his capacity as an
officer and director to enable the registrant to comply with the provision of
the Securities Act of 1933 and all requirements of the Securities and Exchange
Commission.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Charles W. Wolcott Trust Manager, President and Chief December 21, 1998
- --------------------------------------- Executive Officer (Principal Executive
Charles W. Wolcott Officer)
/s/ Marc A. Simpson Senior Vice President and Chief Financial December 21, 1998
- --------------------------------------- Officer, Secretary and Treasurer
Marc A. Simpson (Principal Financial and Accounting
Officer)
/s/ Scott A. Wolstein Trust Manager, Chairman of the Board of December 21, 1998
- --------------------------------------- Trust Managers
Scott A. Wolstein
/s/ Albert T. Adams Trust Manager December 21, 1998
- ---------------------------------------
Albert T. Adams
/s/ William H. Bricker Trust Manager December 21, 1998
- ---------------------------------------
William H. Bricker
/s/ T. Patrick Duncan Trust Manager December 21, 1998
- ---------------------------------------
T. Patrick Duncan
/s/ Robert H. Gidel Trust Manager December 21, 1998
- ---------------------------------------
Robert H. Gidel
/s/ Robert E. Giles Trust Manager December 21, 1998
- ---------------------------------------
Robert E. Giles
/s/ Edward B. Kelley Trust Manager December 21, 1998
- ---------------------------------------
Edward B. Kelley
/s/ Stanley J. Kraska, Jr. Trust Manager December 21, 1998
- ---------------------------------------
Stanley J. Kraska, Jr.
/s/ Russell C. Platt Trust Manager December 21, 1998
- ---------------------------------------
Russell C. Platt
/s/ James A. Schoff Trust Manager December 21, 1998
- ---------------------------------------
James A. Schoff
</TABLE>
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 The Trust's Third Amended and Restated Declaration of Trust
(filed as Exhibit 3.1 to the Trust's Registration Statement on
Form S-4 dated July 22, 1997 (Registration No. 33-31823), and
incorporated by reference herein)
3.2 The Trust's Fifth Amended and Restated Bylaws (filed as
Exhibit 3.1 to the Trust's Current Report on Form 8-K dated
January 29, 1998 (File No. 1-09016) and incorporated by
reference herein)
4 The Trust's Deferred Compensation Plan for Non-Employee Trust
Managers
5 Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
23.1 Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
(included in their opinion filed as Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Easley, Endres, Parkhill & Brackendorff, P.C.
23.4 Consent of KPMG Peat Marwick LLP
23.5 Consent of Deloitte & Touche LLP
23.6 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (included on signature page)
</TABLE>
<PAGE> 1
EXHIBIT 4
DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE TRUST MANAGERS
American Industrial Properties REIT (the "Trust") desires to establish
a Deferred Compensation Plan (the "Plan") for Non-Employee Trust Managers (the
"Eligible Trust Manager") to assist it in attracting and retaining persons of
competence and stature to serve as outside Trust Managers by enabling them to
defer receipt of the fees payable to them by the Trust for their services as
Trust Managers.
Therefore, the Trust hereby adopts the Plan as hereinafter set forth:
1. Effective Date. The Plan shall apply to all elections to defer
compensation made after its adoption and shall apply to all Eligible Trust
Managers' fees payable with respect to periods commencing with the Trust's
fiscal quarter which begins October 1, 1998.
2. Participation. Each Eligible Trust Manager of the Trust (a) who is
duly elected or appointed to the Trust's Board of Trust Managers and (b) who
receives fees for services as a Trust Manager, may elect to defer receipt of
fees otherwise payable to him or her, as provided for in the Plan. Each such
Eligible Trust Manager who elects to defer fees shall be referred to as a
"Participant" in the Plan.
3. Administration. The Board of Trust Managers appoints Marc A. Simpson
and Charles W. Wolcott, each of whom is not eligible to become a Participant, to
act as the Administrator of the Plan (the "Administrators"). The Administrators
shall serve at the pleasure of the Board of Trust Managers and shall administer,
construe and interpret the Plan. The Administrators shall not be liable for any
omission or act omitted or done, or determination made in good faith. The Board
of Trust Managers shall have the power to designate additional or replacement
Administrators at its discretion.
4. Deferrals. (a) Deferral Election. Any Eligible Trust Manager may
file with the Administrators of the Plan, prior to January 1 of each year
(except for the first year of the existence of the Plan, for which filing must
be made by the 5th day after the actual adoption of the Plan) an election in
writing to participate in the Plan for that year or for that year and succeeding
years. Each Eligible Trust Manager who first becomes eligible to participate
after the date of the adoption of this Plan may make an election for the portion
of the year in which he or she first became eligible with respect to any
unearned fees for services yet to be rendered after the date of such election.
When a deferral election is filed, no fees will be paid for services so
designated for that year (or portion thereof) or, if the election so provides,
for that year and for succeeding years. If an election has been filed to
participate in the Plan for succeeding years and a Participant wishes to
discontinue deferral, an election to terminate participation in the Plan for any
year must be filed prior to January 1 of the year in which such termination is
to take effect.
(b) Accounting. The Trust shall maintain appropriate records which
shall list and reflect each entry debited or credited to each Participant's Plan
account ("Deferral Accounts"). The Trust shall credit to each Participant's
Deferral Account an amount equivalent
1
<PAGE> 2
EXHIBIT 4
to a number of hypothetical Common Shares of the Trust ("Common Shares") as if
the fees that would have been paid to him or her, if he or she had not elected
to participate in the Plan, were used to purchase the Common Shares. The
valuation of such Common Shares shall be determined as provided in this Section
4(c) below. The credit shall be made on the date on which the fee would have
been paid absent a deferral election. No monetary funds or actual Common Shares
shall be segregated into the Deferral Account of Participants and such Deferral
Accounts shall represent only a general unsecured obligation of the Trust to
make distributions in the future as provided in the Plan.
(c) Valuation. Until such time that the first distribution is made to a
Participant, the amounts credited to a Deferral Account of such Participant
shall be increased or decreased as measured by the market value of the Common
Shares. Each amount credited to a Deferral Account shall be assigned a number of
"Share Units" (including fractions of a Common Share) determined by dividing the
amount credited to the Deferral Account, whether in lieu of payment of fees for
service as a Trust Manager or as a dividend or other distribution attributable
to such Share Units, by the fair market value of a share of the Trust's Common
Shares on the date of credit. Fair market value shall be the mean between the
high and low selling price of a share of the Trust's Common Shares on the New
York Stock Exchange on the applicable date or, if no sales occurred on such
date, on the most recent earlier date on which sales occurred. Each Share Unit
shall have the value of a Common Share of the Trust. The number of Share Units
shall be adjusted to reflect share splits, share dividends or other capital
adjustments effected without receipt of consideration by the Trust.
5. Distribution.
(a) Election. A Participant shall elect in writing, at the time he or
she makes each deferral election under subparagraph 4(a), the year in which
distribution of the credits to his or her Deferral Account to which the deferral
election relates shall commence ("Distribution Commencement Date"), and whether
distribution will be made in a lump sum or in installments, as permitted in the
second succeeding sentence of this Section 5(a).
(b) Limitation. In no event shall a Participant be allowed to elect a
Distribution Commencement Date that may commence any earlier than the January 1
following the year in which the Participant attains age 55, and any later than
the January 1 following the year in which the Participant attains age 72.
(c) Cash Value. On the Distribution Commencement Date the number of
Share Units shall be converted to a cash amount equal to the fair market value
of the total of the number of Share Units reflected in a Participant's Deferral
Account on such date. Beginning on the Distribution Commencement Date, the
relevant Deferral Account shall not be credited with any additional Share Units.
(d) Interest. Beginning with the Distribution Commencement Date and
immediately prior to the first distribution to a
2
<PAGE> 3
EXHIBIT 4
Participant and continuing thereafter, amounts credited to the Deferral Account
of such Participant shall be credited with interest, computed quarterly,
calculated at a rate per annum for each fiscal quarter of the Trust equal to the
prime rate of interest published in The Wall Street Journal on the first
business day of that quarter. Payment may be made in one lump sum, or in five or
ten equal annual installments of the Deferral Account balance allocated to such
installment payments determined as of the December 31 immediately preceding
commencement of distribution, with each payment accompanied by an interest
credited during the period preceding payment of the installment.
(e) Timing and Form of Distribution. The time of and method of
distribution of benefits may vary with each separate election, but each election
shall be irrevocable. The Deferral Accounts shall not represent rights to
acquire the Trust's Common Shares.
All distributions under the Plan shall only be made in cash.
6. Death or Disability. (a) If a Participant's service is terminated by
reason of death or disability prior to the distribution of any portion of his or
her benefits, the Distribution Commencement Date as to such Participant shall be
a date that falls within 90 days of the date of service termination, as
determined by the Plan Administrators. Any distribution under the Plan in such
event shall be made to the Participant (or to the beneficiary or beneficiaries
in the event of death). Distribution shall be made in accordance with the method
of distribution elected by the Participant pursuant to paragraph 3 hereof. If a
Participant's death or disability occurs after distribution of benefits
hereunder has begun, the Trust shall continue to make distributions to the
Participant (or to the beneficiary or beneficiaries in the event of death) in
accordance with the methods of distribution elected by the Participant pursuant
to paragraph 5 hereof.
(b) Each Participant may designate one or more beneficiaries to receive
distributions in the event of Participant's death by filing with the Trust a
beneficiary designation on a form provided. The designated beneficiary or
beneficiaries may be changed by a Participant at any time prior to his or her
death by the delivery to the Trust of a new beneficiary designation form. If no
beneficiary shall have been designated, or if no designated beneficiary shall
survive the Participant, distributions pursuant to this provision shall be made
to the Participant's estate.
7. Assignment and Alienation of Benefits. To the extent permitted by
law, the right of any Participant to any account, benefit or payment hereunder
shall not be subject in any manner to attachment or other legal process for the
debts of such Participant, and no account, benefit or payment shall be subject
to anticipation, alienation, sale, transfer, assignment or encumbrance.
8. Amendment or Termination. The Board of Trust Managers of the Trust
may terminate this Plan at any time or amend it at any time and from time to
time. No amendment or termination of this Plan shall affect the rights of a
Participant accrued prior thereto.
3
<PAGE> 4
EXHIBIT 4
9. Taxes. The Trust shall not be responsible for the tax consequences
under federal, state or local law of any election made by any Participant under
the Plan. All payments under the Plan shall be subject to withholding and
reporting requirements to the extent permitted by applicable law.
10. Applicable Law. This Plan shall be interpreted under the laws of
the State of Texas.
11. Taxability. The Plan is designed to allow the Participants to defer
recognition of compensation as taxable income until Distribution Commencement
Date. Accordingly, the provisions of the Plan shall be construed in keeping with
this goal.
IN WITNESS WHEREOF, the Trust has caused this Plan to be adopted, and
executed by its President, this 21st day of December, 1998.
AMERICAN INDUSTRIAL PROPERTIES REIT
/s/ Charles W. Wolcott
----------------------------------------
Charles W. Wolcott, President
4
<PAGE> 5
EXHIBIT 4
ELECTION OF DEFERRAL
To: Administrators
Deferred Compensation Plan for Non-Employee Trust Managers
American Industrial Properties REIT
6210 N. Beltline Road
Suite 170
Irving, Texas 75063
I, _______________________________, a Trust Manager of American
Industrial Properties REIT, hereby elect to participate in the Deferred
Compensation Plan for Non-Employee Trust Managers for the fiscal year ending
December 31, 199__ and all succeeding years.
I elect to have distributions made commencing on January 1, ______, and
payments should be made in _____ one lump sum, ____ five equal annual
installments or ___ ten equal annual installments (Mark an "X" next to the
choice).
I designate the following as my beneficiary:
_______________________________________.
----------------------------------------
(Signature)
5
<PAGE> 1
EXHIBIT 5
OPINION OF LIDDELL, SAPP, ZIVLEY, HILL & LABOON
[Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. Letterhead]
December 21, 1998
American Industrial Properties REIT
6210 N. Beltline, Suite 170
Irving, Texas 75063
Ladies and Gentlemen:
We have acted as counsel to American Industrial Properties REIT, a
Texas real estate investment trust (the "Trust"), in connection with the
Registration Statement on Form S-8 (the "Registration Statement") filed by the
Trust with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended, relating to the issuance of general, unsecured deferred
compensation obligations ("Obligations") pursuant to the Trust's Deferred
Compensation Plan for Non-Employee Trust Managers (the "Plan").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
such documents, corporate records, certificates of public officials and other
instruments as we have deemed necessary or advisable in connection with this
opinion, including the Trust's Declaration of Trust, the Trust's Bylaws and the
Plan. In our examination we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, the authenticity of
originals of such copies and the authenticity of telegraphic or telephonic
confirmations of public officials and others. As to facts material to our
opinion, we have relied upon certificates or telegraphic or telephonic
confirmations of public officials and certificates, documents, statements and
other information of the Trust or its representatives or officers.
Based upon the foregoing, we are of the opinion that the Obligations
will be binding, general, unsecured obligations of the Trust.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
LIDDELL, SAPP, ZIVLEY, HILL & LaBOON, L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Deferred Compensation Obligations of American Industrial
Properties REIT (the "Company") of our reports: (i) dated March 6, 1998 with
respect to the Consolidated Financial Statements of the Company as of December
31, 1997 and 1996 and for the three years in the period ended December 31, 1997
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1997; (ii) dated March 4, 1998 with respect to the Combined Historical
Summary of Gross Income and Direct Operating Expenses of Skyway and Central Park
Industrial Properties for the year ended December 31, 1996 included in the
Company's Current Report on Form 8-K dated March 23, 1998; (iii) dated January
15, 1998 with respect to the Historical Summary of Gross Income and Direct
Operating Expenses of Inverness Industrial Property for the year ended December
31, 1996 included in the Company's Current Report on Form 8-K dated March 23,
1998; (iv) dated February 28, 1998 with respect to the Historical Summary of
Gross Income and Direct Operating Expenses of Avion Industrial Property for the
year ended December 31, 1996 included in the Company's Current Report on Form
8-K dated March 23, 1998; (v) dated February 13, 1998 with respect to the
Historical Summary of Gross Income and Direct Operating Expenses of Spring
Valley #6 Industrial Property for the years ended December 31, 1997 and 1996
included in Amendment No. 2 to the Company's Current Report on Form 8-K dated
February 11, 1998; (vi) dated April 7, 1998, except for Note 5 as to which the
date is May 6, 1998, with respect to the Combined Historical Summary of Gross
Income and Direct Operating Expenses of the Spieker Properties Portfolio for the
year ended December 31, 1997 included in the Company's Current Report on Form
8-K dated April 30, 1998; and (vii) dated May 15, 1998 with respect to the
Historical Summary of Gross Income and Direct Operating Expenses of North Austin
Office Building for the year ended December 31, 1997, included in the Company's
Current Report on Form 8-K dated April 30, 1998, all filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Dallas, Texas
December 21, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of American Industrial Properties REIT (the "Company") for the registration
of Deferred Compensation Obligations to our report dated August 5, 1997 with
respect to the Historical Summary of Gross Income and Direct Operating Expenses
of Commerce Center for the year ended May 31, 1997 included in Amendment No. 1
to the Company's Current Report on Form 8-K dated November 13, 1997 filed with
the Securities and Exchange Commission.
/s/ Easley, Endres, Parkhill & Brackendorff, P.C.
EASLEY, ENDRES, PARKHILL & BRACKENDORFF, P.C.
Houston, Texas
December 21, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) relating to the Deferred Compensation Plan for Non-Employee Trust Managers
of American Industrial Properties REIT (the "Company") of our reports (i) dated
February 12, 1998 with respect to the Financial Statements of USAA Real Estate
Income Investments I Limited Partnership as of December 31, 1997 and 1996 and
for the three years in the period ended December 31, 1997; (ii) dated July 25,
1997, except for Note 10 as to which the date is August 20, 1997, with respect
to the Financial Statements of USAA Real Estate Income Investments II Limited
Partnership as of June 30, 1997 and 1996 and for the three years in the period
ended June 30, 1997; (iii) dated February 9, 1998 with respect to the Financial
Statements of USAA Income Properties III Limited Partnership as of December 31,
1997 and 1996 and for the three years in the period ended December 31, 1997; and
(iv) dated February 9, 1998 with respect to the Financial Statements of USAA
Income Properties IV Limited Partnership as of December 31, 1997 and 1996 and
for the three years in the period ended December 31, 1997 which reports appear
in Amendment No. 1, filed March 23, 1998, to the Company's Current Report on
Form 8-K dated January 20, 1998 filed with the Securities and Exchange
Commission.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
San Antonio, Texas
December 21, 1998
<PAGE> 1
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
American Industrial Properties REIT on Form S-8 of our report dated January 26,
1998, appearing in the Current Report on Form 8-K dated March 23, 1998, with
respect to the Combined Statement of Revenues and Certain Expenses of Corporex
Plaza I and Presidents' Plaza Business Center for the year ended December 31,
1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Cincinnati, Ohio
December 21, 1998
<PAGE> 1
EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of American Industrial Properties REIT of our reports
dated August 31, 1998 relating to the Combined Statement of Revenue and Certain
Expenses of the Norfolk Commerce Park Properties and the Combined Statement of
Revenue and Certain Expenses of the Developers Diversified Realty Corporation
Properties which appear in the Current Report on Form 8-K and the Current Report
on Form 8-K/A, respectively, of American Industrial Properties REIT dated July
30, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Cleveland, Ohio
December 21, 1998
