<PAGE>
As filed with the Securities and Exchange Commission on November 8, 2000
333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
ARCHSTONE COMMUNITIES TRUST
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
Maryland 74-6056896
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
</TABLE>
7670 South Chester Street
Englewood, Colorado 80112
(303) 708-5959
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
----------------
Copies to:
<TABLE>
<S> <C>
Caroline Brower Michael T. Blair
Secretary Mayer, Brown & Platt
7670 South Chester Street 190 South LaSalle Street
Englewood, Colorado 80112 Chicago, Illinois 60603
(303) 708-5959 (312) 782-0600
</TABLE>
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
----------------
Approximate date of commencement of proposed sale to public: From time to
time after the registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. .
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. .
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Amount Aggregate Aggregate Amount of
Title of Shares to be to be Offering Price Offering Registration
Registered Registered Per Unit(1) Price(1) Fee
-----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares of
Beneficial Interest,
$1.00 par value per
share................. 35,471,214 $23.25 $824,705,725.50 $217,722.31
-----------------------------------------------------------------------------------
Preferred Share Purchase
Rights................ 35,471,214 N/A N/A N/A
-----------------------------------------------------------------------------------
</TABLE>
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(1) Estimated solely for purposes of determining the registration fee, based
on the average of the high and low sales prices of Common Shares on
November 3, 2000.
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. The +
+selling shareholder may not sell these securities until the registration +
+statement filed with the SEC is effective. This prospectus is not an offer to +
+sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
DATED NOVEMBER 8, 2000
PROSPECTUS
ARCHSTONE COMMUNITIES TRUST
35,471,214 Common Shares
------------
This prospectus relates to the public offering from time to time of up to
35,471,214 of our common shares of beneficial interest by Security Capital
Group Incorporated, which is currently our largest shareholder.
Our common shares are listed on the New York Stock Exchange under the symbol
"ASN".
------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
------------
The date of this prospectus is , 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Forward-Looking Information................................................ 2
Archstone Communities Trust................................................ 3
Where You Can Find More Information........................................ 3
Use of Proceeds............................................................ 4
Description of Common Shares............................................... 4
Federal Income Tax Considerations.......................................... 8
Selling Shareholder........................................................ 17
Plan of Distribution....................................................... 21
Experts.................................................................... 21
Legal Matters.............................................................. 22
</TABLE>
FORWARD-LOOKING STATEMENTS
This prospectus, including the documents we incorporate by reference,
contains "forward-looking statements" as that term is defined under the Private
Securities Litigation Reform Act of 1995. These forward-looking statements are
based on our current expectations, estimates and projections about the industry
and markets in which we operate. Words such as "expects", "anticipates",
"intends", "plans", "believes", "seeks", "estimates" and variations of such
words and similar expressions are intended to identify such forward-looking
statements. These statements are not guarantees of future performance and
involve risks, uncertainties and assumptions, which are difficult to predict
and many of which are beyond our control. Therefore, actual outcomes and
results may differ materially from what is expressed, forecasted or implied in
such forward-looking statements. Information concerning expected investment
balances, expected funding sources, planned investments and revenue and expense
growth assumptions are examples of forward-looking statements. We undertake no
obligation to update publicly any forward-looking statements, whether as a
result of new information, future events or otherwise, except as required by
applicable law.
2
<PAGE>
ARCHSTONE COMMUNITIES TRUST
Archstone is a real estate operating company focused on the operation,
development, acquisition, redevelopment and long-term ownership of apartment
communities in markets and sub-markets with high barriers to entry throughout
the United States. Our principal focus is to maximize shareholder value by:
. Owning apartment communities in markets with high barriers to entry,
limited new supply and strong economic growth;
. Generating long-term sustainable growth in cash flow from operations;
. Creating value through the development of new apartment communities;
. Managing our invested capital, through the disposition of assets that no
longer meet our investment objectives, in an effort to maximize long-term
value creation; and
. Leveraging technology to strengthen our brand position and reputation for
quality through superior customer service to our residents.
We were formed in 1963 and are organized as a real estate investment trust
under the laws of Maryland. Our principal executive offices are located at 7670
South Chester Street, Englewood, Colorado 80112, and our telephone number is
(303) 708-5959.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Securities Exchange Act
of 1934, as amended, and file reports, proxy statements and other information
with the Securities and Exchange Commission. You may read and copy any
materials we file with the SEC at the SEC's Public Reference Room located at
450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on
the operation of the Public Reference Room by calling the SEC at 1-800-SEC-
0330. Our SEC filings, including reports, proxy statements and other
information, are also available to the public over the Internet at the SEC's
web site at http://www.sec.gov. Our outstanding common shares are listed on the
New York Stock Exchange and all such reports, proxy statements and other
information filed by us with the New York Stock Exchange may be inspected at
the offices of the New York Stock Exchange at 20 Broad Street, New York, New
York 10005.
We have filed with the SEC a registration statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the common shares being
offered. This prospectus, which constitutes part of the registration statement,
does not contain all of the information set forth in the registration
statement. Parts of the registration statement are omitted from the prospectus
in accordance with the rules and regulations of the SEC. For further
information, your attention is directed to the registration statement.
Statements made in this prospectus concerning the contents of any documents
referred to herein are not necessarily complete, and in each case are qualified
in all respects by reference to the copy of such document filed with the SEC.
The SEC allows us to "incorporate by reference" the information we file with
the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act:
. Annual Report on Form 10-K for the fiscal year ended December 31, 1999;
. Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
and June 30, 2000;
. The description of the common shares contained in our registration
statement on Form 8-A, as amended; and
3
<PAGE>
. The description of the preferred share purchase rights contained in our
registration statement on Form 8-A, as amended.
You should be aware that any statement contained in this prospectus or in a
document incorporated by reference may be modified or superseded by a document
filed with the SEC at a later date. Any statement which has been modified or
superseded shall not be considered to constitute a part of this prospectus.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address or telephone number:
Secretary
Archstone Communities Trust
7670 South Chester Street
Englewood, Colorado 80112
(303) 708-5959
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
USE OF PROCEEDS
We will not receive any proceeds from the sale by Security Capital of the
common shares. We will pay all expenses of the registration and sale of the
common shares, other than selling commissions and fees and share transfer taxes
and other than fees and disbursements of counsel for Security Capital.
DESCRIPTION OF COMMON SHARES
General
We are authorized by our Amended and Restated Declaration of Trust, as
amended, to issue up to 250,000,000 shares of beneficial interest, par value
$1.00 per share, consisting of common shares, preferred shares and such other
types or classes of shares of beneficial interest as the board of trustees may
create and authorize from time to time. At October 31, 2000 122,484,688 common
shares were issued and outstanding and held of record by 3,257 shareholders.
The following description sets forth the general terms and provisions of the
common shares. The statements below describing the common shares are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the declaration of trust and Amended and Restated
Bylaws.
The outstanding common shares are fully paid and, except as set forth below
under "--Shareholder liability," non-assessable. Each common share entitles the
holder to one vote on all matters requiring a vote of shareholders, including
the election of trustees. Holders of common shares do not have the right to
cumulate their votes in the election of trustees, which means that the holders
of a majority of the outstanding common shares can elect all of the trustees
then standing for election. Holders of common shares are entitled to such
distributions as may be declared from time to time by the board of trustees out
of funds legally available therefor. Holders of common shares have no
conversion, redemption, preemptive or exchange rights to subscribe to any of
our securities. In the event of a liquidation, dissolution or winding up of our
affairs, the holders of the common shares are entitled to share ratably in our
assets remaining after provision for payment of all liabilities to creditors
and payment of liquidation preferences and accrued dividends, if any, on our
4
<PAGE>
outstanding preferred shares, and subject to the rights of holders of other
series of preferred shares, if any. The rights of holders of the common shares
are subject to the rights and preferences established by the board of trustees
for our outstanding preferred shares and any other series of preferred shares
which may subsequently be issued by us.
Purchase rights
On July 11, 1994, the board of trustees declared a dividend of one preferred
share purchase right for each common share outstanding, payable to holders of
common shares of record at the close of business on July 21, 1994. The holders
of any additional common shares issued after that date and before the
redemption or expiration of the purchase rights are also entitled to receive
one purchase right for each such additional common share. Each purchase right
entitles the holder under various circumstances to purchase from us one one-
hundredth of a share of a series of participating preferred shares, par value
$1.00 per share, at a price of $60.00 per one one-hundredth of a participating
preferred share, subject to adjustment. Purchase rights are exercisable when a
person or group of persons acquires 20% or more of the outstanding common
shares (49% in the case of Security Capital and its affiliates) or announces a
tender offer or exchange offer for 25% or more of the outstanding common
shares. Under various circumstances, each purchase right entitles the holder to
purchase, at the purchase right's then current exercise price, a number of
common shares having a market value of twice the purchase right's exercise
price. The acquisition of us pursuant to specific types of mergers or other
business transactions would entitle each holder to purchase, at the purchase
right's then current exercise price, a number of the acquiring company's common
shares having a market value at the time equal to twice the purchase right's
exercise price. The purchase rights held by certain 20% shareholders, other
than Security Capital, would not be exercisable. The purchase rights will
expire on July 21, 2004 and are subject to redemption in whole, but not in
part, at a price of $0.01 per purchase right payable in cash, our shares or any
other form of consideration determined by the board of trustees.
Transfer agent
The transfer agent and registrar for the common shares is ChaseMellon
Shareholder Services, L.L.C. The common shares are listed on the New York Stock
Exchange under the symbol "ASN".
Classified board of trustees
Under the declaration of trust, the board of trustees is divided into three
classes of trustees, designated Class I, Class II and Class III. Each class
consists, as nearly as possible, of one-third of the total number of trustees
constituting the entire board of trustees. The term of office of each trustee
is three years and until his or her successor is elected and qualifies, subject
to prior death, resignation or removal. At the 2000 annual meeting of
shareholders, Class II trustees were elected; at the 2001 annual meeting of
shareholders, Class III trustees will be elected; and at the 2002 annual
meeting of shareholders, Class I trustees will be elected. At each succeeding
annual meeting of shareholders, beginning in 2003, successors to the class of
trustees whose term expires at that annual meeting will be elected. If the
authorized number of trustees constituting the board of trustees is changed,
any increase or decrease will be apportioned among the classes so as to
maintain the number of trustees in each class as nearly equal as possible, and
any additional trustee of any class elected to fill a vacancy resulting from an
increase in such class will hold office until the next annual meeting of
shareholders, but in no case will a decrease in the number of trustees
constituting the board of trustees shorten the term of any incumbent trustee.
The staggered board provision is designed to provide for a level of continuity
of membership in the board of trustees. This continuity provides us with
consistency in management and business approach over time. The staggered board
provision may have the effect of making it more difficult for a third party to
acquire control of us without the consent of the board of trustees.
5
<PAGE>
Restriction on size of holdings of shares
For us to qualify as a real estate investment trust under the Internal
Revenue Code, no more than 50% in value of our shares, after taking into
account options to acquire shares, may be owned, directly or indirectly, by
five or fewer individuals, as defined in the Internal Revenue Code to include
certain entities and constructive ownership among specified family members,
during the last half of a taxable year or during a proportionate part of a
short taxable year. Our shares must also be beneficially owned by 100 or more
persons during at least 335 days of a taxable year or during a proportionate
part of a shorter taxable year.
Subject to various exceptions, no holder is permitted to own, or be deemed
to own by virtue of the attribution provisions of the Internal Revenue Code,
more than 9.8% in number of shares or value of the outstanding shares. The
board of trustees, upon receipt of a ruling from the Internal Revenue Service
or an opinion of counsel or other evidence satisfactory to the board of
trustees and upon such other conditions as the board of trustees may direct,
may also exempt a proposed transferee from the ownership limit. The proposed
transferee must give written notice to us of the proposed transfer at least 30
days prior to any transfer which, if consummated, would result in the intended
transferee owning shares in excess of the ownership limit. The board of
trustees may require such opinions of counsel, affidavits, undertakings or
agreements as it may deem necessary or advisable in order to determine or
ensure our status as a real estate investment trust. Any transfer of shares
that would:
(1) create a direct or indirect ownership of shares in excess of the
ownership limit;
(2) result in shares being beneficially owned by fewer than 100 persons,
determined without reference to any rules of attribution, as provided in
Section 856(a) of the Internal Revenue Code; or
(3) result in our being "closely held" within the meaning of Section
856(h) of the Internal Revenue Code,
shall be null and void, and the intended transferee will acquire no rights to
shares. The foregoing restrictions on transferability and ownership will not
apply if the board of trustees determines that it is no longer in our best
interests to attempt to qualify, or to continue to qualify, as a real estate
investment trust. The declaration of trust excludes Security Capital and its
affiliates from the foregoing ownership restriction to the extent that Security
Capital beneficially owns 49% or less of our outstanding shares.
Any shares the purported transfer of which would result in a person owning
shares in excess of the ownership limit or cause us to become "closely held"
under Section 856(h) of the Internal Revenue Code that is not otherwise
permitted as provided above will constitute excess shares. These excess shares
will be transferred pursuant to the declaration of trust to a party not
affiliated with us who is designated by us as the trustee of a trust for the
exclusive benefit of an organization described in Sections 170(b)(1)(A) and
170(c) of the Internal Revenue Code and identified by the board of trustees as
the beneficiary or beneficiaries of the trust, until such time as the excess
shares are transferred to a person whose ownership will not violate the
restrictions of ownership. While these excess shares are held in trust,
distributions on such excess shares will be paid to the trust for the benefit
of the beneficiary and may only be voted by the trustee for the benefit of the
beneficiary. Subject to the ownership limit, the excess shares will be
transferred by the trustee at our direction to any person, if the excess shares
would not be excess shares in the hands of such person. The purported
transferee will receive the lesser of:
(1) the price paid by the purported transferee for the excess shares,
or, if no consideration was paid, fair market value on the day of the event
causing the excess shares to be held in trust; and
(2) the price received from the sale or other disposition of the excess
shares held in trust.
Any proceeds in excess of the amount payable to the purported transferee
will be paid to the beneficiary. In addition, such excess shares held in trust
are subject to purchase by us for a 90-day period at a purchase price equal to
the lesser of:
(1) the price paid for the excess shares by the purported transferee,
or, if no consideration was paid, fair market value at the time of event
causing the shares to be held in trust; and
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<PAGE>
(2) the fair market value of the excess shares on the date we elect to
purchase.
Fair market value, for these purposes, means the last reported sales price
reported on the New York Stock Exchange on the trading day immediately
preceding the relevant date, or if not then traded on the New York Stock
Exchange, the last reported sales price on the trading day immediately
preceding the relevant date as reported on any exchange or quotation systems
over or through any exchange or quotation system, then the market price on the
relevant date as determined in good faith by the board of trustees.
From and after the purported transfer to the purported transferee of the
excess shares, the purported transferee will cease to be entitled to
distributions, other than liquidating distributions, voting rights and other
benefits with respect to the excess shares except the right to payment on the
transfer of the excess shares as described above. Any distribution paid to a
purported transferee on excess shares prior to the discovery by us that such
excess shares have been transferred in violation of the provisions of the
declaration of trust will be repaid, upon demand, to us, and we will pay any
such amounts to the trust for the benefit of the beneficiary. If the foregoing
transfer restrictions are determined to be void, invalid or unenforceable by
any court of competent jurisdiction, then the purported transferee of any
excess shares may be deemed, at our option, to have acted as an agent on our
behalf in acquiring such excess shares and to hold such excess shares on our
behalf.
All certificates evidencing shares will bear a legend referring to the
restrictions described above.
All persons who own, directly or by virtue of the attribution provisions of
the Internal Revenue Code, more than 5%, or such other percentage between 0.5%
and 5%, as provided in the rules and regulations promulgated under the Internal
Revenue Code, of the number or value of our outstanding shares must give us a
written notice containing certain information by January 31 of each year. In
addition, each shareholder is upon demand required to disclose to us in writing
such information with respect to the direct, indirect and constructive
ownership of shares as the board of trustees deems reasonably necessary to
comply with the provisions of the Internal Revenue Code applicable to a real
estate investment trust, to determine our status as a real estate investment
trust, to comply with the requirements of any taxing authority or governmental
agency or to determine any such compliance.
The ownership limitations under the declaration of trust are designed to
protect our real estate investment trust status. The limitations could have the
effect of discouraging a takeover or other transaction in which holders of
some, or a majority, of the common shares might receive a premium for their
shares over the then prevailing market price or which such holders might
believe to be otherwise in their best interest.
Indemnification of trustees and officers
The Maryland statutory law governing real estate investment trusts permits a
real estate investment trust to indemnify or advance expenses to trustees,
officers, employees, and agents of the real estate investment trust to the same
extent as is permitted for directors, officers, employees and agents of a
Maryland corporation under Maryland statutory law. Under the declaration of
trust, we are required to indemnify each trustee, officer and employee and may
indemnify any agent, to the fullest extent permitted by Maryland law, as
amended from time to time, in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he or she was one of our trustees,
officers, employees or agents or is or was serving at our request as a
director, trustee, officer, partner, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, other enterprise or
employee benefit plan, from all claims and liabilities to which such person may
become subject by reason of service in such capacity and to pay or reimburse
reasonable expenses, as such expenses are incurred, of each trustee in
connection with any such proceedings. The board of trustees believes that the
indemnification provision will enhance our ability to attract and retain
superior trustees and officers.
Additionally, we have entered into indemnity agreements with each of our
officers and trustees which provide for reimbursement of all expenses and
liabilities of such officer or trustee, arising out of any lawsuit or
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claim against such officer or trustee due to the fact that he or she was or is
serving as an officer or trustee, except for liabilities and expenses the
payment of which is judicially determined to be unlawful, liabilities and
expenses relating to claims under Section 16(b) of the Securities Exchange Act,
or liabilities and expenses relating to judicially determined criminal
violations.
Shareholder liability
Both the Maryland statutory law governing real estate investment trusts and
the declaration of trust provide that shareholders shall not be personally or
individually liable for any of our debts, acts, omissions or obligations or
those of the board of trustees. The declaration of trust further provides that
we shall indemnify and hold each shareholder harmless from all claims and
liabilities to which the shareholder may become subject by reason of his or her
being or having been a shareholder and that we shall reimburse each shareholder
for all legal and other expenses reasonably incurred by the shareholder in
connection with any such claim or liability, provided that the shareholder
gives us prompt notice of any such claim or liability and permits us to conduct
the defense of the claim. In addition, we are required to, and as a matter of
practice do, insert a clause in our management and other contracts providing
that shareholders assume no personal liability for obligations entered into on
our behalf. Nevertheless, with respect to tort claims, contractual claims where
shareholder liability is not so negated, claims for taxes and certain statutory
liability, the shareholders may, in some jurisdictions, be personally liable to
the extent that such claims are not satisfied by us. Inasmuch as we carry
public liability insurance which we consider adequate, any risk of personal
liability to shareholders is limited to situations in which our assets plus our
insurance coverage would be insufficient to satisfy the claims against us and
our shareholders.
FEDERAL INCOME TAX CONSIDERATIONS
We intend to operate in a manner that permits us to satisfy the requirements
for taxation as a real estate investment trust under the applicable provisions
of the Internal Revenue Code. No assurance can be given, however, that such
requirements will be met. The following is a description of the federal income
tax consequences to us and our shareholders of the treatment of us as a real
estate investment trust. Since these provisions are highly technical and
complex, each prospective purchaser of the common shares is urged to consult
his or her own tax advisor with respect to the federal, state, local, foreign
and other tax consequences of the purchase, ownership and disposition of the
common shares.
Based upon our representations with respect to the facts as set forth and
explained in the discussion below, in the opinion of our counsel, Mayer, Brown
& Platt, we have been organized in conformity with the requirements for
qualification as a real estate investment trust, and our proposed method of
operation described in this prospectus and as represented by management will
enable us to satisfy the requirements for such qualification.
This opinion is based on representations made by us as to certain factual
matters relating to our organization and intended or expected manner of
operation. In addition, this opinion is based on the law existing and in effect
on the date of this prospectus. Our qualification and taxation as a real estate
investment trust will depend on our ability to meet on a continuing basis,
through actual operating results, asset composition, distribution levels and
diversity of stock ownership, the various qualification tests imposed under the
Internal Revenue Code discussed below. Mayer, Brown & Platt will not review
compliance with these tests on a continuing basis. No assurance can be given
that we will satisfy such tests on a continuing basis.
In brief, if the conditions imposed by the real estate investment trust
provisions of the Internal Revenue Code are met, entities such as us, that
invest primarily in real estate and that otherwise would be treated for federal
income tax purposes as corporations, are allowed a deduction for dividends paid
to shareholders. This treatment substantially eliminates the "double taxation"
at both the corporate and shareholder levels that generally results from the
use of corporations. However, as discussed in greater detail below, such an
entity remains subject to tax in certain circumstances even if it qualifies as
a real estate investment trust.
8
<PAGE>
If we fail to qualify as a real estate investment trust in any year, we will
be subject to federal income taxation as if we were a domestic corporation for
that year and, potentially, one or more subsequent years, and our shareholders
will be taxed in the same manner as shareholders of ordinary corporations. In
this event, we could be subject to potentially significant tax liabilities, and
therefore the amount of cash available for distribution to our shareholders
would be reduced or eliminated.
The board of trustees believes that we have been organized and operated and
currently intends that we will continue to operate in a manner that permits us
to qualify as a real estate investment trust. There can be no assurance,
however, that this expectation will be fulfilled, since qualification as a real
estate investment trust depends on our continuing to satisfy numerous asset,
income and distribution tests described below, which in turn will be dependent
in part on our operating results.
The following summary is based on the Internal Revenue Code, its legislative
history, administrative pronouncements, judicial decisions and United States
Treasury Department regulations, subsequent changes to any of which may affect
the tax consequences described in this prospectus, possibly on a retroactive
basis.
The following summary is not exhaustive of all possible tax considerations
and does not give detailed discussion of any state, local, or foreign tax
considerations, nor does it discuss all of the aspects of federal income
taxation that may be relevant to a prospective shareholder in light of his or
her particular circumstances or to various types of shareholders, including
insurance companies, tax-exempt entities, financial institutions or broker-
dealers, foreign corporations and persons who are not citizens or residents of
the United States, subject to special treatment under the federal income tax
laws.
Taxation of Archstone
General
In any year in which we qualify as a real estate investment trust, in
general we will not be subject to federal income tax on that portion of our
real estate investment trust taxable income or capital gain which is
distributed to shareholders. We may, however, be subject to tax at normal
corporate rates upon any taxable income or capital gain not distributed. To the
extent that we elect to retain and pay income tax on our net long-term capital
gain, shareholders are required to include their proportionate share of our
undistributed long-term capital gain in income but receive a credit for their
share of any taxes paid on such gain by us.
Notwithstanding our qualification as a real estate investment trust, we may
also be subject to taxation in other circumstances. If we should fail to
satisfy either the 75% or the 95% gross income test, which are discussed below,
and nonetheless maintain our qualification as a real estate investment trust
because other requirements are met, we will be subject to a 100% tax on the
greater of the amount by which we fail to satisfy either the 75% test or the
95% test, multiplied by a fraction intended to reflect our profitability. We
will be subject to a tax of 100% on net income from any "prohibited
transaction," as described below, and if we have net income from the sale or
other disposition of "foreclosure property" which is held primarily for sale to
customers in the ordinary course of business or other non-qualifying income
from foreclosure property, we will be subject to tax on such income from
foreclosure property at the highest corporate rate. For taxable years beginning
after December 31, 2000, we will be subject to a tax of 100% on rents from real
property, deductions or excess interest that would be reduced on distribution,
apportionment, or allocation under Internal Revenue Code section 482, relating
to organizations owned or controlled by the same interests, in a
redetermination involving an organization considered our taxable real estate
investment trust subsidiary. In addition, if we should fail to distribute
during each calendar year at least the sum of:
(1) 85% of our real estate investment trust ordinary income for such
year;
(2) 95% of our real estate investment trust capital gain net income for
such year, other than capital gains we elect to retain and pay tax on as
described below; and
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(3) any undistributed taxable income from prior years,
We would be subject to a 4% excise tax on the excess of such required
distribution over the amounts actually distributed. To the extent that we elect
to retain and pay income tax on our long-term capital gain, such retained
amounts will be treated as having been distributed for purposes of the 4%
excise tax.
A real estate investment trust is permitted to designate in a notice mailed
to shareholders within 60 days of the end of the taxable year, or in a notice
mailed with its annual report for the taxable year, such amount of
undistributed net long-term capital gains it received during the taxable year,
which its shareholders are to include in their taxable income as long-term
capital gains. Thus, if we made this designation, our shareholders would
include in their income as long-term capital gains their proportionate share of
the undistributed net capital gains as designated by us and we would have to
pay the tax on such gains within 30 days of the close of our taxable year. Each
of our shareholders would be deemed to have paid the shareholder's share of the
tax paid by us on such gains, which tax would be credited or refunded to the
shareholder. A shareholder would increase his tax basis in his shares by the
difference between the amount of income to the holder resulting from the
designation less the holder's credit or refund for the tax paid by us. We may
also be subject to the corporate "alternative minimum tax," as well as tax in
various situations and on some types of transactions not presently
contemplated. We will use the calendar year both for federal income tax
purposes and for financial reporting purposes.
In order to qualify as a real estate investment trust, we must meet, among
others, the following requirements:
Share ownership test
Our shares must be held by a minimum of 100 persons for at least 335 days in
each taxable year (or a proportional number of days in any short taxable year).
In addition, at all times during the second half of each taxable year, no more
than 50% in value of our shares may be owned, directly or indirectly and by
applying constructive ownership rules, by five or fewer individuals, which for
this purpose includes some tax-exempt entities. Any shares held by a qualified
domestic pension or other retirement trust will be treated as held directly by
its beneficiaries in proportion to their actuarial interest in such trust
rather than by such trust. Under the constructive ownership rules, Security
Capital's ownership of shares is attributed to its shareholders for purposes of
the 50% test. For taxable years beginning after August 5, 1997, if we comply
with the Treasury Department regulations for ascertaining our actual ownership
and did not know, or exercising reasonable diligence would not have reason to
know, that more than 50% in value of our outstanding shares were held, actually
or constructively, by five or fewer individuals, then we will be treated as
meeting such requirement.
In order to ensure compliance with the 50% test, we have placed restrictions
on the transfer of our shares to prevent additional concentration of ownership.
Moreover, to evidence compliance with these requirements under Treasury
Department regulations, we must maintain records which disclose the actual
ownership of our outstanding shares and such regulations impose penalties
against us for failing to do so. In fulfilling our obligations to maintain
records, we must and will demand written statements each year from the record
holders of designated percentages of our shares disclosing the actual owners of
such shares as prescribed by Treasury Department regulations. A list of those
persons failing or refusing to comply with such demand must be maintained as a
part of our records. A shareholder failing or refusing to comply with our
written demand must submit with his or her tax returns a similar statement
disclosing the actual ownership of our shares and other information. In
addition, the declaration of trust provides restrictions regarding the transfer
of shares that are intended to assist us in continuing to satisfy the share
ownership requirements. See "Description of common shares--Restriction on size
of holdings of shares". We intend to enforce the 9.8% limitation on ownership
of shares to assure that our qualification as a real estate investment trust
will not be compromised.
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Asset tests
At the close of each quarter of our taxable year, we must satisfy tests
relating to the nature of our assets determined in accordance with generally
accepted accounting principles. Where we invest in a partnership or limited
liability company taxed as a partnership or disregarded entity, we will be
deemed to own a proportionate share of the partnership's or limited liability
company's assets. First, at least 75% of the value of our total assets must be
represented by interests in real property, interests in mortgages on real
property, shares in other real estate investment trusts, cash, cash items,
government securities, and qualified temporary investments. Second, although
the remaining 25% of our assets generally may be invested without restriction,
securities in this class may not exceed either, in the case of securities of
any non-government issuer, 5% of the value of our total assets, or 10% of the
outstanding voting securities of any one issuer.
Further, beginning with the calendar quarter ending March 31, 2001, we will
be prohibited from owning securities representing more than 10% of either the
vote or value of the outstanding securities of any corporation other than a
qualified real estate investment trust subsidiary, another real estate
investment trust or a "taxable REIT subsidiary," and no more than 20% of the
value of our total assets may be represented by securities of one or more
taxable REIT subsidiaries. A taxable REIT subsidiary is any corporation for
which a joint election has been made by a real estate investment trust and such
corporation to treat such corporation as a taxable REIT subsidiary with respect
to such real estate investment trust.
Taxable REIT subsidiaries will be subject to full corporate level taxation
on their earnings, but would be permitted to engage in certain types of
activities, such as those performed by taxable entities in which we own an
interest, which cannot currently be performed by real estate investment trusts
or their controlled subsidiaries without jeopardizing their real estate
investment trust status. Taxable REIT subsidiaries will be subject to
limitations on the deductibility of payments made to the associated real estate
investment trust which could materially increase the taxable income of the
taxable REIT subsidiary and will be subject to prohibited transaction taxes on
certain other payments made to the associated real estate investment trust.
Under the taxable REIT subsidiary provision, we and any taxable entity in
which we own an interest will be allowed to jointly elect to treat such entity
as a "taxable REIT subsidiary" for taxable years beginning after December 31,
2000. It is currently anticipated that taxable REIT subsidiary elections will
be made for any such entities in which we own an interest. Assuming such
elections are made, the taxable REIT subsidiary provision is not expected to
have a material adverse effect on us.
Gross income tests
There are currently two separate percentage tests relating to the sources of
our gross income which must be satisfied for each taxable year. For purposes of
these tests, where we invest in a partnership or limited liability company
taxed as a partnership or disregarded entity, we will be treated as receiving
our share of the income and loss of the partnership or limited liability
company, and the gross income of the partnership or limited liability company
will retain the same character in our hands as it has in the hands of the
partnership or limited liability company. The two tests are as follows:
1. The 75% Test. At least 75% of our gross income for the taxable year
must be "qualifying income". Qualifying income generally includes:
(1) rents from real property except as modified below;
(2) interest on obligations secured by mortgages on, or interests
in, real property;
(3) gains from the sale or other disposition of non "dealer
property", which means interests in real property and real estate
mortgages, other than gain from property held primarily for sale to
customers in the ordinary course of our trade or business;
(4) dividends or other distributions on shares in other real estate
investment trusts, as well as gain from the sale of such shares;
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(5) abatements and refunds of real property taxes;
(6) income from the operation, and gain from the sale, of
"foreclosure property", which means property acquired at or in lieu of
a foreclosure of the mortgage secured by such property;
(7) commitment fees received for agreeing to make loans secured by
mortgages on real property or to purchase or lease real property; and
(8) certain qualified temporary investment income attributable to
the investment of new capital received by us in exchange for shares
during the one-year period following the receipt of such capital.
Rents received from a resident will not, however, qualify as rents from real
property in satisfying the 75% test, or the 95% gross income test described
below, if we, or an owner of 10% or more of our shares, directly or
constructively owns 10% or more of such resident. In addition, if rent
attributable to personal property leased in connection with a lease of real
property is greater than 15% of the total rent received under the lease, then
the portion of rent attributable to such personal property will not qualify as
rents from real property. Moreover, an amount received or accrued will not
qualify as rents from real property, or as interest income, for purposes of the
75% and 95% gross income tests if it is based in whole or in part on the income
or profits of any person, although an amount received or accrued generally will
not be excluded from "rents from real property" solely by reason of being based
on a fixed percentage or percentages of receipts or sales. Finally, for rents
received to qualify as rents from real property, we generally must not furnish
or render services to residents, other than through an "independent contractor"
from whom we derive no income, except that the "independent contractor"
requirement does not apply to the extent that the services provided by us are
"usually or customarily rendered" in connection with the rental of apartment
units for occupancy only, or are not otherwise considered "rendered to the
occupant for his convenience". For taxable years beginning after August 5,
1997, a real estate investment trust is permitted to render a de minimis amount
of impermissible services to tenants, and still treat amounts received with
respect to that property as rent from real property. The amount received or
accrued by the real estate investment trust during the taxable year for the
impermissible services with respect to a property may not exceed 1% of all
amounts received or accrued by the real estate investment trust directly or
indirectly from the property. The amount received for any service or management
operation for this purpose shall be deemed to be not less than 150% of the
direct cost of the real estate investment trust in furnishing or rendering the
service or providing the management or operation. Furthermore, for taxable
years beginning after December 31, 2000, we may furnish such impermissible
services to tenants through a taxable REIT subsidiary and still treat amounts
otherwise received with respect to the property as rent from real property.
2. The 95% Test. In addition to deriving 75% of our gross income from the
sources listed above, at least 95% of our gross income for the taxable year
must be derived from the above-described qualifying income, or from dividends,
interest or gains from the sale or disposition of stock or other securities
that are not dealer property. Dividends, other than on real estate investment
trust shares, and interest on any obligations not secured by an interest in
real property are included for purposes of the 95% test, but not for purposes
of the 75% test. In addition, payments to us under an interest rate swap, cap
agreement, option, futures contract, forward rate agreement or any similar
financial instrument entered into by us to hedge indebtedness incurred or to be
incurred, and any gain from the sale or other disposition of these instruments,
are treated as qualifying income for purposes of the 95% test, but not for
purposes of the 75% test.
For purposes of determining whether we comply with the 75% and 95% income
tests, gross income does not include income from prohibited transactions. A
"prohibited transaction" is a sale of property held primarily for sale to
customers in the ordinary course of a trade or business, excluding foreclosure
property, unless such property is held by us for at least four years and other
requirements relating to the number of properties sold in a year, their tax
bases, and the cost of improvements made to the property are satisfied. See "--
Taxation of Archstone--General".
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Even if we fail to satisfy one or both of the 75% or 95% gross income tests
for any taxable year, we may still qualify as a real estate investment trust
for such year if we are entitled to relief under provisions of the Internal
Revenue Code. These relief provisions will generally be available if:
(1) our failure to comply was due to reasonable cause and not to willful
neglect;
(2) we report the nature and amount of each item of our income included
in the tests on a schedule attached to our tax return; and
(3) any incorrect information on this schedule is not due to fraud with
intent to evade tax.
If these relief provisions apply, however, we will nonetheless be subject to
a special tax upon the greater of the amount by which we fail either the 75% or
95% gross income test for that year.
Annual distribution requirements
In order to qualify as a real estate investment trust, we are required to
make distributions, other than capital gain dividends, to our shareholders each
year in an amount at least equal to the sum of 95%, or 90% for taxable years
beginning after December 31, 2000, of our real estate investment trust taxable
income, computed without regard to the dividends paid deduction and real estate
investment trust net capital gain, plus 95%, or 90% for taxable years beginning
after December 31, 2000, of our net income after tax, if any, from foreclosure
property, minus the sum of various items of excess non-cash income.
Such distributions must be paid in the taxable year to which they relate, or
in the following taxable year if declared before we timely file our tax return
for such year and if paid on or before the first regular dividend payment after
such declaration. To the extent that we do not distribute all of our net
capital gain or distribute at least 95%, or 90% for taxable years beginning
after December 31, 2000, but less than 100%, of our real estate investment
trust taxable income, as adjusted, we will be subject to tax on the
undistributed amount at regular capital gains or ordinary corporate tax rates,
as the case may be. For taxable years beginning after August 5, 1997, a real
estate investment trust is permitted, with respect to undistributed net long-
term capital gains it received during the taxable year, to designate in a
notice mailed to shareholders within 60 days of the end of the taxable year, or
in a notice mailed with its annual report for the taxable year, such amount of
such gains which its shareholders are to include in their taxable income as
long-term capital gains. Thus, if we made this designation, our shareholders
would include in their income as long-term capital gains their proportionate
share of the undistributed net capital gains as designated by us and we would
have to pay the tax on such gains within 30 days of the close of our taxable
year. Each of our shareholders would be deemed to have paid the shareholder's
share of the tax paid by us on such gains, which tax would be credited or
refunded to the shareholder. A shareholder would increase his tax basis in his
shares by the difference between the amount of income to the holder resulting
from the designation less the holder's credit or refund for the tax paid by us.
We intend to make timely distributions sufficient to satisfy the annual
distribution requirements. It is possible that we may not have sufficient cash
or other liquid assets to meet the 95%, or 90% for taxable years beginning
after December 31, 2000, distribution requirement, due to timing differences
between the actual receipt of income and actual payment of expenses on the one
hand, and the inclusion of such income and deduction of such expenses in
computing our real estate investment trust taxable income on the other hand. To
avoid any problem with the 95%, or 90% for taxable years beginning after
December 31, 2000, distribution requirement, we will closely monitor the
relationship between our real estate investment trust taxable income and cash
flow and, if necessary, intend to borrow funds in order to satisfy the
distribution requirement. However, there can be no assurance that such
borrowing would be available at such time.
If we fail to meet the 95%, or 90% for taxable years beginning after
December 31, 2000, distribution requirement as a result of an adjustment to our
tax return by the IRS, we may retroactively cure the failure by paying a
"deficiency dividend", plus applicable penalties and interest, within a
specified period.
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Tax aspects of our investments in partnerships
A significant portion of our investments are owned through various limited
partnerships. We will include our proportionate share of each partnership's
income, gains, losses, deductions and credits for purposes of the various real
estate investment trust gross income tests and in the computation of our real
estate investment trust taxable income and the assets held by each partnership
for purposes of the real estate investment trust asset tests.
Our ownership interest in the partnerships involves special tax
considerations, including the possibility of a challenge by the IRS of the
status of the partnerships as partnerships, as opposed to associations taxable
as corporations, for federal income tax purposes. If a partnership were to be
treated as an association, such partnership would be taxable as a corporation
and therefore subject to an entity-level tax on its income. In such a
situation, the character of our assets and items of gross income would change,
which might preclude us from satisfying the real estate investment trust asset
tests and gross income tests. See "--Failure to qualify" below, for a
discussion of the effect of our failure to meet such tests. Based on our
factual representations, in the opinion of Mayer, Brown & Platt, under existing
federal income tax law and regulations, Atlantic Multifamily Limited
Partnership-I, Archstone Communities Limited Partnership and Archstone
Communities Limited Partnership-II will be treated for federal income tax
purposes as partnerships, and not as associations taxable as corporations. Such
opinion, however, is not binding on the IRS.
Failure to qualify
If we fail to qualify for taxation as a real estate investment trust in any
taxable year and certain relief provisions do not apply, we will be subject to
tax, including applicable alternative minimum tax, on our taxable income at
regular corporate rates. Distributions to shareholders in any year in which we
fail to qualify as a real estate investment trust will not be deductible by us,
nor generally will they be required to be made under the Internal Revenue Code.
In such event, to the extent of current and accumulated earnings and profits,
all distributions to shareholders will be taxable as ordinary income, and
subject to limitations in the Internal Revenue Code, corporate distributees may
be eligible for the dividends-received deduction. Unless entitled to relief
under specific statutory provisions, we also will be disqualified from re-
electing taxation as a real estate investment trust for the four taxable years
following the year during which qualification was lost.
Taxation of our shareholders
Taxation of taxable domestic shareholders
As long as we qualify as a real estate investment trust, distributions made
to our taxable domestic shareholders out of current or accumulated earnings and
profits, and not designated as capital gain dividends, will be taken into
account by them as ordinary income and will not be eligible for the dividends-
received deduction for corporations. Distributions, and for tax years beginning
after August 5, 1997, undistributed amounts, that are designated as capital
gain dividends will be taxed as long-term capital gains, to the extent they do
not exceed our actual net capital gain for the taxable year, without regard to
the period for which the shareholder has held its shares. However, corporate
shareholders may be required to treat up to 20% of some capital gain dividends
as ordinary income. To the extent that we make distributions in excess of
current and accumulated earnings and profits, these distributions are treated
first as a tax-free return of capital to the shareholder, reducing the tax
basis of a shareholder's shares by the amount of such distribution, but not
below zero, with distributions in excess of the shareholder's tax basis taxable
as capital gains, if the shares are held as a capital asset. In addition, any
dividend declared by us in October, November or December of any year and
payable to a shareholder of record on a specific date in any such month shall
be treated as both paid by us and received by the shareholder on December 31 of
such year, provided that the dividend is actually paid by us during January of
the following calendar year. Shareholders may not include in their individual
income tax returns any of our net operating losses or capital losses. Federal
income tax rules may also require that certain minimum tax adjustments and
preferences be apportioned to our shareholders.
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In general, any loss upon a sale or exchange of shares by a shareholder who
has held such shares for six months or less, after applying holding period
rules, will be treated as a long-term capital loss, to the extent of
distributions required to be treated by such shareholder as long-term capital
gains.
Gain from the sale or exchange of shares held for more than one year is
taxed at a maximum capital gain rate of 20%. Pursuant to IRS guidance, we may
classify portions of our capital gain dividends as gains eligible for the 20%
capital gains rate or as unrecaptured Internal Revenue Code Section 1250 gain
taxable at a maximum rate of 25%.
Shareholders should consult their tax advisor with respect to taxation of
capital gains and capital gain dividends and with regard to state, local and
foreign taxes on capital gains.
Backup withholding
We will report to our domestic shareholders and to the IRS the amount of
distributions paid during each calendar year, and the amount of tax withheld,
if any, with respect to the paid distributions. Under the backup withholding
rules, a shareholder may be subject to backup withholding at applicable rates
with respect to distributions paid unless such shareholder is a corporation or
comes within other exempt categories and, when required, demonstrates this fact
or provides a taxpayer identification number, certifies as to no loss of
exemption from backup withholding, and otherwise complies with applicable
requirements of the backup withholding rules. A shareholder that does not
provide us with its correct taxpayer identification number may also be subject
to penalties imposed by the IRS. Any amount paid as backup withholding will be
credited against the shareholder's income tax liability. In addition, we may be
required to withhold a portion of capital gain distributions made to any
shareholders who fail to certify their non-foreign status to us.
Taxation of tax-exempt shareholders
The IRS has issued a revenue ruling in which it held that amounts
distributed by a real estate investment trust to a tax-exempt employees'
pension trust do not constitute unrelated business taxable income. Subject to
the discussion below regarding a "pension-held real estate investment trust",
based upon the ruling, the analysis in the ruling and the statutory framework
of the Internal Revenue Code, distributions to a shareholder that is a tax-
exempt entity should also not constitute unrelated business taxable income,
provided that the tax-exempt entity has not financed the acquisition of its
shares with "acquisition indebtedness" within the meaning of the Internal
Revenue Code, and that the shares are not otherwise used in an unrelated trade
or business of the tax-exempt entity, and that we, consistent with our present
intent, do not hold a residual interest in a real estate mortgage investment
conduit.
However, if any pension or other retirement trust that qualifies under
Section 401(a) of the Internal Revenue Code holds more than 10% by value of the
interests in a "pension-held real estate investment trust" at any time during a
taxable year, a portion of the dividends paid to the qualified pension trust by
such real estate investment trust may constitute unrelated business taxable
income. For these purposes, a "pension-held real estate investment trust" is
defined as a real estate investment trust if such real estate investment trust
would not have qualified as a real estate investment trust but for the
provisions of the Internal Revenue Code which look through such a qualified
pension trust in determining ownership of stock of the real estate investment
trust and at least one qualified pension trust holds more than 25% by value of
the interests of such real estate investment trust or one or more qualified
pension trusts (each owning more than a 10% interest by value in the real
estate investment trust) hold in the aggregate more than 50% by value of the
interests in such real estate investment trust.
Taxation of foreign shareholders
We will qualify as a "domestically-controlled real estate investment trust"
so long as less than 50% in value of our shares is held by foreign persons, for
example, nonresident aliens and foreign corporations,
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partnerships, trusts and estates. We currently anticipate that we will qualify
as a domestically controlled real estate investment trust. Under these
circumstances, gain from the sale of the shares by a foreign person should not
be subject to U.S. taxation, unless such gain is effectively connected with
such person's U.S. business or, in the case of an individual foreign person,
such person is present within the U.S. for more than 182 days in such taxable
year.
Distributions of cash generated by our real estate operations, but not by
the sale or exchange of our communities, that are paid to foreign persons
generally will be subject to U.S. withholding tax at a rate of 30%, unless an
applicable tax treaty reduces that tax and the foreign shareholder files with
us the required form evidencing such lower rate or unless the foreign
shareholder files an IRS Form 4224 or IRS Form W-8ECI with us claiming that the
distribution is "effectively connected" income. Under applicable Treasury
Regulations, foreign shareholders generally must provide the IRS Form W-8ECI in
lieu of IRS Form 4224 beginning January 1, 2000 and every three years
thereafter unless the information on the form changes before that date. An IRS
Form 4224 existing on January 1, 2000 will continue to be effective until
December 31, 2000.
Distributions of proceeds attributable to the sale or exchange by us of U.S.
real property interests are subject to income and withholding taxes pursuant to
the Foreign Investment in Real Property Tax Act of 1980, and may be subject to
branch profits tax in the hands of a shareholder which is a foreign corporation
if it is not entitled to treaty relief or exemption. We are required by
applicable Treasury Regulations to withhold 35% of any distribution to a
foreign person that could be designated by us as a capital gain dividend; this
amount is creditable against the foreign shareholder's Foreign Investment in
Real Property Tax Act tax liability.
The federal income taxation of foreign persons is a highly complex matter
that may be affected by many other considerations. Accordingly, foreign
investors should consult their own advisors regarding the income and
withholding tax considerations with respect to their investment.
Other tax considerations
Investments in taxable subsidiaries
Any taxable corporations in which we own an interest will pay federal and
state income taxes at the full applicable corporate rates on its income prior
to payment of any dividends. Such entities will attempt to minimize the amount
of such taxes, but there can be no assurance whether or the extent to which
measures taken to minimize taxes will be successful. To the extent that such
entities in which we invest are required to pay federal, state or local taxes,
the cash available for distribution by such companies to their shareholders
will be reduced accordingly.
Possible legislative or other actions affecting tax consequences
Prospective shareholders should recognize that the present federal income
tax treatment of an investment in us may be modified by legislative, judicial
or administrative action at any time and that any such action may affect
investments and commitments previously made. The rules dealing with federal
income taxation are constantly under review by persons involved in the
legislative process and by the IRS and the Treasury Department, resulting in
revisions of regulations and revised interpretations of established concepts as
well as statutory changes. Revisions in federal tax laws and interpretations of
these laws could adversely affect the tax consequences of an investment in us.
State and local taxes
We and our shareholders may be subject to state or local taxation in various
jurisdictions, including those in which we or they transact business or reside.
The state and local tax treatment of us and our shareholders may not conform to
the federal income tax consequences discussed above. Consequently, prospective
shareholders should consult their own tax advisors regarding the effect of
state and local tax laws on an investment in the common shares.
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Each prospective purchaser is advised to consult with his or her own tax
advisor regarding the specific tax consequences to him or her of the purchase,
ownership, and sales of common shares, including the federal, state, local,
foreign, and other tax consequences of such purchase, ownership, sale and
election and of potential changes in applicable tax laws.
SELLING SHAREHOLDER
Security Capital, including its permitted pledgees, transferees or other
successors in interest may from time to time offer and sell any or all of the
common shares offered by this prospectus. Our registration of the common shares
does not necessarily mean that Security Capital will sell all or any of the
shares.
Security Capital beneficially owns 35,471,214 common shares representing
approximately 28.96% of our outstanding common shares. All of such common
shares are available for resale under this prospectus. If Security Capital
sells all of the common shares covered by this prospectus, it will no longer
own any of our outstanding common shares.
During the past three years, we have had the following material
relationships with Security Capital and its affiliates.
Security Capital Investor Agreement
We and Security Capital are parties to a Third Amended and Restated Investor
Agreement, as amended. The investor agreement provides that, without first
having consulted with the Security Capital nominees to the board of trustees,
our management may not seek board of trustees approval of:
(1) our annual budget;
(2) incurring expenses in any year exceeding
(a) any line item in the annual budget by the greater of $1,000,000
or 20% and
(b) the total expenses set forth in the annual budget by 15%;
(3) the acquisition or sale of any assets in any single transaction or
series of related transactions in the ordinary course of our business where
the aggregate purchase price paid or received by us exceeds $50 million;
and
(4) entering into any new contract with a service provider
(a) for investment management, property management or leasing
services or
(b) which reasonably contemplates annual contract payments by us in
excess of $2 million.
We are under no obligation to accept or comply with any advice offered by
Security Capital with respect to the foregoing matters.
Additionally, so long as Security Capital beneficially owns at least 25% of
the common shares, Security Capital has the right to approve the following
matters proposed by us:
(1) the issuance or sale of any common shares, including the grant of
any rights, options or warrants to subscribe for or purchase common shares
or any security convertible into or exchangeable for common shares or the
issuance or sale of any security convertible into or exchangeable for
common shares, at a price per share less than the fair market value of a
common share on the date of that issuance or sale;
(2) the issuance and sale of any securities that are mandatorily
redeemable or redeemable at the option of the holder if, as a result
thereof, our fixed charge coverage ratio would be less than 1.4 to 1.0;
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(3) the adoption of any employee benefit plan pursuant to which our
shares or any securities convertible into our shares may be issued and any
action with respect to the compensation of our senior officers, including
the granting or award of any bonuses or share-based incentive awards; and
(4) the incurrence of any additional indebtedness, including guarantees
and including renegotiations and restructurings of existing indebtedness,
if, as a result thereof, our interest expense coverage ratio would be less
than 2.0 to 1.0.
The restriction referred to in clause (1) above does not apply to:
(a) the sale or grant of any options to purchase our shares pursuant
to the provisions of any benefit plan approved by our shareholders;
(b) the issuance or sale of our shares upon the exercise of any
rights, options or warrants granted, or upon the conversion or exchange
of any convertible or exchangeable security issued or sold, prior to
the date of the investor agreement or in accordance with the provisions
of the investor agreement;
(c) the issuance or sale of any of our shares pursuant to any
dividend reinvestment and share purchase plan approved by the board of
trustees; or
(d) the issuance, grant or distribution of rights, options or
warrants to all holders of common shares entitling them to subscribe
for or purchase our shares or securities convertible into or
exercisable for our shares.
The investor agreement also provides that, so long as Security Capital owns
at least 10% of our outstanding common shares, we may not increase the number
of persons serving on the board of trustees to more than twelve.
Security Capital also is entitled to designate one or more persons to be
nominated for election to the board of trustees depending upon its ownership of
common shares. So long as Security Capital owns at least 10% but less than 25%
of our outstanding common shares, it is entitled to nominate one person to the
board of trustees. So long as Security Capital owns at least 25% of our
outstanding common shares, it is entitled to nominate that number of persons as
bears approximately the same ratio to the total number of members of the board
of trustees as the number of common shares beneficially owned by Security
Capital bears to the total number of outstanding common shares. For so long as
Security Capital has a right to designate a person to serve on the board of
trustees one of such designees is entitled to serve on the Executive and
Investment Committee and the Executive Compensation Committee of the board of
trustees. Security Capital currently has two nominees on the board of trustees.
The agreement also restricts Security Capital, or a group of which it is a
member, from acquiring in excess of 49% of the common shares subject to various
exceptions.
In addition, the investor agreement provides Security Capital with
registration rights pursuant to which Security Capital has requested this
registration of all of its common shares. All expenses incurred in the
registration of common shares will be borne by us. These expenses include the
expenses of preparing the registration statement and prospectus, all printing
and photocopying expenses and all registration and filing fees under federal
and state securities laws, but do not include any underwriting discounts,
commissions or fees or any fees or expenses of counsel for Security Capital. We
have also agreed to indemnify Security Capital and its officers, directors and
controlling persons, against various liabilities, including liabilities that
may arise under the Securities Act.
Administrative Services Agreement
We and Security Capital are parties to an Administrative Services Agreement
pursuant to which Security Capital provides us with various administrative and
other services with respect to aspects of our business, as
18
<PAGE>
selected by us from time to time. These services include, but are not limited
to, cash management and accounts payable services, internal audit services,
real estate research and insurance administration. Fees payable to Security
Capital are based upon our specific usage at fixed rates per unit for each
service provided. During the first nine months of 2000, we incurred $2.9
million for services rendered under the agreement. During 1999 and 1998, we
incurred $5.5 million and $7.9 million, respectively, for services rendered
under the agreement. The administrative services agreement has a one-year term
and expires on December 31, 2000. The administrative services agreement can be
modified or terminated by us, in whole or in part, at any time, subject to the
payment of a termination fee equal to the average of the monthly charges for
the three months prior to the termination. We expect that we will continue to
use various of the services provided by Security Capital during 2001.
Security Capital Protection of Business Agreement
In September 1997, we and Security Capital entered into a Protection of
Business Agreement which prohibited Security Capital and its affiliates from
providing, anywhere within the United States, directly or indirectly,
management services to any entity which owns or operates apartment properties.
The agreement expired on September 9, 2000.
Homestead funding
Pursuant to a funding commitment agreement entered into upon the formation
of Homestead Village Incorporated, we agreed to make mortgage loans to
Homestead of up to $198.8 million. We fully funded our commitment and received
convertible mortgage notes to evidence fundings under the funding commitment
agreement in stated amounts of $221.3 million. The notes issued to us were
secured by mortgages on 54 properties of Homestead. We recorded $13.6 million
in interest income from the mortgage notes during the first nine months of
2000. During 1999 and 1998, we recorded $23.6 million and $22.9 million,
respectively, in interest income from the mortgage notes ($22.5 million and
$21.9 million, respectively, for purposes of calculating funds from
operations). On July 24, 2000, Security Capital exchanged with us 17,479,293 of
our common shares held by Security Capital for consideration consisting of the
Homestead notes and approximately $178.7 million in cash.
Homestead Protection of Business Agreement
We and Homestead are parties to a Protection of Business Agreement, which
prohibits us and our affiliates from engaging, directly or indirectly, in the
extended-stay lodging business except through Homestead and its subsidiaries.
The protection of business agreement also prohibits Homestead from directly or
indirectly engaging in the ownership, operation, development, management or
leasing of apartment properties. The protection of business agreement does not
prohibit us from:
(1) owning securities of Homestead;
(2) owning up to 5% of the outstanding securities of another person
engaged in owning, operating, developing, managing or leasing extended-stay
lodging properties, so long as we do not actively participate in the
business of that person;
(3) owning the outstanding securities of another person, a majority-
owned subsidiary, division, group, franchise or segment of which is engaged
in owning, operating, developing, managing or leasing extended-stay lodging
properties, so long as not more than 5% of that person's consolidated
revenues are derived from those properties; and
(4) owning securities of another person primarily engaged in a business
other than owning, operating, developing, managing or leasing extended-stay
lodging properties, including a person primarily engaged in business as an
owner, operator or developer of hotel properties, whether or not that
person owns, operates, develops, manages or leases extended-stay lodging
properties.
19
<PAGE>
The protection of business agreement does not prohibit Homestead from:
(1) owning our securities or securities of Security Capital;
(2) owning up to 5% of the outstanding securities of another person
engaged in owning, operating, developing, managing or leasing garden-style
apartment properties; and
(3) owning the outstanding securities of another person, a majority-
owned subsidiary, division, group, franchise or segment of which is engaged
in owning, operating, developing, managing or leasing garden-style
apartment properties, so long as not more than 5% of that person's
consolidated revenues are derived from those properties.
The protection of business agreement will terminate in the event of an
acquisition, directly or indirectly, by any person or group of associated
persons acting in concert, other than us or Security Capital or their
respective affiliates, of 25% or more of the outstanding voting stock of
Homestead, without the prior written consent of Homestead's board of directors.
Subject to earlier termination pursuant to the preceding sentence, the
protection of business agreement will terminate on October 17, 2006.
20
<PAGE>
PLAN OF DISTRIBUTION
We will not receive any proceeds from the sale of common shares by Security
Capital. Security Capital may sell common shares directly or though broker-
dealers or underwriters who may act solely as agents, or who may acquire shares
as principals. Common shares may be sold from time to time by Security Capital
or by its permitted pledgees, transferees or other successors in interest to
Security Capital. The distribution of the common shares may be effected in one
or more transactions that may take place through the New York Stock Exchange,
including block trades or ordinary broker's transactions, or through broker-
dealers acting either as principal or agent, or through privately negotiated
transactions, or through an underwritten public offering, or through a
combination of any such methods of sale, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices for cash or other consideration. Usual and customary or
specifically negotiated brokerage fees or commissions may be paid by Security
Capital in connection with such sales. Additionally, Security Capital may issue
common shares upon conversion or exchange of convertible or exchangeable
securities issued by Security Capital.
The aggregate proceeds to Security Capital from the sale of common shares
will be the purchase price of the common shares sold less the aggregate agents'
commissions and underwriters' discounts, if any, and other expenses of issuance
and distribution not borne by us. Security Capital and any dealers or agents
that participate in the distribution of the common shares may be deemed to be
"underwriters" within the meaning of the Securities Act, and any profit on the
sale of the common shares by them and any commissions received by any such
dealers or agents might be deemed to be underwriting discounts and commissions
under the Securities Act.
To the extent required, the specific number of common shares to be sold, the
names of the selling shareholders, if other than Security Capital, purchase
price, public offering price, the terms upon which such securities may be
issued, the names of any agent, dealer or underwriter, and any applicable
commission or discount with respect to a particular offering will be set forth
in any accompanying prospectus supplement.
Pursuant to the investor agreement described above, we have agreed to bear
certain expenses of registration of the common shares under federal and state
securities laws (currently estimated to be approximately $325,000) and of any
offering and sale hereunder not including certain expenses such as commissions
or discounts of underwriters, dealers or agents and fees attributable to the
sale of the common shares. We have also agreed to indemnify Security Capital
against liabilities, including certain potential liabilities arising under the
Securities Act, or to contribute to the payments Security Capital may be
required to make in respect thereof.
EXPERTS
The financial statements and schedule of Archstone Communities Trust as of
December 31, 1999 and 1998, and for each of the years in the three-year period
ended December 31, 1999, have been incorporated by reference in this prospectus
and in the registration statement in reliance upon the reports of KPMG LLP,
independent certified public accountants, which reports are incorporated by
reference in this prospectus, and upon the authority of that firm as experts in
accounting and auditing. To the extent that KPMG LLP audits and reports on our
financial statements issued at future dates, and consents to the use of their
report thereon, those financial statements also will be incorporated by
reference in the registration statement in reliance upon their report and that
authority.
With respect to our unaudited condensed interim financial information for
the periods ended March 31, 2000 and 1999, and June 30, 2000 and 1999,
incorporated by reference in this prospectus, KPMG LLP has reported that they
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate reports included in our
quarterly reports on Form 10-Q for the quarters ended March 31, 2000, and June
30, 2000, and incorporated by reference in this prospectus, state that they did
21
<PAGE>
not audit, and they do not express an opinion, on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. The accountants are not subject to the liability provisions
of Section 11 of the Securities Act for their reports on the unaudited interim
financial information because those reports are not a "report" or a "part" of
the registration statement prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Securities Act.
LEGAL MATTERS
Mayer, Brown & Platt, Chicago, Illinois, will provide us with opinions as to
the validity of the common shares being offered pursuant to this prospectus,
various tax matters related to us and our shareholders and various other legal
matters in connection with the securities offered under this prospectus. Mayer,
Brown & Platt has in the past represented and is currently representing us and
our affiliates, including Security Capital.
22
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses to be paid in connection with the distribution of the
securities being registered are estimated as follows and will be borne by the
registrant and selling shareholder as shown below:
<TABLE>
<CAPTION>
Borne by
Borne by Selling
Registrant Shareholder
---------- -----------
<S> <C> <C>
SEC registration fee.................................. $217,722 $ 0
Accounting fees and expenses.......................... $ 10,000 $ 0
Legal fees and expenses............................... $ 25,000 $ 0
Printing fees......................................... $ 50,000 $ 0
Miscellaneous fees and expenses....................... $ 22,278 $5,000
-------- ------
Total............................................... $325,000 $5,000
======== ======
</TABLE>
Item 15. Indemnification of Directors and Officers.
Article 4, Section 11 of the registrant's Amended and Restated Declaration
of Trust provides as follows with respect to indemnification of Trustees:
"The Trust shall indemnify each Trustee, to the fullest extent permitted by
Maryland law, as amended from time to time, in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she was a
Trustee of the Trust or is or was serving at the request of the Trust as a
director, trustee, officer, partner, manager, member, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
limited liability company, other enterprise or employee benefit plan, from all
claims and liabilities to which such person may become subject by reason of
service in such capacity and shall pay or reimburse reasonable expenses, as
such expenses are incurred, of each Trustee in connection with any such
proceedings."
Article 4, Section 10 of the registrant's Amended and Restated Declaration
of Trust provides as follows with respect to the limitation of liability of
Trustees:
"To the maximum extent that Maryland law in effect from time to time permits
limitation of the liability of trustees of a real estate investment trust, no
Trustee of the Trust shall be liable to the Trust or to any Shareholder for
money damages. Neither the amendment nor repeal of this Section 10, nor the
adoption or amendment of any other provision of this Declaration of Trust
inconsistent with this Section 10, shall apply to or affect in any respect the
applicability of the preceding sentence with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption. In the absence
of any Maryland statute limiting the liability of trustees of a Maryland real
estate investment trust for money damages in a suit by or on behalf of the
Trust or by any Shareholder, no Trustee of the Trust shall be liable to the
Trust or to any Shareholder for money damages except to the extent that (i) the
Trustee actually received an improper benefit or profit in money, property or
services, for the amount of the benefit or profit in money, property or
services actually received; or (ii) a judgment or other final adjudication
adverse to the Trustee is entered in a proceeding based on a finding in the
proceeding that the Trustee's action or failure to act was the result of active
and deliberate dishonesty and was material to the cause of action adjudicated
in the proceeding."
Article VIII, Section 2 of the registrant's Amended and Restated Declaration
of Trust provides as follows with respect to the indemnification of officers:
"The Trust shall indemnify each officer and employee, and shall have the
power to indemnify each agent, of the Trust to the fullest extent permitted by
Maryland law, as amended from time to time, in connection with
II-1
<PAGE>
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
was an officer, employee or agent of the Trust or is or was serving at the
request of the Trust as a director, trustee, officer, partner, manager, member,
employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust, limited liability company, other enterprise or employee
benefit plan, from all claims and liabilities to which such person may become
subject by reason of service in such capacity and shall pay or reimburse
reasonable expenses, as such expenses are incurred, of each officer, employee
or agent in connection with any such proceedings."
Article VIII, Section 1 of the registrant's Amended and Restated Declaration
of Trust provides as follows with respect to the limitation of liability of
officers:
"To the maximum extent that Maryland law in effect from time to time permits
limitation of the liability of officers of a real estate investment trust, no
officer of the Trust shall be liable to the Trust or to any Shareholder for
money damages. Neither the amendment nor repeal of this Section 1, nor the
adoption or amendment of any other provision of this Declaration of Trust
inconsistent with this Section 1, shall apply to or affect in any respect the
applicability of the preceding sentence with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption. In the absence
of any Maryland statute limiting the liability of officers of a Maryland real
estate investment trust for money damages in a suit by or on behalf of the
Trust or by any Shareholder, no officer of the Trust shall be liable to the
Trust or to any Shareholder for money damages except to the extent that (i) the
officer actually received an improper benefit or profit in money, property or
services, for the amount of the benefit or profit in money, property or
services actually received; or (ii) a judgment or other final adjudication
adverse to the officer is entered in a proceeding based on a finding in the
proceeding that the officer's action or failure to act was the result of active
and deliberate dishonesty and was material to the cause of action adjudicated
in the proceeding."
The registrant has entered into indemnity agreements with each of its
officers and Trustees which provide for reimbursement of all expenses and
liabilities of such officer or Trustee arising out of any lawsuit or claim
against such officer or Trustee due to the fact that he was or is serving as an
officer or Trustee, except for such liabilities and expenses (a) the payment of
which is judicially determined to be unlawful, (b) relating to claims under
Section 16(b) of the Securities Exchange Act of 1934, or (c) relating to
judicially determined criminal violations.
Item 16. Exhibits.
A list of exhibits filed herewith is contained on the Exhibit Index which
immediately precedes such exhibits and is incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(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 end 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 a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
II-2
<PAGE>
(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 or Form S-8, and the
information required to be included in a post-effective registration
amendment by those paragraphs is contained in periodic reports filed 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.
The undersigned registrant hereby undertakes 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 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.
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 Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by 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 persons 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 Securities Act and will be
governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that: (a) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of
the time it was declared effective; (b) for the purpose of determining any
liability under the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Englewood, State of Colorado, on the 8th day of
November, 2000.
Archstone Communities Trust
/s/ R. Scot Sellers
By: _________________________________
R. Scot Sellers
Chairman and Chief Executive
Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Archstone Communities Trust, a
Maryland real estate investment trust, and the undersigned trustees and
officers of Archstone Communities Trust, hereby constitutes and appoints R.
Scot Sellers, Charles E. Mueller, Jr. and Caroline Brower, its or his true and
lawful attorneys-in-fact and agents, for it or him and in its or his name,
place and stead, in any and all capacities, with full power to act alone, to
sign any and all amendments to this registration statement (including pursuant
to Rule 462(b)), and to file each such amendment to this report, with all
exhibits thereto, and any and all documents in connection therewith, with the
Securities and Exchange Commission, hereby granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform any
and all acts and things requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as it or he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ R. Scot Sellers Chairman, Chief Executive November 8, 2000
______________________________________ Officer (principal
R. Scot Sellers executive officer) and
Trustee
/s/ Charles E. Mueller, jr. Chief Financial Officer November 8, 2000
______________________________________ (principal financial
Charles E. Mueller, Jr. officer)
/s/ William Kell Controller (principal November 8, 2000
______________________________________ accounting officer) and
William Kell Senior Vice President
/s/ C. Ronald Blankenship Trustee November 8, 2000
______________________________________
C. Ronald Blankenship
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James A. Cardwell Trustee November 8, 2000
______________________________________
James A. Cardwell
/s/ Ned S. Holmes Trustee November 8, 2000
______________________________________
Ned S. Holmes
/s/ John T. Kelley, iii Trustee November 8, 2000
______________________________________
John T. Kelley, III
/s/ James H. Polk, iii Trustee November 8, 2000
______________________________________
James H. Polk, III
/s/ John M. Richman Trustee November 8, 2000
______________________________________
John M. Richman
/s/ John C. Schweitzer Trustee November 8, 2000
______________________________________
John C. Schweitzer
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Document Description
------- --------------------
<C> <S>
4.1 Amended and Restated Declaration of Trust of Archstone (incorporated
by reference to Exhibit 4.1 to Archstone's Current Report on Form 8-K
dated July 7, 1998)
4.2 Second Amended and Restated Bylaws of Archstone (incorporated by
reference to Exhibit 3.2 to Archstone's Annual Report on Form 10-K for
the year ended December 31, 1999)
4.3 Articles Supplementary, dated August 3, 1999, related to the Series D
Cumulative Redeemable Preferred Shares of Beneficial (incorporated by
reference to Exhibit 99.2 to Archstone's Current Report on Form 8-K,
dated August 3, 1999)
4.4 Articles Supplementary, dated August 13, 1999, related to the Series E
Cumulative Redeemable Preferred Shares of Beneficial Interest
(incorporated by reference to Exhibit 4.1 to Archstone's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1999)
4.5 Certificate of Correction, dated October 12, 1999, to the Articles
Supplementary, dated August 13, 1999, related to the Series E
Cumulative Redeemable Preferred Shares of Beneficial Interest
(incorporated by reference to Exhibit 4.2 to Archstone's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1999)
4.6 Articles Supplementary, dated September 27, 1999, related to the
Series F Cumulative Redeemable Preferred Shares of Beneficial Interest
(incorporated by reference to Exhibit 4.3 to Archstone's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1999)
4.7 Articles Supplementary dated March 3, 2000 related to the Series G
Cumulative Redeemable Preferred Shares of Beneficial Interest
(incorporated by reference to Exhibit 4.1 to Archstone's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2000)
4.8 Articles of Amendment of Amended and Restated Declaration of Trust,
dated as of May 17, 2000 (incorporated by reference to Exhibit 3.1 to
Archstone's Quarterly Report on Form 10-Q for the quarter ended June
30, 2000)
4.9 Indenture, dated as of February 1, 1994, between Archstone and Morgan
Guaranty Trust Company of New York, as Trustee relating to Archstone's
unsecured senior debt securities (incorporated by reference to Exhibit
4.2 to Archstone's Annual Report on Form 10-K for the year ended
December 31, 1993)
4.10 First Supplemental Indenture, dated as of February 2, 1994, among
Archstone, Morgan Guaranty Trust Company of New York and State Street
Bank and Trust Company, as successor Trustee (incorporated by
reference to Exhibit 4.3 to Archstone's Annual Report on Form 8-K
dated July 19, 1994)
4.11 Rights Agreement, dated as of July 21, 1994, between Archstone and
Chemical Bank, including Form of Rights Certificate (incorporated by
reference to Exhibit 4.2 to Archstone's Current Report on Form 8-K
dated July 19, 1994)
4.12 First Amendment, dated as of February 8, 1995, to the Rights Agreement
(incorporated by reference to Exhibit 4.13 to Archstone's Annual
Report on Form 10-K for the year ended December 31, 1994)
4.13 Indenture, dated as of August 14, 1997 from Security Capital Atlantic
Incorporated to State Street Bank and Trust Company, as Trustee
(incorporated by reference to Exhibit 4.8 of Security Capital Atlantic
Incorporated's Registration Statement on Form S-11 (File No. 333-
30747))
4.14 Form of share certificate for common Shares of Beneficial Interest of
Archstone (incorporated by reference to Archstone's Registration
Statement on Form 8-A dated June 23, 1998)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Document Description
------- --------------------
<C> <S>
5.1 Opinion of Mayer, Brown & Platt as to legality of the securities being
registered
8.1 Opinion of Mayer, Brown & Platt as to tax matters
15.1 Letter from KPMG LLP as to unaudited interim financial information
23.1 Consent of KPMG LLP
23.2 Consent of Mayer, Brown & Platt (included in the opinions filed as
Exhibits 5.1 and 8.1)
24.1 Power of Attorney (included in this Registration Statement on page II-
4)
</TABLE>
