<PAGE> 1
As filed with the Securities and Exchange Commission on April 21, 1995.
Registration Statement No. 33-57659
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
PRE-EFFECTIVE AMENDMENT NO. 1
To
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
WEINGARTEN REALTY INVESTORS
(Exact name of Registrant as specified in its charter)
TEXAS 74-1464203
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2600 CITADEL PLAZA DRIVE
HOUSTON, TEXAS 77008
(713) 866-6000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
--------------------
STANFORD ALEXANDER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
WEINGARTEN REALTY INVESTORS
2600 CITADEL PLAZA DRIVE
HOUSTON, TEXAS 77008
(713) 866-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
COPIES TO:
ROBERT V. JEWELL HOWARD G. GODWIN, JR.
ANDREWS & KURTH L.L.P. BROWN & WOOD
4200 TEXAS COMMERCE TOWER ONE WORLD TRADE CENTER
HOUSTON, TEXAS 77002 NEW YORK, NEW YORK 10048-0557
--------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
--------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title Of Each Class Of Proposed Maximum Proposed Maximum Amount Of
Securities To Be Amount To Be Offering Price Aggregate Offering Registration
Registered (1) Registered (2) Per Unit (3) Price (2) (3) Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities
Preferred Shares (4) ) ) ) )
Common Shares (5) ) $200,000,000 ) (6) ) $200,000,000 ) $68,966(7)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
__________________________________
(1) This Registration Statement also covers delayed delivery contracts that may
be issued by the Registrant under which the party purchasing such contracts
may be required to purchase Debt Securities, Preferred Shares or Common
Shares. Such contracts may be issued together with the specific Securities
to which they relate. In addition, Securities registered hereunder either
may be sold separately or as units comprised of more than one type of
Security registered hereunder.
(2) In U. S. Dollars or the equivalent thereof denominated in one or more
foreign currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(3) Estimated solely for the purpose of calculating the registration fee.
This Registration Statement is intended to register both the issuance of
Common Shares and Preferred Shares issued for sale directly by the Company,
as well as the issuance of such Common and Preferred Shares upon the
conversion of the Debt Securities or the Preferred Shares, as appropriate.
No separate consideration will be received for Common Shares or Preferred
Shares that are issued upon conversion of Debt Securities or Preferred
Shares registered hereunder, as the case may be. The aggregate maximum
offering price of all Securities issued pursuant to this Registration
Statement will not exceed $200,000,000.
<PAGE> 2
(Footnotes continued from previous page)
(4) Such indeterminate number of Preferred Shares as may from time to time be
issued at indeterminate prices or issuable upon conversion of Debt
Securities.
(5) Such indeterminate number of Common Shares as may from time to time be
issued at indeterminate prices or issuable upon conversion of Debt
Securities or Preferred Shares registered hereunder, as the case may be.
(6) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(7) Calculated pursuant to Rule 457(o) under the Securities Act of 1933,
as amended.
--------------------
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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 3
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 21, 1995
PROSPECTUS
WEINGARTEN REALTY INVESTORS
$200,000,000
DEBT SECURITIES, PREFERRED SHARES AND COMMON SHARES
--------------------
Weingarten Realty Investors, a real estate investment trust formed
under Texas law (the "Company"), may from time to time offer in one or more
series (i) its unsecured debt securities (the "Debt Securities"), (ii) its
preferred shares of beneficial interest, par value $.03 per share (the
"Preferred Shares"), and (iii) its common shares of beneficial interest, par
value $.03 per share (the "Common Shares"), with an aggregate public offering
price of up to $200,000,000 (or its equivalent in any other currency or
composite currency based on the exchange rate at the time of sale) in amounts,
at prices and on terms to be determined at the time of offering. The Debt
Securities, Preferred Shares and Common Shares (collectively, the "Securities")
may be offered, separately or together, in separate series in amounts, at
prices and on terms to be set forth in a supplement to this Prospectus (a
"Prospectus Supplement").
The Debt Securities will be direct unsecured obligations of the Company
and may be either senior Debt Securities ("Senior Securities") or subordinated
Debt Securities ("Subordinated Securities"). The Senior Securities will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company. The Subordinated Securities will be subordinated to all existing and
future Senior Debt of the Company, as defined. See "Description of Debt
Securities."
The specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Debt
Securities, the specific title, aggregate principal amount, currency, form
(which may be registered or bearer, or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof) and time of
payment of interest, terms for redemption at the option of the Company or
repayment at the option of the Holder, terms for sinking fund payments, terms
for conversion into Preferred Shares or Common Shares and any initial public
offering price; (ii) in the case of Preferred Shares, the specific title and
stated value, any dividend, liquidation, redemption, conversion, voting and
other rights, and any initial public offering price; and (iii) in the case of
Common Shares, any initial public offering price. In addition, such specific
terms may include limitations on direct or beneficial ownership and
restrictions on transfer of the Securities, in each case as may be appropriate
to preserve the status of the Company as a real estate investment trust
("REIT") for federal income tax purposes.
The applicable Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities
covered by such Prospectus Supplement.
The Securities may be offered directly, through agents designated from
time to time by the Company, or to or through underwriters or dealers. If any
agents or underwriters are involved in the sale of any of the Securities, their
names, and any applicable purchase price, fee, commission or discount
arrangement between or among them, will be set forth, or will be calculable
from the information set forth, in the applicable Prospectus Supplement. See
"Plan of Distribution." No Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms of the
offering of such series of Securities.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
--------------------
The date of this Prospectus is ____________________, 1995.
<PAGE> 4
***************************************************************************
* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. *
* A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY *
* NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
<PAGE> 5
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at the Public Reference Section
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549; Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and New York Regional Office, 7 World Trade Center, New
York, New York 10048. In addition, the Company's Common Shares are listed on
the New York Stock Exchange, Inc. and similar information about the Company can
be inspected and copied at prescribed rates at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities being offered
hereby. For further information with respect to the Company and the Securities
offered hereby, reference is made to the Registration Statement and exhibits
thereto. Statements contained in this Prospectus as to the contents of any
contract or other documents are not necessarily complete, and in each instance,
reference is made to the copy of such contract or documents filed as an exhibit
to the Registration Statement, each such statement being qualified in all
respects by such reference.
--------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 1-9876) are incorporated in this Prospectus by reference and are made a
part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
Each document filed subsequent to the date of this Prospectus pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering of all Securities to which this Prospectus relates
shall be deemed to be incorporated by reference in this Prospectus and shall be
a part hereof from the date of filing of such document.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement herein, in any
accompanying Prospectus Supplement relating to a specific offering of
Securities or in any other subsequently filed document that is also
incorporated or deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus or any accompanying Prospectus Supplement. Subject to the
foregoing, all information appearing in this Prospectus and each accompanying
Prospectus Supplement is qualified in its entirety by the information appearing
in the documents incorporated by reference.
--------------------
UPON WRITTEN OR ORAL REQUEST OF ANY PERSON TO WHOM A PROSPECTUS IS
DELIVERED, THE COMPANY WILL PROVIDE, WITHOUT CHARGE, A COPY OF THE DOCUMENTS
WHICH HAVE BEEN INCORPORATED BY REFERENCE IN THIS PROSPECTUS. REQUESTS FOR
SUCH DOCUMENTS SHOULD BE DIRECTED TO M. CANDACE DUFOUR, VICE PRESIDENT AND
SECRETARY, WEINGARTEN REALTY INVESTORS, 2600 CITADEL PLAZA DRIVE, HOUSTON,
TEXAS 77008, TELEPHONE (713) 866-6000.
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<PAGE> 6
THE COMPANY
Weingarten Realty Investors has owned and developed shopping centers and
other commercial real estate since its organization in 1948. The Company's
investment focus has been and continues to be on shopping centers. As of
March 3, 1995, Trust Managers and executive officers of the Company controlled
4,184,082 Common Shares or approximately 15.9% of the outstanding
Common Shares.
Initially, the Company grew primarily through development of properties,
with 91 of the 161 operating properties having been developed by the Company.
With respect to these projects, the Company acquired the raw land, constructed
buildings and leased the store spaces. The Company generally develops new
projects only when it has leases in place with financially strong and viable
anchor retailers. More recently, the Company has expanded its property base
primarily through acquisitions of properties previously developed by other
parties which satisfy investment criteria similar to those applicable to new
developments. Management believes that the majority of the Company's growth in
the immediate future will continue to result from acquisitions, due to the
continuing over-supply of developed real estate projects, the current lack of
capital for most of the Company's competitors to finance new investments and
the prevailing market discount from reproduction costs for new projects. As
part of its acquisition strategy, the Company seeks under-managed properties in
good locations, the value of which can be enhanced through remerchandising and
renovating. Geographically, the Company considers expansion in areas where it
currently has a presence or where it can acquire within a reasonable time frame
a sufficient number of properties that meet its investment criteria.
An equally important part of the Company's strategy has been to improve
the cash flow and value of its existing portfolio through: (i) maximizing
rental revenues, occupancy and retail sales, (ii) operating the properties in
the most cost effective manner and (iii) renovating and remerchandising the
tenant mix with respect to selected properties.
Management believes that its overall debt structure is conservative.
Based upon the approximately $1 billion market value of the Company's equity at
December 31, 1994, the Company's debt represented less than 23% of its total
market capitalization. The Company's ratio of funds from operations before
interest expense to fixed charges for the year ended December 31, 1994
was approximately 6.10 to 1.0.
The Company conducts its operations in order to qualify as a REIT under
the Internal Revenue Code of 1986, as amended. The Company's principal
executive offices are located at 2600 Citadel Plaza Drive, Houston, Texas
77008, and its telephone number is (713) 866-6000. As used herein, the term
"Company" refers to Weingarten Realty Investors and its predecessors unless the
context otherwise specifically requires.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement for
any offering of Securities, the Company intends to use the majority of the net
proceeds from the sale of Securities offered by the Company to repay debt
(including repayments of amounts drawn on lines of credit for property
acquisitions), make improvements to properties, acquire or develop additional
properties and for working capital. Pending use for the foregoing purposes,
such proceeds may be invested in short-term, interest-bearing time or demand
deposits with financial institutions, cash items or qualified government
securities.
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<PAGE> 7
CERTAIN RATIOS
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges and of funds from operations before interest expense
to fixed charges for the periods shown:
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
--------------------------------------
1990 1991 1992 1993 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges ........................ 1.68x 1.72x 1.89x 3.94x 4.16x
Ratio of Funds from Operations
Before Interest
Expense to Fixed
Charges ........................ 2.42x 2.52x 2.82x 5.83x 6.10x
</TABLE>
The ratios of earnings to fixed charges were computed by dividing
earnings by fixed charges. The ratios of funds from operations before interest
expense to fixed charges were computed by dividing funds from operations before
interest expense by fixed charges. For these purposes, earnings consist of
income before extraordinary items and fixed charges, and funds from operations
before interest expense consists of net income plus depreciation, amortization
and extraordinary charges, gains and losses on sales of properties and
securities. Fixed charges consist of interest expense (including interest
costs capitalized), amortization of debt costs and the portion of rent expense
representing an interest factor.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Senior Securities are to be issued under an indenture (the "Senior
Indenture"), to be entered into between the Company and Texas Commerce Bank
National Association, as Trustee, and the Subordinated Securities are to be
issued under a separate indenture (the "Subordinated Indenture"), also to be
entered into between the Company and Texas Commerce Bank National Association,
as Trustee. The term "Trustee" as used herein shall refer to Texas Commerce
Bank National Association or such other bank as the Company may appoint as
trustee pursuant to the terms of the applicable Indenture, in its or their
capacity as Trustee for the Senior Securities or the Subordinated Securities,
as appropriate. The forms of the Senior Indenture and the Subordinated
Indenture (being sometimes referred to herein collectively as the "Indentures"
and individually as an "Indenture") are filed as exhibits to the Registration
Statement. The Indentures are subject to and governed by the Trust Indenture
Act of 1939, as amended (the "TIA"), and may be supplemented from time to time
following execution. The statements made under this heading relating to the
Debt Securities and the Indentures are summaries of the provisions thereof and
do not purport to be complete and are qualified in their entirety by reference
to the Indentures and such Debt Securities. Parenthetical references below are
to the Indentures and capitalized terms used but not defined herein shall have
the respective meanings set forth in the Indentures.
TERMS
The Debt Securities will be direct, unsecured obligations of the
Company. The indebtedness represented by the Senior Securities will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company. The indebtedness represented by the Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Debt of the Company as described under "Subordination."
Each Indenture provides that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case as
established from time to time in, or pursuant
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<PAGE> 8
to authority granted by, a resolution of the Board of Trust Managers of the
Company or as established in one or more indentures supplemental to such
Indenture. All Debt Securities of one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders of the Debt Securities of such series, for issuances of
additional Debt Securities of such series (Section 301 of each Indenture).
Each Indenture provides that there may be more than one Trustee
thereunder, each with respect to one or more series of Debt Securities. Any
Trustee under either Indenture may resign or be removed with respect to one or
more series of Debt Securities, and a successor Trustee may be appointed to act
with respect to such series (Section 608 of each Indenture). In the event that
two or more persons are acting as Trustee with respect to different series of
Debt Securities, each such Trustee shall be a Trustee of a trust under the
applicable Indenture separate and apart from the trust administered by any
other Trustee (Section 609 of each Indenture), and, except as otherwise
indicated herein, any action described herein to be taken by each Trustee may
be taken by each such Trustee with respect to, and only with respect to, the
one or more series of Debt Securities for which it is Trustee under the
applicable Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
(1) the title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated
Securities;
(2) the aggregate principal amount of such Debt Securities and
any limit on such aggregate principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal
amount thereof, the portion of the principal amount
thereof payable upon declaration of acceleration of the
maturity thereof, or (if applicable) the portion of the
principal amount of such Debt Securities which is
convertible into Common Shares or Preferred Shares, or the
method by which any such portion shall be determined;
(4) if convertible, in connection with the preservation of the
Company's status as a REIT, any applicable limitations on
the ownership or transferability of the Common Shares or
Preferred Shares into which such Debt Securities are
convertible;
(5) the date or dates, or the method for determining such date
or dates, on which the principal of such Debt Securities
will be payable;
(6) the rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at
which such Debt Securities will bear interest, if any;
(7) the date or dates, or the method for determining such date
or dates, from which any such interest will accrue, the
Interest Payment Dates on which any such interest will be
payable, the Regular Record Dates for such Interest
Payment Dates, or the method by which such dates shall be
determined, the Persons to whom such interest shall be
payable, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve
30-day months;
(8) the place or places where the principal of (and premium,
if any) and interest, if any, on such Debt Securities will
be payable, where such Debt Securities may be surrendered
for conversion or registration of transfer or exchange and
where notices or demands to or upon the Company in respect
of such Debt Securities and the applicable Indenture may
be served;
-5-
<PAGE> 9
(9) the period or periods within which, the price or prices at
which and the other terms and conditions upon which such
Debt Securities may be redeemed, as a whole or in part, at
the option of the Company, if the Company is to have such
an option;
(10) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund
or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price
or prices at which and the other terms and conditions upon
which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such
obligation;
(11) if other than U.S. dollars, the currency or currencies in
which such Debt Securities are denominated and payable,
which may be a foreign currency or units of two or more
foreign currencies or a composite currency or currencies,
and the terms and conditions relating thereto;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on such Debt
Securities may be determined with reference to an index,
formula or other method (which index, formula or method
may, but need not be, based on a currency, currencies,
currency unit or units or composite currency or
currencies) and the manner in which such amounts shall be
determined;
(13) any additions to, modifications of or deletions from the
terms of such Debt Securities with respect to the Events
of Default or covenants set forth in the applicable
Indenture;
(14) whether such Debt Securities will be issued in
certificated or book-entry form;
(15) whether such Debt Securities will be in registered or
bearer form, and if in registered form, the denominations
thereof if other than $1,000 and any integral multiple
thereof and, if in bearer form, the denominations thereof
and terms and conditions relating thereto;
(16) the applicability, if any, of the defeasance and covenant
defeasance provisions of Article XIV of the applicable
Indenture;
(17) the terms, if any, upon which such Debt Securities may be
convertible into Common Shares or Preferred Shares of the
Company and the terms and conditions upon which such
conversion will be effected, including, without
limitation, the initial conversion price or rate and the
conversion period;
(18) whether and under what circumstances the Company will pay
Additional Amounts as contemplated in the applicable
Indenture on such Debt Securities in respect of any tax,
assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Debt
Securities in lieu of making such payment; and
(19) any other terms of such Debt Securities not inconsistent
with the provisions of the applicable Indenture (Section
301 of each Indenture).
The Debt Securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity
thereof ("Original Issue Discount Securities") (Section 502 of each Indenture).
Special U.S. federal income tax, accounting and other considerations applicable
to Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
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<PAGE> 10
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof (Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium, if any) and interest, if any, on any
series of Debt Securities will be payable at the corporate trust office of the
Trustee, initially located at 80 Broad Street, 4th Floor, New York, New York
10004 in the case of each of the Senior Securities and the Subordinated
Securities, provided that, at the option of the Company, payment of interest
may be made by check mailed to the address of the Person entitled thereto as it
appears in the Security Register or by wire transfer of funds to such Person at
an account maintained within the United States (Sections 301, 305, 306, 307 and
1002 of each Indenture).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
applicable Trustee, notice whereof shall be mailed to each Holder of such Debt
Security not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more completely described
in the applicable Indenture (Section 307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the applicable Trustee
referred to above. In addition, subject to certain limitations imposed upon
Debt Securities issued in book-entry form, the Debt Securities of any series
may be surrendered for conversion or registration of transfer or exchange at
the corporate trust office of the applicable Trustee referred to above. Every
Debt Security surrendered for conversion, registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer. No
service charge will be made for any registration of transfer or exchange of any
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith
(Section 305 of each Indenture). If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the applicable Trustee) initially
designated by the Company with respect to any series of Debt Securities, the
Company may at any time rescind the designation of any such transfer agent or
approve a change in the location through which any such transfer agent acts,
except that the Company will be required to maintain a transfer agent in each
Place of Payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities
(Section 1002 of each Indenture).
Neither the Company nor any Trustee shall be required to: (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close of
business on the day of mailing of the relevant notice of redemption; (ii)
register the transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except the unredeemed portion of any Debt Security being
redeemed in part; or (iii) issue, register the transfer of or exchange any Debt
Security that has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Debt Security not to be so repaid (Section
305 of each Indenture).
MERGER, CONSOLIDATION OR SALE
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
corporation or trust or entity provided that: (i) either the Company shall be
the continuing entity, or the successor entity (if other than the Company)
formed by or resulting from any such consolidation or merger or which shall
have received the transfer of such
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<PAGE> 11
assets shall expressly assume payment of the principal of (and premium, if any)
and interest, if any, on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions contained in
each Indenture; (ii) immediately after giving effect to such transaction and
treating any indebtedness that becomes an obligation of the Company or any
Subsidiary as a result thereof as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default under the
Indenture, and no event which, after notice or the lapse of time, or both, would
become such an Event of Default, shall have occurred and be continuing; and
(iii) an officers' certificate and legal opinion covering such conditions shall
be delivered to each Trustee (Sections 801 and 803 of each Indenture).
CERTAIN COVENANTS
Limitations on Incurrence of Debt. The Company will not, and will not
permit any Subsidiary to, incur any Debt (as defined below) if, immediately
after giving effect to the incurrence of such Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries on a consolidated basis determined in accordance
with generally accepted accounting principles is greater than 60% of the sum of
(without duplication) (i) the Company's Total Assets (as defined below) as of
the end of the calendar quarter covered in the Company's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Commission (or, if such filing is not permitted under the Exchange
Act, with the Trustee) prior to the incurrence of such additional Debt and (ii)
the purchase price of any real estate assets or mortgages receivable acquired,
and the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt (Section 1004 of each Indenture).
In addition to the foregoing limitation on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Debt secured
by any mortgage, lien, charge, pledge, encumbrance or security interest of any
kind upon any of the property of the Company or any Subsidiary if, immediately
after giving effect to the incurrence of such Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries on a consolidated basis which is secured by any
mortgage, lien, charge, pledge, encumbrance or security interest on property of
the Company or any Subsidiary is greater than 40% of the Company's Total Assets
(Section 1004 of each Indenture).
In addition to the foregoing limitations on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Debt if the
ratio of Consolidated Income Available for Debt Service (as defined below) to
the Annual Service Charge (as defined below) for the four consecutive fiscal
quarters most recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5, on a pro forma basis after giving
effect thereto and to the application of the proceeds therefrom, and calculated
on the assumption that: (i) such Debt and any other Debt incurred by the
Company and its Subsidiaries since the first day of such four-quarter period
and the application of the proceeds therefrom, including to refinance other
Debt, had occurred at the beginning of such period; (ii) the repayment or
retirement of any other Debt by the Company and its Subsidiaries since the
first day of such four-quarter period had been incurred, repaid or retired at
the beginning of such period (except that, in making such computation, the
amount of Debt under any revolving credit facility shall be computed based upon
the average daily balance of such Debt during such period); (iii) in the case
of Acquired Debt (as defined below) or Debt incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition being included in such
pro forma calculation; and (iv) in the case of any acquisition or disposition
by the Company or its Subsidiaries of any asset or group of assets since the
first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition or disposition or any related
repayment of Debt had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation (Section 1004 of each Indenture).
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Existence. Except as permitted under "Merger, Consolidation or Sale,"
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its legal existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any right or franchise if it determines that the
preservation thereof is no longer desirable in the conduct of its business
(Section 1005 of each Indenture).
Maintenance of Properties. The Company will cause all of its material
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times (Section 1006 of each Indenture).
Insurance. The Company will keep, and will cause each of its
Subsidiaries to keep, all of its insurable properties insured against loss or
damage in an amount at least equal to their then full insurable value with
insurers of recognized responsibility and, if such insurer has publicly rated
debt, the rating for such debt must be at least investment grade with a
nationally recognized rating agency) (Section 1007 of each Indenture).
Payment of Taxes and Other Claims. The Company will pay or discharge,
or cause to be paid or discharged, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
(Section 1008 of each Indenture).
Provision of Financial Information. Whether or not the Company is
subject to Section 13 or 15(d) of the Exchange Act, the Company will, within 15
days of each of the respective dates by which the Company would have been
required to file annual reports, quarterly reports and other documents with the
Commission if the Company were so subject, (i) transmit by mail to all Holders
of Debt Securities, as their names and addresses appear in the Security
Register, without cost to such Holders, copies of the annual reports, quarterly
reports and other documents that the Company would have been required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Company were subject to such Sections, (ii) file with the applicable Trustee
copies of the annual reports, quarterly reports and other documents that the
Company would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (iii) promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective Holder (Section 1009 of each Indenture).
Maintenance of Value of Unencumbered Assets to Unsecured Debt. The
Company will at all times maintain an Unencumbered Total Asset Value in an
amount of not less than 100% of the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries that is unsecured (Section
1013 of each Indenture).
Limited Covenants in the Event of a Highly Leveraged Transaction. Other
than the covenants of the Company included in the Indentures as described
above, there are no covenants in the Indentures that will afford the holders of
Debt Securities protection in the event of a highly leveraged transaction or
similar transaction involving the Company. Restrictions on ownership and
transfers of the Company's Common Shares and Preferred Shares are designed to
preserve its status as a REIT and, therefore, may act to prevent or hinder a
change of control. See "Description of Preferred Shares" and "Description of
Common Shares." Reference is made to the applicable Prospectus Supplement for
information with respect to any deletions from, modifications of, or additions
to, the Events of Default
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or covenants of the Company that are described above, including any addition of
a covenant or other event risk provision or similar protection.
As used herein,
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary or
such acquisition. Acquired Debt shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Annual Service Charge" as of any date means the maximum amount which is
payable in any period for interest on, and original issue discount of, Debt of
the Company and its Subsidiaries and the amount of dividends which are payable
in respect of any Disqualified Stock (as defined below).
"Capital Shares" means, with respect to any Person, any capital shares
(including preferred shares), interests participations or other ownership
interests (however designated) of such Person and any rights (other than debt
securities convertible into or exchangeable for capital shares), warrants or
options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means
Funds from Operations (as defined below) of the Company and its Subsidiaries
plus amounts which have been deducted for interest on Debt of the Company and
its Subsidiaries.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company, or any Subsidiary, other than contingent liabilities (except to the
extent set forth in (iii) below), in respect of (without duplication) (i)
borrowed money evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Company or any
Subsidiary, (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Company or any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock or (v) any lease of property by the
Company or any Subsidiary as lessee which is reflected on the Company's
consolidated balance sheet as a capitalized lease in accordance with generally
accepted accounting principles to the extent, in the case of items of
indebtedness under (i) through (iii) above, that any such items (other than
letters of credit) would appear as a liability on the Company's consolidated
balance sheet in accordance with generally accepted accounting principles, but
does not include any obligation of the Company or any Subsidiary to be liable
for, or to pay, as obligor, guarantor or otherwise, Debt of another Person
(other than the Company or any Subsidiary) unless and until the Company or such
Subsidiary shall become directly liable in respect thereof.
"Disqualified Stock" means, with respect to any Person, any Capital
Shares of such Person which by the terms of such Capital Shares (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, (ii) is convertible into or exchangeable or exercisable for Debt or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the Stated Maturity of the
Debt Securities.
"Funds from Operations" for any period means net income plus
depreciation, amortization and extraordinary charges,excluding gains and losses
on sales of properties and securities.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
determined in accordance with generally accepted accounting principles (but
excluding goodwill and unamortized debt costs).
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"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Unencumbered Total Asset Value" as of any date shall mean the sum of
the Company's Total Assets which are unencumbered by any mortgage, lien,
charge, pledge, or security interest.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture provides that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (i)
default for 30 days in the payment of any installment of interest on any Debt
Security of such series; (ii) default in the payment of the principal of (or
premium, if any, on) any Debt Security of such series at its Maturity; (iii)
default in making any sinking fund payment as required for any Debt Security of
such series; (iv) default in the performance or breach of any other covenant or
warranty of the Company contained in the Indenture (other than a covenant added
to the Indenture solely for the benefit of a series of Debt Securities issued
thereunder other than such series), continued for 60 days after written notice
as provided in the applicable Indenture; (v) a default under any bond,
debenture, note or other evidence of indebtedness for money borrowed by the
Company (including obligations under leases required to be capitalized on the
balance sheet of the lessee under generally accepted accounting principles but
not including any indebtedness or obligations for which recourse is limited to
property purchased or property mortgaged) in an aggregate principal amount in
excess of $10,000,000 or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including such leases but not
including such indebtedness or obligations for which recourse is limited to
property purchased) in an aggregate principal amount in excess of $10,000,000
by the Company, whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable or such obligations being accelerated, without such
acceleration having been rescinded or annulled; (vi) certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company or any Significant Subsidiary or either of
their properties; and (vii) any other Event of Default provided with respect to
a particular series of Debt Securities (Section 501 of each Indenture). The
term "Significant Subsidiary" means each significant subsidiary (as defined in
Regulation S-X promulgated under the Securities Act) of the Company.
If an Event of Default under either Indenture with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the applicable Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Company (and to the applicable Trustee if given by the Holders).
However, at any time after such a declaration of acceleration with respect to
Debt Securities of such series (or of all Debt Securities then Outstanding
under either Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
applicable Trustee, the Holders of not less than a majority in principal amount
of Outstanding Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (i) the Company shall have
deposited with the applicable Trustee all required payments of the principal of
(and premium, if any) and interest on the Debt Securities of such series (or of
all Debt Securities then Outstanding under the applicable Indenture, as the
case may be), plus certain fees, expenses, disbursements and advances of the
applicable Trustee and (ii) all Events of Default, other than the non-payment
of accelerated principal (or a specified portion thereof), with respect to Debt
Securities of such series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) have been cured or waived as provided
in each Indenture (Section 502 of each Indenture). Each Indenture also
provides that the Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any
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<PAGE> 15
series (or of all Debt Securities then Outstanding under the applicable
Indenture, as the case may be) may waive any past default with respect to such
series and its consequences, except a default (x) in the payment of the
principal of (or premium, if any) or interest, if any, on any Debt Security of
such series or (y) in respect of a covenant or provision contained in the
applicable Indenture that cannot be modified or amended without the consent of
the Holders of each Outstanding Debt Security affected thereby (Section 513 of
each Indenture).
Each Trustee is required to give notice to the Holders of Debt
Securities within 90 days of a default under the applicable Indenture unless
such default shall have been cured or waived; provided, however, that such
Trustee may withhold notice to the Holders of any Series of Debt Securities of
any default with respect to such series (except a default in the payment of the
principal of (or premium, if any) or interest, if any, on any Debt Security of
such series or in the payment of any sinking fund installment in respect of any
Debt Security of such series) if the Responsible Officers of such Trustee
consider such withholding to be in the interest of such Holders (Section 601 of
each Indenture).
Each Indenture provides that no Holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to such
Indenture or for any remedy thereunder, except in the case of failure of the
applicable Trustee, for 60 days, to act after it has received a written request
to institute proceedings in respect of an Event of Default from the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of
such series, as well as an offer of indemnity reasonably satisfactory to it
(Section 507 of each Indenture). This provision will not prevent, however, any
Holder of Debt Securities from instituting suit for the enforcement of payment
of the principal of (and premium, if any) and interest, if any, on such Debt
Securities at the respective due dates thereof (Section 508 of each Indenture).
Subject to provisions in each Indenture relating to its duties in case
of default, neither Trustee is under an obligation to exercise any of its
rights or powers under such Indenture at the request or direction of any
Holders of any series of Debt Securities then Outstanding under such Indenture,
unless such Holders shall have offered to the Trustee thereunder reasonable
security or indemnity (Section 602 of each Indenture). The Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of any
series (or of all Debt Securities then Outstanding under each Indenture, as the
case may be) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the applicable Trustee,
or of exercising any trust or power conferred upon such Trustee. However, each
Trustee may refuse to follow any direction which is in conflict with any law or
the applicable Indenture, which may involve such Trustee in personal liability
or which may be unduly prejudicial to the Holders of Debt Securities of such
series not joining therein (Section 512 of each Indenture).
Within 120 days after the close of each fiscal year, the Company must
deliver to each Trustee a certificate, signed by one of several specified
officers, stating whether or not such officer has knowledge of any default
under the applicable Indenture and, if so, specifying each such default and the
nature and status thereof (Section 1010 of each Indenture).
MODIFICATION OF THE INDENTURES
Modification and amendment of either Indenture may be made only with the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities issued under such Indenture which are affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such Debt Security
affected thereby, (i) change the Stated Maturity of the principal of, or any
installment of interest (or premium, if any) on, any such Debt Security, (ii)
reduce the principal amount of, or the rate or amount of interest on, or any
premium payable on redemption of, any such Debt Security, or reduce the amount
of principal of an Original Issue Discount Security that would be due and
payable upon declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of repayment of the
Holder of any such Debt Security, (iii) change the Place of Payment, or the
coin or currency, for payment of principal of, premium, if any, or interest, if
any, on any such Debt Security, (iv) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security, (v)
reduce the above-stated percentage of Outstanding Debt
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<PAGE> 16
Securities of any series necessary to modify or amend the applicable Indenture,
to waive compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the applicable Indenture, or (vi) modify any of the foregoing provisions or
any of the provisions relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect such action or
to provide that certain other provisions may not be modified or waived without
the consent of the Holder of such Debt Security (Section 902 of each Indenture).
The Holders of not less than a majority in principal amount of
Outstanding Debt Securities issued under either Indenture have the right to
waive compliance by the Company with certain covenants in such Indenture
(Section 1012 of each Indenture).
Modifications and amendments of either Indenture may be made by the
Company and the respective Trustee thereunder without the consent of any Holder
of Debt Securities for any of the following purposes: (i) to evidence the
succession of another Person to the Company as obligor under such Indenture;
(ii) to add to the covenants of the Company for the benefit of the Holders of
all or any series of Debt Securities or to surrender any right or power
conferred upon the Company in such Indenture; (iii) to add Events of Default
for the benefit of the Holders of all or any series of Debt Securities; (iv) to
add or change any provisions of either Indenture to facilitate the issuance of,
or to liberalize certain terms of, Debt Securities in bearer form, or to permit
or facilitate the issuance of Debt Securities in uncertificated form, provided
that such action shall not adversely affect the interests of the Holders of the
Debt Securities of any series in any material respect; (v) to change or
eliminate any provisions of either Indenture, provided that any such change or
elimination shall become effective only when there are no Debt Securities
Outstanding of any series created prior thereto which are entitled to the
benefit of such provision; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities of any series, including the
provisions and procedures, if applicable, for the conversion of such Debt
Securities into Common Shares or Preferred Shares of the Company; (viii) to
provide for the acceptance or appointment of a successor Trustee or facilitate
the administration of the trusts under either Indenture by more than one
Trustee; (ix) to cure any ambiguity, defect or inconsistency in either
Indenture, provided that such action shall not adversely affect the interests
of Holders of Debt Securities of any series issued under such Indenture; or (x)
to supplement any of the provisions of either Indenture to the extent necessary
to permit or facilitate defeasance and discharge of any series of such Debt
Securities, provided that such action shall not adversely affect the interests
of the Holders of the Debt Securities of any series (Section 901 of each
Indenture).
SUBORDINATION
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
the Subordinated Securities will be subordinated to the extent provided in the
Subordinated Indenture in right of payment to the prior payment in full of all
Senior Debt (Sections 1601 and 1602 of the Subordinated Indenture), but the
obligation of the Company to make payment of the principal of and interest on
the Subordinated Securities will not otherwise be affected (Section 1608 of the
Subordinated Indenture). No payment of principal or interest may be made on
the Subordinated Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Company receives notice
of the default (Section 1603 of the Subordinated Indenture). After all Senior
Debt is paid in full and until the Subordinated Securities are paid in full,
Holders will be subrogated to the rights of holders of Senior Debt to the
extent that distributions otherwise payable to Holders have been applied to
the payment of Senior Debt (Section 1607 of the Subordinated Indenture). By
reason of such subordination, in the event of a distribution of assets upon
insolvency, certain general creditors of the Company may recover more, ratably,
than holders of the Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the principal of
and interest on, or substantially similar payments to be made by the Company in
respect of, the following, whether outstanding at the date of execution of the
Subordinated Indenture or thereafter incurred, created or assumed: (i)
indebtedness of the Company for money borrowed or represented by purchase-money
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<PAGE> 17
obligations, (ii) indebtedness of the Company evidenced by notes, debentures or
bonds, or other securities issued under the provisions of an indenture, fiscal
agency agreement or other instrument, (iii) obligations of the Company as
lessee under leases of property either made as part of any sale and leaseback
transaction to which the Company is a party or otherwise, (iv) indebtedness of
partnerships and joint ventures which is included in the consolidated financial
statements of the Company, (v) indebtedness, obligations and liabilities of
others in respect of which the Company is liable contingently or otherwise to
pay or advance money or property or as guarantor, endorser or otherwise or
which the Company has agreed to purchase or otherwise acquire, and (vi) any
binding commitment of the Company to fund any real estate investment or to fund
any investment in any entity making such real estate investment, in each case
other than (A) any such indebtedness, obligation or liability referred to in
clauses (i) through (vi) above as to which, in the instrument creating or
evidencing the same pursuant to which the same is outstanding, it is provided
that such indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Securities or ranks pari passu with the
Subordinated Securities, (B) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Company to substantially the same
extent as or to a greater extent than the Subordinated Securities are
subordinated, and (C) the Subordinated Securities (Section 101 of the
Subordinated Indenture). At December 31, 1994, Senior Debt aggregated
approximately $239 million.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Under each Indenture, the Company may discharge certain obligations to
Holders of any series of Debt Securities issued thereunder that have not
already been delivered to the applicable Trustee for cancellation and that
either have become due and payable or will become due and payable within one
year (or scheduled for redemption within one year) by irrevocably depositing
with the applicable Trustee, in trust, funds in such currency or currencies,
currency unit or units or composite currency or currencies in which such Debt
Securities are payable in an amount sufficient to pay the entire indebtedness
on such Debt Securities in respect of principal (and premium, if any) and
interest to the date of such deposit (if such Debt Securities have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may be
(Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article Fourteen
thereof are made applicable to the Debt Securities of or within any series
pursuant to Section 301 of such Indenture, the Company may elect either (i) to
defease and be discharged from any and all obligations with respect to such
Debt Securities (except for the obligation to pay Additional Amounts, if any,
upon the occurrence of certain events of tax, assessment or governmental charge
with respect to payments on such Debt Securities and the obligations to
register the transfer or exchange of such Debt Securities, to replace temporary
or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office
or agency in respect of such Debt Securities and to hold moneys for payment in
trust) ("defeasance") (Section 1402 of each Indenture) or (ii) to be released
from its obligations with respect to such Debt Securities under Sections 1004
to 1009, inclusive, and Section 1013 of each Indenture (being the restrictions
described under "Certain Covenants") or, if provided pursuant to Section 301 of
each Indenture, its obligations with respect to any other covenant, and any
omission to comply with such obligations shall not constitute a default or an
Event of Default with respect to such Debt Securities ("covenant defeasance")
(Section 1403 of each Indenture), in either case upon the irrevocable deposit
by the Company with the applicable Trustee, in trust, of an amount, in such
currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable at Stated Maturity, or
Government Obligations (as defined below), or both, applicable to such Debt
Securities which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest on such Debt Securities,
and any mandatory sinking fund or analogous payments thereon, on the scheduled
due dates therefor (Section 1404 of each Indenture).
Such a trust may only be established if, among other things, the Company
has delivered to the applicable Trustee an Opinion of Counsel (as specified in
each Indenture) to the effect that the Holders of such Debt Securities will
not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such defeasance or covenant defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance or covenant defeasance had
not occurred, and such Opinion of Counsel, in the case of
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<PAGE> 18
defeasance, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable U.S. federal income tax law occurring after
the date of the Indenture (Section 1404 of each Indenture).
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Debt Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the Foreign Currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specified payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt (Section 101 of each
Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any
series, (i) the Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of either Indenture or the terms of such
Debt Security to receive payment in a currency, currency unit or composite
currency other than that in which such deposit has been made in respect of such
Debt Security, or (ii) a Conversion Event (as defined below) occurs in respect
of the currency, currency unit or composite currency in which such deposit has
been made, the indebtedness represented by such Debt Security shall be deemed
to have been, and will be, fully discharged and satisfied through the payment
of the principal of (and premium, if any) and interest on such Debt Security as
they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the currency, currency unit or
composite currency in which such Debt Security becomes payable as a result of
such election or such cessation of usage based on the applicable market
exchange rate (Section 1405 of each Indenture). "Conversion Event" means the
cessation of use of (i) a currency, currency unit or composite currency both by
the government of the country which issued such currency and for the settlement
of transactions by a central bank or other public institutions of or within the
international banking community, (ii) the European Currency Unit ("ECU") both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit or composite currency other than the ECU for the purposes of which it was
established. Unless otherwise provided in the applicable Prospectus
Supplement, all payments of principal of (and premium, if any) and interest, if
any, on any Debt Security that is payable in a Foreign Currency that ceases to
be used by its government of issuance shall be made in U.S. dollars (Section
101 of each Indenture).
In the event that the Company effects covenant defeasance with respect
to any Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than the Event of
Default described in clause (iv) under "Events of Default, Notice and Waiver"
with respect to Sections 1004 through 1009, inclusive, and Section 1013 of each
Indenture (which Sections would no longer be applicable to such Debt
Securities) or described in clause (vii) under "Events of Default, Notice and
Waiver" with respect to any other covenant as to which there has been covenant
defeasance, the amount in such currency, currency unit or composite currency in
which such Debt Securities are payable, and Government Obligations on deposit
with the applicable Trustee, will be sufficient to pay amounts due on such Debt
Securities at the time of their Stated Maturity but may not be sufficient to
pay amounts due on such Debt Securities at the time of the acceleration
resulting from such Event of Default. However, the Company would remain liable
to make payment of such amounts due at the time of acceleration.
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The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect to
the Debt Securities of or within a particular series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into Common Shares or Preferred Shares will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into Common Shares or Preferred
Shares, the conversion price (or manner of calculation thereof), the conversion
period, provisions as to whether conversion will be at the option of the
Holders or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of
such Debt Securities.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the applicable Prospectus Supplement relating to such series. Global
Securities may be issued in either registered or bearer form and in either
temporary or permanent form. The specific terms of the depositary arrangement
with respect to a series of Debt Securities will be described in the applicable
Prospectus Supplement relating to such series.
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DESCRIPTION OF PREFERRED SHARES
GENERAL
The Company is authorized to issue 10,000,000 preferred shares of
beneficial interest, $.03 par value per share (the "Preferred Shares"), of
which no Preferred Shares were outstanding at February 8, 1995.
The following description of the Preferred Shares sets forth certain
general terms and provisions of the Preferred Shares to which any Prospectus
Supplement may relate. The statements below describing the Preferred Shares
are in all respects subject to and qualified in their entirety by reference to
the applicable provisions of the Company's Amended and Restated Declaration of
Trust (the "Declaration of Trust") and Bylaws and applicable statement of
designations (the "Statement of Designations").
TERMS
Subject to the limitations prescribed by the Declaration of Trust, the
Board of Trust Managers is authorized to fix the number of shares constituting
each series of Preferred Shares and the designations, preferences, conversion,
exchange or other rights, participations, voting powers, options, restrictions,
limitations, special rights or relations, limitations as to dividends,
qualifications, terms and conditions of redemption and such other subjects or
matters as may be fixed by resolution of the Board of Trust Managers. The
Preferred Shares will, when issued, be fully paid and nonassessable by the
Company (except as described under "Shareholder Liability" below) and will have
no preemptive rights.
Reference is made to the Prospectus Supplement relating to the Preferred
Shares offered thereby for specific terms, including:
1. The title and stated value of such Preferred Shares;
2. The number of such Preferred Shares offered, the liquidation
preference per share and the offering price of such Preferred
Shares;
3. The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred
Shares;
4. The date from which dividends on such Preferred Shares shall
accumulate, if applicable;
5. The procedures for any auction and remarketing, if any, for such
Preferred Shares;
6. The provision for a sinking fund, if any, for such Preferred
Shares;
7. The provision for redemption, if applicable, of such Preferred
Shares;
8. Any listing of such Preferred Shares on any securities exchange;
9. The terms and conditions, if applicable, upon which such
Preferred Shares will be convertible into Common Shares of the
Company, including the conversion price (or manner of calculation
thereof);
10. Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Shares;
11. A discussion of federal income tax considerations applicable to
such Preferred Shares;
12. The relative ranking and preferences of such Preferred Shares as
to dividend rights and rights upon liquidation, dissolution or
winding up of the affairs of the Company;
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13. Any limitations on issuance of any series of Preferred Shares
ranking senior to or on a parity with such series of Preferred
Shares as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company; and
14. Any limitations on direct or beneficial ownership and restriction
on transfer, in each case as may be appropriate to preserve the
status of the Company as a REIT.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Shares will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to all classes or
series of Common Shares or other Capital Shares of the Company, and to all
equity securities ranking junior to such Preferred Shares, (ii) on a parity
with all equity securities issued by the Company the terms of which
specifically provide that such equity securities rank on a parity with the
Preferred Shares, and (iii) junior to all equity securities issued by the
Company the terms of which specifically provide that such equity securities
rank senior to the Preferred Shares. The term "equity securities" does not
include convertible debt securities.
DIVIDENDS
Holders of the Preferred Shares of each series will be entitled to
receive, when, as and if declared by the Board of Trust Managers of the
Company, out of assets of the Company legally available for payment, cash
dividends at such rates and on such dates as will be set forth in the
applicable Prospectus Supplement. Each such dividend shall be payable to
Holders of record as they appear on the share transfer books of the Company on
such record dates as shall be fixed by the Board of Trust Managers of the
Company.
Dividends on any series of the Preferred Shares may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Trust Managers of the
Company fails to declare a dividend payable on a dividend payment date on any
series of the Preferred Shares for which dividends are noncumulative, then the
holders of such series of the Preferred Shares will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and the Company will have no obligation to pay the dividend accrued for
such period, whether or not dividends on such series are declared payable on
any future dividend payment date.
If Preferred Shares of any series are outstanding, no dividends will be
declared or paid or set apart for payment on the Preferred Shares of the
Company of any other series ranking, as to dividends, on a parity with or
junior to the Preferred Shares of such series for any period unless (i) if such
series of Preferred Shares has a cumulative dividend, full cumulative dividends
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Preferred
Shares of such series for all past dividend periods and the then current
dividend period or (ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends for the then current dividend period have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Preferred
Shares of such series. When dividends are not paid in full (or a sum
sufficient for such full payment is not so set apart) upon Preferred Shares of
any series and the shares of any other series of Preferred Shares ranking on a
parity as to dividends with the Preferred Shares of such series, all dividends
declared upon Preferred Shares of such series and any other series of Preferred
Shares ranking on a parity as to dividends with such Preferred Shares shall be
declared pro rata so that the amount of dividends declared per Preferred Share
of such series and such other series of Preferred Shares shall in all cases
bear to each other the same ratio that accrued dividends per share on the
Preferred Shares of such series (which shall not include any accumulation in
respect of unpaid dividends for prior dividend periods if such Preferred Shares
do not have a cumulative dividend) and such other series of Preferred Shares
bear to each other. No interest, or sum of money in lieu of
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interest, shall be payable in respect of any dividend payment or payments on
Preferred Shares of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Shares has a cumulative dividend, full cumulative
dividends on the Preferred Shares of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period and (ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends on the Preferred Shares of such series have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the then current
dividend period, no dividends (other than in Common Shares or other Capital
Shares ranking junior to the Preferred Shares of such series as to dividends
and upon liquidation) shall be declared or paid or set aside for payment or
other distribution shall be declared or made upon the Common Shares, or any
other Capital Shares of the Company ranking junior to or on a parity with the
Preferred Shares of such series as to dividends or upon liquidation, nor shall
any Common Shares, or any other Capital Shares of the Company ranking junior to
or on a parity with the Preferred Shares of such series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such shares) by the Company (except by conversion into or
exchange for such Capital Shares of the Company ranking junior to the Preferred
Shares of such series as to dividends and upon liquidation).
Any dividend payment made on shares of a series of Preferred Shares
shall first be credited against the earliest accrued but unpaid dividend due
with respect to shares of such series which remains payable.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred
Shares will be subject to mandatory redemption or redemption at the option of
the Company, as a whole or in part, in each case upon the terms, at the times
and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Shares that
is subject to mandatory redemption will specify the number of such Preferred
Shares that shall be redeemed by the Company in each year commencing after a
date to be specified, at a redemption price per share to be specified, together
with an amount equal to all accrued and unpaid dividends thereon (which shall
not, if such Preferred Shares do not have a cumulative dividend, include any
accumulation in respect of unpaid dividends for prior dividend periods) to the
date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if such series of Preferred
Shares has a cumulative dividend, full cumulative dividends on all shares of
any series of Preferred Shares shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then current dividend
period and (ii) if such series of Preferred Shares does not have a cumulative
dividend, full dividends on the Preferred Shares of any series have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for the then current dividend period,
no shares of any series of Preferred Shares shall be redeemed unless all
outstanding Preferred Shares of such series are simultaneously redeemed;
provided, however, that the foregoing shall not prevent the purchase or
acquisition of Preferred Shares of such series to preserve the REIT status of
the Company or pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding Preferred Shares of such series, and, unless (i)
if such series of Preferred Shares has a cumulative dividend, full cumulative
dividends on all outstanding shares of any series of Preferred Shares have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for all past dividend periods and the
then current dividend period and (ii) if such series of Preferred Shares does
not have a cumulative dividend, full dividends on the Preferred Shares of any
series have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for payment for the then
current dividend period, the Company shall not purchase or otherwise acquire
directly or indirectly any Preferred Shares of such series (except by
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conversion into or exchange for Capital Shares of the Company ranking junior to
the Preferred Shares of such series as to dividends and upon liquidation);
provided, however, that the foregoing shall not prevent the purchase or
acquisition of Preferred Shares of such series to preserve the REIT status of
the Company or pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding Preferred Shares of such series.
If fewer than all of the outstanding Preferred Shares of any series are
to be redeemed, the number of Preferred Shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares
held by such holders (with adjustments to avoid redemption of fractional
shares) or by lot in a manner determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of record of Preferred Shares
of any series to be redeemed at the address shown on the share transfer books
of the Company. Each notice shall state: (i) the redemption date; (ii) the
number of shares and series of the Preferred Shares to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such
Preferred Shares are to be surrendered for payment of the redemption price; (v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date; and (vi) the date upon which the holder's conversion rights,
if any, as to such shares will terminate. If fewer than all of the Preferred
Shares of any series are to be redeemed, the notice mailed to each such holder
thereof shall also specify the number of Preferred Shares to be redeemed from
each such holder. If notice of redemption of any Preferred Shares has been
given and if the funds necessary for such redemption have been set aside by the
Company in trust for the benefit of the holders of any Preferred Shares so
called for redemption, then from and after the redemption date dividends will
cease to accrue on such Preferred Shares, and all rights of the holders of such
shares will terminate, except the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company, then, before any distribution or payment shall
be made to the holders of any Common Shares, excess shares or any other class
or series of Capital Shares of the Company ranking junior to the Preferred
Shares in the distribution of assets upon any liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Shares shall
be entitled to receive out of assets of the Company legally available for
distribution to shareholders liquidating distributions in the amount of the
liquidation preference per share (set forth in the applicable Prospectus
Supplement), plus an amount equal to all dividends accrued and unpaid thereon
(which shall not include any accumulation in respect of unpaid dividends for
prior dividend periods if such Preferred Shares do not have a cumulative
dividend). After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Preferred Shares will have no right
or claim to any of the remaining assets of the Company. In the event that,
upon any such voluntary or involuntary liquidation, dissolution or winding up,
the available assets of the Company are insufficient to pay the amount of the
liquidating distributions on all outstanding Preferred Shares and the
corresponding amounts payable on all shares of other classes or series of
Capital Shares of the Company ranking on a parity with the Preferred Shares in
the distribution of assets, then the holders of the Preferred Shares and all
other such classes or series of Capital Shares shall share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
If liquidating distributions shall have been made in full to all holders
of Preferred Shares, the remaining assets of the Company shall be distributed
among the holders of any other classes or series of Capital Shares ranking
junior to the Preferred Shares upon liquidation, dissolution or winding up,
according to their respective rights and preferences and in each case according
to their respective number of shares. For such purposes, the consolidation or
merger of the Company with or into any other corporation, trust or entity, or
the sale, lease or conveyance of all or substantially all of the property or
business of the Company, shall not be deemed to constitute a liquidation,
dissolution or winding up of the Company.
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VOTING RIGHTS
Holders of the Preferred Shares will not have any voting rights, except
as set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Whenever dividends on any Preferred Shares shall be in arrears for six
consecutive quarterly periods, the holders of such Preferred Shares (voting
separately as a class with all other series of Preferred Shares upon which like
voting rights have been conferred and are exercisable) will be entitled to vote
for the election of two additional Trust Managers of the Company at the next
annual meeting of shareholders and at each subsequent meeting until (i) if such
series of Preferred Shares has a cumulative dividend, all dividends accumulated
on such series of Preferred Shares for the past dividend periods and the then
current dividend period shall have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment or (ii) if such series
of Preferred Shares does not have a cumulative dividend, four consecutive
quarterly dividends shall have been fully paid or declared and a sum sufficient
for the payment thereof set aside for payment. In such case, the entire Board
of Trust Managers of the Company will be increased by two Trust Managers.
Unless provided otherwise for any series of Preferred Shares, so long as
any Preferred Shares remain outstanding, the Company will not, without the
affirmative vote or consent of the holders of two-thirds of the shares of each
series of Preferred Shares outstanding at the time, given in person or by
proxy, either in writing or at a meeting (such series voting separately as a
class), (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Capital Shares ranking prior to such series of
Preferred Shares with respect to the payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up or reclassify any
authorized Capital Shares of the Company into any such shares, or create,
authorize or issue any obligation or security convertible into or evidencing
the right to purchase any such shares, or (ii) amend, alter or repeal the
provisions of the Company's Declaration of Trust or the Statement of
Designations for such series of Preferred Shares, whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of such series of
Preferred Shares or the holders thereof; provided, however, with respect to the
occurrence of any of the Events set forth in (ii) above, so long as the
Preferred Shares remain outstanding with the terms thereof materially
unchanged, taking into account that upon the occurrence of an Event, the
Company may not be the surviving entity, the occurrence of any such Event shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting power of holders of Preferred Shares and provided further
that (A) any increase in the amount of the authorized Preferred Shares or the
creation or issuance of any other series of Preferred Shares, or (B) any
increase in the number of authorized shares of such series or any other series
of Preferred Shares, in each case ranking on a parity with or junior to the
Preferred Shares of such series with respect to the payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up, shall not
be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of such series of Preferred Shares
shall have been redeemed or called for redemption and sufficient funds shall
have been deposited in trust to effect such redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred
Shares are convertible into Common Shares will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
Common Shares into which the Preferred Shares are convertible, the conversion
price (or manner of calculation thereof), the conversion period, provisions as
to whether conversion will be at the option of the holders of the Preferred
Shares or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of
such Preferred Shares.
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SHAREHOLDER LIABILITY
As discussed below under "Description of Common Shares - Shareholder
Liability," the Declaration of Trust provides that no shareholder, including
holders of Preferred Shares, shall be personally liable for the acts and
obligations of the Company and that the funds and property of the Company shall
be solely liable for such acts or obligations. The Declaration of Trust
provides that, to the extent practicable, each written instrument creating an
obligation of the Company shall contain a provision to that effect. By
statute, the State of Texas provides limited liability for shareholders of a
REIT organized under the Texas Real Estate Investment Trust Act (the "REIT
Act"). However, certain jurisdictions may not recognize the limited liability
provided shareholders under the REIT Act and, therefore, a shareholder may be
held personally liable to the extent that such claims are not satisfied by the
Company. Because of the uncertainty that may exist in the laws of certain
states in which the Company owns property or conducts business, wholly owned
subsidiary corporations are utilized to own properties in such states. The
Bylaws of the Company provide for indemnification of shareholders by the
Company for any liabilities incurred in such capacity. The Company carries
public liability insurance that the Trust Managers consider adequate. Thus,
any risk of personal liability to shareholders is limited to situations in
which the Company's assets plus its insurance coverage would be insufficient to
satisfy the claims against the Company and its shareholders. The Company
believes that its operations have been conducted and will continue to be
conducted in such a way so as to avoid, as far as possible, ultimate liability
of the shareholders for liabilities of the Company.
RESTRICTIONS ON OWNERSHIP
As discussed below under "Description of Common Shares - REIT
Qualification," for the Company to qualify as a REIT under the Internal Revenue
Code of 1986, as amended (the "Code"), not more than 50% in value of its
outstanding Capital Shares may be owned, directly or constructively, by five or
fewer individuals (as defined in the Code to include certain entities) during
the last half of a taxable year. To assist the Company in meeting this
requirement, the Company may take certain other actions to limit the beneficial
ownership, directly or indirectly, by a single person to not more than 9.8% of
the Company's outstanding equity securities, including any Preferred Shares of
the Company. Therefore, the Statement of Designations for each series of
Preferred Shares will contain certain provisions restricting the ownership and
transfer of the Preferred Shares. The applicable Prospectus Supplement will
specify any additional ownership limitation relating to a series of Preferred
Shares.
DESCRIPTION OF COMMON SHARES
GENERAL
The Common Shares are issued pursuant to the Declaration of Trust. The
Common Shares, par value $.03 per share, are equal with respect to distribution
and liquidation rights, are not convertible, have no preemptive rights to
subscribe for additional Common Shares, are nonassessable (except as described
under "Shareholder Liability" below) and are transferable in the same manner as
shares of a corporation. Each shareholder is entitled to one vote in person
or by proxy for each Common Share registered in his name and has the right to
vote on the election or removal of Trust Managers, amendments to the
Declaration of Trust, proposals to terminate, reorganize, merge or consolidate
the Company or to sell or dispose of substantially all of the Company's
property and with respect to certain business combinations. The Company will
have perpetual existence unless and until dissolved and terminated. Except
with respect to the foregoing matters, no action taken by the shareholders at
any meeting shall in any way bind the Trust Managers. The Common Shares
offered by the Company will be, when issued, fully paid and nonassessable
(except as described under "Shareholder Liability" below).
Several provisions in the Declaration of Trust may have the effect of
deterring a take-over of the Company. These provisions restrict ownership of
the Company's outstanding equity securities by a single person to not more than
9.8% of such securities to assist in protecting and preserving the
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qualification of the Company as a REIT under the Code and include a "fair
price" provision that would deter a "two-stage" take-over transaction by
requiring an 80% vote of outstanding securities entitled to vote thereon for
certain defined "business combinations" with shareholders owning more than 50%
of the equity securities considered for such purposes if the transaction is
neither approved by the Board of Trust Managers nor meets certain price and
procedural conditions.
REIT QUALIFICATION
The Company operates in a manner intended to qualify it for treatment as
a REIT under Sections 856 through 860 of the Code. In general, a REIT that
distributes to its shareholders at least 95% of its taxable income (other than
net capital gain) for a taxable year and that meets certain other conditions
will not be taxed on income (including net capital gain) distributed for that
year. If the Company fails to qualify as a REIT in any taxable year, it will
be taxed as a corporation for that year, and distributions to its shareholders
will not be deductible by the Company in computing its taxable income. Under
certain circumstances, the Company also will be disqualified from being treated
as a REIT for the ensuing four taxable years. Failure to qualify as a REIT
could result in the Company incurring indebtedness and perhaps liquidating
investments in order to pay its taxes.
Among the requirements which must be met in order for the Company to
qualify as a REIT is that no more than 50% in value of the outstanding capital
shares, including in some circumstances capital shares into which outstanding
securities (including the Securities) might be converted, may be owned actually
or constructively by five or fewer individuals or certain other entities at any
time during the last half of the Company's taxable year. To assist the Company
in meeting this requirement, the Declaration of Trust limits persons to
ownership of not more than 9.8% of the outstanding equity securities of the
Company, including Common Shares. Convertible securities (whether in
registered or bearer form) are treated as if such securities had been converted
in calculating the ownership limit. The Declaration of Trust provides that any
attempted transfers of Common Shares that would cause a person to exceed the
limit shall be null and void. However, because the Code imposes broad
attribution rules in determining constructive ownership, no assurances can be
given that the restrictions of the Declaration of Trust will be effective in
maintaining the Company's REIT status. Further, owners of more than 6.5% of
the Common Shares as of January 19, 1988 (currently only Stanford Alexander,
who at December 31, 1994 beneficially owned approximately 7.5% of the
outstanding Common Shares) are exempted from the limit. Without shareholder
approval, the Company may issue an unlimited number of securities, warrants,
rights or other options to purchase Common Shares and other securities
convertible into Common Shares.
SHAREHOLDER LIABILITY
The Declaration of Trust provides that no shareholder shall be
personally liable for the acts and obligations of the Company and that the
funds and property of the Company shall be solely liable for such acts or
obligations. The Declaration of Trust provides that, to the extent
practicable, each written instrument creating an obligation of the Company
shall contain a provision to that effect. By statute, the State of Texas
provides limited liability for shareholders of a REIT organized under the REIT
Act. However, certain jurisdictions may not recognize the limited liability
provided shareholders under the REIT Act and, therefore, a shareholder may be
held personally liable to the extent that such claims are not satisfied by the
Company. Because of the uncertainty that may exist in the laws of certain
states in which the Company owns property or conducts business, wholly owned
subsidiary corporations are utilized to own properties in such states. The
Bylaws of the Company provide for indemnification of shareholders by the
Company for any liabilities incurred in such capacity. The Company carries
public liability insurance that the Trust Managers consider adequate. Thus,
any risk of personal liability to shareholders is limited to situations in
which the Company's assets plus its insurance coverage would be insufficient to
satisfy the claims against the Company and its shareholders. The Company
believes that its operations have been conducted and will continue to be
conducted in such a way so as to avoid, as far as possible, ultimate liability
of the shareholders for liabilities of the Company.
-23-
<PAGE> 27
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Common Shares is Society
National Bank, Cleveland, Ohio. The Common Shares are listed on the New York
Stock Exchange (Symbol: WRI).
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities, for whom they
may act as agents, in the form of discounts, concessions, or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the
distribution of Securities may be deemed to be underwriters, and any discounts
or commissions they receive from the Company, and any profit on the resale of
Securities they realize may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the applicable Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Shares which are listed on the New York Stock Exchange.
Any Common Shares sold pursuant to a Prospectus Supplement will be listed on
such exchange, subject to official notice of issuance. The Company may elect
to list any series of Debt Securities or Preferred Shares on an exchange, but
is not obligated to do so. It is possible that one or more underwriters may
make a market in a series of Securities, but will not be obligated to do so and
may discontinue any market making at any time without notice. Therefore, no
assurance can be given as to the liquidity of the trading market for the
Securities.
Under agreements the Company may enter into, underwriters, dealers and
agents who participate in the distribution of Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, the Company in the ordinary course of
business.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of the Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
-24-
<PAGE> 28
LEGAL OPINIONS
The legality of the Securities offered hereby as well as certain federal
income tax matters will be passed upon for the Company by Andrews & Kurth
L.L.P., 4200 Texas Commerce Tower, Houston, Texas 77002. Brown & Wood, One
World Trade Center, New York, New York 10048-0557 will act as counsel to any
underwriters, dealers or agents.
EXPERTS
The consolidated financial statements and related financial statement
schedules incorporated in this Prospectus by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 1994, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reliance upon the reports of such firm given upon their authority as experts
in accounting and auditing.
-25-
<PAGE> 29
================================================================================
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATION IN CONNECTION WITH THIS OFFERING, OTHER
THAN THOSE CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE SHARES TO ANY PERSON IN ANY JURISDICTION
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR THE MAKING OF ANY SALES HEREUNDER
SHALL IMPLY THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SUBSEQUENT TO THE DATE HEREOF.
--------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information....................................................... 2
Information of Certain Documents by Reference............................... 2
The Company................................................................. 3
Use of Proceeds............................................................. 3
Certain Ratios.............................................................. 4
Description of Debt Securities.............................................. 4
Description of Preferred Shares............................................. 17
Description of Common Shares................................................ 22
Plan of Distribution........................................................ 24
Legal Opinions.............................................................. 25
Experts..................................................................... 25
</TABLE>
================================================================================
================================================================================
WEINGARTEN REALTY
INVESTORS
----------------
PROSPECTUS
----------------
, 1995
================================================================================
<PAGE> 30
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the offering contemplated by this Registration Statement:
<TABLE>
<S> <C>
SEC Registration Fee ............................. $ 68,966
Blue Sky Fees and Expenses ....................... 15,000
Printing and Engraving Costs ..................... 30,000
Accounting Fees and Expenses ..................... 10,000
Legal Fees and Expenses .......................... 50,000
Trustee and Registrar Fees ....................... 20,000
Rating Agencies Fees ............................. 100,000
Miscellaneous .................................... 6,034
--------
Total ............................................ $300,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (B) of Section 9.1 of the Texas Real Estate Investment Trust
Act (the "Act") empowers a real estate investment trust to indemnify any person
who was, is, or is threatened to be made a named defendant or respondent in any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative or any inquiry or
investigation that can lead to such an action, suit or proceeding because the
person is or was a trust manager, officer, employee or agent of the real estate
investment trust or is or was serving at the request of the real estate
investment trust as a trust manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another real
estate investment trust, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise against
expenses (including court costs and attorney fees), judgments, penalties, fines
and settlements if he conducted himself in good faith and reasonably believed
his conduct was in or not opposed to the best interests of the real estate
investment trust and, in the case of any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful.
The Act further provides that a person may not be indemnified in respect
of a proceeding in which the person is found liable on the basis that personal
benefit was improperly received by him or in which the person is found liable
to the real estate investment trust. Indemnification pursuant to Subsection
(B) of Section 9.1 of the Act is limited to reasonable expenses actually
incurred and may not be made in respect of any proceeding in which the person
has been found liable for willful or intentional misconduct in the performance
of his duty to the real estate investment trust.
Section 15 of the Act provides that a trust manager shall not be liable
for any claims or damages that may result from his acts in the discharge of any
duty imposed or power conferred upon him by the real estate investment trust,
if, in the exercise of ordinary care, he acted in good faith and in reliance
upon the written opinion of an attorney for the real estate investment trust.
In addition, no trust manager shall be liable to the real estate investment
trust for any act, omission, loss, damage, or expense arising from the
performance of his duty to a real estate investment trust, save only for his
own willful misfeasance or malfeasance or negligence.
Article Sixteen of the Company's Amended and Restated Declaration of
Trust provides that the Company shall indemnify officers and Trust Managers, as
set forth below:
(a) The Company shall indemnify, to the extent provided in the
Company's Bylaws, every person who is or was a Trust Manager or officer
of the Company or its corporate
II-1
<PAGE> 31
predecessor and any person who is or was serving at the request of the
Company or its corporate predecessor as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise with
respect to all costs and expenses incurred by such person as a result of
such person being made or threatened to be made a defendant or respondent
in a proceeding by reason of his holding or having held a position named
above in this paragraph.
(b) If the indemnification provided in paragraph (a) is either
(i) insufficient to cover all costs and expenses incurred by any person
named in such paragraph as a result of such person being made or
threatened to be made a defendant or respondent in a proceeding by
reason of his holding or having held a position named in such paragraph
or (ii) not permitted by Texas law, the Company shall indemnify, to the
fullest extent that indemnification is permitted by Texas law, every
person who is or was a Trust Manager or officer of the Company or its
corporate predecessor and any person who is or was serving at the
request of the Company or its corporate predecessor as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit
plan or other enterprise with respect to all costs and expenses incurred
by such person as a result of such person being made or threatened to be
made a defendant or respondent in a proceeding by reason of his holding
or having held a position named above in this paragraph.
The Company's Bylaws provide that the Company may indemnify any Trust
Manager or officer of the Company who was, is or is threatened to be made a
party to any suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative, because the person is or was a Trust Manager,
officer, employee or agent of the Company, or is or was serving at the request
of the Company in the same or another capacity in another corporation or
business association, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred if it is determined that the person: (i)
conducted himself in good faith, (ii) reasonably believed that, in the case of
conduct in his official capacity, his conduct was in the best interests of the
Company, and that, in all other cases, his conduct was at least not opposed to
the best interests of the Company, and (iii) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided that, if the person is found liable to the Company, or is found liable
on the basis that personal benefit was improperly received by the person, the
indemnification (A) is limited to reasonable expenses actually incurred by the
person in connection with the proceeding and (B) will not be made in respect of
any proceeding in which the person shall have been found liable for willful or
intentional misconduct in the performance of his duty to the Company.
Under Section 8 of the Underwriting Agreements filed as Exhibits 1(a)
and 1(b) hereto, the underwriters agree to indemnify, under certain
conditions, the Company, its officers and Trust Managers, and persons who
control the Company within the meaning of the Securities Act of 1933, as
amended, against certain liabilities.
ITEM 16. EXHIBITS.
(1)(a) Form of Underwriting Agreement for Debt Securities
(1)(b) Form of Underwriting Agreement for Equity Securities
(4)(a) Form of Indenture for Senior Debt Securities
(4)(b) Form of Indenture for Subordinated Debt Securities
(4)(c) Form of Senior Debt Security
(4)(d) Form of Subordinated Debt Security
(4)(e) Amended and Restated Declaration of Trust, as amended
(filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-3 (No. 33-49206) and incorporated
herein by reference)
(4)(f) Bylaws of the Company (filed as Exhibit 3.2 of the
Company's Registration Statement on Form S-3 (No.
33-49206) and incorporated herein by reference)
(4)(g) Form of Statement of Designation of Preferred Shares
(4)(h) Form of Preferred Share Certificate
II-2
<PAGE> 32
(5) Opinion regarding legality
(10) Credit Agreement dated as of November 22, 1994 between
Weingarten Realty Investors and Texas Commerce Bank
National Association as Agent and individually as a Bank,
First Interstate Bank of Texas N.A. and the Banks defined
therein, together with Amendment No. 1 to such Credit
Agreement, dated as of January 31, 1995.
(12)* Statement regarding computation of ratios
(23)(a)* Consent of Independent Accountants
(23)(b) Consent of Counsel (included in opinion)
(24) Power of Attorney (included on signature page)
(25)(a) Statement of Eligibility of Trustee for Senior Debt
Securities (Texas Commerce Bank National Association) on
Form T-1
(25)(b) Statement of Eligibility of Trustee for Subordinated Debt
Securities (Texas Commerce Bank National Association) on
Form T-1
- ---------------
* Filed herewith; all other exhibits have been previously filed.
ITEM 17. UNDERTAKINGS.
(a) 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;
(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
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) 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 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.
(c) 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 provisions
II-3
<PAGE> 33
described in Item 15 of this Registration Statement or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than in payment by the registrant of expenses incurred
or paid by a director, officer or controlling person in the successful defense
of any action, suit or proceeding) is asserted against the registrant by such
director, officer or controlling person in connection with the securities being
registered hereby, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For the purpose of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as a 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.
(2) 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-4
<PAGE> 34
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
Amendment No. 1 to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of
Texas, on the 21st day of April, 1995.
WEINGARTEN REALTY INVESTORS
By: /s/ Joseph W. Robertson, Jr.
-----------------------------
Joseph W. Robertson, Jr.
Executive Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
* Chairman and Trust Manager April 21, 1995
- ------------------- (Chief Executive Officer)
Stanford Alexander
* Executive Vice President/ April 21, 1995
- ------------------- Asset Management and
Andrew M. Alexander Trust Manager
* President, Chief Operating April 21, 1995
- ------------------- Officer and Trust Manager
Martin Debrovner
</TABLE>
II-5
<PAGE> 35
<TABLE>
<S> <C> <C>
* Trust Manager April 21, 1995
- -------------------------------
Melvin A. Dow
* Trust Manager April 21, 1995
- -------------------------------
Stephen A. Lasher
/s/ Joseph W. Robertson, Jr. Executive Vice President April 21, 1995
- ------------------------------- and Trust Manager
Joseph W. Robertson, Jr. (Chief Financial Officer)
* Trust Manager April 21, 1995
- -------------------------------
Douglas W. Schnitzer
* Trust Manager April 21, 1995
- -------------------------------
Marc J. Shapiro
* Trust Manager April 21, 1995
- -------------------------------
J.T. Trotter
* Vice President and Treasurer April 21, 1995
- ------------------------------- (Principal Accounting Officer)
Stephen C. Richter
* /s/ Joseph W. Robertson, Jr.
- -------------------------------
Joseph W. Robertson, Jr.
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 36
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- ------ --------
<S> <C>
(1)(a) Form of Underwriting Agreement for Debt Securities ........................
(1)(b) Form of Underwriting Agreement for Equity Securities ......................
(4)(a) Form of Indenture for Senior Debt Securities ..............................
(4)(b) Form of Indenture for Subordinated Debt Securities ........................
(4)(c) Form of Senior Debt Security ..............................................
(4)(d) Form of Subordinated Debt Security ........................................
(4)(e) Amended and Restated Declaration of Trust, as amended (filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-3
(No. 33-49206) and incorporated herein by reference) ......................
(4)(f) Bylaws of the Company (filed as Exhibit 3.2 of the Company's
Registration Statement on Form S-3 (No. 33-49206) and
incorporated herein by reference) .........................................
(4)(g) Form of Statement of Designation of Preferred Shares ......................
(4)(h) Form of Preferred Share Certificate .......................................
(5) Opinion regarding legality ................................................
(10) Credit Agreement dated as of November 22, 1994 between Weingarten
Realty Investors and Texas Commerce Bank National Association as
Agent and individually as a Bank, First Interstate Bank of Texas
N.A. and the Banks defined therein, together with Amendment No.
1 to such Credit Agreement, dated as of January 31, 1995. .................
(12)* Statement regarding computation of ratios .................................
(23)(a)* Consent of Independent Accountants ........................................
(23)(b) Consent of Counsel (included in opinion) ..................................
(24) Power of Attorney (included on signature page) ............................
(25)(a) Statement of Eligibility of Trustee for Senior Debt Securities
(Texas Commerce Bank National Association) on Form T-1 ....................
(25)(b) Statement of Eligibility of Trustee for Subordinated Debt
Securities (Texas Commerce Bank National Association) on Form T-1 .........
</TABLE>
- ---------------
* Filed herewith; all other exhibits have been previously filed.
<PAGE> 1
EXHIBIT 12
WEINGARTEN REALTY INVESTORS
COMPUTATION OF RATIO OF EARNINGS AND FUNDS FROM OPERATIONS TO FIXED CHARGES
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
Year Ended December 31
------------------------------------------------------
1990 1991 1992 1993 1994
-------- -------- -------- --------- --------
<S> <C> <C> <C> <C> <C>
Income before extraordinary charge $16,482 $17,958 $21,248 $36,249 $43,788
Add:
Portion of rents representative of the
interest factor 374 433 485 521 521
Interest on indebtedness 19,938 20,157 18,689 10,046 10,694
Amortization of debt cost 755 513 513 261 456
-------- -------- -------- --------- --------
Income as adjusted $37,549 $39,061 $40,935 $47,077 $55,459
======== ======== ======== ========= ========
Fixed charges:
Interest on indebtedness $19,938 $20,157 $18,689 $10,046 $10,694
Capitalized interest 1,316 1,586 2,025 1,114 1,670
Amortization of debt cost 755 513 513 261 456
Portion of rents representative of the
interest factor 374 433 485 521 521
-------- -------- -------- --------- --------
Fixed charges $22,383 $22,689 $21,712 $11,942 $13,341
======== ======== ======== ========= ========
RATIO OF EARNINGS TO FIXED CHARGES 1.68 1.72 1.89 3.94 4.16
======== ======== ======== ========= ========
Income before extraordinary charge $16,482 $17,958 $21,248 $36,249 $43,788
Depreciation and amortization 17,699 19,019 21,291 23,382 26,842
-------- -------- -------- --------- --------
34,181 36,977 42,539 59,631 70,630
Interest on indebtedness 19,938 20,157 18,689 10,046 10,694
Funds from operations (as adjusted) $54,119 $57,134 $61,228 $69,677 $81,324
======== ======== ======== ========= ========
RATIO OF FUNDS FROM OPERATIONS TO
FIXED CHARGES 2.42 2.52 2.82 5.83 6.10
======== ======== ======== ========= ========
</TABLE>
<PAGE> 1
Exhibit (23)(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Weingarten Realty Investors on Form S-3 of our report dated
February 22, 1995, appearing in the Annual Report on Form 10-K of Weingarten
Realty Investors for the year ended December 31, 1994, and to the reference to
us under the heading "Experts" in the Prospectus which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
April 21, 1995
