<PAGE> 1
As filed with the Securities and Exchange Commission on September 17, 1996.
Registration No. 333-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
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:
Bryan L. Goolsby
Liddell, Sapp, Zivley, Hill &
LaBoon, L.L.P.
2200 Ross Avenue, Suite 900
Dallas, Texas 75201
-------------
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 divided or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
=================================================================================================================================
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
Title of Each Class of Proposed Maximum
Securities to be Amount to be Proposed Maximum Offering Price Aggregate Offering Amount of
Registered(1) Registered(2) Per Unit(3) Price(2)(3) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(4)
Preferred Shares(5) $226,500,000 (8) $226,500,000 $78,103.45(9)(10)
Common Shares(6)
Securities Warrants(7)
=================================================================================================================================
</TABLE>
<PAGE> 2
(Footnotes from previous page)
(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, Common Shares or Securities Warrants. 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 Shares and Preferred
Shares upon the conversion of the Debt Securities or the Preferred
Shares, as appropriate, or upon exercise of Securities Warrants. 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 $226,500,000.
(4) Such indeterminate principal amount of Debt Securities as may from
time to time be issued at indeterminate prices.
(5) Such indeterminate number of Preferred Shares as may be from time to
time be issued at indeterminate prices or issuable upon conversion of
Debt Securities or exercise of Securities Warrants.
(6) Such indeterminate number of Common Shares 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, or
exercise of Securities Warrants.
(7) Such indeterminate number of Debt Securities Warrants, Preferred
Shares Warrants and Common Shares Warrants representing rights to
purchase Debt Securities, Preferred Shares and Common Shares,
respectively, registered pursuant to this Registration Statement, as
may from time to time be issued at indeterminate prices.
(8) Omitted pursuant to General Instruction II.D of Form S-3 under the
Sections Act of 1933, as amended.
(9) Calculated pursuant to Rule 457(o) under the Securities Act of 1933,
as amended.
(10) The amount of the registration fee does not include $8,103.45 which
has previously been paid to the Commission for registration fees
relating to $23,500,000 aggregate principal amount of securities
registered pursuant to Registration Statement No. 33-57659 and
unissued as of the date hereof.
-------------------------------
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.
IN ACCORDANCE WITH RULE 429 UNDER THE SECURITIES ACT OF 1933, THE
PROSPECTUS CONTAINED IN THIS REGISTRATION STATEMENT ALSO RELATES TO THE
COMPANY'S REGISTRATION STATEMENT ON FORM S-3 (NO. 33-57659) FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 10, 1995 AND AMENDED ON APRIL
21, 1995. THIS REGISTRATION STATEMENT, WHICH IS A NEW REGISTRATION STATEMENT,
ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO.
33-57659, AND SUCH POST-EFFECTIVE AMENDMENT SHALL HEREAFTER BECOME EFFECTIVE
CONCURRENTLY WITH THE EFFECTIVENESS OF THIS REGISTRATION STATEMENT IN
ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES ACT OF 1933.
================================================================================
<PAGE> 3
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 17, 1996
PROSPECTUS
WEINGARTEN REALTY INVESTORS
$250,000,000
DEBT SECURITIES, PREFERRED SHARES,
COMMON SHARES AND SECURITIES WARRANTS
---------------------
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"), (iii) its common shares of beneficial interest, par value
$.03 per share (the "Common Shares"), or (iv) warrants to purchase Common
Shares (the "Common Shares Warrants"), warrants to purchase Debt Securities
(the "Debt Securities Warrants") and warrants to purchase Preferred Shares (the
"Preferred Shares Warrants"), with an aggregate public offering price of up to
$250,000,000 (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 by market conditions at the time of offering. The Common
Shares Warrants, the Debt Securities Warrants and the Preferred Shares Warrants
shall be referred to herein collectively as the "Securities Warrants." The
Debt Securities, Preferred Shares, Common Shares and Securities Warrants
(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; (iii) in the case of
Common Shares, any initial public offering price; and (iv) in the case of
Securities Warrants, the duration, offering price, exercise price and
detachability, if applicable. 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 by the Company, 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 _____________, 1996.
<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. The Commission also maintains a Web site at
(http://www.sec.gov) that contains reports, proxy and information statements
and other information regarding registrants that file electronically with the
Commission. 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, 1995; and
2. The Company's Quarterly Report on Form 10-Q for the
quarters ended March 31, 1996 and June 30, 1996.
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.
2
<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 August
31, 1996, Trust Managers and executive officers of the Company controlled
4,162,092 Common Shares or approximately 15.7% of the outstanding Common
Shares.
Initially, the Company grew primarily through development of
properties, with 93 of the 176 operating properties owned at August 31, 1996,
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
June 30, 1996, the Company's debt represented approximately 24% of its total
market capitalization. The Company's ratio of funds from operations before
interest expense to fixed charges for the quarter ended June 30, 1996 was
approximately 4.28 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.
3
<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,
----------------------------------------
1991 1992 1993 1994 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges. . . . 1.72x 1.89x 3.94x 4.16x 3.05x
Ratio of Funds from Operations Before
Interest Expense to Fixed Charges . . . 2.49x 2.74x 5.70x 6.11x 4.48x
</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 plus fixed charges (excluding interest costs
capitalized). Funds from operations before interest expense consists of net
income plus depreciation and amortization of real estate assets, interest on
indebtedness and extraordinary charges, less 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"), dated as of May 1, 1995, 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"), dated as
of May 1, 1995, also 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 amended or
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 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
4
<PAGE> 8
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;
(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
5
<PAGE> 9
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 Fourteen of
the applicable Indenture;
(17) if such Debt Securities are to be issued upon the
exercise of Debt Securities Warrants, the time,
manner and place for such Debt Securities to be
authenticated and delivered;
(18) 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;
(19) 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
(20) 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 be issued at a discount below their principal
amount and may provide for less than the entire principal amount thereof to be
payable upon declaration of acceleration of the maturity thereof or bear no
interest or bear interest at a rate which at the time of issuance is below
market rates ("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.
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
6
<PAGE> 10
premium, if any) and interest, if any, on any series of Debt Securities will be
payable at the corporate trust office of the Trustee, 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 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).
7
<PAGE> 11
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).
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).
8
<PAGE> 12
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 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.
9
<PAGE> 13
"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 and amortization of real estate assets 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).
"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
<PAGE> 14
$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 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
11
<PAGE> 15
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 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
12
<PAGE> 16
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
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 June 30, 1996, Senior Debt aggregated
approximately $323 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
13
<PAGE> 17
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
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
14
<PAGE> 18
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.
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 and any restrictions on conversion, including restrictions
directed at maintaining the Company's REIT status.
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. The laws of some jurisdictions
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to transfer
beneficial interests in Debt Securities represented by Global Securities.
15
<PAGE> 19
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 August 31, 1996.
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 Restated Declaration of Trust, as
amended (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;
16
<PAGE> 20
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 interest, shall be
payable in respect of any dividend payment or payments on Preferred Shares of
such series which may be in arrears.
17
<PAGE> 21
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
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.
18
<PAGE> 22
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.
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
19
<PAGE> 23
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.
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,
20
<PAGE> 24
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.
21
<PAGE> 25
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
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. In such
case, the Company will likely 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, and could have a material adverse effect upon the market
price of the Company's outstanding securities.
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. For purposes of such ownership limit,
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 transfer of Common Shares or
Preferred 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 assurance 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 August 31,
1996 beneficially owned approximately 7.8% 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.
22
<PAGE> 26
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.
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).
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants (which may include
subscription rights distributed to the Company's shareholders) for the purchase
of Debt Securities, Preferred Shares or Common Shares. Securities Warrants may
be issued independently or together with any other Securities offered by any
Prospectus Supplement and may be attached to or separate from such Securities.
Each series of Securities Warrants will be issued under a separate warrant
agreement (each, a "Warrant Agreement") to be entered into between the Company
and a warrant agent specified in the applicable Prospectus Supplement (the
"Warrant Agent"). The Warrant Agent will act solely as an agent of the Company
in connection with the Securities Warrants of such series and will not assure
any obligation or relationship of agency or trust for or with any holders or
beneficial owners of Securities Warrants. The following summaries of certain
provisions of the Warrant Agreement and the Securities Warrants do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Warrant Agreement and the Securities
Warrant certificates relating to each series of Securities Warrants which will
be filed with the Commission and incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such series of Securities Warrants.
If Securities Warrants are offered, the applicable Prospectus
Supplement will describe the terms of such Securities Warrants, including, in
the case of Securities Warrants for the purchase of Debt Securities, the
following where applicable: (i) the offering price; (ii) the denominations and
terms of the series of Debt Securities purchasable upon exercise of such
Securities Warrants; (iii) the designation and terms of any series of Debt
Securities with which such Securities Warrants are being offered and the number
of such Securities Warrants being offered with such Debt Securities; (iv) the
date, if any, on and after which such Securities Warrants and the related
series of Debt Securities will be transferable separately; (v) the principal
amount of the series of Debt Securities purchasable upon exercise of each such
Securities Warrant and the price at which such principal amount of Debt
Securities of such series may be purchased upon such exercise; (vi) the date on
which the right to exercise such Securities Warrants shall commence and the
date on which such right shall expire (the "Expiration Date"); (vii) whether
the Securities Warrants will be issued in registered or bearer form; (viii) any
special United States federal income tax consequences; (ix) the terms, if any,
on which the Company may accelerate the date by which the Securities Warrants
must be exercised; and (x) any other material terms of such Securities
Warrants.
In the case of Securities Warrants for the purchase of Preferred
Shares or Common Shares, the applicable Prospectus Supplement will describe the
terms of such Securities Warrants, including the following where
23
<PAGE> 27
applicable: (i) the offering price; (ii) the aggregate number of shares
purchasable upon exercise of such Securities Warrants, the exercise price, and
in the case of Securities Warrants for Preferred Shares, the designation,
aggregate number and terms of the series of Preferred Shares purchasable upon
exercise of such Securities Warrants; (iii) the designation and terms of any
series of Preferred Shares with which such Securities Warrants are being
offered and the number of such Securities Warrants being offered with such
Preferred Shares; (iv) the date, if any, on and after which such Securities
Warrants and the related series of Preferred Shares or Common Shares will be
transferable separately; (vi) any special United States federal income tax
consequences; and (vii) any other material terms of such Securities Warrants.
Securities Warrant certificates may be exchanged for new Securities
Warrant certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal, premium,
if any, or interest, if any, on such Debt Securities or to enforce covenants in
the applicable indenture. Prior to the exercise of any Securities Warrants to
purchase Preferred Shares or Common Shares, holders of such Securities Warrants
will not have any rights of holders of such Preferred Shares or Common Shares,
including the right to receive payments of dividends, if any, on such Preferred
Shares or Common Shares, or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase
such principal amount of Debt Securities or number of Preferred Shares or
Common Shares, as the case may be, at such exercise price as shall in each case
be set forth in, or calculable from, the Prospectus Supplement relating to the
offered Securities Warrants. After the close of business on the Expiration
Date (or such later date to which such Expiration Date may be extended by the
Company), unexercised Securities Warrants will become void.
Securities Warrants may be exercised by delivering to the Warrant
Agent payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Debt Securities, Preferred Shares or Common Shares, as
the case may be, purchasable upon such exercise together with certain
information set forth on the reverse side of the Securities Warrant
certificate. Securities Warrants will be deemed to have been exercised upon
receipt of payment of the exercise price, subject to the receipt within five
(5) business days, of the Securities Warrant certificate evidencing such
Securities Warrants. Upon receipt of such payment and the Securities Warrant
certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver the
Debt Securities, Preferred Shares or Common Shares, as the case may be,
purchasable upon such exercise. If fewer than all of the Securities Warrants
represented by such Securities Warrant certificate are exercised, a new
Securities Warrant certificate will be issued for the remaining amount of
Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENT
The Warrant Agreements may be amended or supplemented without the
consent of the holders of the Securities Warrants issued thereunder to effect
changes that are not inconsistent with the provisions of the Securities
Warrants and that do not adversely affect the interests of the holders of the
Securities Warrants.
COMMON SHARES WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
the exercise price of, and the number of Common Shares covered by, a Common
Shares Warrant are subject to adjustment in certain events, including (i)
payment of a dividend on the Common Shares payable in shares of beneficial
interest, share splits, combinations or reclassification of the Common Shares;
(ii) issuance to all holders of Common Shares of rights or warrants to
subscribe for or purchase Common Shares at less than their current market
price; and (iii) certain distributions of evidences of indebtedness or assets
(including securities but excluding cash dividends or distributions paid out of
consolidated earnings or retained earnings or dividends payable in Common
Shares) or of subscription rights and
24
<PAGE> 28
warrants (excluding those referred to above).
No adjustment in the exercise price of, and the number of Common
Shares covered by, a Common Shares Warrant will be made for regular quarterly
or other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from consolidated earnings or
retained earnings. No adjustment will be required unless such adjustment would
cause a change of at least 1% in the exercise price then in effect. Except as
stated above, the exercise price of, and the number of Common Shares covered
by, a Common Shares Warrant will not be adjusted for the issuance of (i) Common
Shares, (ii) any securities convertible into or exchangeable for Common Shares,
or (iii) any securities carrying the right or option to purchase or otherwise
acquire Common Shares, in exchange for cash, other property or services.
In the event of any (i) consolidation or merger of the Company with or
into any entity (other than a consolidation or a merger that does not result in
any reclassification, conversion, exchange or cancellation of outstanding
Common Shares); (ii) sale, transfer, lease or conveyance of all or
substantially all of the assets of the Company; or (iii) reclassification,
capital reorganization or change of the Common Shares (other than solely a
change in par value or from par value to no par value), then any holder of a
Common Shares Warrant will be entitled, on or after the occurrence of any such
event, to receive on exercise of such Common Shares Warrant the kind and amount
of shares of stock or other securities, cash or other property (or any
combination thereof) that the holder would have received had such holder
exercised such holder's Common Shares Warrant immediately prior to the
occurrence of such event. If the consideration to be received upon exercise of
the Common Shares Warrant following any such event consists of common stock of
the surviving entity, then from and after the occurrence of such event, the
exercise price of such Common Shares Warrant will be subject to the same
anti-dilution and other adjustments described in the second preceding
paragraph, applied as if such common stock were Common Shares.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through one or more underwriters
for public offering and sale, or may also sell Securities directly to other
purchasers or through agents in exchange for cash or other consideration
(including real properties) as may be specified in the applicable Prospectus
Supplement. Direct sales to purchasers may also be accomplished through
subscription rights distributed to the Company's shareholders. In connection
with distribution of subscription rights to shareholders, if all of the
underlying Securities are not subscribed for, the Company may sell such
unsubscribed Securities directly to third parties or may engage the services of
underwriters to sell such unsubscribed Securities to third parties as may be
specified in the applicable Prospectus Supplement. Any underwriter or agent
involved in the offer and sale of the Securities will be named in the
applicable Prospectus Supplement.
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 (any of which may represent a
discount from the prevailing market prices). The Company also may offer and
sell the Securities in exchange for one or more of its then outstanding issues
of debt or convertible debt securities. The Company also may, from time to
time, authorize underwriters acting as the Company's agents to offer and sell
the Securities upon the terms and conditions set forth in the applicable
Prospectus Supplement.
In connection with the sale of Securities, underwriters may receive or
be deemed to have received 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
25
<PAGE> 29
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.
Each contract will be for an amount not less than, and the aggregate principal
amount of Securities sold pursuant to contracts shall be not less or more than,
the respective amounts stated in the applicable Prospectus Supplement.
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 (i) 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 and (ii) if the
Securities are being sold to underwriters, the Company shall have sold to such
underwriters the total principal amount of the Securities less the principal
amount thereof covered by contracts. The underwriters and such other agents
will not have any responsibility in respect of the validity or performance of
such contracts.
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 Liddell,
Sapp, Zivley, Hill & LaBoon, L.L.P., 2200 Ross Avenue, Suite 900, Dallas,
Texas 75201.
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, 1995, 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.
26
<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 . . . . . . . . . . . . . . . . . . . . . . $ 78,104
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . . . 15,000
Printing and Engraving Costs . . . . . . . . . . . . . . . . . . 30,000
Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . 10,000
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 20,000
Trustee and Registrar Fees . . . . . . . . . . . . . . . . . . . 20,000
Rating Agencies Fees . . . . . . . . . . . . . . . . . . . . . . 100,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 26,896
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $300,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (B) of Section 9.20 of the Texas Real Estate Investment
Trust Act, as amended (the "Act"), empowers a real estate investment trust to
indemnify any person who was, is, or is threatened to be made a named defendant
or respondent in any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit, or proceeding, or any
inquiry or investigation that can lead to such an action, suit or proceeding
because the person is or was a trust manager, officer, employee or agent of the
real estate investment trust or is or was serving at the request of the real
estate investment trust as a trust manager, director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another real estate investment trust, corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan, or other enterprise against
expenses (including court costs and attorney fees), judgments, penalties, fines
and settlements 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, except to the extent otherwise
permitted by the Act, a person may not be indemnified in respect of a
proceeding in which the person is found liable on the basis that personal
benefit was improperly received by him or in which the person is found liable
to the real estate investment trust. Indemnification pursuant to Subsection (B)
of Section 9.20 of the Act is limited to reasonable expenses actually incurred
and may not be made in respect of any proceeding in which the person has been
found liable for willful or intentional misconduct in the performance of his
duty to the real estate investment trust.
Subsection (C) of Section 15.10 of the Act provides that a trust
manager shall not be liable for any claims or damages that may result from his
acts in the discharge of any duty imposed or power conferred upon him by the
real estate investment trust, if, in the exercise of ordinary care, he acted in
good faith and in reliance upon information, opinions, reports, or statements,
including financial statements and other financial data, concerning the real
estate investment trust, that were prepared or presented by officers or
employees of the real estate investment trust, legal counsel, public
accountants, investment bankers, or certain other professionals, or a committee
of trust manager of which the trust manager is not a member. In addition, no
trust manager shall be liable to the real estate investment trust for any act,
omission, loss, damage, or expense arising from the performance of his duty to
a real estate investment trust, save only for his own willful misfeasance,
willful malfeasance or gross negligence.
II-1
<PAGE> 31
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 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.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
* (1)(a) Form of Underwriting Agreement for Debt Securities
* (1)(b) Form of Underwriting Agreement for Equity Securities
* (1)(c) Form of Distribution Agreement for Medium Term Notes
(4)(a) Form of Indenture for Senior Debt Securities (filed as Exhibit 4(a) to the Company's
Registration Statement on Form S-3 (No. 33-57659) and incorporated herein by reference)
(4)(b) Form of Indenture for Subordinated Debt Securities (filed as Exhibit 4(b) to the Company's
Registration Statement on Form S-3 (No. 33-57659) and incorporated herein by reference)
* (4)(c) Form of Senior Debt Security
* (4)(d) Form of Subordinated Debt Security
* (4)(e) Form of Fixed Rate Senior Medium Term Note
</TABLE>
II-2
<PAGE> 32
<TABLE>
<S> <C>
* (4)(f) Form of Floating Rate Senior Medium Term Note
* (4)(g) Form of Fixed Rate Subordinated Medium Term Note
* (4)(h) Form of Floating Rate Subordinated Medium Term Note
(4)(i) 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)(j) 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)(k) Form of Statement of Designation of Preferred Shares
* (4)(l) Form of Preferred Share Certificate
* (4)(m) Form of Securities Warrant Agreement
(5) Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. as to the legality of the securities
being registered
(8) Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. as to certain tax matters
(12) Statement regarding computation of ratios
(23)(a) Consent of Independent Auditors
(23)(b) Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. (included in Exhibit 5 hereto)
(23)(c) Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. (included in Exhibit 8 hereto)
(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>
- ------------------
* To be filed by amendment or incorporated by reference in connection with the
offering of the Securities.
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, as amended
(the "Securities Act");
(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, as amended (the
"Exchange Act"), that are incorporated by reference in the Registration
Statement.
II-3
<PAGE> 33
(2) That, for the purpose of determining any liability
under the Securities Act, 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, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby further undertakes to
supplement the applicable prospectus supplement, after the expiration of the
subscription period, to set forth the results of the subscription offer, the
transactions by the underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by the underwriters, and the terms of
any subsequent reoffering thereof. If any public offering by the underwriters
is to be made on terms differing from those set forth on the cover page of the
prospectus, a post-effective amendment will be filed to set forth the terms of
such offering.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions 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 Securities 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 trust manager, director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted against the
registrant by such trust manager, 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.
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
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on the 17th day of
September, 1996.
WEINGARTEN REALTY INVESTORS
By: /s/Stanford Alexander
---------------------------
Stanford Alexander
Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Stanford Alexander, Martin
Debrovner, Joseph W. Robertson, Jr. and Andrew M. Alexander, and each of them,
his true and lawful attorneys-in- fact and agents, with full power of
substitution and resubstitution, for him, and on his behalf and in his name,
place and stead, in any and all capacities, to sign, execute and file this
Registration Statement under the Securities Act of 1933, as amended, and any or
all amendments (including, without limitation, post-effective amendments), with
all exhibits and any and all documents required to be filed with respect
thereto, with the Securities and Exchange Commission or any regulatory
authority, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same, as fully to all intents and purposes as he himself might or
could do if personally present, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done.
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>
/s/ Stanford Alexander Chairman and Trust Manager September 17, 1996
------------------------------ (Chief Executive Officer)
Stanford Alexander
/s/ Andrew M. Alexander Executive Vice President/ September 17, 1996
------------------------------ Asset Management and Trust Manager
Andrew M. Alexander
</TABLE>
II-5
<PAGE> 35
<TABLE>
<S> <C> <C>
/s/ Martin Debrovner President, Chief Operating Officer September 17, 1996
------------------------------ and Trust Manager
Martin Debrovner
/s/ Melvin A. Dow Trust Manager September 17, 1996
------------------------------
Melvin A. Dow
/s/ Stephen A. Lasher Trust Manager September 17, 1996
------------------------------
Stephen A. Lasher
/s/ Joseph W. Robertson, Jr. Executive Vice President September 17, 1996
------------------------------ and Trust Manager
Joseph W. Robertson, Jr. (Chief Financial Officer)
/s/ Douglas W. Schnitzer Trust Manager September 17, 1996
------------------------------
Douglas W. Schnitzer
/s/ Marc J. Shapiro Trust Manager September 17, 1996
------------------------------
Marc J. Shapiro
/s/ J.T. Trotter Trust Manager September 17, 1996
------------------------------
J.T. Trotter
/s/ Stephen C. Richter Vice President and Treasurer September 17, 1996
------------------------------ (Principal Accounting Officer)
Stephen C. Richter
</TABLE>
II-6
<PAGE> 36
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Numbered Page
- ------ -------------
<S> <C>
*(1)(a) Form of Underwriting Agreement for Debt Securities
*(1)(b) Form of Underwriting Agreement for Equity Securities
*(1)(c) Form of Distribution Agreement for Medium Term Notes
(4)(a) Form of Indenture for Senior Debt Securities (filed as Exhibit 4(a) to the Company's
Registration
Statement on Form S-3 (No. 33-57659) and incorporated herein by reference)
(4)(b) Form of Indenture for Subordinated Debt Securities (filed as Exhibit 4(b) to the
Company's Registration Statement on Form S-3 (No. 33-57659) and incorporated herein
by reference)
*(4)(c) Form of Senior Debt Security
*(4)(d) Form of Subordinated Debt Security
*(4)(e) Form of Fixed Rate Senior Medium Term Note
*(4)(f) Form of Floating Rate Senior Medium Term Note
*(4)(g) Form of Fixed Rate Subordinated Medium Term Note
*(4)(h) Form of Floating Rate Subordinated Medium Term Note
(4)(i) 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)(j) 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)(k) Form of Statement of Designation of Preferred Shares
*(4)(l) Form of Preferred Share Certificate
*(4)(m) Form of Securities Warrant Agreement
(5) Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. as to the legality of the
securities being registered
(8) Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. as to certain tax matters
(12) Statement regarding computation of ratios
(23)(a) Consent of Independent Auditors
(23)(b) Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. (included in Exhibit 5 hereto)
(23)(c) Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. (included in Exhibit 8 hereto)
(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>
_____________________
* To be filed by amendment or incorporated by reference in connection with the
offering of the Securities.
<PAGE> 1
EXHIBIT 5
September 17, 1996
Weingarten Realty Investors
2600 Citadel Plaza Drive
Suite 300
Houston, Texas 77008
Re: $250,000,000 Aggregate Offering Price of Securities of
Weingarten Realty Investors
Gentlemen:
We are acting as securities counsel to Weingarten Realty Investors, a
Texas real estate investment trust (the "Company"), in connection with the
registration statement on Form S-3 (the "Registration Statement") being filed
by you with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), relating to the offering from
time to time pursuant to Rule 415 under the Act, as set forth in the prospectus
contained in the Registration Statement (the "Prospectus") and as to be set
forth in one or more supplements to the Prospectus (each a "Prospectus
Supplement"), by the Company of up to $250,000,000 aggregate offering price of
(i) one or more series of senior or subordinated debt securities (the "Debt
Securities"), (ii) one or more series of preferred shares of beneficial
interest, par value of $0.03 per share (the "Preferred Shares"), (iii) common
shares of beneficial interest, par value $0.03 per share (the "Common Shares"),
and/or (iv) warrants to purchase Debt Securities, Preferred Shares or Common
Shares (referred to herein collectively as the "Securities Warrants"). The
Debt Securities, Preferred Shares, Common Shares and Securities Warrants are
collectively referred to as the "Securities."
In our capacity as your counsel in connection with such registration,
we have made such legal and factual examinations and inquiries, including an
examination of originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable in
connection with this opinion, including (a) the Restated Declaration of Trust
of the Company and the Bylaws of the Company, each as amended to date, (b) the
Indenture, dated as of May 1, 1995, executed by the Company and Texas Commerce
Bank, National Association, as trustee,
<PAGE> 2
Weingarten Realty Investors
September 17, 1996
Page 2
relating to senior Debt Securities (the "Senior Indenture"), (c) the Indenture,
dated as of May 1, 1995, executed by the Company and Texas Commerce Bank,
National Association, as trustee, relating to subordinated Debt Securities (the
"Subordinated Indenture"), and (d) the Registration Statement. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, the authenticity of the originals of
such copies and the authenticity of telegraphic or telephonic confirmations of
public officials and others. As to facts material to our opinion, we have
relied upon certificates or telegraphic or telephonic confirmations of public
officials and certificates, documents, statements and other information of the
Company or representatives or officers thereof.
The opinions set forth below address the effect on the subject
transaction only of the federal laws of the United States and the internal laws
of the State of Texas, and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction.
Subject to the foregoing and the other matters set forth herein, it is
our opinion that, as of the date hereof:
1. The Senior Indenture and the Subordinated Indenture have been
duly authorized by the Company, duly executed and delivered by the Company to
Texas Commerce Bank, National Association, as trustee (the "Trustee"), and duly
qualified under the Trust Indenture Act of 1939, as amended, and are the
legally valid and binding agreements of the Company, enforceable against the
Company in accordance with their respective terms.
2. The registration of the Debt Securities has been duly
authorized by the Company, and when the Debt Securities have been duly
established by the applicable Indenture, duly authenticated by the Trustee and
duly executed and delivered on behalf of the Company against payment therefor
in accordance with the terms and provisions of the applicable Indenture and as
contemplated by the Registration Statement and/or the applicable Prospectus
Supplement, and in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board, the Debt Securities
will constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
3. The registration of the Preferred Shares has been duly
authorized by the Company, and when the Preferred Shares have been duly
established in accordance with the terms of the Company's Statement of
Designation defining the rights and preferences of the Preferred Shares, and
applicable law, and, upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and/or the applicable Prospectus
Supplement, and in accordance with the applicable definitive purchase,
underwriting or similar agreement
<PAGE> 3
Weingarten Realty Investors
September 17, 1996
Page 3
approved by the Board, the Preferred Shares will be duly authorized, validly
issued, fully paid and nonassessable.
4. The registration of the Common Shares has been duly
authorized, and upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and/or the applicable Prospectus
Supplement, and in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board, the Common Shares will
be duly authorized, validly issued, fully paid and nonassessable.
5. The registration of the Securities Warrants has been duly
authorized by the Company, and when the final terms thereof have been duly
established, and when duly executed and delivered by the Company and
countersigned by the applicable financial institution identified as the warrant
agent (the "Warrant Agent") in accordance with the applicable warrant agreement
(the "Warrant Agreement") and delivered to and paid for by the purchasers
thereof in the manner contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, and in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the Board,
the Securities Warrants will constitute legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms.
The opinions set forth above are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors, (ii) the effect
of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which
any proceeding therefor may be brought, (iii) the unenforceability under
certain circumstances under law or court decisions of provisions providing for
the indemnification of or contribution to a party with respect to a liability
where such indemnification or contribution is contrary to public policy, (iv)
we express no opinion concerning the enforceability of the waiver of rights or
defenses contained in Section 514 of the Indenture, and (v) we express no
opinion with respect to whether acceleration of Debt Securities may affect the
collectability of any portion of the stated principal amount thereof which
might be determined to constitute unearned interest thereon.
To the extent that the obligations of the Company under the Senior
Indenture or Subordinated Indenture may be dependent upon such matters, we
assume for purposes of this opinion that the Trustee is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; that the Trustee is duly qualified to engage in the activities
contemplated by the applicable Indenture, that the applicable Indenture has
been duly authorized, executed and delivered by the Trustee and constitutes the
legally valid and binding obligation of the Trustee enforceable against the
Trustee in accordance with its terms; that the Trustee is in compliance,
generally with respect to acting as a trustee under the applicable Indenture,
with
<PAGE> 4
Weingarten Realty Investors
September 17, 1996
Page 4
all applicable laws and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
the applicable Indenture.
To the extent that the obligations of the Company under each Warrant
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the Warrant Agent is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Warrant
Agent is duly qualified to engage in the activities contemplated by the Warrant
Agreement; that the Warrant Agreement has been duly authorized, executed and
delivered by the Warrant Agent and constitutes the legally valid and binding
obligation of the Warrant Agent enforceable against the Warrant Agent in
accordance with its terms; that the Warrant Agent is in compliance, generally
with respect to acting as a Warrant Agent under the Warrant Agreement, with all
applicable laws and regulations; and that the Warrant Agent has the requisite
organizational and legal power and authority to perform its obligations under
the Warrant Agreement.
For the purposes of this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective, (ii) a Prospectus Supplement will have
been prepared and filed with the Commission describing the Securities offered
thereby, (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement, and (iv) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Opinions" in the prospectus included therein.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be
relied upon by you for any other purpose, or furnished to, quoted to, or relied
upon by any other person, firm or corporation for any purpose, without our
prior written consent.
Very truly yours,
LIDDELL, SAPP, ZIVLEY, HILL & LABOON, L.L.P.
<PAGE> 1
EXHIBIT 8
September 17, 1996
Weingarten Realty Investors
2600 Citadel Plaza Drive
Houston, Texas 77008
Ladies and Gentlemen:
These opinions are delivered to you in our capacity as counsel to
Weingarten Realty Investors, a Texas real estate investment trust (the
"Company"), in connection with the registration statement on Form S-3, dated
September 17, 1996, being filed by the Company with the Securities and
Exchange Commission, as amended (the "Registration Statement"). These opinions
relate to (i) the Company's qualification for federal income tax purposes as a
real estate investment trust (a "REIT") under the Internal Revenue Code of
1986, as amended (the "Code"), for taxable years commencing with the Company's
taxable year ending December 31, 1995; and (ii) the accuracy of the "UNITED
STATES TAXATION" section (the "Tax Section") which will be contained in one or
more supplements to the prospectus contained in the Registration Statement
(such supplements are referred to herein as "Prospectus Supplements").
In rendering the following opinions, we have examined the Declaration
of Trust and Bylaws of the Company, as amended to date, and such other records,
certificates and documents as we have deemed necessary or appropriate for
purposes of rendering the opinions set forth herein.
We have reviewed the descriptions set forth in the Registration
Statement of the Company and its investments, activities, operations and
governance. We have relied upon the facts set forth in the Registration
Statement and upon the representations of officers of the Company that the
Company has been and will be owned and operated in such a manner that the
Company has and will continue to satisfy the requirements for qualification as
a REIT under the Code. We assume that the Company has been and will be
operated in accordance with applicable laws and the terms and conditions of
applicable documents. In addition, we have relied on certain additional facts
and assumptions described below.
In rendering the opinions set forth herein, we have assumed (i) the
genuineness of all signatures on documents we have examined, (ii) the
authenticity of all documents submitted to us as originals, (iii) the
conformity to the original documents of all documents submitted to us as
copies, (iv) the conformity of final documents to all documents submitted to us
as drafts, (v) the authority and capacity of the individual or individuals who
executed any such documents
<PAGE> 2
Weingarten Realty Investors
September 17, 1996
Page 2
on behalf of any party, (vi) the accuracy and completeness of all records made
available to us and (vii) the factual accuracy of all representations,
warranties and other statements made by all parties. We have also assumed,
without investigation, that all documents, certificates, representations,
warranties and covenants upon which we have relied in rendering the opinions
set forth below and that were given or dated earlier than the date of this
letter continue to remain accurate, insofar as relevant to the opinions set
forth herein, from such earlier date through and including the date of this
letter.
The discussion and conclusions set forth below are based upon the
Code, the Income Tax Regulations and Procedure and Administration Regulations
promulgated thereunder and existing administrative and judicial interpretations
thereof, all of which are subject to change. No assurance can therefore be
given that the federal income tax consequences described below will not be
altered in the future.
Based upon and subject to the foregoing discussion and the discussion
of the federal income tax considerations that relate to the tax treatment of
the Company and its shareholders as set forth in the Tax Section of any and all
Prospectus Supplements, we are of the opinion that (i) the Company has
qualified as a REIT for the taxable year ending December 31, 1995, and (ii) the
form of organization of the Company, its operations through the date hereof and
its proposed operations for future periods, are such as to enable the Company
to qualify as a REIT under the Code for subsequent taxable years provided that
in each such year the Company meets the applicable asset composition, source of
income, shareholder diversification, distribution, recordkeeping and other
requirements of the Code necessary for the Company to qualify as a REIT.
In our capacity as counsel to the Company, we will review the
discussion in the Tax Section of any Prospectus Supplements. The discussion
contained in any such Tax Section will be an accurate summary of the respective
matters described therein.
We express no opinion with respect to the transactions described
herein and in the Registration Statement other than those expressly set forth
herein. You should recognize that our opinions are not binding on the Internal
Revenue Service (the "IRS") and that the IRS may disagree with the opinions
contained herein. Although we believe that our opinions will be sustained if
challenged, there can be no assurance that this will be the case. Except as
specifically discussed above, the opinions expressed herein are based upon the
law as it currently exists. Consequently, future changes in the law may cause
the federal income tax treatment of the transactions described herein to be
materially and adversely different from that described above.
<PAGE> 3
Weingarten Realty Investors
September 17, 1996
Page 3
We consent to being named as counsel to the Company in the
Registration Statement, to the references in the Registration Statement to our
firm and to the inclusion of this opinion letter as an exhibit to the
Registration Statement.
Very truly yours,
LIDDELL, SAPP, ZIVLEY, HILL
& LABOON, L.L.P.
<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 Three Months
----------------------------------------------------- Ended
1991 1992 1993 1994 1995 June 30, 1996
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Income before extraordinary charge $17,958 $21,248 $36,249 $43,788 $44,802 $12,910
Add:
Portion of rents representative of the
interest factor 433 485 521 521 572 164
Interest on indebtedness 20,157 18,689 10,046 10,694 16,707 5,310
Amortization of debt cost 513 513 261 456 246 80
------- ------- ------- ------- ------- -------
Net Income as adjusted $39,061 $40,935 $47,077 $55,459 $62,327 $18,464
======= ======= ======= ======= ======= =======
Fixed Charges:
Interest on indebtedness $20,157 $18,689 $10,046 $10,694 $16,707 $5,310
Capitalized interest 1,586 2,025 1,114 1,670 2,878 390
Amortization of debt cost 513 513 261 456 246 80
Portion of rents representative of the
interest factor 433 485 521 521 572 164
------- ------- ------- ------- ------- -------
Fixed charges $22,689 $21,712 $11,942 $13,341 $20,403 $ 5,944
======= ======= ======= ======= ======= =======
RATIO OF EARNINGS TO FIXED CHARGES 1.72 1.89 3.94 4.16 3.05 3.11
======= ======= ======= ======= ======= =======
Income before extraordinary charge $17,958 $21,248 $36,249 $43,788 $44,802 $12,910
Depreciation and amortization 19,019 21,291 23,382 26,842 29,813 8,100
(Gains) loss on sales of property (608) (1,807) (1,631) 234 14 (901)
------- ------- ------- ------- ------- -------
Funds from operations 36,369 40,732 58,000 70,864 74,629 20,109
Interest on indebtedness 20,157 18,689 10,046 10,694 16,707 5,310
------- ------- ------- ------- ------- -------
Funds from operations (as adjusted) $56,526 $59,421 $68,046 $81,558 $91,336 $25,419
======= ======= ======= ======= ======= =======
RATIO OF FUNDS FROM OPERATIONS TO FIXED
CHARGES 2.49 2.74 5.70 6.11 4.48 4.28
======= ======= ======= ======= ======= =======
</TABLE>
<PAGE> 1
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
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, 1996
appearing in the Annual Report on Form 10-K of Weingarten Realty Investors for
the year ended December 31, 1995 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
September 17, 1996
<PAGE> 1
EXHIBIT 25(a)
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
-------
--------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer
Identification No.)
712 MAIN STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
--------------
WEINGARTEN REALTY INVESTORS
(Exact name of obligor as specified in its charter)
TEXAS 74-1464203
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2600 CITADEL PLAZA DRIVE
HOUSTON, TEXAS 77008
(Address of principal executive offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
(See Note on Page 5.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
<TABLE>
<CAPTION>
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR
THE CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1)
OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL RANK
AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 3
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF
THE TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY
EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH
CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ---------------------- -------------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------- ------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER THE AMOUNT OWNED
SECURITIES BENEFICIALLY OR HELD PERCENT OF CLASS
ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY
OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN
TITLE OF CLASS SECURITIES DEFAULT IN COL. C
-------------- -------------- ---------------------- -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 4
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
------------------- ----------- ------------------------- -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- ------------------------ ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A
PERSON OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- ----------------------- ----------- ------------------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 5
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED
TO THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT
TO THE SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH
DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 5.)
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER
WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN
ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE
HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE
OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series.
(See Note on Page 5.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE
IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
<PAGE> 6
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
<TABLE>
<S> <C> <C>
o1 -- A copy of the articles of association of the trustee as now in effect.
#2 -- A copy of the certificate of authority of the trustee to commence business.
*3 -- A copy of the authorization of the trustee to exercise corporate trust powers.
[]4 -- A copy of the existing by-laws of the trustee.
5 -- Not applicable.
*6 -- The consent of the trustee required by Section 321(b) of the Act.
7 -- A copy of the latest report of condition of the trustee published pursuant to law or the
requirements of its supervising or examining authority.
8 -- Not applicable.
9 -- Not applicable.
- -------------
o Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as exhibits to the Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as an exhibit to the Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as exhibits to the Form S-11 File No. 33-25132.
[ ] Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as exhibits to the Form S-3 File No. 33-65055.
+ Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as exhibits to the Form S-3 File No. 333-10145.
</TABLE>
-------------------------------
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base responsive answers to Items 2 and 13,
the answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-1.
<PAGE> 7
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF
1939 THE TRUSTEE, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF
HOUSTON AND STATE OF TEXAS, ON THE 11TH DAY OF SEPTEMBER, 1996.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Terry L. Stewart
------------------------------------
Terry L. Stewart
Assistant Vice President
<PAGE> 1
EXHIBIT 25(b)
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
-------
--------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer
Identification No.)
712 MAIN STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
--------------
WEINGARTEN REALTY INVESTORS
(Exact name of obligor as specified in its charter)
TEXAS 74-1464203
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2600 CITADEL PLAZA DRIVE
HOUSTON, TEXAS 77008
(Address of principal executive offices) (Zip Code)
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
(See Note on Page 5.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
<TABLE>
<CAPTION>
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR
THE CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1)
OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL RANK
AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 3
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF
THE TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY
EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH
CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ---------------------- -------------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------- ------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER THE AMOUNT OWNED
SECURITIES BENEFICIALLY OR HELD PERCENT OF CLASS
ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY
OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN
TITLE OF CLASS SECURITIES DEFAULT IN COL. C
-------------- -------------- ---------------------- -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 4
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
------------------- ----------- ------------------------- -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- ------------------------ ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A
PERSON OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- ----------------------- ----------- ------------------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 5
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED
TO THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT
TO THE SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH
DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 5.)
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER
WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN
ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE
HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE
OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series.
(See Note on Page 5.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE
IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
<PAGE> 6
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
<TABLE>
<S> <C> <C>
o1 -- A copy of the articles of association of the trustee as now in effect.
#2 -- A copy of the certificate of authority of the trustee to commence business.
*3 -- A copy of the authorization of the trustee to exercise corporate trust powers.
[]4 -- A copy of the existing by-laws of the trustee.
5 -- Not applicable.
*6 -- The consent of the trustee required by Section 321(b) of the Act.
7 -- A copy of the latest report of condition of the trustee published pursuant to law or the
requirements of its supervising or examining authority.
8 -- Not applicable.
9 -- Not applicable.
- -------------
o Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as exhibits to the Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as an exhibit to the Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as exhibits to the Form S-11 File No. 33-25132.
[ ] Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as exhibits to the Form S-3 File No. 33-65055.
+ Incorporated by reference to exhibit bearing the same designation and previously filed with the
Securities and Exchange Commission as exhibits to the Form S-3 File No. 333-10145.
</TABLE>
-------------------------------
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base responsive answers to Items 2 and 13,
the answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-1.
<PAGE> 7
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF
1939 THE TRUSTEE, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF
HOUSTON AND STATE OF TEXAS, ON THE 11TH DAY OF SEPTEMBER, 1996.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Terry L. Stewart
------------------------------------
Terry L. Stewart
Assistant Vice President
