<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 30, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
KIMCO REALTY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MARYLAND 13-2744380
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
------------------------
3333 NEW HYDE PARK ROAD
NEW HYDE PARK, NEW YORK 11042-0020
(516) 869-9000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
ROBERT P. SCHULMAN, ESQ.
THE LAW OFFICES OF ROBERT P. SCHULMAN
3333 NEW HYDE PARK ROAD
NEW HYDE PARK, NEW YORK 11042-0020
(516) 869-7200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
Copies to:
<TABLE>
<S> <C>
RAYMOND Y. LIN, ESQ. THOMAS R. SMITH, JR., ESQ.
LATHAM & WATKINS BROWN & WOOD
885 THIRD AVENUE ONE WORLD TRADE CENTER
SUITE 1000 58TH FLOOR
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10048
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please 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. /x/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM OFFERING PROPOSED
TITLE OF EACH CLASS AMOUNT TO BE PRICE PER MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED(1) REGISTERED(2) UNIT(2)(3) OFFERING PRICE(3) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities(4)............................ ) ) )
Preferred Stock, par value $1.00 per ) ) )
share(5).................................... ) ) )
Depositary Shares representing Preferred $332,362,250 (8) $332,362,250 $114,608(9)
Stock(6).................................... ) ) )
Common Stock, par value $.01 per share(7)..... ) ) )
Common Stock Warrants......................... ) ) )
</TABLE>
(Footnotes on next page)
------------------------
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS AND RELATES TO
REGISTRATION STATEMENTS NO. 33-83102 AND 333-3008 PREVIOUSLY FILED BY THE
REGISTRANT ON FORM S-3 AND DECLARED EFFECTIVE ON AUGUST 31, 1994 AND APRIL 1,
1996, RESPECTIVELY. THIS REGISTRATION STATEMENT, WHICH IS A NEW REGISTRATION
STATEMENT, ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION
STATEMENTS NO. 33-83102 AND 333-3008, 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.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
(Footnotes continued from previous page)
(1) This Registration Statement also covers contracts which may be issued by the
Registrant under which the counterparty may be required to purchase Debt
Securities, Preferred Stock, Depositary Shares or Common Stock. Such
contracts would be issued with the Debt Securities, Preferred Stock,
Depositary Shares, Common Stock and/or Common Stock Warrants covered hereby.
In addition, Offered Securities registered hereunder may be sold separately,
together or as units with other Offered Securities 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 purposes of calculating the registration fee. No
separate consideration will be received for shares of Common Stock or
Preferred Stock that are issued upon conversion of Debt Securities,
Preferred Stock or Depositary Shares registered hereunder or upon exercise
of the Common Stock Warrants registered hereunder, as the case may be. The
aggregate maximum public offering price of all Offered Securities issued
pursuant to this Registration Statement will not exceed $332,362,250.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus included in this Registration Statement also relates to: (i) an
aggregate of $7,637,750 of securities previously registered pursuant to
registration statement no. 33-83102, for which a filing fee of $2,634 has
previously been paid at the time such registration statement was originally
filed, and (ii) $10,000,000 of securities previously registered pursuant to
registration statement no. 333-3008, for which a filing fee of $3,448 has
previously been paid at the time such registration statement was originally
filed.
(4) Such indeterminate amount of Debt Securities as may from time to time be
issued at indeterminate prices or issuable upon conversion of other Debt
Securities, Preferred Stock or Depositary Shares registered hereunder.
(5) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion of Debt
Securities or other series of Preferred Stock registered hereunder. Shares
of Preferred Stock may be issued from time to time in one or more classes or
series.
(6) To be represented by Depositary Receipts representing a fractional interest
in a share of Preferred Stock.
(7) Such indeterminate number of shares of Common Stock as may from time to time
be issued at indeterminate prices or issuable upon conversion of Debt
Securities, Preferred Stock or Depositary Shares registered hereunder or
upon exercise of the Common Stock Warrants registered hereunder, as the case
may be. Shares of Common Stock may be issued from time to time in one or
more classes or series.
(8) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(9) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
<PAGE>
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 SUPPLEMENT 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.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS SUPPLEMENT DATED MAY 30, 1996
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1996)
$150,000,000
KIMCO REALTY CORPORATION
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
------------------------
Kimco Realty Corporation (the 'Company') may offer from time to time up to
$150,000,000 aggregate initial offering price, or the equivalent thereof in one
or more foreign or composite currencies, of its Medium-Term Notes Due Nine
Months or More from Date of Issue (the 'Notes'). Such aggregate initial offering
price is subject to reduction as a result of the sale by the Company of other
Offered Securities described in the accompanying Prospectus. Each Note will
mature on any day nine months or more from the date of issue, as specified in
the applicable pricing supplement hereto (each, a 'Pricing Supplement'), and may
be subject to redemption at the option of the Company or repayment at the option
of the Holder thereof, in each case, in whole or in part, prior to its Stated
Maturity Date, as specified in the applicable Pricing Supplement. In addition,
each Note may be denominated and/or payable in United States dollars or a
foreign or composite currency, as specified in the applicable Pricing
Supplement. The Notes, other than Foreign Currency Notes, will be issued in
minimum denominations of $1,000 and integral multiples thereof, unless otherwise
specified in the applicable Pricing Supplement, while Foreign Currency Notes
will be issued in the minimum denominations specified in the applicable Pricing
Supplement.
Unless otherwise specified in the applicable Pricing Supplement, Notes will
bear interest at fixed rates ('Fixed Rate Notes') or at floating rates
('Floating Rate Notes'). The applicable Pricing Supplement will specify whether
a Floating Rate Note is a Regular Floating Rate Note, a Floating Rate/Fixed Rate
Note or an Inverse Floating Rate Note and whether the rate of interest thereon
is determined by reference to one or more of the CD Rate, the CMT Rate, the
Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal
Funds Rate, LIBOR, the Prime Rate or the Treasury Rate (each, an 'Interest Rate
Basis'), or any other interest rate basis or formula, as adjusted by any Spread
and/or Spread Multiplier. Interest on each Floating Rate Note will accrue from
its date of issue and, unless otherwise specified in the applicable Pricing
Supplement, will be payable monthly, quarterly, semiannually or annually in
arrears, as specified in the applicable Pricing Supplement, and on the Maturity
Date. Unless otherwise specified in the applicable Pricing Supplement, the rate
of interest on each Floating Rate Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually, as specified in the applicable Pricing
Supplement. Interest on each Fixed Rate Note will accrue from its date of issue
and, unless otherwise specified in the applicable Pricing Supplement, will be
payable semiannually in arrears on April 1 and October 1 of each year and on the
Maturity Date. Notes may also be issued that do not bear any interest currently
or that bear interest at a below market rate. See 'Description of Notes.'
The interest rate, or formula for the determination of the interest rate,
applicable to each Note and the other variable terms thereof will be established
by the Company on the date of issue of such Note and will be specified in the
applicable Pricing Supplement. Interest rates or formulas and other terms of
Notes are subject to change by the Company, but no change will affect any Note
already issued or as to which an offer to purchase has been accepted by the
Company.
Each Note will be issued in fully registered book-entry form (a 'Book-Entry
Note') or in certificated form (a 'Certificated Note'), as specified in the
applicable Pricing Supplement. Each Book-Entry Note will be represented by one
or more fully registered global securities (the 'Global Securities') deposited
with or on behalf of The Depository Trust Company (the 'Depositary') and
registered in the name of the Depositary or the Depositary's nominee. Interests
in the Global Securities will be shown on, and transfers thereof will be
effected only through, records maintained by the Depositary (with respect to its
participants) and the Depositary's participants (with respect to beneficial
owners).
SEE 'CERTAIN RISK FACTORS' COMMENCING ON PAGE S-2 FOR A DISCUSSION OF
CERTAIN RISKS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE
NOTES OFFERED HEREBY.
------------------------
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 SUPPLEMENT, THE PROSPECTUS
OR ANY SUPPLEMENT HERETO. 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.
<TABLE>
<CAPTION>
PRICE TO AGENTS' DISCOUNTS PROCEEDS TO
PUBLIC(1) AND COMMISSIONS(1)(2) COMPANY(1)(3)
<S> <C> <C> <C>
Per Note........................................... 100% .125%-.750% 99.875%-99.250%
Total(4)........................................... $150,000,000 $187,500-$1,125,000 $149,812,500-$148,875,000
</TABLE>
(1) Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Chase Securities Inc., First Chicago Capital Markets, Inc., J.P. Morgan
Securities Inc. and Morgan Stanley & Co. Incorporated (the 'Agents') may
purchase the Notes, as principal, from the Company, for resale to investors
and other purchasers at varying prices relating to prevailing market prices
at the time of resale as determined by the applicable Agent, or, if so
specified in the applicable Pricing Supplement, for resale at a fixed
offering price. Unless otherwise specified in the applicable Pricing
Supplement, any Note sold to an Agent as principal will be purchased by such
Agent at a price equal to 100% of the principal amount thereof less a
percentage of the principal amount equal to the commission applicable to an
agency sale (as described below) of a Note of identical maturity. If agreed
to by the Company and an Agent, such Agent may utilize its reasonable
efforts on an agency basis to solicit offers to purchase the Notes at 100%
of the principal amount thereof, unless otherwise specified in the
applicable Pricing Supplement. The Company will pay a commission to the
applicable Agent, ranging from .125% to .750% of the principal amount of a
Note, depending upon its stated maturity, sold through such Agent.
Commissions with respect to Notes with stated maturities in excess of 30
years that are sold through an Agent will be negotiated between the Company
and such Agent at the time of such sale. See 'Plan of Distribution.'
(2) The Company has agreed to indemnify the Agents against, and to provide
contribution with respect to, certain liabilities, including liabilities
under the Securities Act of 1933, as amended. See 'Plan of Distribution.'
(3) Before deducting expenses payable by the Company estimated at $250,000.
(4) Or the equivalent thereof in one or more foreign or composite currencies.
------------------------
The Notes are being offered on a continuous basis by the Company to or
through the Agents. Unless otherwise specified in the applicable Pricing
Supplement, the Notes will not be listed on any securities exchange and there
can be no assurance that the Notes offered hereby will be sold, that there will
be a secondary market for the Notes or that there will be liquidity in such
market if one develops. The Company reserves the right to cancel or modify the
offer made hereby without notice. The Company or an Agent, if it solicits the
offer on an agency basis, may reject any offer to purchase Notes in whole or in
part. See 'Plan of Distribution.'
------------------------
MERRILL LYNCH & CO.
CHASE SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
J.P. MORGAN & CO.
MORGAN STANLEY & CO.
INCORPORATED
------------------------
The date of this Prospectus Supplement is , 1996.
<PAGE>
------------------------------
IN CONNECTION WITH AN OFFERING OF NOTES PURCHASED BY ONE OR MORE AGENTS AS
PRINCIPAL ON A FIXED PRICE BASIS, SUCH AGENTS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF NOTES AT A LEVEL
ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING,
IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
------------------------------
CERTAIN RISK FACTORS
This Prospectus Supplement does not describe all of the risks of an
investment in Notes that result from such Notes being denominated or payable in
or determined by reference to a currency or composite currency other than United
States dollars or to one or more interest rate, currency or other indices or
formulas. The Company and the Agents disclaim any responsibility to advise
prospective investors of such risks as they exist at the date of this Prospectus
Supplement or as they change from time to time. Prospective investors should
consult their own financial and legal advisors as to the risks entailed by an
investment in such Notes and the suitability of investing in such Notes in light
of their particular circumstances. Such Notes are not an appropriate investment
for investors who are unsophisticated with respect to foreign currency
transactions or transactions involving the applicable interest rate index or
currency index or other indices or formulas.
STRUCTURE RISKS
An investment in Notes indexed, as to principal, premium, if any, and/or
interest, if any, to one or more currencies or composites currencies (including
exchange rates and swap indices between currencies or composite currencies),
commodities, interest rates or other indices or formulas, either directly or
inversely, entails significant risks that are not associated with similar
investments in a conventional fixed rate or floating rate debt security. Such
risks include, without limitation, the possibility that such indices or formulas
may be subject to significant changes, that no interest will be payable or
that interest will be payable at a rate lower than one applicable to a
conventional fixed rate or floating rate debt security issued by the Company at
the same time, that the repayment of principal and/or premium, if any, may occur
at times other than that expected by the investor, and that the investor could
lose all or a substantial portion of principal and/or premium, if any, payable
on the Maturity Date (as defined under 'Description of Notes--General'). Such
risks depend on a number of interrelated factors, including economic, financial
and political events, over which the Company has no control. Additionally, if
the formula used to determine the amount of principal, premium, if any, and/or
interest, if any, payable with respect to such Notes contains a multiplier or
leverage factor, the effect of any change in the applicable index or indices or
formula or formulas will be magnified. In recent years, values of certain
indices and formulas have been highly volatile and such volatility may be
expected to continue in the future. Fluctuations in the value of any particular
index or formula that have occurred in the past are not necessarily indicative,
however, of fluctuations that may occur in the future.
Any optional redemption feature of Notes might affect the market value of
such Notes. Since the Company may be expected to redeem such Notes when
prevailing interest rates are relatively low, an investor generally will not be
able to reinvest the redemption proceeds at an effective interest rate as high
as the interest rate on such Notes.
The Notes will not have an established trading market when issued, and
there can be no assurance of a secondary market for the Notes or the liquidity
of such market if one develops. See 'Plan of Distribution.'
The secondary market for Notes will be affected by a number of factors
independent of the creditworthiness of the Company and the value of the
applicable index or indices or formula or formulas, including the complexity and
volatility of each such index or formula, the method of calculating the
principal, premium, if any, and/or interest, if any, in respect of such Notes,
the time remaining to the maturity of such Notes, the outstanding amount of such
Notes, any redemption features of such Notes, the amount of other debt
securities linked to such index or formula and the level, direction and
volatility of market interest rates generally. Such factors also will affect the
market value of such Notes. In addition, certain Notes may be designed for
specific investment objectives or strategies and, therefore, may have a more
limited secondary market and experience more price
S-2
<PAGE>
volatility than conventional debt securities. Investors may not be able to sell
such Notes readily or at prices that will enable investors to realize their
anticipated yield. No investor should purchase Notes unless such investor
understands and is able to bear the risk that such Notes may not be readily
saleable, that the value of such Notes will fluctuate over time and that such
fluctuations may be significant.
EXCHANGE RATES AND EXCHANGE CONTROLS
An investment in Foreign Currency Notes (as defined under 'Description of
Notes--General') entails significant risks that are not associated with a
similar investment in a debt security denominated and payable in United States
dollars. Such risks include, without limitation, the possibility of significant
changes in the rate of exchange between the United States dollar and the
Specified Currency (as defined under 'Description of Notes--General') and the
possibility of the imposition or modification of exchange controls by the
applicable governments or monetary authorities. Such risks generally depend on
factors over which the Company has no control, such as economic, financial and
political events and the supply and demand for the applicable currencies or
composite currencies. In addition, if the formula used to determine the amount
of principal, premium, if any, and/or interest, if any, payable with respect to
Foreign Currency Notes contains a multiplier or leverage factor, the effect of
any change in the applicable currencies or composite currencies will be
magnified. In recent years, rates of exchange between the United States dollar
and foreign currencies or composite currencies have been highly volatile and
such volatility may be expected to continue in the future. Fluctuations in any
particular exchange rate that have occurred in the past are not necessarily
indicative, however, of fluctuations that may occur in the future. Depreciation
of the Specified Currency applicable to a Foreign Currency Note against the
United States dollar would result in a decrease in the United States
dollar-equivalent yield of such Foreign Currency Note, in the United States
dollar-equivalent value of the principal and premium, if any, payable on the
Maturity Date of such Foreign Currency Note, and, generally, in the United
States dollar-equivalent market value of such Foreign Currency Note.
Governments or monetary authorities have imposed from time to time, and may
in the future impose or revise, exchange controls at or prior to the date on
which any payment of principal of, or premium, if any, or interest, if any, on,
a Foreign Currency Note is due, which could affect exchange rates as well as the
availability of the Specified Currency on such date. Even if there are no
exchange controls, it is possible that the Specified Currency would not be
available on the applicable payment date due to other circumstances beyond the
control of the Company. In such cases, the Company will be entitled to satisfy
its obligations in respect of such Foreign Currency Note in United States
dollars. See 'Special Provisions Relating to Foreign Currency Notes--
Availability of Specified Currency.'
CREDIT RATINGS
Any credit ratings assigned to the Company's medium-term note program may
not reflect the potential impact of all risks related to structure and other
factors on the value of the Notes. Accordingly, prospective investors should
consult their own financial and legal advisors as to the risks entailed by an
investment in the Notes and the suitability of investing in such Notes in light
of their particular circumstances.
DESCRIPTION OF NOTES
The Notes will be issued as a series of Debt Securities under an Indenture,
dated as of September 1, 1993, as amended by the First Supplemental Indenture
dated as of August 4, 1994, the Second Supplemental Indenture dated as of April
7, 1995 and as further amended or supplemented from time to time (the
'Indenture'), between the Company and IBJ Schroder Bank & Trust Company, as
trustee (the 'Trustee'). The Indenture is subject to, and governed by, the Trust
Indenture Act of 1939, as amended. The following summary of certain provisions
of the Notes and the Indenture does not purport to be complete and is qualified
in its entirety by reference to the actual provisions of the Notes and the
Indenture. Capitalized terms used but not defined herein shall have the meanings
given to them in the accompanying Prospectus, the Notes or the Indenture, as the
case may be. The term 'Debt Securities,' as used in this Prospectus Supplement,
refers to all debt securities, including the Notes, issued and issuable from
time to time under the Indenture. The following description of Notes will apply
to each Note offered hereby unless otherwise specified in the applicable Pricing
Supplement.
S-3
<PAGE>
GENERAL
All Debt Securities, including the Notes, issued and to be issued under the
Indenture will be unsecured general obligations of the Company and will rank
pari passu with all other unsecured and unsubordinated indebtedness of the
Company from time to time outstanding. The Indenture does not limit the
aggregate initial offering price of Debt Securities that may be issued
thereunder and Debt Securities may be issued thereunder from time to time in one
or more series up to the aggregate initial offering price from time to time
authorized by the Company for each series. However, the Notes are effectively
subordinated to mortgages and other secured indebtedness of the Company
(approximately $63.5 million at March 31, 1996), which encumbered certain assets
of the Company. As of the date of this Prospectus Supplement, the Company has
issued and outstanding $60.25 million aggregate initial offering price
of Medium-Term Notes Due Nine Months or More from Date of Issue, as to
which series the Notes offered hereby form a part. The Company may,
from time to time, without the consent of the Holders of the Notes,
provide for the issuance of additional Medium-Term Notes Due Nine
Months or More from Date of Issue or other Debt Securities under the
Indenture in addition to the $150,000,000 aggregate initial offering
price of Notes offered hereby.
The Notes are currently limited to up to $150,000,000 aggregate initial
offering price, or the equivalent thereof in one or more foreign or composite
currencies. The Notes will be offered on a continuous basis and will mature on
any day nine months or more from their dates of issue (each, a 'Stated Maturity
Date'), as specified in the applicable Pricing Supplement. Unless otherwise
specified in the applicable Pricing Supplement, interest-bearing Notes will
either be Fixed Rate Notes or Floating Rate Notes, as specified in the
applicable Pricing Supplement. Notes may also be issued that do not bear any
interest currently or that bear interest at a below market rate.
Unless otherwise specified in the applicable Pricing Supplement, the Notes
will be denominated in, and payments of principal, premium, if any, and/or
interest will be made in, United States dollars. The Notes also may be
denominated in, and payments of principal, premium, if any, and/or interest may
be made in, one or more foreign currencies or composite currencies ('Foreign
Currency Notes'). See 'Special Provisions Relating to Foreign Currency
Notes--Payment of Principal, Premium, if any, and Interest.' The currency or
composite currency in which a Note is denominated, whether United States dollars
or otherwise, is herein referred to as the 'Specified Currency.' References
herein to 'United States dollars,' 'U.S. dollars' and 'U.S.$' are to the lawful
currency of the United States of America ('United States').
Unless otherwise specified in the applicable Pricing Supplement, purchasers
are required to pay for the Notes in the applicable Specified Currencies. At the
present time, there are limited facilities in the United States for the
conversion of United States dollars into foreign currencies or composite
currencies and vice versa, and commercial banks do not generally offer
non-United States dollar checking or savings account facilities in the United
States. Each applicable Agent is prepared to arrange for the conversion of
United States dollars into the applicable Specified Currency to enable the
purchaser to pay for the related Foreign Currency Note, provided that a request
is made to such Agent on or prior to the fifth Business Day (as hereinafter
defined) preceding the date of delivery of such Foreign Currency Note, or by
such other day determined by such Agent. Each such conversion will be made by an
Agent on such terms and subject to such conditions, limitations and charges as
such Agent may from time to time establish in accordance with its regular
foreign exchange practices. All costs of exchange will be borne by the purchaser
of each such Foreign Currency Note. See 'Special Provisions Relating to Foreign
Currency Notes.'
Interest rates offered by the Company with respect to the Notes may differ
depending upon, among other things, the aggregate initial offering price of
Notes purchased in any single transaction. Interest rates or formulas and other
terms of Notes are subject to change by the Company from time to time, but no
such change will affect any Note already issued or as to which an offer to
purchase has been accepted by the Company.
Each Note will be issued in fully registered form as a Book-Entry Note or a
Certificated Note. The authorized denominations of each Note other than a
Foreign Currency Note will be $1,000 and integral multiples thereof, unless
otherwise specified in the applicable Pricing Supplement, while the authorized
denominations of each Foreign Currency Note will be specified in the applicable
Pricing Supplement.
S-4
<PAGE>
Payments of principal of, and premium, if any, and interest on, Book-Entry
Notes will be made by the Company through the Trustee to the Depositary. See
'--Book-Entry Notes.' In the case of Certificated Notes, payment of principal
and premium, if any, due on the Stated Maturity Date or any prior date on which
the principal, or an installment of principal, of each Certificated Note becomes
due and payable, whether by the declaration of acceleration, notice of
redemption at the option of the Company, notice of the Holder's option to elect
repayment or otherwise (the Stated Maturity Date or such prior date, as the case
may be, is herein referred to as the 'Maturity Date' with respect to the
principal of the applicable Note repayable on such date) will be made in
immediately available funds upon presentation and surrender thereof (and, in the
case of any repayment on an Optional Repayment Date, upon delivery of a duly
completed election form in accordance with the provisions described below) at
the office or agency maintained by the Company for such purpose in the Borough
of Manhattan, The City of New York, currently the corporate trust office of the
Trustee located at One State Street, New York, New York 10004. Payment of
interest due on the Maturity Date of each Certificated Note will be made to the
person to whom payment of the principal and premium, if any, shall be made.
Payment of interest due on each Certificated Note on any Interest Payment Date
(as hereinafter defined) other than the Maturity Date will be made by check
mailed to the address of the Holder entitled thereto as such address shall
appear in the Security Register of the Company. Notwithstanding the foregoing, a
Holder of $10,000,000 (or, if the applicable Specified Currency is other than
United States dollars, the equivalent thereof in such Specified Currency) or
more in aggregate principal amount of Notes (whether having identical or
different terms and provisions) will be entitled to receive interest payments on
any Interest Payment Date other than the Maturity Date by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 days prior to such Interest
Payment Date. Any such wire transfer instructions received by the Trustee shall
remain in effect until revoked by such Holder. For special payment terms
applicable to Foreign Currency Notes, see 'Special Provisions Relating to
Foreign Currency Notes--Payment of Principal, Premium, if any, and Interest.'
As used herein, 'Business Day' means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law or executive order to close in The City of New
York; provided, however, that, with respect to Foreign Currency Notes, such day
is also not a day on which banking institutions are authorized or required by
law or executive order to close in the Principal Financial Center (as
hereinafter defined) of the country issuing the Specified Currency (or, in the
case of European Currency Units ('ECU'), is not a day that appears as an ECU
non-settlement day on the display designated as 'ISDE' on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association) or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market); provided, further, that, with respect to Notes
as to which LIBOR is an applicable Interest Rate Basis, such day is also a
London Business Day (as hereinafter defined). 'London Business Day' means any
day (i) if the Index Currency (as hereinafter defined) is other than ECU, on
which dealings in such Index Currency are transacted in the London interbank
market or (ii) if the Index Currency is ECU, that is not designated as an ECU
non-settlement day on the display designated as 'ISDE' on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association) or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market.
'Principal Financial Center' means the capital city of the country issuing
the Specified Currency or, solely with respect to the calculation of LIBOR, the
Index Currency, except that with respect to United States dollars, Australian
dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECUs,
the Principal Financial Center shall be The City of New York, Sydney, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
Book-Entry Notes may be transferred or exchanged only through the
Depositary. See '--Book-Entry Notes.' Registration of transfer or exchange of
Certificated Notes will be made at the office or agency maintained by the
Company for such purpose in the Borough of Manhattan, The City of New York. No
service charge will be made by the Company or the Trustee for any such
registration of transfer or exchange of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith (other than exchanges pursuant to the
Indenture not involving any transfer).
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REDEMPTION AT THE OPTION OF THE COMPANY
Unless otherwise specified in the applicable Pricing Supplement, the Notes
will not be subject to any sinking fund. The Notes will be redeemable at the
option of the Company prior to the Stated Maturity Date only if agreed to by the
Company and the purchasers thereof at the time of sale and an Initial Redemption
Date is specified in the applicable Pricing Supplement. If so specified, the
Notes will be subject to redemption at the option of the Company on any date on
and after the applicable Initial Redemption Date in whole or from time to time
in part in increments of $1,000 or such other minimum denomination specified in
such Pricing Supplement (provided that any remaining principal amount thereof
shall be at least $1,000 or such minimum denomination), at the applicable
Redemption Price (as hereinafter defined), together with unpaid interest accrued
to the date of redemption, on notice given not more than 60 nor less than 30
calendar days prior to the date of redemption and in accordance with the
provisions of the Indenture. 'Redemption Price', with respect to a Note, means
an amount equal to the Initial Redemption Percentage specified in the applicable
Pricing Supplement (as adjusted by the Annual Redemption Percentage Reduction,
if applicable) multiplied by the unpaid principal amount to be redeemed. The
Initial Redemption Percentage, if any, applicable to a Note shall decline at
each anniversary of the Initial Redemption Date by an amount equal to the
applicable Annual Redemption Percentage Reduction, if any, until the Redemption
Price is equal to 100% of the unpaid principal amount to be redeemed. See also
'--Original Issue Discount Notes.'
REPAYMENT AT THE OPTION OF THE HOLDER
The Notes will be repayable by the Company at the option of the Holders
thereof prior to the Stated Maturity Date only if agreed to by the Company and
the purchasers thereof at the time of sale and one or more Optional Repayment
Dates are specified in the applicable Pricing Supplement. If so specified, the
Notes will be subject to repayment at the option of the Holders thereof on any
Optional Repayment Date in whole or from time to time in part in increments of
$1,000 or such other minimum denomination specified in the applicable Pricing
Supplement (provided that any remaining principal amount thereof shall be at
least $1,000 or such other minimum denomination), at a repayment price equal to
100% of the unpaid principal amount to be repaid, together with unpaid interest
accrued to the date of repayment. For any Note to be repaid, such Note must be
received, together with the form thereon entitled 'Option to Elect Repayment'
duly completed, by the Trustee at its Corporate Trust Office (or such other
address of which the Company shall from time to time notify the Holders) not
more than 60 nor less than 30 calendar days prior to the date of repayment.
Exercise of such repayment option by the Holder will be irrevocable.
Only the Depositary may exercise the repayment option in respect of Global
Securities representing Book-Entry Notes. Accordingly, Beneficial Owners (as
hereinafter defined) of Global Securities that desire to have all or any portion
of the Book-Entry Notes represented by such Global Securities repaid must direct
the Participant (as hereinafter defined) through which they own their interest
to direct the Depositary to exercise the repayment option on their behalf by
delivering the related Global Security and duly completed election form to the
Trustee as aforesaid. In order to ensure that such Global Security and election
form are received by the Trustee on a particular day, the applicable Beneficial
Owner must so direct the Participant through which it owns its interest before
such Participant's deadline for accepting instructions for that day. Different
firms may have different deadlines for accepting instructions from their
customers. Accordingly, Beneficial Owners should consult the Participants
through which they own their interest for the respective deadlines for such
Participants. All instructions given to Participants from Beneficial Owners of
Global Securities relating to the option to elect repayment shall be
irrevocable. In addition, at the time such instructions are given, each such
Beneficial Owner shall cause the Participant through which it owns its interest
to transfer such Beneficial Owner's interest in the Global Security or
Securities representing the related Book-Entry Notes, on the Depositary's
records, to the Trustee. See '--Book-Entry Notes.'
If applicable, the Company will comply with the requirements of Rule 14e-1
under the Securities Exchange Act of 1934, as amended (the 'Exchange Act'), and
any other securities laws or regulations in connection with any such repayment.
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The Company may at any time purchase Notes at any price or prices in the
open market or otherwise. Notes so purchased by the Company may, at the
discretion of the Company, be held, resold or surrendered to the Trustee for
cancellation.
INTEREST
General
Unless otherwise specified in the applicable Pricing Supplement, each
interest-bearing Note will bear interest from its date of issue at the rate per
annum, in the case of a Fixed Rate Note, or pursuant to the interest rate
formula, in the case of a Floating Rate Note, in each case as specified in the
applicable Pricing Supplement, until the principal thereof is paid or duly made
available for payment. Unless otherwise specified in the applicable Pricing
Supplement, interest payments in respect of Fixed Rate Notes and Floating Rate
Notes will equal the amount of interest accrued from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly made available for payment (or from and including the date of
issue, if no interest has been paid or duly made available for payment with
respect to the applicable Note) to but excluding the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an 'Interest Period').
Interest on Fixed Rate Notes and Floating Rate Notes will be payable in
arrears on each Interest Payment Date and on the Maturity Date. Unless otherwise
specified in the applicable Pricing Supplement, the first payment of interest on
any such Note originally issued between a Record Date (as hereinafter defined)
and the related Interest Payment Date will be made on the Interest Payment Date
immediately following the next succeeding Record Date to the Holder on such next
succeeding Record Date. Unless otherwise specified in the applicable Pricing
Supplement, a 'Record Date' shall be the fifteenth calendar day (whether or not
a Business Day) immediately preceding the related Interest Payment Date.
Fixed Rate Notes
Unless otherwise specified in the applicable Pricing Supplement, interest
on Fixed Rate Notes will be payable on April 1 and October 1 of each year (each,
an 'Interest Payment Date') and on the Maturity Date. Unless otherwise specified
in the applicable Pricing Supplement, interest on Fixed Rate Notes will be
computed on the basis of a 360-day year of twelve 30-day months.
If any Interest Payment Date or the Maturity Date of a Fixed Rate Note
falls on a day that is not a Business Day, the required payment of principal,
premium, if any, and/or interest will be made on the next succeeding Business
Day with the same force and effect as if made on the date such payment was due,
and no interest will accrue on such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
Floating Rate Notes
Unless otherwise specified in the applicable Pricing Supplement, Floating
Rate Notes will be issued as described below. The applicable Pricing Supplement
will specify certain terms with respect to which each Floating Rate Note is
being delivered, including: whether such Floating Rate Note is a 'Regular
Floating Rate Note,' a 'Floating Rate/Fixed Rate Note' or an 'Inverse Floating
Rate Note,' the Fixed Rate Commencement Date, if applicable, Fixed Interest
Rate, if applicable, Interest Rate Basis or Bases, Initial Interest Rate, if
any, Interest Reset Period and Dates, Interest Payment Period and Dates, Index
Maturity, Maximum Interest Rate and/or Minimum Interest Rate, if any, and Spread
and/or Spread Multiplier, if any, as such terms are defined below. If one or
more of the applicable Interest Rate Bases is LIBOR or the CMT Rate, the
applicable Pricing Supplement will specify the Index Currency and Designated
LIBOR Page or the Designated CMT Maturity Index and Designated CMT Telerate
Page, respectively, as such terms are defined below.
The interest rate borne by the Floating Rate Notes will be determined as
follows:
(i) Unless such Floating Rate Note is designated as a 'Floating
Rate/Fixed Rate Note' or an 'Inverse Floating Rate Note,' or as having an
Addendum attached or as having 'Other/Additional Provisions'
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apply, in each case relating to a different interest rate formula, such
Floating Rate Note will be designated as a 'Regular Floating Rate Note'
and, except as described below or in the applicable Pricing Supplement,
will bear interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the applicable Spread, if
any, and/or (b) multiplied by the applicable Spread Multiplier, if any.
Commencing on the first Interest Reset Date, the rate at which interest on
such Regular Floating Rate Note shall be payable shall be reset as of each
Interest Reset Date; provided, however, that the interest rate in effect
for the period, if any, from the date of issue to the first Interest Reset
Date will be the Initial Interest Rate.
(ii) If such Floating Rate Note is designated as a 'Floating
Rate/Fixed Rate Note,' then, except as described below or in the applicable
Pricing Supplement, such Floating Rate Note will bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases (a)
plus or minus the applicable Spread, if any, and/or (b) multiplied by the
applicable Spread Multiplier, if any. Commencing on the first Interest
Reset Date, the rate at which interest on such Floating Rate/Fixed Rate
Note shall be payable shall be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the period, if
any, from the date of issue to the first Interest Reset Date will be the
Initial Interest Rate and (z) the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date to the Maturity Date shall
be the Fixed Interest Rate, if such rate is specified in the applicable
Pricing Supplement or, if no such Fixed Interest Rate is specified, the
interest rate in effect thereon on the day immediately preceding the Fixed
Rate Commencement Date.
(iii) If such Floating Rate Note is designated as an 'Inverse Floating
Rate Note,' then, except as described below or in the applicable Pricing
Supplement, such Floating Rate Note will bear interest at the Fixed
Interest Rate minus the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the applicable Spread, if
any, and/or (b) multiplied by the applicable Spread Multiplier, if any;
provided, however, that, unless otherwise specified in the applicable
Pricing Supplement, the interest rate thereon will not be less than zero.
Commencing on the first Interest Reset Date, the rate at which interest on
such Inverse Floating Rate Note shall be payable shall be reset as of each
Interest Reset Date; provided, however, that the interest rate in effect
for the period, if any, from the date of issue to the first Interest Reset
Date will be the Initial Interest Rate.
The 'Spread' is the number of basis points to be added to or subtracted
from the related Interest Rate Basis or Bases applicable to such Floating Rate
Note. The 'Spread Multiplier' is the percentage of the related Interest Rate
Basis or Bases applicable to such Floating Rate Note by which such Interest Rate
Basis or Bases will be multiplied to determine the applicable interest rate on
such Floating Rate Note. The 'Index Maturity' is the period to maturity of the
instrument or obligation with respect to which the related Interest Rate Basis
or Bases will be calculated.
Unless otherwise specified in the applicable Pricing Supplement, the
interest rate with respect to each Interest Rate Basis will be determined in
accordance with the applicable provisions below. Except as set forth above or in
the applicable Pricing Supplement, the interest rate in effect on each day shall
be (i) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as hereinafter defined) immediately preceding
such Interest Reset Date or (ii) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the most recent Interest Reset Date.
Interest on Floating Rate Notes will be determined by reference to the
applicable Interest Rate Basis or Interest Rate Bases, which may, as described
below, include (i) the CD Rate, (ii) the CMT Rate, (iii) the Commercial Paper
Rate, (iv) the Eleventh District Cost of Funds Rate, (v) the Federal Funds Rate,
(vi) LIBOR, (vii) the Prime Rate, (viii) the Treasury Rate, or (ix) such other
Interest Rate Basis or interest rate formula as may be specified in the
applicable Pricing Supplement; provided, however, that the interest rate in
effect on a Floating Rate Note for the period, if any, from the date of issue to
the first Interest Reset Date will be the Initial Interest Rate; provided,
further, that with respect to a Floating Rate/Fixed Rate Note the interest rate
in effect for the period commencing on the Fixed Rate Commencement Date to the
Maturity Date shall be the Fixed Interest Rate, if such rate is specified in the
applicable Pricing Supplement or, if no such Fixed Interest Rate is specified,
the interest rate in effect thereon on the day immediately preceding the Fixed
Rate Commencement Date.
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The applicable Pricing Supplement will specify whether the rate of interest
on the related Floating Rate Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually or on such other specified basis (each, an
'Interest Reset Period') and the dates on which such rate of interest will be
reset (each, an 'Interest Reset Date'). Unless otherwise specified in the
applicable Pricing Supplement, the Interest Reset Dates will be, in the case of
Floating Rate Notes which reset: (i) daily, each Business Day; (ii) weekly, the
Wednesday of each week (with the exception of weekly reset Floating Rate Notes
as to which the Treasury Rate is an applicable Interest Rate Basis, which will
reset the Tuesday of each week, except as described below); (iii) monthly, the
third Wednesday of each month (with the exception of monthly reset Floating Rate
Notes as to which the Eleventh District Cost of Funds Rate is an applicable
Interest Rate Basis, which will reset on the first calendar day of the month);
(iv) quarterly, the third Wednesday of March, June, September and December of
each year; (v) semiannually, the third Wednesday of the two months specified in
the applicable Pricing Supplement; and (vi) annually, the third Wednesday of the
month specified in the applicable Pricing Supplement; provided however, that,
with respect to Floating Rate/Fixed Rate Notes, the rate of interest thereon
will not reset after the applicable Fixed Rate Commencement Date. If any
Interest Reset Date for any Floating Rate Note would otherwise be a day that is
not a Business Day, such Interest Reset Date will be postponed to the next
succeeding Business Day, except that in the case of a Floating Rate Note as to
which LIBOR is an applicable Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest Reset Date will be the
immediately preceding Business Day.
The interest rate applicable to each Interest Reset Period commencing on
the related Interest Reset Date will be the rate determined as of the applicable
Interest Determination Date and calculated on or prior to the Calculation Date
(as hereinafter defined), except with respect to LIBOR and the Eleventh District
Cost of Funds Rate, which will be calculated on such Interest Determination
Date. The 'Interest Determination Date' with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will
be the second Business Day immediately preceding the applicable Interest Reset
Date; the 'Interest Determination Date' with respect to the Eleventh District
Cost of Funds Rate will be the last working day of the month immediately
preceding the applicable Interest Reset Date on which the Federal Home Loan Bank
of San Francisco (the 'FHLB of San Francisco') publishes the Index (as
hereinafter defined); and the 'Interest Determination Date' with respect to
LIBOR will be the second London Business Day immediately preceding the
applicable Interest Reset Date, unless the Index Currency is British pounds
sterling, in which case the 'Interest Determination Date' will be the applicable
Interest Reset Date. With respect to the Treasury Rate, the 'Interest
Determination Date' will be the day in the week in which the applicable Interest
Reset Date falls on which day Treasury Bills (as hereinafter defined) are
normally auctioned (Treasury Bills are normally sold at an auction held on
Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that such auction may
be held on the preceding Friday); provided, however, that if an auction is held
on the Friday of the week preceding the applicable Interest Reset Date, the
Interest Determination Date will be such preceding Friday; provided, further,
that if an auction falls on the applicable Interest Reset Date, then the
Interest Reset Date will instead be the first Business Day following such
auction. The 'Interest Determination Date' pertaining to a Floating Rate Note
the interest rate of which is determined by reference to two or more Interest
Rate Bases will be the most recent Business Day which is at least two Business
Days prior to the applicable Interest Reset Date for such Floating Rate Note on
which each Interest Rate Basis is determinable. Each Interest Rate Basis will be
determined as of such date, and the applicable interest rate will take effect on
the applicable Interest Reset Date.
A Floating Rate Note may also have either or both of the following: (i) a
Maximum Interest Rate, or ceiling, that may accrue during any Interest Period
and (ii) a Minimum Interest Rate, or floor, that may accrue during any Interest
Period. In addition to any Maximum Interest Rate that may apply to any Floating
Rate Note, the interest rate on Floating Rate Notes will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
Except as provided below or in the applicable Pricing Supplement, interest
will be payable, in the case of Floating Rate Notes which reset: (i) daily,
weekly or monthly, on the third Wednesday of each month or on the third
Wednesday of March, June, September and December of each year, as specified in
the applicable Pricing Supplement; (ii) quarterly, on the third Wednesday of
March, June, September and December of each year; (iii) semiannually, on the
third Wednesday of the two months of each year specified in the applicable
Pricing
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Supplement; and (iv) annually, on the third Wednesday of the month of each year
specified in the applicable Pricing Supplement (each, an 'Interest Payment
Date') and, in each case, on the Maturity Date. If any Interest Payment Date
other than the Maturity Date for any Floating Rate Note would otherwise be a day
that is not a Business Day, such Interest Payment Date will be postponed to the
next succeeding Business Day, except that in the case of a Floating Rate Note as
to which LIBOR is an applicable Interest Rate Basis and such Business Day falls
in the next succeeding calendar month, such Interest Payment Date will be the
immediately preceding Business Day. If the Maturity Date of a Floating Rate Note
falls on a day that is not a Business Day, the required payment of principal,
premium, if any, and interest will be made on the next succeeding Business Day
with the same force and effect as if made on the date such payment was due, and
no interest will accrue on such payment for the period from and after the
Maturity Date to the date of such payment on the next succeeding Business Day.
All percentages resulting from any calculation on Floating Rate Notes will
be rounded to the nearest one hundred-thousandth of a percentage point, with
five-one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all amounts used in
or resulting from such calculation on Floating Rate Notes will be rounded, in
the case of United States dollars, to the nearest cent or, in the case of a
foreign currency or composite currency, to the nearest unit (with one-half cent
or unit being rounded upwards).
With respect to each Floating Rate Note, accrued interest is calculated by
multiplying its principal amount by an accrued interest factor. Such accrued
interest factor is computed by adding the interest factor calculated for each
day in the applicable Interest Period. Unless otherwise specified in the
applicable Pricing Supplement, the interest factor for each such day will be
computed by dividing the interest rate applicable to such day by 360, in the
case of Floating Rate Notes for which an applicable Interest Rate Basis is the
CD Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate,
the Federal Funds Rate, LIBOR or the Prime Rate, or by the actual number of days
in the year in the case of Floating Rate Notes for which an applicable Interest
Rate Basis is the CMT Rate or the Treasury Rate. Unless otherwise specified in
the applicable Pricing Supplement, the interest factor for Floating Rate Notes
for which the interest rate is calculated with reference to two or more Interest
Rate Bases will be calculated in each period in the same manner as if only one
of the applicable Interest Rate Bases applied as specified in the applicable
Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, IBJ
Schroder Bank & Trust Company will be the 'Calculation Agent.' Upon request of
the Holder of any Floating Rate Note, the Calculation Agent will disclose the
interest rate then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the next succeeding
Interest Reset Date with respect to such Floating Rate Note. Unless otherwise
specified in the applicable Pricing Supplement, the 'Calculation Date,' if
applicable, pertaining to any Interest Determination Date will be the earlier of
(i) the tenth calendar day after such Interest Determination Date, or, if such
day is not a Business Day, the next succeeding Business Day or (ii) the Business
Day immediately preceding the applicable Interest Payment Date or the Maturity
Date, as the case may be.
Unless otherwise specified in the applicable Pricing Supplement, the
Calculation Agent shall determine each Interest Rate Basis in accordance with
the following provisions.
CD RATE. Unless otherwise specified in the applicable Pricing Supplement,
'CD Rate' means, with respect to any Interest Determination Date relating to a
Floating Rate Note for which the interest rate is determined with reference to
the CD Rate (a 'CD Rate Interest Determination Date'), the rate on such date for
negotiable United States dollar certificates of deposit having the Index
Maturity specified in the applicable Pricing Supplement as published by the
Board of Governors of the Federal Reserve System in 'Statistical Release
H.15(519), Selected Interest Rates' or any successor publication ('H.15(519)')
under the heading 'CDs (Secondary Market),' or, if not published by 3:00 P.M.,
New York City time, on the related Calculation Date, the rate on such CD Rate
Interest Determination Date for negotiable United States dollar certificates of
deposit of the Index Maturity specified in the applicable Pricing Supplement as
published by the Federal Reserve Bank of New York in its daily statistical
release 'Composite 3:30 P.M. Quotations for U.S. Government Securities' or any
successor publication ('Composite Quotations') under the heading 'Certificates
of Deposit.' If such rate is not yet published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the related Calculation Date,
then the CD Rate on such CD Rate Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of
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10:00 A.M., New York City time, on such CD Rate Interest Determination Date, of
three leading nonbank dealers in negotiable United States dollar certificates of
deposit in The City of New York (which may include the Agent or its affiliates)
selected by the Calculation Agent for negotiable United States dollar
certificates of deposit of major United States money center banks for negotiable
certificates of deposit with a remaining maturity closest to the Index Maturity
specified in the applicable Pricing Supplement in an amount that is
representative for a single transaction in that market at that time; provided,
however, that if the dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the CD Rate determined as of such CD Rate
Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT RATE. Unless otherwise specified in the applicable Pricing Supplement,
'CMT Rate' means, with respect to any Interest Determination Date relating to a
Floating Rate Note for which the interest rate is determined with reference to
the CMT Rate (a 'CMT Rate Interest Determination Date'), the rate displayed on
the Designated CMT Telerate Page under the caption '. . .Treasury Constant
Maturities. . .Federal Reserve Board Release H.15. . .Mondays Approximately 3:45
P.M.,' under the column for the Designated CMT Maturity Index for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly or monthly average, as specified in the applicable Pricing Supplement,
for the week or the month, as applicable, ended immediately preceding the week
or the month, as applicable, in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page or is not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index as published in H.15(519). If such rate is no longer published or
is not published by 3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate on such CMT Rate Interest Determination Date will be
such treasury constant maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index) for the
CMT Rate Interest Determination Date with respect to such Interest Reset Date as
may then be published by either the Board of Governors of the Federal Reserve
System or the United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in H.15(519). If such information is
not provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate on the CMT Rate Interest Determination Date will be calculated
by the Calculation Agent and will be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a 'Reference
Dealer') in The City of New York (which may include the Agent or its affiliates)
selected by the Calculation Agent (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ('Treasury Notes') with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers so
selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date will be the CMT Rate
in effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the quotes for the Treasury Note with the shorter remaining term to maturity
will be used.
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'Designated CMT Telerate Page' means the display on the Dow Jones Telerate
Service (or any successor service) on the page specified in the applicable
Pricing Supplement (or any other page as may replace such page on that service)
for the purpose of displaying Treasury Constant Maturities as reported in
H.15(519). If no such page is specified in the applicable Pricing Supplement,
the Designated CMT Telerate Page shall be 7052, for the most recent week.
'Designated CMT Maturity Index' means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be 2 years.
COMMERCIAL PAPER RATE. Unless otherwise specified in the applicable
Pricing Supplement, 'Commercial Paper Rate' means, with respect to any Interest
Determination Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the Commercial Paper Rate (a 'Commercial Paper
Rate Interest Determination Date'), the Money Market Yield (as hereinafter
defined) on such date of the rate for commercial paper having the Index Maturity
specified in the applicable Pricing Supplement as published in H.15(519) under
the heading 'Commercial Paper.' In the event that such rate is not published by
3:00 P.M., New York City time, on the related Calculation Date, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination Date
will be the Money Market Yield of the rate for commercial paper having the Index
Maturity specified in the applicable Pricing Supplement as published in
Composite Quotations under the heading 'Commercial Paper' (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate is not yet published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on
the related Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be calculated by the Calculation
Agent and will be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
The City of New York (which may include the Agent or its affiliates) selected by
the Calculation Agent for commercial paper having the Index Maturity specified
in the applicable Pricing Supplement placed for an industrial issuer whose bond
rating is 'AA', or the equivalent, from a nationally recognized statistical
rating organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
'Money Market Yield' means a yield (expressed as a percentage) calculated
in accordance with the following formula:
D x 360
Money Market Yield = ------------- X 100
360 - (D x M)
where 'D' refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and 'M' refers to the actual
number of days in the Interest Period for which interest is being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. Unless otherwise specified in the
applicable Pricing Supplement, 'Eleventh District Cost of Funds Rate' means,
with respect to any Interest Determination Date relating to a Floating Rate Note
for which the interest rate is determined with reference to the Eleventh
District Cost of Funds Rate (an 'Eleventh District Cost of Funds Rate Interest
Determination Date'), the rate equal to the monthly weighted average cost of
funds for the calendar month immediately preceding the month in which such
Eleventh District Cost of Funds Rate Interest Determination Date falls, as set
forth under the caption '11th District' on Telerate Page 7058 as of 11:00 A.M.,
San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the 'Index') by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the
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Index on or prior to such Eleventh District Cost of Funds Rate Interest
Determination Date for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date, the Eleventh District
Cost of Funds Rate determined as of such Eleventh District Cost of Funds Rate
Interest Determination Date will be the Eleventh District Cost of Funds Rate in
effect on such Eleventh District Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE. Unless otherwise specified in the applicable Pricing
Supplement, 'Federal Funds Rate' means, with respect to any Interest
Determination Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the Federal Funds Rate (a 'Federal Funds Rate
Interest Determination Date'), the rate on such date for United States dollar
federal funds as published in H.15(519) under the heading 'Federal Funds
(Effective)' or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations under the heading
'Federal Funds/Effective Rate.' If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the Federal Funds Rate on such Federal Funds Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the rates for the last transaction in overnight United
States dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York (which may include the Agent or its
affiliates) selected by the Calculation Agent prior to 9:00 A.M., New York City
time, on such Federal Funds Rate Interest Determination Date; provided, however,
that if the brokers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate determined as of such Federal
Funds Rate Interest Determination Date will be the Federal Funds Rate in effect
on such Federal Funds Rate Interest Determination Date.
LIBOR. Unless otherwise specified in the applicable Pricing Supplement,
'LIBOR' means the rate determined in accordance with the following provisions:
(i) With respect to any Interest Determination Date relating to a
Floating Rate Note for which the interest rate is determined with reference
to LIBOR (a 'LIBOR Interest Determination Date'), LIBOR will be either: (a)
if 'LIBOR Reuters' is specified in the applicable Pricing Supplement, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page by
its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Index Currency having the Index Maturity
specified in such Pricing Supplement, commencing on the applicable Interest
Reset Date, that appear (or, if only a single rate is required as
aforesaid, appears) on the Designated LIBOR Page as of 11:00 A.M., London
time, on such LIBOR Interest Determination Date, or (b) if 'LIBOR Telerate'
is specified in the applicable Pricing Supplement or if neither 'LIBOR
Reuters' nor 'LIBOR Telerate' is specified in the applicable Pricing
Supplement as the method for calculating LIBOR, the rate for deposits in
the Index Currency having the Index Maturity specified in such Pricing
Supplement, commencing on such Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates so appear, or if
no such rate so appears, as applicable, LIBOR on such LIBOR Interest
Determination Date will be determined in accordance with the provisions
described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent will request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity specified in the applicable Pricing Supplement, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for a
single transaction in such Index Currency in such market at such time. If
at least two such quotations are so provided, then LIBOR on such LIBOR
Interest Determination Date will be the arithmetic mean of such quotations.
If fewer than two such quotations are so provided, then LIBOR on such LIBOR
Interest Determination Date will be the arithmetic mean of the rates quoted
at approximately 11:00 A.M., in the applicable Principal Financial Center,
on such LIBOR Interest Determination Date by three major banks in such
Principal Financial Center selected by the
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Calculation Agent for loans in the Index Currency to leading European
banks, having the Index Maturity specified in the applicable Pricing
Supplement and in a principal amount that is representative for a single
transaction in such Index Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR determined as of such LIBOR
Interest Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
'Index Currency' means the currency or composite currency specified in the
applicable Pricing Supplement as to which LIBOR shall be calculated. If no such
currency or composite currency is specified in the applicable Pricing
Supplement, the Index Currency shall be United States dollars.
'Designated LIBOR Page' means (a) if 'LIBOR Reuters' is specified in the
applicable Pricing Supplement, the display on the Reuter Monitor Money Rates
Service (or any successor service) on the page specified in such Pricing
Supplement (or any other page as may replace such page on that service) for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, or (b) if 'LIBOR Telerate' is specified in the
applicable Pricing Supplement or neither 'LIBOR Reuters' nor 'LIBOR Telerate' is
specified in the applicable Pricing Supplement as the method for calculating
LIBOR, the display on the Dow Jones Telerate Service (or any successor service)
on the page specified in such Pricing Supplement (or any other page as may
replace such page on that service) for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency.
PRIME RATE. Unless otherwise specified in the applicable Pricing
Supplement, 'Prime Rate' means, with respect to any Interest Determination Date
relating to a Floating Rate Note for which the interest rate is determined with
reference to the Prime Rate (a 'Prime Rate Interest Determination Date'), the
rate on such date as such rate is published in H.15(519) under the heading 'Bank
Prime Loan.' If such rate is not published prior to 3:00 P.M., New York City
time, on the related Calculation Date, then the Prime Rate shall be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 Page (as hereinafter defined) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, then the Prime
Rate shall be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business on such Prime Rate Interest Determination Date by four major money
center banks in The City of New York selected by the Calculation Agent. If fewer
than four such quotations are so provided, then the Prime Rate shall be the
arithmetic mean of four prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date as furnished in The City of New York by
the major money center banks, if any, that have provided such quotations and by
a reasonable number of substitute banks or trust companies as necessary in order
to obtain four such prime rate quotations, provided such substitute banks or
trust companies are organized and doing business under the laws of the United
States, or any State thereof, each having total equity capital of at least $500
million and being subject to supervision or examination by Federal or State
authority, selected by the Calculation Agent to provide such rate or rates;
provided, however, that if the banks or trust companies so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Prime Rate
determined as of such Prime Rate Interest Determination Date will be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
'Reuters Screen USPRIME1 Page' means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the 'USPRIME1' page (or any
other page as may replace such page on that service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
TREASURY RATE. Unless otherwise specified in the applicable Pricing
Supplement, 'Treasury Rate' means, with respect to any Interest Determination
Date relating to a Floating Rate Note for which the interest rate is determined
by reference to the Treasury Rate (a 'Treasury Rate Interest Determination
Date'), the rate from the auction held on such Treasury Rate Interest
Determination Date (the 'Auction') of direct obligations of the United States
('Treasury Bills') having the Index Maturity specified in the applicable Pricing
Supplement, as such rate is published in H.15(519) under the heading 'Treasury
Bills-auction average (investment)' or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date, the auction average rate of such
Treasury Bills (expressed as a bond equivalent on the basis of a year of 365 or
366 days, as applicable, and
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applied on a daily basis) as otherwise announced by the United States Department
of the Treasury. In the event that the results of the Auction of Treasury Bills
having the Index Maturity specified in the applicable Pricing Supplement are not
reported as provided by 3:00 P.M., New York City time, on the related
Calculation Date, or if no such Auction is held, then the Treasury Rate will be
calculated by the Calculation Agent and will be a yield to maturity (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury Rate
Interest Determination Date, of three leading primary United States government
securities dealers (which may include the Agent or its affiliates) selected by
the Calculation Agent, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified in the applicable Pricing Supplement;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Treasury Rate determined as of
such Treasury Rate Interest Determination Date will be the Treasury Rate in
effect on such Treasury Rate Interest Determination Date.
OTHER PROVISIONS; ADDENDA
Any provisions with respect to the Notes, including the specification and
determination of one or more Interest Rate Bases, the calculation of the
interest rate applicable to a Floating Rate Note, the Interest Payment Dates,
the Maturity Date or any other term relating thereto, may be modified and/or
supplemented as specified under 'Other/Additional Provisions' on the face
thereof or in an Addendum relating thereto, if so specified on the face thereof
and in the applicable Pricing Supplement.
AMORTIZING NOTES
The Company may from time to time offer Amortizing Notes. Unless otherwise
specified in the applicable Pricing Supplement, interest on each Amortizing Note
will be computed on the basis of a 360-day year of twelve 30-day months.
Payments with respect to Amortizing Notes will be applied first to interest due
and payable thereon and then to the reduction of the unpaid principal amount
thereof. Further information concerning additional terms and provisions of
Amortizing Notes will be specified in the applicable Pricing Supplement,
including a table setting forth repayment information for such Amortizing Notes.
ORIGINAL ISSUE DISCOUNT NOTES
The Company may offer Notes ('Original Issue Discount Notes') from time to
time that have an Issue Price (as specified in the applicable Pricing
Supplement) that is less than 100% of the principal amount thereof (i.e., par).
Original Issue Discount Notes may not bear any interest currently or may bear
interest at a rate that is below market rates at the time of issuance. Unless
otherwise specified in the applicable Pricing Supplement, the difference between
the Issue Price of an Original Issue Discount Note and par is referred to herein
as the 'Discount' and will be ratably accrued over the term of such Original
Issue Discount Note for purposes of determining the amount to be paid in the
event of redemption, repayment or acceleration of maturity of such Original
Issue Discount Note. In the event of redemption, repayment or acceleration of
maturity of an Original Issue Discount Note, the amount payable to the Holder of
such Original Issue Discount Note will be equal to the sum of: (i) the Issue
Price (increased by any accruals of Discount) and, in the event of any
redemption of such Original Issue Discount Note (if applicable), multiplied by
the Initial Redemption Percentage specified in the applicable Pricing Supplement
(as adjusted by the Annual Redemption Percentage Reduction, if applicable); and
(ii) any accrued and unpaid interest on such Original Issue Discount Note, from
the date of issue to the date of redemption, repayment or acceleration of
maturity. Certain additional considerations relating to Original Issue Discount
Notes may be specified in the applicable Pricing Supplement.
INDEXED NOTES
Notes may be issued with the amount of principal, premium and/or interest
payable in respect thereof to be determined with reference to the price or
prices of specified commodities or stocks, to the exchange rate of one or more
designated currencies (including a composite currency such as the ECU) relative
to an indexed currency or to such other price(s) or exchange rate(s) ('Indexed
Notes'), as specified in the applicable Pricing Supplement. In certain cases,
Holders of Indexed Notes may receive a principal payment on the Maturity Date
that is greater
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than or less than the principal amount of such Indexed Notes depending upon the
relative value on the Maturity Date of the specified indexed item. Information
as to the method for determining the amount of principal, premium, if any,
and/or interest payable in respect of Indexed Notes, certain historical
information with respect to the specified indexed item and any material tax
considerations associated with an investment in Indexed Notes will be specified
in the applicable Pricing Supplement.
BOOK-ENTRY NOTES
The Company has established a depositary arrangement with The Depository
Trust Company with respect to the Book-Entry Notes, the terms of which are
summarized below. Any additional or differing terms of the depositary
arrangement with respect to the Book-Entry Notes will be described in the
applicable Pricing Supplement.
Upon issuance, all Book-Entry Notes up to $200,000,000 aggregate principal
amount bearing interest (if any) at the same rate or pursuant to the same
formula and having the same date of issue, Specified Currency Interest Payment
Dates (if any), Stated Maturity Date, redemption provisions (if any), repayment
provisions (if any) and other terms will be represented by a single Global
Security. Each Global Security representing Book-Entry Notes will be deposited
with, or on behalf of, the Depositary and will be registered in the name of the
Depositary or a nominee of the Depositary. No Global Security may be transferred
except as a whole by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or such nominee to a successor
of the Depositary or a nominee of such successor.
So long as the Depositary or its nominee is the registered owner of a
Global Security, the Depositary or its nominee, as the case may be, will be the
sole Holder of the Book-Entry Notes represented thereby for all purposes under
the Indenture. Except as otherwise provided in this section, the Beneficial
Owners of the Global Security or Securities representing Book-Entry Notes will
not be entitled to receive physical delivery of Certificated Notes and will not
be considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing Book-Entry Notes shall be exchangeable or
transferable. Accordingly, each Beneficial Owner must rely on the procedures of
the Depositary and, if such Beneficial Owner is not a Participant, on the
procedures of the Participant through which such Beneficial Owner owns its
interest in order to exercise any rights of a Holder under such Global Security
or the Indenture. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in certificated form.
Such limits and such laws may impair the ability to transfer beneficial
interests in a Global Security representing Book-Entry Notes.
Unless otherwise specified in the applicable Pricing Supplement, each
Global Security representing Book-Entry Notes will be exchangeable for
Certificated Notes of like tenor and terms and of differing authorized
denominations aggregating a like principal amount, only if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the Global Securities or the Depositary ceases to be a clearing agency
registered under the Exchange Act (if so required by applicable law or
regulation) and, in each case, a successor Depositary is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such unwillingness, inability or ineligibility, (ii) the Company in its sole
discretion determines that the Global Securities shall be exchangeable for
Certificated Notes or (iii) there shall have occurred and be continuing an Event
of Default under the Indenture with respect to the Notes and beneficial owners
representing a majority in aggregate principal amount of the Book-Entry Notes
represented by Global Securities advise the Depositary to cease acting as
depositary. Upon any such exchange, the Certificated Notes shall be registered
in the names of the Beneficial Owners of the Global Security or Securities
representing Book-Entry Notes, which names shall be provided by the Depositary's
relevant Participants (as identified by the Depositary) to the Trustee.
The following is based on information furnished by the Depositary:
The Depositary will act as securities depository for the Book-Entry
Notes. The Book-Entry Notes will be issued as fully registered securities
registered in the name of Cede & Co. (the Depositary's partnership
nominee). One fully registered Global Security will be issued for each
issue of Book-Entry Notes, each in the aggregate principal amount of such
issue, and will be deposited with the Depositary. If, however, the
aggregate principal amount of any issue exceeds $200,000,000, one Global
Security will be issued with
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respect to each $200,000,000 of principal amount and an additional Global
Security will be issued with respect to any remaining principal amount of
such issue.
The Depositary is a limited-purpose trust company organized under the
New York Banking Law, a 'banking organization'within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a 'clearing
corporation' within the meaning of the New York Uniform Commercial Code,
and a 'clearing agency' registered pursuant to the provisions of Section
17A of the Exchange Act. The Depositary holds securities that its
participants ('Participants') deposit with the Depositary. The Depositary
also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants'
accounts, thereby eliminating the need for physical movement of securities
certificates. Direct Participants of the Depositary ('Direct Participants')
include securities brokers and dealers (including the Agent), banks, trust
companies, clearing corporations and certain other organizations. The
Depositary is owned by a number of its Direct Participants and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the Depositary's
system is also available to others such as securities brokers and dealers,
banks and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or indirectly
('Indirect Participants'). The rules applicable to the Depositary and its
Participants are on file with the Securities and Exchange Commission.
Purchases of Book-Entry Notes under the Depositary's system must be
made by or through Direct Participants, which will receive a credit for
such Book-Entry Notes on the Depositary's records. The ownership interest
of each actual purchaser of each Book-Entry Note represented by a Global
Security ('Beneficial Owner') is in turn to be recorded on the records of
the Direct Participants and Indirect Participants. Beneficial Owners will
not receive written confirmation from the Depositary of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their
holdings, from the Direct Participants or Indirect Participants through
which such Beneficial Owner entered into the transaction. Transfers of
ownership interests in a Global Security representing Book-Entry Notes are
to be accomplished by entries made on the books of Participants acting on
behalf of Beneficial Owners. Beneficial Owners of a Global Security
representing Book-Entry Notes will not receive Certificated Notes
representing their ownership interests therein, except in the event that
use of the book-entry system for such Book-Entry Notes is discontinued.
To facilitate subsequent transfers, all Global Securities representing
Book-Entry Notes which are deposited with, or on behalf of, the Depositary
are registered in the name of the Depositary's nominee, Cede & Co. The
deposit of Global Securities with, or on behalf of, the Depositary and
their registration in the name of Cede & Co. effect no change in beneficial
ownership. The Depositary has no knowledge of the actual Beneficial Owners
of the Global Securities representing the Book-Entry Notes; the
Depositary's records reflect only the identity of the Direct Participants
to whose accounts such Book-Entry Notes are credited, which may or may not
be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by the Depositary to
Direct Participants, by Direct Participants to Indirect Participants, and
by Direct Participants and Indirect Participants to Beneficial Owners will
be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Neither the Depositary nor Cede & Co. will consent or vote with
respect to the Global Securities representing the Book-Entry Notes. Under
its usual procedures, the Depositary mails an Omnibus Proxy to the Company
as soon as possible after the applicable record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Book-Entry Notes are credited on the
applicable record date (identified in a listing attached to the Omnibus
Proxy).
Principal, premium, if any, and/or interest payments on the Global
Securities representing the Book-Entry Notes will be made in immediately
available funds to the Depositary. The Depositary's practice is to credit
Direct Participants' accounts on the applicable payment date in accordance
with their respective holdings shown on the Depositary's records unless the
Depositary has reason to believe that it will not
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receive payment on such date. Payments by Participants to Beneficial Owners
will be governed by standing instructions and customary practices, as is
the case with securities held for the accounts of customers in bearer form
or registered in 'street name', and will be the responsibility of such
Participant and not of the Depositary, the Trustee or the Company, subject
to any statutory or regulatory requirements as may be in effect from time
to time. Payment of principal, premium, if any, and/or interest to the
Depositary is the responsibility of the Company or the Trustee,
disbursement of such payments to Direct Participants shall be the
responsibility of the Depositary, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct Participants and
Indirect Participants.
If applicable, redemption notices shall be sent to Cede & Co. If less
than all of the Book-Entry Notes within an issue are being redeemed, the
Depositary's practice is to determine by lot the amount of the interest of
each Direct Participant in such issue to be redeemed.
A Beneficial Owner shall give notice of any option to elect to have
its Book-Entry Notes repaid by the Company, through its Participant, to the
Trustee, and shall effect delivery of such Book-Entry Notes by causing the
Direct Participant to transfer the Participant's interest in the Global
Security or Securities representing such Book-Entry Notes, on the
Depositary's records, to the Trustee. The requirement for physical delivery
of Book-Entry Notes in connection with a demand for repayment will be
deemed satisfied when the ownership rights in the Global Security or
Securities representing such Book-Entry Notes are transferred by Direct
Participants on the Depositary's records.
The Depositary may discontinue providing its services as securities
depository with respect to the Book-Entry Notes at any time by giving
reasonable notice to the Company or the Trustee. Under such circumstances,
in the event that a successor securities depository is not obtained,
Certificated Notes are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through the Depositary (or a successor securities depository). In
that event, Certificated Notes will be printed and delivered.
The information in this section concerning the Depositary and the
Depositary's system has been obtained from sources that the Company believes to
be reliable, but the Company takes no responsibility for the accuracy thereof.
SPECIAL PROVISIONS RELATING TO FOREIGN CURRENCY NOTES
GENERAL
Unless otherwise specified in the applicable Pricing Supplement, Foreign
Currency Notes will not be sold in, or to residents of, the country issuing the
applicable currency. The information set forth in this Prospectus Supplement is
directed to prospective purchasers who are Untied States residents and, with
respect to Foreign Currency Notes, is by necessity incomplete. The Company
disclaims any responsibility to advise prospective purchasers who are residents
of countries other than the United States with respect to any matters that may
affect the purchase, holding or receipt of payments of principal of, and
premium, if any, and interest on, the Foreign Currency Notes. Such persons
should consult their own financial and legal advisors with regard to such
matters.
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST
Unless otherwise specified in the applicable Pricing Supplement, the
Company is obligated to make payments of principal of, and premium, if any, and
interest on, Foreign Currency Notes in the applicable Specified Currency (or, if
such Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued such Specified Currency as at the time of such payment is
legal tender for the payment of such debts). Any such amounts payable by the
Company in the Specified Currency will, unless otherwise specified in the
applicable Pricing Supplement, be converted by the Exchange Rate Agent named in
the applicable Pricing Supplement into United States dollars for payment to
Holders. However, the Holder of a Foreign Currency Note may elect to receive
such amounts in the Specified Currency as hereinafter described.
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Any United States dollar amount to be received by a Holder of a Foreign
Currency Note will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 A.M., New York City
time, on the second Business Day preceding the applicable payment date from
three recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Company for the
purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of such
Specified Currency payable to all Holders of Foreign Currency Notes scheduled to
receive United States dollar payments and at which the applicable dealer commits
to execute a contract. All currency exchange costs will be borne by the Holders
of such Foreign Currency Notes by deductions from such payments. If three such
bid quotations are not available, payments will be made in the Specified
Currency.
A Holder of a Foreign Currency Note may elect to receive all or a specified
portion of any payment of the principal of, and premium, if any, and/or interest
on, such Foreign Currency Note in the Specified Currency by submitting a written
request for such payment to the Trustee at its corporate trust office in The
City of New York on or prior to the applicable Record Date or at least fifteen
calendar days prior to the Maturity Date, as the case may be. Such written
request may be mailed or hand delivered or sent by cable, telex or other form of
facsimile transmission. A Holder of a Foreign Currency Note may elect to receive
all or a specified portion of all future payments in the Specified Currency and
need not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least fifteen calendar days prior to the Maturity Date, as the
case may be. Holders of Foreign Currency Notes whose Notes are to be held in the
name of a broker or nominee should contact such broker or nominee to determine
whether and how an election to receive payments in the Specified Currency may be
made.
Payments of the principal of, and premium, if any, and/or interest on,
Foreign Currency Notes which are to be made in United States dollars will be
made in the manner specified herein with respect to Notes denominated in United
States dollars. See 'Description of Notes--General.' Payments of interest on
Foreign Currency Notes which are to be made in the Specified Currency on an
Interest Payment Date other than the Maturity Date will be made by check mailed
to the address of the Holders of such Foreign Currency Notes as they appear in
the Security Register, subject to the right to receive such interest payments by
wire transfer of immediately available funds under certain circumstances
described under 'Description of Notes--General.' Payments of principal of, and
premium, if any, and/or interest on, Foreign Currency Notes which are to be made
in the Specified Currency on the Maturity Date will be made by wire transfer of
immediately available funds to an account with a bank designated at least
fifteen calendar days prior to the Maturity Date by each Holder thereof,
provided that such bank has appropriate facilities therefor and that the
applicable Foreign Currency Note is presented and surrendered at the principal
corporate trust office of the Trustee in time for the Trustee to make such
payments in such funds in accordance with its normal procedures.
Unless otherwise specified in the applicable Pricing Supplement, if the
Specified Currency is other than United States dollars, a Beneficial Owner of a
Global Security or Securities which elects to receive payments of principal,
premium, if any, and/or interest in such Specified Currency must notify the
Participant through which it owns its interest on or prior to the applicable
Record Date or at least fifteen calendar days prior to the Maturity Date, as the
case may be, of such Beneficial Owner's election. Such Participant must notify
the Depositary of such election on or prior to the third Business Day after such
Record Date or at least twelve calendar days prior to the Maturity Date, as the
case may be, and the Depositary will notify the Trustee of such election on or
prior to the fifth Business Day after such Record Date or at least ten calendar
days prior to the Maturity Date, as the case may be. If complete instructions
are received by the Participant from the Beneficial Owner and forwarded by the
Participant to the Depositary, and by the Depositary to the Trustee, on or prior
to such dates, then such Beneficial Owner will receive payments in the
applicable foreign currency or composite currency.
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AVAILABILITY OF SPECIFIED CURRENCY
If the Specified Currency for a Foreign Currency Note is not available for
the required payment of principal, premium, if any, and/or interest due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, the Company will be entitled to satisfy its obligations to the Holder
of such Foreign Currency Note by making such payment in United States dollars on
the basis of the Market Exchange Rate on the second Business Day prior to such
payment or, if such Market Exchange Rate is not then available, on the basis of
the most recently available Market Exchange Rate or as otherwise specified in
the applicable Pricing Supplement.
If payment in respect of a Foreign Currency Note is required to be made in
any composite currency (e.g., ECU), and such composite currency is unavailable
due to the imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its obligations
to the Holder of such Foreign Currency Note by making such payment in United
States dollars. The amount of each payment in United States dollars shall be
computed by the Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component currencies of the
composite currency for this purpose (collectively, the 'Component Currencies'
and each, a 'Component Currency') shall be the currency amounts that were
components of the composite currency as of the last day on which the composite
currency was used. The equivalent of the composite currency in United States
dollars shall be calculated by aggregating the United States dollar equivalents
of the Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the basis
of the most recently available Market Exchange Rate for each such Component
Currency, or as otherwise specified in the applicable Pricing Supplement.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
The 'Market Exchange Rate' for a currency or composite currency other than
United States dollars means the noon dollar buying rate in The City of New York
for cable transfers for such currency or composite currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made in United States dollars
under such circumstances where the required payment is in a currency or
composite currency other than United States dollars will not constitute an Event
of Default under the Indenture with respect to the Notes.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holders of the Foreign Currency
Notes.
GOVERNING LAW; JUDGMENTS
The Notes will be governed by and construed in accordance with the laws of
the State of New York. Under current New York law, a state court in the State of
New York rendering a judgment on a Foreign Currency Note would be required to
render such judgment in the Specified Currency, and such judgment would be
converted into United States dollars at the exchange rate prevailing on the date
of entry of such judgment. Accordingly, Holders of Foreign Currency Notes would
be subject to exchange rate fluctuations after the date of entry of such
judgment. It is not certain, however, that a non-New York state court would
follow the same rules and procedures for conversions of foreign currency
judgments.
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CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain United States Federal income tax
consequences of the purchase, ownership and disposition of the Notes is based
upon laws, regulations, rulings and decisions now in effect, all of which are
subject to change (including changes in effective dates) or possible differing
interpretations. It deals only with Notes held as capital assets and does not
purport to deal with persons in special tax situations, such as financial
institutions, insurance companies, tax-exempt organizations, regulated
investment companies, dealers in securities or currencies, persons holding Notes
as a hedge against currency risks or as a position in a 'straddle' for tax
purposes, or persons whose functional currency is not the United States dollar.
It also does not deal with holders other than original purchasers (except where
otherwise specifically noted). BECAUSE THE EXACT PRICING AND OTHER TERMS OF THE
NOTES WILL VARY, NO ASSURANCE CAN BE GIVEN THAT THE CONSIDERATIONS DESCRIBED
BELOW WILL APPLY TO A PARTICULAR ISSUANCE OF NOTES. CERTAIN MATERIAL UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES RELATING TO THE OWNERSHIP OF PARTICULAR
NOTES (WHERE APPLICABLE) WILL BE SUMMARIZED IN THE PRICING SUPPLEMENT RELATING
TO SUCH NOTES. PERSONS CONSIDERING THE PURCHASE OF NOTES SHOULD CONSULT THEIR
OWN TAX ADVISORS CONCERNING THE APPLICATION OF UNITED STATES FEDERAL INCOME TAX
LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY CONSEQUENCES OF THE PURCHASE,
OWNERSHIP AND DISPOSITION OF THE NOTES ARISING UNDER THE LAWS OF ANY STATE,
LOCAL OR FOREIGN TAXING JURISDICTION.
As used herein, the term 'U.S. Holder' means a beneficial owner of a Note
that is for United States Federal income tax purposes (i) a citizen or resident
of the United States, (ii) a corporation, partnership or other entity created or
organized in or under the laws of the United States or of any political
subdivision thereof, (iii) an estate or trust the income of which is subject to
United States Federal income taxation regardless of its source or (iv) any other
person whose income or gain in respect of a Note is effectively connected with
the conduct of a United States trade or business. As used herein, the term
'non-U.S. Holder' means a beneficial owner of a Note that is not a U.S. Holder.
U.S. HOLDERS
Payments of Interest. Payments of interest on a Note generally will be
taxable to a U.S. Holder as ordinary interest income at the time such payments
are accrued or are received (in accordance with the U.S. Holder's regular method
of tax accounting).
Original Issue Discount. The following summary is a general discussion of
the United States Federal income tax consequences to U.S. Holders of the
purchase, ownership and disposition of Notes issued with original issue discount
('Discount Notes'). The following summary is based upon final Treasury
regulations (the 'OID Regulations') released by the Internal Revenue Service
('IRS') on January 27, 1994 under the original issue discount provisions of the
Internal Revenue Code of 1986, as amended (the 'Code').
For United States Federal income tax purposes, original issue discount is
the excess of the stated redemption price at maturity of a Note over its issue
price, if such excess equals or exceeds a de minimis amount (generally 1/4 of 1%
of the Note's stated redemption price at maturity multiplied by the number of
complete years to its maturity from its issue date or, in the case of a Note
providing for the payment of any amount other than qualified stated interest (as
hereinafter defined) prior to maturity, multiplied by the weighted average
maturity of such Note). The issue price of each Note in an issue of Notes equals
the first price at which a substantial amount of such Notes has been sold
(ignoring sales to bond houses, brokers, or similar persons or organizations
acting in the capacity of underwriters, placement agents, or wholesalers). The
stated redemption price at maturity of a Note is the sum of all payments
provided by the Note other than 'qualified stated interest' payments. The term
'qualified stated interest' generally means stated interest that is
unconditionally payable in cash or property (other than debt instruments of the
issuer) at least annually at a single fixed rate. In addition, under the OID
Regulations, if a Note bears interest for one or more accrual periods at a rate
below the rate applicable for the remaining term of such Note (e.g., Notes with
teaser rates or interest holidays), and if the greater of either the resulting
foregone interest on such Note or any 'true' discount on such Note (i.e., the
excess of the Note's stated
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principal amount over its issue price) equals or exceeds a specified de minimis
amount, then the stated interest on the Note would be treated as original issue
discount rather than qualified stated interest.
Payments of qualified stated interest on a Note are taxable to a U.S.
Holder as ordinary interest income at the time such payments are accrued or are
received (in accordance with the U.S. Holder's regular method of tax
accounting). A U.S. Holder of a Discount Note must include original issue
discount in income as ordinary interest for United States Federal income tax
purposes as it accrues under a constant yield method in advance of receipt of
the cash payments attributable to such income, regardless of such U.S. Holder's
regular method of tax accounting. In general, the amount of original issue
discount included in income by the initial U.S. Holder of a Discount Note is the
sum of the daily portions of original issue discount with respect to such
Discount Note for each day during the taxable year (or portion of the taxable
year) on which such U.S. Holder held such Discount Note. The 'daily portion' of
original issue discount on any Discount Note is determined by allocating to each
day in any accrual period a ratable portion of the original issue discount
allocable to that accrual period. An 'accrual period' may be of any length and
the accrual periods may vary in length over the term of the Discount Note,
provided that each accrual period is no longer than one year and each scheduled
payment of principal or interest occurs either on the final day of an accrual
period or on the first day of an accrual period. The amount of original issue
discount allocable to each accrual period is generally equal to the difference
between (i) the product of the Discount Note's adjusted issue price at the
beginning of such accrual period and its yield to maturity (determined on the
basis of compounding at the close of each accrual period and appropriately
adjusted to take into account the length of the particular accrual period) and
(ii) the amount of any qualified stated interest payments allocable to such
accrual period. The 'adjusted issue price' of a Discount Note at the beginning
of any accrual period is the sum of the issue price of the Discount Note plus
the amount of original issue discount allocable to all prior accrual periods
minus the amount of any prior payments on the Discount Note that were not
qualified stated interest payments. Under these rules, U.S. Holders generally
will have to include in income increasingly greater amounts of original issue
discount in successive accrual periods.
A U.S. Holder who purchases a Discount Note for an amount that is greater
than its adjusted issue price as of the purchase date and less than or equal to
the sum of all amounts payable on the Discount Note after the purchase date
other than payments of qualified stated interest, will be considered to have
purchased the Discount Note at an 'acquisition premium.' Under the acquisition
premium rules, the amount of original issue discount which such U.S. Holder must
include in its gross income with respect to such Discount Note for any taxable
year (or portion thereof in which the U.S. Holder holds the Discount Note) will
be reduced (but not below zero) by the portion of the acquisition premium
properly allocable to the period.
Under the OID Regulations, Floating Rate Notes and Indexed Notes ('Variable
Notes') are subject to special rules whereby a Variable Note will qualify as a
'variable rate debt instrument' if (a) its issue price does not exceed the total
noncontingent principal payments due under the Variable Note by more than a
specified de minimis amount and (b) it provides for stated interest, paid or
compounded at least annually, at current values of (i) one or more qualified
floating rates, (ii) a single fixed rate and one or more qualified floating
rates, (iii) a single objective rate, or (iv) a single fixed rate and a single
objective rate that is a qualified inverse floating rate.
A 'qualified floating rate' is any variable rate where variations in the
value of such rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which the
Variable Note is denominated. Although a multiple of a qualified floating rate
will generally not itself constitute a qualified floating rate, a variable rate
equal to the product of a qualified floating rate and a fixed multiple that is
greater than zero but not more than 1.35 will constitute a qualified floating
rate. A variable rate equal to the product of a qualified floating rate and a
fixed multiple that is greater than zero but not more than 1.35, increased or
decreased by a fixed rate, will also constitute a qualified floating rate. In
addition, under the OID Regulations, two or more qualified floating rates that
can reasonably be expected to have approximately the same values throughout the
term of the Variable Note (e.g., two or more qualified floating rates with
values within 25 basis points of each other as determined on the Variable Note's
issue date) will be treated as a single qualified floating rate. Notwithstanding
the foregoing, a variable rate that would otherwise constitute a qualified
floating rate but which is subject to one or more restrictions such as a maximum
numerical limitation (i.e., a cap) or a minimum numerical limitation (i.e., a
floor) may, under certain circumstances, fail to be treated as a qualified
floating rate under the OID Regulations unless such cap or floor is fixed
throughout the term of the Note. An 'objective rate' is a rate that is not
itself a qualified floating rate but which is determined using a single fixed
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formula and which is based upon (i) one or more qualified floating rates, (ii)
one or more rates where each rate would be a qualified floating rate for a debt
instrument denominated in a currency other than the currency in which the
Variable Note is denominated, (iii) either the yield or changes in the price of
one or more items of actively traded personal property (other than stock or debt
of the issuer or a related party) or (iv) a combination of objective rates. The
OID Regulations also provide that other variable interest rates may be treated
as objective rates if so designated by the IRS in the future. Despite the
foregoing, a variable rate of interest on a Variable Note will not constitute an
objective rate if it is reasonably expected that the average value of such rate
during the first half of the Variable Note's term will be either significantly
less than or significantly greater than the average value of the rate during the
final half of the Variable Note's term. A 'qualified inverse floating rate' is
any objective rate where such rate is equal to a fixed rate minus a qualified
floating rate, as long as variations in the rate can reasonably be expected to
inversely reflect contemporaneous variations in the cost of newly borrowed
funds. The OID Regulations also provide that if a Variable Note provides for
stated interest at a fixed rate for an initial period of less than one year
followed by a variable rate that is either a qualified floating rate or an
objective rate and if the variable rate on the Variable Note's issue date is
intended to approximate the fixed rate (e.g., the value of the variable rate on
the issue date does not differ from the value of the fixed rate by more than 25
basis points), then the fixed rate and the variable rate together will
constitute either a single qualified floating rate or objective rate, as the
case may be.
If a Variable Note that provides for stated interest at either a single
qualified floating rate or a single objective rate throughout the term thereof
qualifies as a 'variable rate debt instrument' under the OID Regulations, then
any stated interest on such Note which is unconditionally payable in cash or
property (other than debt instruments of the issuer) at least annually will
constitute qualified stated interest and will be taxed accordingly. Thus, a
Variable Note that provides for stated interest at either a single qualified
floating rate or a single objective rate throughout the term thereof and that
qualifies as a 'variable rate debt instrument' under the OID Regulations will
generally not be treated as having been issued with original issue discount
unless the Variable Note is issued at a 'true' discount (i.e., at a price below
the Note's stated principal amount) in excess of a specified de minimis amount.
Original issue discount on such a Variable Note arising from 'true' discount is
allocated to an accrual period using the constant yield method described above
by assuming that the variable rate is a fixed rate equal to (i) in the case of a
qualified floating rate or qualified inverse floating rate, the value as of the
issue date, of the qualified floating rate or qualified inverse floating rate,
or (ii) in the case of an objective rate (other than a qualified inverse
floating rate), a fixed rate that reflects the yield that is reasonably expected
for the Variable Note.
In general, any other Variable Note that qualifies as a 'variable rate debt
instrument' will be converted into an 'equivalent' fixed rate debt instrument
for purposes of determining the amount and accrual of original issue discount
and qualified stated interest on the Variable Note. The OID Regulations
generally require that such a Variable Note be converted into an 'equivalent'
fixed rate debt instrument by substituting any qualified floating rate or
qualified inverse floating rate provided for under the terms of the Variable
Note with a fixed rate equal to the value of the qualified floating rate or
qualified inverse floating rate, as the case may be, as of the Variable Note's
issue date. Any objective rate (other than a qualified inverse floating rate)
provided for under the terms of the Variable Note is converted into a fixed rate
that reflects the yield that is reasonably expected for the Variable Note. In
the case of a Variable Note that qualifies as a 'variable rate debt instrument'
and provides for stated interest at a fixed rate in addition to either one or
more qualified floating rates or a qualified inverse floating rate, the fixed
rate is initially converted into a qualified floating rate (or a qualified
inverse floating rate, if the Variable Note provides for a qualified inverse
floating rate). Under such circumstances, the qualified floating rate or
qualified inverse floating rate that replaces the fixed rate must be such that
the fair market value of the Variable Note as of the Variable Note's issue date
is approximately the same as the fair market value of an otherwise identical
debt instrument that provides for either the qualified floating rate or
qualified inverse floating rate rather than the fixed rate. Subsequent to
converting the fixed rate into either a qualified floating rate or a qualified
inverse floating rate, the Variable Note is then converted into an 'equivalent'
fixed rate debt instrument in the manner described above.
Once the Variable Note is converted into an 'equivalent' fixed rate debt
instrument pursuant to the foregoing rules, the amount of original issue
discount and qualified stated interest, if any, are determined for the
'equivalent' fixed rate debt instrument by applying the general original issue
discount rules to the 'equivalent'
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fixed rate debt instrument and a U.S. Holder of the Variable Note will account
for such original issue discount and qualified stated interest as if the U.S.
Holder held the 'equivalent' fixed rate debt instrument. Each accrual period
appropriate adjustments will be made to the amount of qualified stated interest
or original issue discount assumed to have been accrued or paid with respect to
the 'equivalent' fixed rate debt instrument in the event that such amounts
differ from the actual amount of interest accrued or paid on the Variable Note
during the accrual period.
U.S. Holders should be aware that on December 15, 1994, the IRS released
proposed amendments to the OID Regulations which would broaden the definition of
an objective rate and would further clarify certain other provisions contained
in the OID Regulations. If ultimately adopted, these amendments to the OID
Regulations would be effective for debt instruments issued 60 days or more after
the date on which such proposed amendments are finalized.
If a Variable Note does not qualify as a 'variable rate debt instrument'
under the OID Regulations, then the Variable Note would be treated as a
contingent payment debt obligation. On December 15, 1994 the IRS released
proposed Treasury regulations dealing with the treatment of contingent payment
obligations (the 'Proposed Regulations'). The Proposed Regulations supersede
certain previously proposed Treasury regulations originally published on April
8, 1986 dealing with contingent payment obligations, and are not proposed to be
effective for debt instruments issued prior to the date that is 60 days after
the date on which the Proposed Regulations are finalized. Notwithstanding the
effective date of the Proposed Regulations, because the Proposed Regulations
represent the best indication of the current view of the Treasury Department
with respect to the Federal income tax treatment of contingent payment
obligations, the Company intends to take the position (absent any express
authority to the contrary and unless otherwise indicated) that the rules set
forth in the Proposed Regulations will control the tax treatment of any Variable
Note that is treated as a contingent payment obligation, and the following
discussion assumes such treatment. There can be no assurance, however, that the
final Treasury Regulations regarding contingent payment obligations will not
differ materially from the Proposed Regulations. Accordingly, the ultimate
Federal income tax treatment of any Variable Note that is treated as a
contingent payment obligation may differ from that described herein.
Generally, if a Variable Note is treated as a contingent payment
obligation, interest payments thereon will be treated as 'contingent interest'
payments. Under the Proposed Regulations, any contingent interest payments on a
Variable Note would be includible in income in a taxable year whether or not the
amount of any payment is fixed or determinable in that year. The amount of
interest included in income in any particular accrual period would be determined
by estimating a projected payment schedule (as determined under the Proposed
Regulations) for the Variable Note and applying daily accrual rules similar to
those for accruing original issue discount on Notes issued with original issue
discount (as discussed above). If the actual amount of contingent interest
payments is not equal to the projected amount, an adjustment to income at the
time of the payment must be made to reflect the difference.
Certain of the Notes (i) may be redeemable at the option of the Company
prior to their stated maturity (a 'call option') and/or (ii) may be repayable at
the option of the holder prior to their stated maturity (a 'put option'). Notes
containing such features may be subject to rules that differ from the general
rules discussed above. Investors intending to purchase Notes with such features
should consult their own tax advisors, since the original issue discount
consequences will depend, in part, on the particular terms and features of the
purchased Notes.
U.S. Holders may generally, upon election, include in income all interest
(including stated interest, acquisition discount, original issue discount, de
minimis original issue discount, market discount, de minimis market discount,
and unstated interest, as adjusted by any amortizable bond premium or
acquisition premium) that accrues on a debt instrument by using the constant
yield method applicable to original issue discount, subject to certain
limitations and exceptions.
Short-Term Notes. Notes that have a fixed maturity of one year or less
('Short-Term Notes') will be treated as having been issued with original issue
discount. In general, an individual or other cash method U.S. Holder is not
required to accrue such original issue discount unless the U.S. Holder elects to
do so. If such an election is not made, any gain recognized by the U.S. Holder
on the sale, exchange or maturity of the Short-Term Note will be ordinary income
to the extent of the original issue discount accrued on a straight-line basis,
or upon
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election under the constant yield method (based on daily compounding), through
the date of sale or maturity, and a portion of the deductions otherwise
allowable to the U.S. Holder for interest on borrowings allocable to the
Short-Term Note will be deferred until a corresponding amount of income is
realized. U.S. Holders who report income for United States Federal income tax
purposes under the accrual method, and certain other holders including banks and
dealers in securities, are required to accrue original issue discount on a
Short-Term Note on a straight-line basis unless an election is made to accrue
the original issue discount under a constant yield method (based on daily
compounding).
Market Discount. If a U.S. Holder purchases a Note, other than a Discount
Note, for an amount that is less than its issue price (or, in the case of a
subsequent purchaser, its stated redemption price at maturity) or, in the case
of a Discount Note, for an amount that is less than its adjusted issue price as
of the purchase date, such U.S. Holder will be treated as having purchased such
Note at a 'market discount,' unless such market discount is less than a
specified de minimis amount.
Under the market discount rules, a U.S. Holder will be required to treat
any partial principal payment (or, in the case of a Discount Note, any payment
that does not constitute qualified stated interest) on, or any gain realized on
the sale, exchange, retirement or other disposition of, a Note as ordinary
income to the extent of the lesser of (i) the amount of such payment or realized
gain or (ii) the market discount which has not previously been included in
income and is treated as having accrued on such Note at the time of such payment
or disposition. Market discount will be considered to accrue ratably during the
period from the date of acquisition to the maturity date of the Note, unless the
U.S. Holder elects to accrue market discount on the basis of semiannual
compounding.
A U.S. Holder may be required to defer the deduction of all or a portion of
the interest paid or accrued on any indebtedness incurred or maintained to
purchase or carry a Note with market discount until the maturity of the Note or
certain earlier dispositions, because a current deduction is only allowed to the
extent the interest expense exceeds an allocable portion of market discount. A
U.S. Holder may elect to include market discount in income currently as it
accrues (on either a ratable or semiannual compounding basis), in which case the
rules described above regarding the treatment as ordinary income of gain upon
the disposition of the Note and upon the receipt of certain cash payments and
regarding the deferral of interest deductions will not apply. Generally, such
currently included market discount is treated as ordinary interest for United
States Federal income tax purposes. Such an election will apply to all debt
instruments acquired by the U.S. Holder on or after the first day of the taxable
year to which such election applies and may be revoked only with the consent of
the IRS.
Premium. If a U.S. Holder purchases a Note for an amount that is greater
than the sum of all amounts payable on the Note after the purchase date other
than payments of qualified stated interest, such U.S. Holder will be considered
to have purchased the Note with 'amortizable bond premium' equal in amount to
such excess. A U.S. Holder may elect to amortize such premium using a constant
yield method over the remaining term of the Note and may offset interest
otherwise required to be included in respect of the Note during any taxable year
by the amortized amount of such excess for the taxable year. However, if the
Note may be optionally redeemed after the U.S. Holder acquires it at a price in
excess of its stated redemption price at maturity, special rules would apply
which could result in a deferral of the amortization of some bond premium until
later in the term of the Note. Any election to amortize bond premium applies to
all taxable debt obligations then owned and thereafter acquired by the U.S.
Holder and may be revoked only with the consent of the IRS.
Disposition of a Note. Except as discussed above, upon the sale, exchange
or retirement of a Note, a U.S. Holder generally will recognize taxable gain or
loss equal to the difference between the amount realized on the sale, exchange
or retirement (other than amounts representing accrued and unpaid interest) and
such U.S. Holder's adjusted tax basis in the Note. A U.S. Holder's adjusted tax
basis in a Note generally will equal such U.S. Holder's initial investment in
the Note increased by any original issue discount included in income (and
accrued market discount, if any, if the U.S. Holder has included such market
discount in income) and decreased by the amount of any payments, other than
qualified stated interest payments, received and amortizable bond premium taken
with respect to such Note. Such gain or loss generally will be long-term capital
gain or loss if the Note were held for more than one year.
S-25
<PAGE>
NOTES DENOMINATED, OR IN RESPECT OF WHICH INTEREST IS
PAYABLE, IN A FOREIGN CURRENCY
As used herein, 'Foreign Currency' means a currency or currency unit other
than U.S. dollars.
PAYMENTS OF INTEREST IN A FOREIGN CURRENCY.
Cash Method. A U.S. Holder who uses the cash method of accounting for
United States Federal income tax purposes and who receives a payment of interest
on a Note (other than original issue discount or market discount) will be
required to include in income the U.S. dollar value of the Foreign Currency
payment (determined on the date such payment is received) regardless of whether
the payment is in fact converted to U.S. dollars at that time, and such U.S.
dollar value will be the U.S. Holder's tax basis in such Foreign Currency.
Accrual Method. A U.S. Holder who uses the accrual method of accounting for
United States Federal income tax purposes, or who otherwise is required to
accrue interest prior to receipt, will be required to include in income the U.S.
dollar value of the amount of interest income (including original issue discount
or market discount and reduced by amortizable bond premium to the extent
applicable) that has accrued and is otherwise required to be taken into account
with respect to a Note during an accrual period. The U.S. dollar value of such
accrued income will be determined by translating such income at the average rate
of exchange for the accrual period or, with respect to an accrual period that
spans two taxable years, at the average rate for the partial period within the
taxable year. A U.S. Holder may elect, however, to translate such accrued
interest income using the rate of exchange on the last day of the accrual period
or, with respect to an accrual period that spans two taxable years, using the
rate of exchange on the last day of the taxable year. If the last day of an
accrual period is within five business days of the date of receipt of the
accrued interest, a U.S. Holder may translate such interest using the rate of
exchange on the date of receipt. The above election will apply to other debt
obligations held by the U.S. Holder and may not be changed without the consent
of the IRS. A U.S. Holder should consult a tax advisor before making the above
election. A U.S. Holder will recognize exchange gain or loss (which will be
treated as ordinary income or loss) with respect to accrued interest income on
the date such income is received. The amount of ordinary income or loss
recognized will equal the difference, if any, between the U.S. dollar value of
the Foreign Currency payment received (determined on the date such payment is
received) in respect of such accrual period and the U.S. dollar value of
interest income that has accrued during such accrual period (as determined
above).
Purchase, Sale and Retirement of Notes. A U.S. Holder who purchases a Note
with previously owned Foreign Currency will recognize ordinary income or loss in
an amount equal to the difference, if any, between such U.S. Holder's tax basis
in the Foreign Currency and the U.S. dollar fair market value of the Foreign
Currency used to purchase the Note, determined on the date of purchase.
Except as discussed above with respect to Short-Term Notes, upon the sale,
exchange or retirement of a Note, a U.S. Holder will recognize taxable gain or
loss equal to the difference between the amount realized on the sale, exchange
or retirement and such U.S. Holder's adjusted tax basis in the Note. Such gain
or loss generally will be capital gain or loss (except to the extent of any
accrued market discount not previously included in the U.S. Holder's income) and
will be long-term capital gain or loss if at the time of sale, exchange or
retirement the Note has been held by such U.S. Holder for more than one year. To
the extent the amount realized represents accrued but unpaid interest, however,
such amounts must be taken into account as interest income, with exchange gain
or loss computed as described in 'Payments of Interest in a Foreign Currency'
above. If a U.S. Holder receives Foreign Currency on such a sale, exchange or
retirement the amount realized will be based on the U.S. dollar value of the
Foreign Currency on the date the payment is received or the Note is disposed of
(or deemed disposed of in the case of a taxable exchange of the Note for a new
Note). In the case of a Note that is denominated in Foreign Currency and is
traded on an established securities market, a cash basis U.S. Holder (or, upon
election, an accrual basis U.S. Holder) will determine the U.S. dollar value of
the amount realized by translating the Foreign Currency payment at the spot rate
of exchange on the settlement date of the sale. A U.S. Holder's adjusted tax
basis in a Note will equal the cost of the Note to such holder, increased by the
amounts of any market discount or original issue discount previously included in
income by the holder with respect to such Note and reduced by any amortized
acquisition or other premium and any principal payments received by the holder.
A U.S. Holder's tax basis in a Note, and the amount of any subsequent
adjustments to such holder's tax
S-26
<PAGE>
basis, will be the U.S. dollar value of the Foreign Currency amount paid for
such Note, or of the Foreign Currency amount of the adjustment, determined on
the date of such purchase or adjustment.
Gain or loss realized upon the sale, exchange or retirement of a Note that
is attributable to fluctuations in currency exchange rates will be ordinary
income or loss which will not be treated as interest income or expense. Gain or
loss attributable to fluctuations in exchange rates will equal the difference
between the U.S. dollar value of the Foreign Currency principal amount of the
Note, determined on the date such payment is received or the Note is disposed
of, and the U.S. dollar value of the Foreign Currency principal amount of the
Note, determined on the date the U.S. Holder acquired the Note. Such Foreign
Currency gain or loss will be recognized only to the extent of the total gain or
loss realized by the U.S. Holder on the sale, exchange or retirement of the
Note.
Original Issue Discount. In the case of a Discount Note or Short-Term Note,
(i) original issue discount is determined in units of the Foreign Currency, (ii)
accrued original issue discount is translated into U.S. dollars as described in
'Payments of Interest in a Foreign Currency--Accrual Method' above and (iii) the
amount of Foreign Currency gain or loss on the accrued original issue discount
is determined by comparing the amount of income received attributable to the
discount (either upon payment, maturity or an earlier disposition), as
translated into U.S. dollars at the rate of exchange on the date of such
receipt, with the amount of original issue discount accrued, as translated
above.
Premium and Market Discount. In the case of a Note with market discount,
(i) market discount is determined in units of the Foreign Currency, (ii) accrued
market discount taken into account upon the receipt of any partial principal
payment or upon the sale, exchange, retirement or other disposition of the Note
(other than accrued market discount required to be taken into account currently)
is translated into U.S. dollars at the exchange rate on such disposition date
(and no part of such accrued market discount is treated as exchange gain or
loss) and (iii) accrued market discount currently includible in income by a U.S.
Holder for any accrual period is translated into U.S. dollars on the basis of
the average exchange rate in effect during such accrual period, and the exchange
gain or loss is determined upon the receipt of any partial principal payment or
upon the sale, exchange, retirement or other disposition of the Note in the
manner described in 'Payments of Interest in a Foreign Currency--Accrual Method'
above with respect to computation of exchange gain or loss on accrued interest.
With respect to a Note issued with amortizable bond premium, such premium
is determined in the relevant Foreign Currency and reduces interest income in
units of the Foreign Currency. Although not entirely clear, a U.S. Holder should
recognize exchange gain or loss equal to the difference between the U.S. dollar
value of the bond premium amortized with respect to a period, determined on the
date the interest attributable to such period is received, and the U.S. dollar
value of the bond premium determined on the date of the acquisition of the Note.
Exchange of Foreign Currencies. A U.S. Holder will have a tax basis in any
Foreign Currency received as interest or on the sale, exchange or retirement of
a Note equal to the U.S. dollar value of such Foreign Currency, determined at
the time the interest is received or at the time of the sale, exchange or
retirement. Any gain or loss realized by a U.S. Holder on a sale or other
disposition of Foreign Currency (including its exchange for U.S. dollars or its
use to purchase Notes) will be ordinary income or loss.
NON-U.S. HOLDERS
A non-U.S. Holder will not be subject to United States Federal income taxes
on payments of principal, premium (if any) or interest (including original issue
discount, if any) on a Note, unless such non-U.S. Holder is a direct or indirect
10% or greater shareholder of the Company, a controlled foreign corporation
related to the Company or a bank receiving interest described in section
881(c)(3)(A) of the Code. To qualify for the exemption from taxation, the last
United States payor in the chain of payment prior to payment to a non-U.S.
Holder (the 'Withholding Agent') must have received in the year in which a
payment of interest or principal occurs, or in either of the two preceding
calendar years, a statement that (i) is signed by the beneficial owner of the
Note under penalties of perjury, (ii) certifies that such owner is not a U.S.
Holder and (iii) provides the name and address of the beneficial owner. The
statement may be made on an IRS Form W-8 or a substantially similar form, and
the beneficial owner must inform the Withholding Agent of any change in the
information on the statement within 30 days of such change. If a Note is held
through a securities clearing organization or certain other financial
institutions, the organization or institution may provide a signed statement to
the Withholding
S-27
<PAGE>
Agent. However, in such case, the signed statement must be accompanied by a copy
of the IRS Form W-8 or the substitute form provided by the beneficial owner to
the organization or institution. The Treasury Department is considering
implementation of further certification requirements aimed at determining
whether the issuer of a debt obligation is related to holders thereof.
Generally, a non-U.S. Holder will not be subject to Federal income taxes on
any amount which constitutes capital gain upon retirement or disposition of a
Note, provided the gain is not effectively connected with the conduct of a trade
or business in the United States by the non-U.S. Holder. Certain other
exceptions may be applicable, and a non-U.S. Holder should consult its tax
advisor in this regard.
The Notes will not be includible in the estate of a non-U.S. Holder unless
the individual is a direct or indirect 10% or greater shareholder of the Company
or, at the time of such individual's death, payments in respect of the Notes
would have been effectively connected with the conduct by such individual of a
trade or business in the United States.
BACKUP WITHHOLDING
Backup withholding of United States Federal income tax at a rate of 31% may
apply to payments made in respect of the Notes to registered owners who are not
'exempt recipients' and who fail to provide certain identifying information
(such as the registered owner's taxpayer identification number) in the required
manner. Generally, individuals are not exempt recipients, whereas corporations
and certain other entities generally are exempt recipients. Payments made in
respect of the Notes to a U.S. Holder must be reported to the IRS, unless the
U.S. Holder is an exempt recipient or establishes an exemption. Compliance with
the identification procedures described in the preceding section would establish
an exemption from backup withholding for those non-U.S. Holders who are not
exempt recipients.
In addition, upon the sale of a Note to (or through) a broker, the broker
must withhold 31% of the entire purchase price, unless either (i) the broker
determines that the seller is a corporation or other exempt recipient or (ii)
the seller provides, in the required manner, certain identifying information
and, in the case of a non-U.S. Holder, certifies that such seller is a non-U.S.
Holder (and certain other conditions are met). Such a sale must also be reported
by the broker to the IRS, unless either (i) the broker determines that the
seller is an exempt recipient or (ii) the seller certifies its non-U.S. status
(and certain other conditions are met). Certification of the registered owner's
non-U.S. status would be made normally on an IRS Form W-8 under penalties of
perjury, although in certain cases it may be possible to submit other
documentary evidence.
Any amounts withheld under the backup withholding rules from a payment to a
beneficial owner would be allowed as a refund or a credit against such
beneficial owner's United States Federal income tax provided the required
information is furnished to the IRS.
PLAN OF DISTRIBUTION
The Notes are being offered on a continuous basis for sale by the Company
to or through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Chase Securities Inc., First Chicago Capital Markets, Inc., J.P.
Morgan Securities Inc. and Morgan Stanley & Co. Incorporated (the 'Agents'). The
Agents may purchase Notes, as principal, from the Company from time to time for
resale to investors and other purchasers at varying prices relating to
prevailing market prices at the time of resale as determined by the applicable
Agent, or, if so specified in the applicable Pricing Supplement, for resale at a
fixed offering price. If agreed to by the Company and an Agent, such Agent may
also utilize its reasonable efforts on an agency basis to solicit offers to
purchase the Notes at 100% of the principal amount thereof, unless otherwise
specified in the applicable Pricing Supplement. The Company will pay a
commission to an Agent, ranging from .125% to .750% of the principal amount of
each Note, depending upon its stated maturity, sold through such Agent.
Commissions with respect to Notes with stated maturities in excess of 30 years
that are sold through an Agent will be negotiated between the Company and such
Agent at the time of such sale.
Unless otherwise specified in the applicable Pricing Supplement, any Note
sold to an Agent as principal will be purchased by such Agent at a price equal
to 100% of the principal amount thereof less a percentage of the principal
amount equal to the commission applicable to an agency sale of a Note of
identical maturity. An Agent
S-28
<PAGE>
may sell Notes it has purchased from the Company as principal to other dealers
for resale to investors and other purchasers, and may reallow all or any portion
of the discount received in connection with such purchase from the Company to
such dealers. After the initial offering of Notes, the offering price (in the
case of Notes to be resold on a fixed price basis), the concession and the
discount may be changed.
The Company reserves the right to withdraw, cancel or modify the offer made
hereby without notice and may reject offers in whole or in part (whether placed
directly with the Company or through the Agents). Each Agent will have the
right, in its discretion reasonably exercised, to reject in whole or in part any
offer to purchase Notes received by it on an agency basis.
Unless otherwise specified in the applicable Pricing Supplement, payment of
the purchase price of the Notes will be required to be made in immediately
available funds in the Specified Currency in The City of New York on the date of
settlement. See 'Description of Notes--General'.
Upon issuance, the Notes will not have an established trading market. The
Notes will not be listed on any securities exchange. The Agents may from time to
time purchase and sell Notes in the secondary market, but the Agents are not
obligated to do so, and there can be no assurance that there will be a secondary
market for the Notes or that there will be liquidity in the secondary market if
one develops. From time to time, the Agents may make a market in the Notes, but
the Agents are not obligated to do so and may discontinue any market-making
activity at any time.
The Agents may be deemed to be 'underwriters' within the meaning of the
Securities Act of 1933, as amended (the 'Securities Act'). The Company has
agreed to indemnify the Agents against certain liabilities (including
liabilities under the Securities Act), or to contribute to payments the Agents
may be required to make in respect thereof. The Company has agreed to reimburse
the Agents for certain other expenses.
In the ordinary course of their respective businesses, certain of the
Agents and their affiliates have engaged and may in the future engage in
investment and commercial banking transactions with the Company and certain of
its affiliates. In particular, affiliates of certain of the Agents participate
in the Company's revolving credit facility and, accordingly, if any proceeds
from the sale of Notes are applied by the Company to amounts borrowed under such
facility, such affiliates will receive a proportionate share of repaid amounts.
In addition, a senior officer of Chemical Bank, an affiliate of Chase
Securities Inc., is a director of the Company.
From time to time, the Company may issue and sell other Offered Securities
described in the accompanying Prospectus, and such sales may reduce the
aggregate initial offering price of the Notes offered hereby.
S-29
<PAGE>
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.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MAY 30, 1996
PROSPECTUS
KIMCO REALTY CORPORATION
$350,000,000
DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY SHARES, COMMON STOCK AND COMMON STOCK WARRANTS
Kimco Realty Corporation ('Kimco' or the 'Company') may from time to time
offer in one or more classes or series (i) its unsecured senior debt securities
(the 'Debt Securities'), (ii) shares or fractional shares of its preferred
stock, par value $1.00 per share (the 'Preferred Stock'), (iii) shares of
Preferred Stock represented by depositary shares (the 'Depositary Shares'), (iv)
shares of its common stock, par value $.01 per share (the 'Common Stock'), or
(v) warrants to purchase Common Stock (the 'Common Stock Warrants'), with an
aggregate public offering price of up to $350,000,000 on terms to be determined
at the time of offering. The Debt Securities, Preferred Stock, Depositary
Shares, Common Stock, and Common Stock Warrants (collectively, the 'Offered
Securities') may be offered separately, together or as units, in separate
classes or series in amounts, at prices and on terms to be set forth in a
supplement to this Prospectus (each, a 'Prospectus Supplement').
The specific terms of the Offered 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 of
denomination and payment, 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 Stock or Common
Stock, and any initial public offering price; (ii) in the case of Preferred
Stock, 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 Depositary Shares, the fractional share of Preferred
Stock represented by each such Depositary Share; (iv) in the case of Common
Stock, any initial public offering price; and (v) in the case of Common Stock
Warrants, the duration, offering price, exercise price and detachability. In
addition, such specific terms may include limitations on direct or beneficial
ownership and restrictions on transfer of the Offered 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 Offered Securities
covered by such Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, or to or through underwriters or dealers. If
any agents or underwriters are involved in the sale of any of the Offered
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 Offered Securities may be sold
without delivery of the applicable Prospectus Supplement describing the method
and terms of the offering of such series of Offered 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>
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, proxy statements and other information with the
Securities and Exchange Commission (the 'Commission'). The Registration
Statement, the exhibits and schedules forming a part thereof and the reports,
proxy statements and other information filed by the Company with the Commission
in accordance with the Exchange Act can be inspected and copied at the
Commission's Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the following regional offices of the Commission: Seven World
Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, certain of the
Company's securities are listed on the New York Stock Exchange and similar
information concerning the Company can be inspected and copied 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 (the
'Registration Statement') (of which this Prospectus is a part) under the
Securities Act of 1933, as amended (the 'Securities Act'), with respect to the
Offered Securities. This Prospectus does not contain all of the information set
forth in the Registration Statement, certain portions of which have been omitted
as permitted by the rules and regulations of the Commission. Statements
contained in this Prospectus as to the contents of any contract or other
document are not necessarily complete, and in each instance reference is made to
the copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference and the exhibits and schedules thereto. For further information
regarding the Company and the Offered Securities, reference is hereby made to
the Registration Statement and such exhibits and schedules which may be obtained
from the Commission at its principal office in Washington, D.C. upon payment of
the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company under the
Exchange Act with the Commission and are incorporated herein by reference:
a. Annual Report on Form 10-K for the year ended December 31, 1995;
b. Current Report on Form 8-K, dated January 25, 1996; and
c. Quarterly Report on Form 10-Q for the quarter ended March 31,
1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities shall be
deemed to be incorporated by reference in this Prospectus and the applicable
Prospectus Supplement and to be part hereof and thereof from the date of filing
such documents. Any statement contained herein or therein or in a document
incorporated or deemed to be incorporated by reference herein or therein shall
be deemed to be modified or superseded for purposes of this Prospectus and the
applicable Prospectus Supplement to the extent that a statement contained herein
or therein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus or
the applicable Prospectus Supplement.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner of the Offered
Securities, to whom this Prospectus and the applicable Prospectus Supplement are
delivered, upon written or oral request. Requests should be directed to the
Secretary of the Company, 3333 New Hyde Park Road, New Hyde Park, New York
11042-0020 (telephone number: (516) 869-9000).
2
<PAGE>
THE COMPANY
The Company began operations through a predecessor in 1966, and today is
the nation's largest publicly-traded owner and operator of neighborhood and
community shopping centers. As of April 1, 1996, the Company's portfolio is
comprised of interests in approximately 25.4 million square feet of gross
leasable area ('GLA') in 191 neighborhood and community shopping center
properties and 2 regional malls, located in 29 states. Neighborhood and
community shopping centers comprise the primary focus of the Company's current
portfolio, representing approximately 95% of the Company's total shopping center
GLA. At April 1, 1996, approximately 90% of the Company's neighborhood and
community shopping center space was leased, and the average annualized base rent
per leased square foot of the neighborhood and community shopping center
portfolio was $5.96.
In addition to its neighborhood and community shopping center portfolio,
the Company holds interests in retail store leases relating to approximately 5.4
million square feet of anchor store premises in 60 neighborhood and community
shopping centers located in 24 states. As of April 1, 1996, approximately 94% of
these premises had been sublet to retailers which lease the stores pursuant to
net lease agreements providing for average annualized base rental payments to
the Company of $3.73 per square foot.
The Company is self-administered and self-managed through present
management which has owned and managed neighborhood and community shopping
centers for 30 years. The executive officers are engaged in the day-to-day
management and operation of real estate exclusively with the Company, with
nearly all operating functions, including leasing, legal, construction, data
processing, maintenance, finance and accounting administered by the Company.
In order to maintain its qualification as a REIT for federal income tax
purposes, the Company is required to distribute at least 95% of its taxable
income each year. Dividends on any preferred stock issued by the Company are
included as distributions for this purpose. Historically, the Company's
distributions have exceeded, and the Company expects that its distributions will
continue to exceed, taxable income each year. A portion of such distributions
may constitute a return of capital. As a result of the foregoing, the
consolidated net worth of the Company may decline. The Company, however, does
not believe that consolidated stockholders' equity is a meaningful reflection of
net real estate values.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include the acquisition of
neighborhood and community shopping centers as suitable opportunities arise, the
expansion and improvement of certain properties in the Company's portfolio, and
the repayment of indebtedness outstanding at such time.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture, dated as of
September 1, 1993, as amended by the First Supplemental Indenture dated as of
August 4, 1994, the Second Supplemental Indenture dated as of April 7, 1995 and
as further amended or supplemented from time to time (the 'Indenture'), between
the Company and IBJ Schroder Bank & Trust Company, as Trustee (the 'Trustee').
The Indenture has been filed as an exhibit to the Registration Statement of
which this Prospectus is a part and is available for inspection at the corporate
trust office of the Trustee at One State Street, New York, New York 10004 or as
described above under 'Available Information.' The Indenture is subject to, and
governed by, the Trust Indenture Act of 1939, as amended (the 'TIA'). The
statements made hereunder relating to the Indenture and the Debt Securities to
be issued thereunder are summaries of certain provisions thereof and do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all provisions of the Indenture and such Debt Securities. All
section references appearing herein are to sections of the Indenture, and
capitalized terms used but not defined herein shall have the respective meanings
set forth in the Indenture.
3
<PAGE>
GENERAL
The Debt Securities will be direct, unsecured obligations of the Company
and will rank equally with all other unsecured and unsubordinated indebtedness
of the Company. The 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 Directors of the Company or as established in one or
more indentures supplemental to the 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).
The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
the 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). 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 Indenture separate and apart from the
trust administered by any other Trustee (Section 609), and, except as otherwise
indicated herein, any action described herein to be taken by the 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 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;
(2) the aggregate principal amount of such Debt Securities and any limit
on such aggregate principal amount;
(3) 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 Stock
or Preferred Stock, 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 Stock or Preferred Stock 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 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 any such Date
shall be determined, the Person 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, such Debt
Securities may be surrendered for conversion or registration of
transfer or exchange and notices or demands to or upon the Company in
respect of such Debt Securities and the Indenture may be served;
(9) the period or periods within which, the price or prices at which and
the 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
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within which, the price or prices at which and the terms and
conditions upon which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(11) if other than U.S. dollars, the currency or currencies in which such
Debt Securities are denominated and payable, which may be 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 Indenture;
(14) whether such Debt Securities will be issued in certificated and/or
book-entry form;
(15) whether such Debt Securities will be in registered or bearer form and,
if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form, the
denominations thereof and terms and conditions relating thereto;
(16) the applicability, if any, of the defeasance and covenant defeasance
provisions of Article XIV of the Indenture;
(17) if such Debt Securities are to be issued upon the exercise of debt
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 Stock or Preferred Stock 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 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 Indenture (Section 301).
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
('Original Issue Discount Securities'). If material or applicable, special U.S.
federal income tax, accounting and other considerations applicable to Original
Issue Discount Securities will be described in the applicable Prospectus
Supplement.
Except as described under 'Certain Covenants--Limitations on Incurrence of
Debt' and under 'Merger, Consolidation or Sale,' the Indenture does not contain
any other provisions that would limit the ability of the Company to incur
indebtedness or to substantially reduce or eliminate the Company's assets, which
may have an adverse effect on the Company's ability to service its indebtedness
(including the Debt Securities) or that would afford Holders of the Debt
Securities protection in the event of (i) a highly leveraged or similar
transaction involving the Company, the management of the Company, or any
Affiliate of either such party, (ii) a change of control, or (iii) a
reorganization, restructuring, merger or similar transaction involving the
Company that may adversely affect the Holders of the Debt Securities.
Furthermore, subject to the limitations set forth under 'Merger, Consolidation
or Sale,' the Company may, in the future, enter into certain transactions, such
as the sale of all or substantially all of its assets or the merger or
consolidation of the Company, that would increase the amount of the Company's
indebtedness or substantially reduce or eliminate the Company's assets, which
may have an adverse effect on the Company's ability to service its indebtedness,
including the Debt Securities. In addition, restrictions on ownership and
transfers of the Company's common stock and preferred stock are designed to
preserve its status as a REIT and, therefore, may act to prevent or hinder a
change of control. See 'Description of Common Stock' and 'Description of
Preferred Stock.' Reference is made to the applicable Prospectus Supplement for
information with respect to any deletions from, modifications of or additions to
the
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Events of Default or covenants of the Company that are described below,
including any addition of a covenant or other provision providing event risk or
similar protection.
A significant number of the Company's properties are owned through its
subsidiaries. Therefore, the rights of the Company and its creditors, including
Holders of Debt Securities, to participate in the assets of such subsidiaries
upon the liquidation or recapitalization of such subsidiaries or otherwise will
be subject to the prior claims of such subsidiaries' respective creditors
(except to the extent that claims of the Company itself as a creditor may be
recognized).
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).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest on any series of Debt Securities
will be payable at the corporate trust office of the Trustee, initially located
at One State Street, New York, New York 10004, 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).
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
Trustee, notice whereof shall be given to the 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 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 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 thereof at the corporate
trust office of the 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). If the
applicable Prospectus Supplement refers to any transfer agent (in addition to
the 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).
Neither the Company nor the 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
which 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).
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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, provided that (a) either the Company shall be the continuing
corporation, or the successor corporation (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 on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions
contained in the Indenture; (b) immediately after giving effect to such
transaction and treating any indebtedness which 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 (c) an officer's certificate and legal opinion covering such
conditions shall be delivered to the Trustee (Sections 801 and 803).
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 additional Debt, 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 65% of the sum of (i) the Company's Undepreciated
Real Estate 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 acquired by the Company or any Subsidiary since the end of such
calendar quarter, including those obtained in connection with the incurrence of
such additional Debt (Section 1004).
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 additional Debt, 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 sum of (i) the Company's Undepreciated Real Estate
Assets 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 acquired by the
Company or any Subsidiary since the end of such calendar quarter, including
those obtained in connection with the incurrence of such additional Debt
(Section 1004).
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
Consolidated Income Available for Debt Service (as defined below) for any 12
consecutive calendar months within the 15 calendar months immediately preceding
the date on which such additional Debt is to be incurred shall have been less
than 1.5 times the Maximum Annual Service Charge (as defined below) on the Debt
of the Company and all Subsidiaries to be outstanding immediately after the
incurring of such additional Debt (Section 1004).
Restrictions on Dividends and Other Distributions. The Company will not, in
respect of any shares of any class of its capital stock, (a) declare or pay any
dividends (other than dividends payable in capital stock of the Company)
thereon, (b) apply any of its property or assets to the purchase, redemption or
other acquisition or retirement thereof, (c) set apart any sum for the purchase,
redemption or other acquisition or retirement thereof, or (d) make any other
distribution, by reduction of capital or otherwise if, immediately after such
declaration or other action referred to above, the aggregate of all such
declarations and other actions since the date on which the Indenture was
originally executed shall exceed the sum of (i) Funds from Operations (as
defined below) from June 30, 1993 until 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
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not permitted under the Exchange Act, with the Trustee) prior to such
declaration or other action and (ii) $26,000,000; provided, however, that the
foregoing limitation shall not apply to any declaration or other action referred
to above which is necessary to maintain the Company's status as a REIT under the
Internal Revenue Code of 1986, as amended (the 'Code'), if the aggregate
principal amount of all outstanding Debt of the Company and its Subsidiaries at
such time is less than 65% of the Company's Undepreciated Real Estate Assets 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 such declaration or other action
(Section 1005).
Notwithstanding the foregoing, the Company will not be prohibited from
making the payment of any dividend within 30 days of the declaration thereof if
at such date of declaration such payment would have complied with the provisions
of the immediately preceding paragraph (Section 1005).
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 corporate 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 and that the loss thereof
is not disadvantageous in any material respect to the Holders of the Debt
Securities (Section 1006).
Maintenance of Properties. The Company will cause all of its 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;
provided, however, that the Company and its Subsidiaries shall not be prevented
from selling or otherwise disposing for value its properties in the ordinary
course of business (Section 1007).
Insurance. The Company will, and will cause each of its Subsidiaries to,
keep all of its insurable properties insured against loss or damage at least
equal to their then full insurable value with insurers of recognized
responsibility and having a rating of at least A:VIII in Best's Key Rating Guide
(Section 1008).
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
by appropriate proceedings (Section 1009).
Provision of Financial Information. Whether or not the Company is subject
to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent
permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Company would have been required
to file with the Commission pursuant to such Section 13 or 15(d) (the 'Financial
Statements') if the Company were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the 'Required Filing Dates') by
which the Company would have been required so to file such documents if the
Company were so subject. The Company will also in any event (x) within 15 days
of each Required Filing Date (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 and quarterly reports
which 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 (ii) file with the Trustee copies of the annual reports, quarterly
reports and other documents which 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 (y) if filing such documents by the
Company with the Commission is not permitted under the Exchange Act, promptly
upon written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder (Section
1010).
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Maintenance of Unencumbered Total Asset Value. The Company will at all
times maintain an Unencumbered Total Asset Value in an amount of not less than
one hundred percent (100%) of the aggregate principal amount of all outstanding
Debt of the Company and its Subsidiaries that is unsecured (Section 1014).
As used herein,
'Consolidated Income Available for Debt Service' for any period means
Consolidated Net Income (as defined below) of the Company and its Subsidiaries
plus amounts which have been deducted for (a) interest on Debt of the Company
and its Subsidiaries, (b) provision for taxes of the Company and its
Subsidiaries based on income, (c) amortization of debt discount, (d) property
depreciation and amortization and (e) the effect of any noncash charge resulting
from a change in accounting principles in determining Consolidated Net Income
for such period.
'Consolidated Net Income' for any period means the amount of consolidated
net income (or loss) of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles.
'Debt' of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money or 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) letters of credit or amounts representing the balance deferred and unpaid
of the purchase price of any property except any such balance that constitutes
an accrued expense or trade payable or (iv) 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, in the case of items of indebtedness under (i) through
(iii) above to the extent 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, and also includes, to
the extent not otherwise included, any obligation by the Company or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the Company or any
Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
'Funds from Operations' for any period means the Consolidated Net Income of
the Company and its Subsidiaries for such period without giving effect to
depreciation and amortization, gains or losses from extraordinary items, gains
or losses on sales of real estate, gains or losses on investments in marketable
securities and any provision/benefit for income taxes for such period, plus
Funds from Operations of unconsolidated joint ventures, all determined on a
consistent basis for such period.
'Maximum Annual Service Charge' as of any date means the maximum amount
which may become payable in any period of 12 consecutive calendar months from
such date for interest on, and required amortization of, Debt. The amount
payable for amortization shall include the amount of any sinking fund or other
analogous fund for the retirement of Debt and the amount payable on account of
principal on any such Debt which matures serially other than at the final
maturity date of such Debt.
'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 amortized debt costs).
'Undepreciated Real Estate Assets' as of any date means the amount 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 means the sum of the
Company's Total Assets which are unencumbered by any mortgage, lien, charge,
pledge or security interest that secures the payment of any obligations under
any Debt.
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EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that the following events are 'Events of Default'
with respect to any series of Debt Securities issued thereunder: (a) default for
30 days in the payment of any installment of interest on any Debt Security of
such series; (b) default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its Maturity; (c) default in making any
sinking fund payment as required for any Debt Security of such series; (d)
default in the performance of any other covenant 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 Indenture; (e)
default in the payment of an aggregate principal amount exceeding $10,000,000 of
any evidence of indebtedness of the Company or any mortgage, indenture or other
instrument under which such indebtedness is issued or by which such indebtedness
is secured, such default having occurred after the expiration of any applicable
grace period and having resulted in the acceleration of the maturity of such
indebtedness, but only if such indebtedness is not discharged or such
acceleration is not rescinded or annulled; (f) 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 its property;
and (g) any other Event of Default provided with respect to a particular series
of Debt Securities (Section 501). 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 the Indenture with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing, then in every
such case the 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 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 the 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 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 Indenture, as the case may be) may rescind
and annul such declaration and its consequences if (a) the Company shall have
deposited with the 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 Indenture, as the case may be), plus
certain fees, expenses, disbursements and advances of the Trustee and (b) all
Events of Default, other than the non-payment of accelerated principal (or
specified portion thereof), with respect to Debt Securities of such series (or
of all Debt Securities then Outstanding under the Indenture, as the case may be)
have been cured or waived as provided in the Indenture (Section 502). The
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 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 on any Debt Security of such series or (y) in respect of a covenant or
provision contained in the Indenture that cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security affected thereby
(Section 513).
The Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the Indenture; provided, however, that the
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 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 the Trustee consider
such withholding to be in the interest of such Holders (Section 601).
The Indenture provides that no Holders of Debt Securities of any series may
institute any proceedings, judicial or otherwise, with respect to the Indenture
or for any remedy thereunder, except in the case of failure of the 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). This
provision will not
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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 on
such Debt Securities at the respective due dates thereof (Section 508).
Subject to provisions in the Indenture relating to its duties in case of
default, the Trustee is under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any Holders of any
series of Debt Securities then Outstanding under the Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
(Section 602). 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 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 Trustee, or of exercising any trust or power conferred upon the
Trustee. However, the Trustee may refuse to follow any direction which is in
conflict with any law or the Indenture, which may involve the Trustee in
personal liability or which may be unduly prejudicial to the Holders of Debt
Securities of such series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, the Company must
deliver to the Trustee a certificate, signed by one of several specified
officers, stating whether or not such officer has knowledge of any default under
the Indenture and, if so, specifying each such default and the nature and status
thereof (Section 1011).
MODIFICATION
Modifications and amendments of the Indenture and Debt Securities may be
made only with the consent of the Holders of not less than a majority in
principal amount of all Outstanding Debt Securities 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, (a) change the Stated Maturity of the principal of, or any
installment of interest (or premium, if any) on, any such Debt Security; (b)
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; (c) change the Place of Payment, or the coin or
currency, for payment of principal of (or premium, if any) or interest on any
such Debt Security; (d) impair the right to institute suit for the enforcement
of any payment on or with respect to any such Debt Security; (e) reduce the
above-stated percentage of Outstanding Debt Securities of any series necessary
to modify or amend the 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 Indenture; or (f) 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).
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities have the right to waive compliance by the Company with certain
covenants in the Indenture (Section 1013).
Modifications and amendments of the Indenture may be made by the Company
and the Trustee 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 the 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 the Indenture;
(iii) to add Events of Default for the benefit of the Holders of all or any
series of Securities; (iv) to add or change any provisions of the 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 the 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 Stock or Preferred Stock of the Company; (viii) to
provide for the acceptance of appointment by a successor Trustee or facilitate
the
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administration of the trusts under the Indenture by more than one Trustee; (ix)
to cure any ambiguity, defect or inconsistency in the Indenture, provided that
such action shall not adversely affect the interests of Holders of Debt
Securities of any series in any material respect; or (x) to supplement any of
the provisions of the 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 in any material respect (Section 901).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (ii) the principal amount
of a Debt Security denominated in a foreign currency that shall be deemed
outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above), (iii) the
principal amount of an Indexed Security that shall be deemed outstanding shall
be the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security pursuant to
Section 301 of the Indenture, and (iv) Debt Securities owned by the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor shall be disregarded (Section 101).
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series (Section 1501). A meeting may be called at any time
by the Trustee, and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given as provided in the Indenture (Section 1502).
Except for any consent that must be given by the Holder of each Debt Security
affected by certain modifications and amendments of the Indenture, any
resolution presented at a meeting or adjourned meeting duly reconvened at which
a quorum is present may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series;
provided, however, that, except as referred to above, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Debt Securities of a series may be adopted at a meeting or adjourned
meeting duly reconvened at which a quorum is present by the affirmative vote of
the Holders of such specified percentage in principal amount of the Outstanding
Debt Securities of that series. Any resolution passed or decision taken at any
meeting of Holders of Debt Securities of any series duly held in accordance with
the Indenture will be binding on all Holders of Debt Securities of that series.
The quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be Persons holding or representing a majority in principal amount
of the Outstanding Debt Securities of a series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
may be given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Debt Securities of a series, the Persons holding or
representing such specified percentage in principal amount of the Outstanding
Debt Securities of such series will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of Holders of Debt Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
the Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Debt Securities
affected thereby, or of the Holders of such series and one or more additional
series: (i) there shall be no minimum quorum requirement for such meeting and
(ii) the principal amount of the Outstanding Debt Securities of such series that
vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent, waiver
or other action has been made, given or taken under the Indenture (Section
1504).
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DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company may discharge certain obligations to Holders of any series of
Debt Securities that have not already been delivered to the 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 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).
The Indenture provides that, if the provisions of Article Fourteen are made
applicable to the Debt Securities of or within any series pursuant to Section
301 of the Indenture, the Company may elect either (a) to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
('defeasance') (Section 1402) or (b) to be released from its obligations with
respect to such Debt Securities under Sections 1004 to 1010, inclusive, and
Section 1014 of the Indenture (being the restrictions described under 'Certain
Covenants') or, if provided pursuant to Section 301 of the 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), in
either case upon the irrevocable deposit by the Company with the 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.
Such a trust may only be established if, among other things, the Company
has delivered to the Trustee an Opinion of Counsel (as specified in the
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 United States federal income tax law occurring after the date of the
Indenture (Section 1404).
'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 specific 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).
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
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of any series, (a) the Holder of a Debt Security of such series is entitled to,
and does, elect pursuant to Section 301 of the 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 (b) 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). '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 ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium, if
any) and interest 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).
In the event 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 (d) under 'Events of Default, Notice and Waiver' with respect to
Sections 1004 to 1010, inclusive, and Section 1014 of the Indenture (which
Sections would no longer be applicable to such Debt Securities) or described in
clause (g) 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 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 other Debt Securities, Common Stock or Preferred Stock will be
set forth in the applicable Prospectus Supplement relating thereto. Such terms
will include whether such Debt Securities are convertible into other Debt
Securities, Common Stock or Preferred Stock, the conversion price (or manner of
calculation thereof), the conversion period, provisions as to whether conversion
will be at the option of the Holders or the Company, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of such Debt Securities.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the 'Global Securities') that will be
deposited with, or on behalf of, a depositary (the 'Depositary') identified in
the applicable Prospectus Supplement relating to such series. Global Securities
may be issued in either registered or bearer form and in either temporary or
permanent form. The specific terms of the depositary arrangement with respect to
a series of Debt Securities will be described in the applicable Prospectus
Supplement relating to such series.
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DESCRIPTION OF COMMON STOCK
The Company has the authority to issue 50,000,000 shares of common stock,
par value $.01 per share, and 25,500,000 shares of excess stock, par value $.01
per share. At May 15, 1996, the Company had outstanding 36,062,022 shares of
common stock and no shares of excess stock. On August 4, 1994, the Company,
previously a Delaware corporation, reincorporated as a Maryland corporation
pursuant to an Agreement and Plan of Merger approved by the Company's
stockholders. See 'The Company.' Rights of holders of common stock under
Maryland law differ from rights of holders of common stock under Delaware law in
some respects. For a more complete description of the potential effects of the
Reincorporation on the Common Stock, reference is hereby made to the section
entitled 'Proposal Regarding Reincorporation' of the Company's Proxy Statement
filed with the Commission in connection with its 1994 Annual Meeting of
Stockholders, which section is incorporated by reference herein.
The following description of the Common Stock sets forth certain general
terms and provisions of the Common Stock to which any Prospectus Supplement may
relate, including a Prospectus Supplement providing that Common Stock will be
issuable upon conversion of Debt Securities or Preferred Stock of the Company or
upon the exercise of the Common Stock Warrants issued by the Company. The
statements below describing the Common Stock are in all respects subject to and
qualified in their entirety by reference to the applicable provisions of the
Company's charter and Bylaws.
Holders of the Company's Common Stock will be entitled to receive dividends
when, as and if declared by the Board of Directors of the Company, out of assets
legally available therefor. Payment and declaration of dividends on the Common
Stock and purchases of shares thereof by the Company will be subject to certain
restrictions if the Company fails to pay dividends on the preferred stock. See
'Description of Preferred Stock.' Upon any liquidation, dissolution or winding
up of the Company, holders of Common Stock will be entitled to share equally and
ratably in any assets available for distribution to them, after payment or
provision for payment of the debts and other liabilities of the Company and the
preferential amounts owing with respect to any outstanding preferred stock. The
Common Stock will possess ordinary voting rights for the election of directors
and in respect of other corporate matters, with each share entitling the holder
thereof to one vote. Holders of Common Stock will not have cumulative voting
rights in the election of directors, which means that holders of more than 50%
of all of the shares of the Company's common stock voting for the election of
directors will be able to elect all of the directors if they choose to do so
and, accordingly, the holders of the remaining shares will be unable to elect
any directors. Holders of shares of Common Stock will not have preemptive
rights, which means they have no right to acquire any additional shares of
Common Stock that may be issued by the Company at a subsequent date. The Common
Stock will, when issued, be fully paid and nonassessable and will not be subject
to preemptive or similar rights.
According to Maryland law and the Company's charter, a distribution
(whether by dividend, redemption or other acquisition of shares) to holders of
shares of common stock may be made only if, after giving effect to the
distribution, the Company's total assets are greater than the Company's total
liabilities plus the amount necessary to satisfy the preferential rights upon
dissolution of stockholders whose preferential rights on dissolution are
superior to the holders of common stock. The Company has complied with this
requirement in all of its prior distributions to holders of Common Stock.
RESTRICTIONS ON OWNERSHIP
For the Company to qualify as a REIT under the Code, not more than 50% in
value of its outstanding stock may be owned, actually or constructively, by five
or fewer individuals (as defined in the Code to include certain entities) during
the last half of a taxable year, and its stock must be beneficially owned by 100
or more persons during at least 335 days of a taxable year of 12 months or
during a proportionate part of a shorter taxable year. In addition, rent from
Related Party Tenants (as defined below) is not qualifying income for purposes
of the income tests under the Code.
Subject to certain exceptions specified in the Company's charter, no holder
may own, or be deemed to own by virtue of the constructive ownership provisions
of the Code, more than 2% (the 'Ownership Limit') in value of the outstanding
shares of the Company's common stock. The constructive ownership rules are
complex and may cause common stock owned actually or constructively by a group
of related individuals and/or entities to be deemed constructively owned by one
individual or entity. As a result, the acquisition of less than 2% in value of
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the common stock (or the acquisition of an interest in an entity which owns
common stock) by an individual or entity could cause that individual or entity
(or another individual or entity) to own constructively in excess of 2% in value
of the common stock, and thus subject such common stock to the Ownership Limit.
Existing stockholders who exceeded the Ownership Limit immediately after
the completion of the Company's initial public offering of its common stock (the
'IPO') in November 1991, may continue to do so and may acquire additional shares
through the stock option plan, or from other existing stockholders who exceed
the Ownership Limit, but may not acquire additional shares from such sources
such that the five largest beneficial owners of common stock could own, actually
or constructively, more than 49.6% of the outstanding common stock, and in any
event may not acquire additional shares from any other sources. In addition,
because rent from Related Party Tenants (generally, a tenant owned, actually or
constructively, 10% or more by a REIT, or a 10% owner of a REIT) is not
qualifying rent for purposes of the gross income tests under the Code, the
Company's charter provides that no individual or entity may own, or be deemed to
own by virtue of the attribution provisions of the Code (which differ from the
attribution provisions applied to the Ownership Limit), in excess of 9.8% in
value of the outstanding common stock (the 'Related Party Limit'). The Board of
Directors may waive the Ownership Limit and the Related Party Limit with respect
to a particular stockholder (such Related Party Limit has been waived with
respect to the existing stockholders who exceeded the Related Party Limit
immediately after the IPO) if evidence satisfactory to the Board of Directors
and the Company's tax counsel is presented that such ownership will not then or
in the future jeopardize the Company's status as a REIT. As a condition of such
waiver, the Board of Directors may require opinions of counsel satisfactory to
it and/or an undertaking from the applicant with respect to preserving the REIT
status of the Company. The foregoing restrictions on transferability and
ownership will not apply if the Board of Directors determines that it is no
longer in the best interests of the Company to attempt to qualify, or to
continue to qualify, as a REIT. If shares of common stock in excess of the
Ownership Limit or the Related Party Limit, or shares which would cause the REIT
to be beneficially owned by less than 100 persons or which would cause the
Company to be 'closely held' within the meaning of the Code or would otherwise
result in failure to qualify as a REIT, are issued or transferred to any person,
such issuance or transfer shall be null and void to the intended transferee, and
the intended transferee would acquire no rights to the stock. Shares transferred
in excess of the Ownership Limit or the Related Party Limit, or shares which
would otherwise cause the Company to be 'closely held' within the meaning of the
Code or would otherwise result in failure to qualify as a REIT, will
automatically be exchanged for shares of a separate class of stock ('Excess
Stock') that will be transferred by operation of law to the Company as trustee
for the exclusive benefit of the person or persons to whom the shares are
ultimately transferred, until such time as the intended transferee retransfers
the shares. While these shares are held in trust, they will not be entitled to
vote or to share in any dividends or other distributions (except upon
liquidation). The shares may be retransferred by the intended transferee to any
person who may hold such shares at a price not to exceed (i) the price paid by
the intended transferee, or (ii) if the intended transferee did not give value
for such shares, a price per share equal to the market value of the shares on
the date of the purported transfer to the intended transferee, at which point
the shares will automatically be exchanged for ordinary common stock. In
addition, such shares of Excess Stock held in trust are purchasable by the
Company for a 90-day period at a price equal to the lesser of the price paid for
the stock by the intended transferee and the market price for the stock on the
date the Company determines to purchase the stock. This period commences on the
date of the violative transfer if the intended transferee gives notice to the
Company of the transfer, or the date the Board of Directors determines that a
violative transfer has occurred if no notice is provided.
All certificates representing shares of common stock will bear a legend
referring to the restrictions described above.
All persons who own, directly or by virtue of the attribution provisions of
the Code, more than a specified percentage of the outstanding shares of common
stock must file an affidavit with the Company containing the information
specified in the Company's charter within 30 days after January 1 of each year.
In addition, each common stockholder shall upon demand be required to disclose
to the Company in writing such information with respect to the actual and
constructive ownership of shares as the Board of Directors deems necessary to
comply with the provisions of the Code applicable to a REIT or to comply with
the requirements of any taxing authority or governmental agency.
The Registrar and Transfer Agent for the Company's common stock is The
First National Bank of Boston.
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DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue Common Stock Warrants for the purchase of Common
Stock. Common Stock Warrants may be issued independently or together with any
other Offered Securities offered by any Prospectus Supplement and may be
attached to or separate from such Offered Securities. Each series of Common
Stock 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
Common Stock Warrants of such series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
Common Stock Warrants.
The applicable Prospectus Supplement will describe the terms of the Common
Stock Warrants in respect of which this Prospectus is being delivered,
including, where applicable, the following: (1) the title of such Common Stock
Warrants; (2) the aggregate number of such Common Stock Warrants; (3) the price
or prices at which such Common Stock Warrants will be issued; (4) the
designation, number and terms of the shares of Common Stock purchasable upon
exercise of such Common Stock Warrants; (5) the designation and terms of the
other Offered Securities with which such Common Stock Warrants are issued and
the number of such Common Stock Warrants issued with each such Offered Security;
(6) the date, if any, on and after which such Common Stock Warrants and the
related Common Stock will be separately transferable; (7) the price at which
each share of Common Stock purchasable upon exercise of such Common Stock
Warrants may be purchased; (8) the date on which the right to exercise such
Common Stock Warrants shall commence and the date on which such right shall
expire; (9) the minimum or maximum amount of such Common Stock Warrants which
may be exercised at any one time; (10) information with respect to book-entry
procedures, if any; (11) a discussion of certain federal income tax
considerations; and (12) any other material terms of such Common Stock Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Common Stock Warrants.
DESCRIPTION OF PREFERRED STOCK
The Company is authorized to issue 930,000 shares of preferred stock, par
value $1.00 per share, 345,000 shares of 7 3/4% Class A Cumulative Redeemable
Preferred Stock, $1.00 par value per share ('Class A Preferred Stock'), 230,000
shares of 8 1/2% Class B Cumulative Redeemable Preferred Stock, $1.00 par value
per share ('Class B Preferred Stock') and 460,000 shares of 8 3/8% Class C
Cumulative Redeemable Preferred Stock, $1.00 par value per share ('Class C
Preferred Stock'). The Company is also authorized to issue 345,000 shares of
Class A Excess Preferred Stock, $1.00 par value per share ('Class A Excess
Preferred Stock'), 230,000 shares of Class B Excess Preferred Stock, $1.00 par
value per share ('Class B Excess Preferred Stock') and 460,000 shares of Class C
Excess Preferred Stock, $1.00 par value per share ('Class C Excess Preferred
Stock'), which are reserved for issuance upon conversion of certain outstanding
Class A Preferred Stock, Class B Preferred Stock or Class C Preferred Stock, as
the case may be, as necessary to preserve the Company's status as a REIT. At May
15, 1996, 300,000 shares of Class A Preferred Stock, represented by 3,000,000
depositary shares, 200,000 shares of Class B Preferred Stock, represented by
2,000,000 depositary shares, and 400,000 shares of Class C Preferred Stock,
represented by 4,000,000 depositary shares, were outstanding.
Under the Company's charter, the Board of Directors may from time to time
establish and issue one or more classes or series of preferred stock and fix the
designations, powers, preferences and rights of the shares of such classes or
series and the qualifications, limitations or restrictions thereon, including,
but not limited to, the fixing of the dividend rights, dividend rate or rates,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions) and the liquidation preferences.
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The statements below describing the Preferred Stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Company's charter (including the applicable
articles supplementary) and Bylaws.
GENERAL
Subject to limitations prescribed by Maryland law and the Company's
charter, the Board of Directors is authorized to fix the number of shares
constituting each class or series of Preferred Stock and the designations and
powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations
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or restrictions thereof, including such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
resolution of the Board of Directors or duly authorized committee thereof. The
Preferred Stock will, when issued, be fully paid and nonassessable and will not
have, or be subject to, any preemptive or similar rights.
Reference is made to the Prospectus Supplement relating to the class or
series of Preferred Stock offered thereby for specific terms, including:
(1) The class or series, title and stated value of such Preferred
Stock;
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such
Preferred Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred
Stock;
(4) Whether dividends on such Preferred Stock shall be cumulative or
not and, if cumulative, the date from which dividends on such
Preferred Stock shall accumulate;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) Provisions for a sinking fund, if any, for such Preferred Stock;
(7) Provisions for redemption, if applicable, of such Preferred
Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
(9) The terms and conditions, if applicable, upon which such
Preferred Stock will be convertible into Common Stock of the
Company, including the conversion price (or manner of calculation
thereof);
(10) Whether interests in such Preferred Stock will be represented by
Depositary Shares;
(11) A discussion of certain federal income tax considerations
applicable to such Preferred Stock;
(12) In addition to those limitations described below, any other
limitations on direct or beneficial ownership and restrictions on
transfer of such Preferred Stock and, if convertible, the related
Common Stock, in each case as may be appropriate to preserve the
status of the Company as a REIT; and
(13) Any other material terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to (as applicable) dividend rights and rights upon
liquidation, dissolution or winding up of the Company, rank (i) senior to all
classes or series of common stock and excess stock of the Company and to all
equity securities of the Company the terms of which provide that such equity
securities are subordinated to the Preferred Stock; (ii) on a parity with all
equity securities of the Company other than those referred to in clauses (i) and
(iii) and (iii) junior to all equity securities of the Company which the terms
of such Preferred Stock provide will rank senior to it. As used in the Company's
charter for these purposes, the term 'equity securities' does not include
convertible debt securities.
DIVIDENDS
Holders of shares of the Preferred Stock of each class or series shall be
entitled to receive, when, as and if declared by the Board of Directors 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 stock transfer books of the Company on such record dates
as shall be fixed by the Board of Directors of the Company.
Dividends on any class or series of the Preferred Stock may be cumulative
or non-cumulative, as provided in the applicable Prospectus Supplement.
Dividends, if cumulative, will accumulate from and after the date set forth in
the applicable Prospectus Supplement. If the Board of Directors of the Company
fails to declare a dividend payable on a dividend payment date on any class or
series of the Preferred Stock for which dividends are noncumulative, then the
holders of such class or series of the Preferred Stock 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
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obligation to pay the dividend accrued for such period, whether or not dividends
on such class or series are declared payable on any future dividend payment
date.
If any shares of the Preferred Stock of any class or series are
outstanding, no full dividends shall be declared or paid or set apart for
payment on the preferred stock of the Company of any other class or series
ranking, as to dividends, on a parity with or junior to the Preferred Stock of
such class or series for any period unless (i) if such class or series of
Preferred Stock 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 Stock of such
class or series for all past dividend periods and the then current dividend
period or (ii) if such class or series of Preferred Stock 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 Stock of
such class or series. When dividends are not paid in full (or a sum sufficient
for such full payment is not so set apart) upon the shares of Preferred Stock of
any class or series and the shares of any other class or series of preferred
stock ranking on a parity as to dividends with the Preferred Stock of such class
or series, all dividends declared upon shares of Preferred Stock of such class
or series and any other class or series of preferred stock ranking on a parity
as to dividends with such Preferred Stock shall be declared pro rata so that the
amount of dividends declared per share on the Preferred Stock of such class or
series and such other class or series of preferred stock shall in all cases bear
to each other the same ratio that accrued and unpaid dividends per share on the
shares of Preferred Stock of such class or series (which shall not include any
accumulation in respect of unpaid dividends for prior dividend periods if such
Preferred Stock does not have a cumulative dividend) and such other class or
series of preferred stock 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 Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such class or series of Preferred Stock has a cumulative dividend, full
cumulative dividends on the Preferred Stock of such class or 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 class or series of Preferred Stock does
not have a cumulative dividend, full dividends on the Preferred Stock of such
class or series have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set aside for payment for the then
current dividend period, no dividends (other than in common stock or other stock
ranking junior to the Preferred Stock of such class or series as to dividends
and upon liquidation, dissolution or winding up of the Company shall be declared
or paid or set aside for payment or other distribution shall be declared or made
upon the common stock, excess stock or any other stock of the Company ranking
junior to or on a parity with the Preferred Stock of such class or series as to
dividends or upon liquidation, nor shall any common stock, excess stock or any
other capital stock of the Company ranking junior to or on a parity with the
Preferred Stock of such class or series as to dividends or upon liquidation,
dissolution or winding up of the Company 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 shares of any such stock) by the Company
(except by conversion into or exchange for other stock of the Company ranking
junior to the Preferred Stock of such class or series as to dividends and upon
liquidation, dissolution or winding up of the Company).
Any dividend payment made on shares of a class or series of Preferred Stock
shall first be credited against the earliest accrued but unpaid dividend due
with respect to shares of such class or series which remains payable.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the shares of
Preferred Stock 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 class or series of Preferred Stock
that is subject to mandatory redemption will specify the number of shares of
such Preferred Stock 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 Stock does 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
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applicable Prospectus Supplement. If the redemption price for Preferred Stock of
any series is payable only from the net proceeds of the issuance of stock of the
Company, the terms of such Preferred Stock may provide that, if no such stock
shall have been issued or to the extent the net proceeds from any issuance are
insufficient to pay in full the aggregate redemption price then due, such
Preferred Stock shall automatically and mandatorily be converted into shares of
the applicable stock of the Company pursuant to conversion provisions specified
in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if such class or series of
Preferred Stock has a cumulative dividend, full cumulative dividends on all
shares of any class or series of Preferred Stock 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 class or series of Preferred Stock does
not have a cumulative dividend, full dividends on the Preferred Stock of any
class or 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 class or series of Preferred Stock
shall be redeemed unless all outstanding shares of Preferred Stock of such class
or series are simultaneously redeemed; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of Preferred Stock of
such class or series pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of Preferred Stock of such class or
series; and, unless (i) if such class or series of Preferred Stock has a
cumulative dividend, full cumulative dividends on all outstanding shares of any
class or series of Preferred Stock 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 class or series of Preferred Stock does not have a cumulative
dividend, full dividends on the Preferred Stock of any class or 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
shares of Preferred Stock of such class or series (except by conversion into or
exchange for stock of the Company ranking junior to the Preferred Stock of such
class or series as to dividends and upon liquidation, dissolution or winding up
of the Company).
If fewer than all of the outstanding shares of Preferred Stock of any class
or series are to be redeemed, the number of 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
any other equitable method determined by the Company that will not result in the
issuance of any Excess Preferred Stock (as hereinafter defined).
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 a share of Preferred
Stock of any class or series to be redeemed at the address shown on the stock
transfer books of the Company. Each notice shall state: (i) the redemption date;
(ii) the number of shares and class or series of the Preferred Stock to be
redeemed; (iii) the redemption price; (iv) the place or places where
certificates for such Preferred Stock 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 shall terminate. If fewer than all
the shares of Preferred Stock of any class or series are to be redeemed, the
notice mailed to each such holder thereof shall also specify the number of
shares of Preferred Stock to be redeemed from each such holder. If notice of
redemption of any shares of Preferred Stock has been given and if the funds
necessary for such redemption have been set apart by the Company in trust for
the benefit of the holders of any shares of Preferred Stock so called for
redemption, then from and after the redemption date dividends will cease to
accrue on such shares of Preferred Stock, such shares of Preferred Stock shall
no longer be deemed outstanding 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 Company, then, before any distribution or payment shall be made to the
holders of any common stock, excess stock or any other class or series of stock
of the Company ranking junior to such class or series of Preferred Stock in the
distribution of assets upon any liquidation, dissolution or winding up of the
Company, the holders of each class or series of Preferred Stock shall be
entitled to receive out of assets of the Company legally available for
distribution to
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stockholders 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 class or series of Preferred Stock does not have a cumulative
dividend). After payment of the full amount of the liquidating distributions to
which they are entitled, the holders of such class or series of Preferred Stock
will have no right or claim to any of the remaining assets of the Company. In
the event that, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the legally available assets of the Company are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of such class or series of Preferred Stock and the
corresponding amounts payable on all shares of other classes or series of stock
of the Company ranking on a parity with such class or series of Preferred Stock
in the distribution of assets upon any liquidation, dissolution or winding up of
the Company, then the holders of such class or series of Preferred Stock and all
other such classes or series of stock 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
shares of such class or series of Preferred Stock, the remaining assets of the
Company shall be distributed among the holders of any other classes or series of
stock ranking junior to such class or series of Preferred Stock upon any
liquidation, dissolution or winding up of the Company, according to their
respective rights and preferences and in each case according to their respective
number of shares. For such purposes, neither the consolidation or merger of the
Company with or into any other corporation nor the sale, lease, transfer or
conveyance of all or substantially all of the property or business of the
Company shall be deemed to constitute a liquidation, dissolution or winding up
of the Company.
VOTING RIGHTS
Holders of such class or series of Preferred Stock 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 shares of such class or series of Preferred Stock
shall be in arrears for six or more quarterly periods, regardless of whether
such quarterly periods are consecutive, the holders of such shares of such class
or series of Preferred Stock (voting separately as a class with all other
classes or series of preferred stock upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of two
additional directors of the Company at a special meeting called by an officer of
the Company at the request of a holder of such class or series of Preferred
Stock or, if such special meeting is not called by an officer of the Company
within 30 days, at a special meeting called by a holder of such class or series
of Preferred Stock designated by the holders of record of at least 10% of the
shares of any such class or series of Preferred Stock (unless such request is
received less than 90 days before the date fixed for the next annual or special
meeting of the stockholders), or at the next annual meeting of stockholders, and
at each subsequent annual meeting until (i) if such class or series of Preferred
Stock has a cumulative dividend, all dividends accumulated on such shares of
Preferred Stock 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 apart for payment or (ii) if such class or series of
Preferred Stock 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 apart for payment. In such case, the entire Board of
Directors of the Company will be increased by two directors.
Unless provided otherwise for any series of Preferred Stock, so long as any
shares of Preferred Stock remain outstanding, the Company shall not, without the
affirmative vote or consent of the holders of at least two-thirds of the shares
of each class or series of Preferred Stock outstanding at the time, given in
person or by proxy, either in writing or at a meeting (such class or series
voting separately as a class), (i) authorize or create, or increase the
authorized or issued amount of, any class or series of stock ranking senior to
such class or series of Preferred Stock with respect to payment of dividends or
the distribution of assets upon liquidation, dissolution or winding up of the
Company or reclassify any authorized stock 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 charter in respect of such class or series of Preferred
Stock, whether by merger, consolidation or otherwise, so as to materially and
adversely affect any right, preference, privilege or voting power of such class
or series of Preferred Stock or the holders thereof; provided, however, that any
increase in the amount of the authorized Preferred Stock or the creation or
issuance of any other class or series of
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Preferred Stock, or any increase in the amount of authorized shares of such
class or series, in each case ranking on a parity with or junior to the
Preferred Stock of such class or series with respect to payment of dividends and
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 class or series of Preferred Stock
shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been irrevocably deposited in trust to effect such
redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which shares of any class or series
of Preferred Stock are convertible into Common Stock, Debt Securities or another
series of Preferred Stock will be set forth in the applicable Prospectus
Supplement relating thereto. Such terms will include the number of shares of
Common Stock or such other series of Preferred Stock or the principal amount of
Debt Securities into which the Preferred Stock is 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 such class or
series of Preferred Stock or the Company, the events requiring an adjustment of
the conversion price and provisions affecting conversion in the event of the
redemption of such class or series of Preferred Stock.
RESTRICTIONS ON OWNERSHIP
As discussed above under 'Description of Common Stock--Restrictions on
Ownership,' for the Company to qualify as a REIT under the Code, not more than
50% in value of its outstanding stock may be owned, actually or constructively,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year, and the stock must be
beneficially owned by 100 or more persons during at least 335 days of a taxable
year of 12 months (or during a proportionate part of a shorter taxable year). In
addition, rent from Related Party Tenants (as defined above) is not qualifying
income for purposes of the gross income tests under the Code. Therefore, the
applicable articles supplementary for each class or series of Preferred Stock
will contain certain provisions restricting the ownership and transfer of such
class or series of Preferred Stock (the 'Preferred Stock Ownership Limit
Provision'). Except as otherwise described in the applicable Prospectus
Supplement relating thereto, the provisions of each applicable articles
supplementary relating to the applicable Preferred Stock Ownership Limit will
provide as follows:
The Preferred Stock Ownership Limit Provision will provide that, subject to
certain exceptions contained in the applicable articles supplementary, no holder
of such class or series of Preferred Stock may own, or be deemed to own by
virtue of the constructive ownership provisions of the Code, Preferred Stock in
excess of the Preferred Stock Ownership Limit, which will be equal to 9.8% of
the outstanding Preferred Stock of any class or series. The constructive
ownership rules are complex and may cause Preferred Stock owned actually or
constructively by a group of related individuals and/or entities to be deemed to
be constructively owned by one individual or entity. As a result, the
acquisition of less than 9.8% of any class or series of Preferred Stock (or the
acquisition of an interest in an entity which owns Preferred Stock) by an
individual or entity could cause that individual or entity (or another
individual or entity) to own constructively in excess of 9.8% of such class or
series of Preferred Stock, and thus subject such Preferred Stock to the
Preferred Stock Ownership Limit.
The Board of Directors will be entitled to waive the Preferred Stock
Ownership Limit with respect to a particular stockholder if evidence
satisfactory to the Board of Directors, with advice of the Company's tax
counsel, is presented that such ownership will not then or in the future
jeopardize the Company's status as a REIT. As a condition of such waiver, the
Board of Directors may require opinions of counsel satisfactory to it and/or an
undertaking from the applicant with respect to preserving the REIT status of the
Company.
Such articles supplementary will provide that a transfer of the class or
series of Preferred Stock that results in a person actually or constructively
owning shares of Preferred Stock in excess of the Preferred Stock Ownership
Limit, or which would cause the Company to be 'closely held' within the meaning
of the Code or would otherwise result in failure to qualify as a REIT, will be
null and void as to the intended transferee, and the intended transferee will
acquire no rights or economic interest in those shares. In addition, shares
actually or constructively owned by a person in excess of the Preferred Stock
Ownership Limit, or which would otherwise cause the Company to be 'closely held'
within the meaning of the Code or would otherwise result in failure to qualify
as a REIT, will be automatically exchanged for shares of a separate class of
preferred stock that will be
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transferred, by operation of law to the Company as trustee of a trust for the
exclusive benefit of the transferee or transferees to whom the shares are
ultimately transferred (without violating the Preferred Stock Ownership Limit)
(the 'Excess Preferred Stock'). While held in trust, a class of Excess Preferred
Stock will not be entitled to vote, it will not be considered for purposes of
any stockholder vote or the determination of a quorum for such vote, and it will
not be entitled to participate in any distributions made by the Company (except
upon liquidation). The intended transferee or owner may, at any time a class of
Excess Preferred Stock is held by the Company in trust, transfer the class of
Excess Preferred Stock to any person whose ownership of such class or series of
Excess Preferred Stock would be permitted under the Preferred Stock Ownership
Limit, at a price not to exceed either (i) the price paid by the intended
transferee or owner in the purported transfer which resulted in the issuance of
such class of Excess Preferred Stock or (ii) if the intended transferee did not
give full value for such class of Excess Preferred Stock, a price equal to the
market price on the date of the purported transfer or the other event that
resulted in the issuance of such class of Excess Preferred Stock, at which time
such class of Excess Preferred Stock would automatically be exchanged for the
corresponding class or series of Preferred Stock. In addition, the Company would
have the right, for a period of 90 days during the time a class of Excess
Preferred Stock is held by the Company in trust, to purchase all or any portion
of such class of Excess Preferred Stock from the intended transferee or owner at
a price equal to the lesser of the price paid for the stock by the intended
transferee or owner (or, if the intended transferee did not give full value for
such class of Excess Preferred Stock, a price equal to the market price on the
date of the purported transfer or other event that resulted in the issuance of
such class of Excess Preferred Stock) and the closing market price for the
corresponding class of Preferred Stock on the date the Company exercises its
option to purchase the stock. This period commences on the date of the violative
transfer of ownership if the intended transferee or owner gives notice of the
transfer to the Company, or the date the Board of Directors determines that a
violative transfer or ownership has occurred if no notice is provided.
All certificates representing shares of a class or series of Preferred
Stock will bear a legend referring to the restrictions described above.
The Preferred Stock Ownership Limit Provision is set as a percentage of the
number of outstanding shares of any class or series of Preferred Stock. As a
result, if the number of shares of any class or series of Preferred Stock is
reduced on a non-pro rata basis among all holders of such class or series,
Excess Preferred Stock may be created as a result of such reduction. In the
event that the Company's action causes such reduction of shares, the Company has
agreed to exercise its option to repurchase such shares of such class or series
of Excess Preferred Stock if the intended owner notifies the Company that it is
unable to sell its rights to such class or series of Excess Preferred Stock.
All persons who own a specified percentage (or more) of the outstanding
stock of the Company must file an affidavit with the Company containing
information regarding their ownership of stock as set forth in the Treasury
Regulations. Under current Treasury Regulations, the percentage is set between
one-half of one percent and five percent, depending on the number of record
holders of stock. In addition, each stockholder shall upon demand be required to
disclose to the Company in writing such information with respect to the actual
and constructive ownership of shares of stock of the Company as the Board of
Directors deems necessary to comply with the provisions of the Code applicable
to a REIT or to comply with the requirements of any taxing authority or
governmental agency.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may issue Depositary Shares, each of which will represent a
fractional interest of a share of a particular class or series of Preferred
Stock, as specified in the applicable Prospectus Supplement. Shares of a class
or series of Preferred Stock represented by Depositary Shares will be deposited
under a separate Deposit Agreement (each, a 'Deposit Agreement') among the
Company, the depositary named therein (the 'Preferred Stock Depositary') and the
holders from time to time of the depositary receipts issued by the Preferred
Stock Depositary which will evidence the Depositary Shares ('Depositary
Receipts'). Subject to the terms of the Deposit Agreement, each owner of a
Depositary Receipt will be entitled, in proportion to the fractional interest of
a share of a particular class or series of Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipt, to all the rights and
preferences of the class or series of Preferred Stock represented by such
Depositary Shares (including dividend, voting, conversion, redemption and
liquidation rights).
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The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of a class or series of Preferred Stock by the Company to the
Preferred Stock Depositary, the Company will cause the Preferred Stock
Depositary to issue, on behalf of the Company, the Depositary Receipts. Copies
of the applicable form of Deposit Agreement and Depositary Receipt may be
obtained from the Company upon request, and the statements made hereunder
relating to the Deposit Agreement and the Depositary Receipts to be issued
thereunder are summaries of certain provisions thereof and do not purport to be
complete and are subject to, and qualified in their entirety by reference to,
all of the provisions of the applicable Deposit Agreement and related Depositary
Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of a class or series of Preferred Stock
to the record holders of Depositary Receipts evidencing the related Depositary
Shares in proportion to the number of such Depositary Receipts owned by such
holders, subject to certain obligations of holders to file proofs, certificates
and other information and to pay certain charges and expenses to the Preferred
Stock Depositary.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the Preferred Stock Depositary, unless the Preferred Stock
Depositary determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the Company,
sell such property and distribute the net proceeds from such sale to such
holders.
No distribution will be made in respect of any Depositary Share to the
extent that it represents any class or series of Preferred Stock converted into
Excess Preferred Stock or otherwise converted or exchanged.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of the Depositary Receipts at the corporate trust office of
the Preferred Stock Depositary (unless the related Depositary Shares have
previously been called for redemption or converted into Excess Preferred Stock
or otherwise), the holders thereof will be entitled to delivery at such office,
to or upon such holder's order, of the number of whole or fractional shares of
the class or series of Preferred Stock and any money or other property
represented by the Depositary Shares evidenced by such Depositary Receipts.
Holders of Depositary Receipts will be entitled to receive whole or fractional
shares of the related class or series of Preferred Stock on the basis of the
proportion of Preferred Stock represented by each Depositary Share as specified
in the applicable Prospectus Supplement, but holders of such shares of Preferred
Stock will not thereafter be entitled to receive Depositary Shares therefor. If
the Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
shares of Preferred Stock to be withdrawn, the Preferred Stock Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares.
REDEMPTION
Whenever the Company redeems shares of a class or series of Preferred Stock
held by the Preferred Stock Depositary, the Preferred Stock Depositary will
redeem as of the same redemption date the number of Depositary Shares
representing shares of such class or series of Preferred Stock so redeemed,
provided the Company shall have paid in full to the Preferred Stock Depositary
the redemption price of the Preferred Stock to be redeemed plus an amount equal
to any accrued and unpaid dividends thereon to the date fixed for redemption.
The redemption price per Depositary Share will be equal to the corresponding
proportion of the redemption price and any other amounts per share payable with
respect to such class or series of Preferred Stock. If fewer than all the
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will
be selected pro rata (as nearly as may be practicable without creating
fractional Depositary Shares) or by any other equitable method determined by the
Company that will not result in the issuance of any Excess Preferred Stock.
From and after the date fixed for redemption, all dividends in respect of
the shares of a class or series of Preferred Stock so called for redemption will
cease to accrue, the Depositary Shares so called for redemption will
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no longer be deemed to be outstanding and all rights of the holders of the
Depositary Receipts evidencing the Depositary Shares so called for redemption
will cease, except the right to receive any moneys payable upon such redemption
and any money or other property to which the holders of such Depositary Receipts
were entitled upon such redemption and surrender thereof to the Preferred Stock
Depositary.
VOTING
Upon receipt of notice of any meeting at which the holders of a class or
series of Preferred Stock deposited with the Preferred Stock Depositary are
entitled to vote, the Preferred Stock Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Receipts evidencing the Depositary Shares which represent such class or series
of Preferred Stock. Each record holder of Depositary Receipts evidencing
Depositary Shares on the record date (which will be the same date as the record
date for such class or series of Preferred Stock) will be entitled to instruct
the Preferred Stock Depositary as to the exercise of the voting rights
pertaining to the amount of Preferred Stock represented by such holder's
Depositary Shares. The Preferred Stock Depositary will vote the amount of such
class or series of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the amount of such class or
series of Preferred Stock represented by such Depositary Shares to the extent it
does not receive specific instructions from the holders of Depositary Receipts
evidencing such Depositary Shares. The Preferred Stock Depositary shall not be
responsible for any failure to carry out any instruction to vote, or for the
manner or effect of any such vote made, as long as any such action or non-action
is in good faith and does not result from negligence or wilful misconduct of the
Preferred Stock Depositary.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each Depositary Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION
The Depositary Shares, as such, are not convertible into Common Stock or
any other securities or property of the Company, except in connection with
certain conversions in connection with the preservation of the Company's status
as a REIT. See 'Description of Preferred Stock--Restrictions on Ownership.'
Nevertheless, if so specified in the applicable Prospectus Supplement relating
to an offering of Depositary Shares, the Depositary Receipts may be surrendered
by holders thereof to the Preferred Stock Depositary with written instructions
to the Preferred Stock Depositary to instruct the Company to cause conversion of
a class or series of Preferred Stock represented by the Depositary Shares
evidenced by such Depositary Receipts into whole shares of Common Stock, other
shares of a class or series of Preferred Stock (including Excess Preferred
Stock) of the Company or other shares of stock, and the Company has agreed that
upon receipt of such instructions and any amounts payable in respect thereof, it
will cause the conversion thereof utilizing the same procedures as those
provided for delivery of Preferred Stock to effect such conversion. If the
Depositary Shares evidenced by a Depositary Receipt are to be converted in part
only, a new Depositary Receipt or Receipts will be issued for any Depositary
Shares not to be converted. No fractional shares of Common Stock will be issued
upon conversion, and if such conversion would result in a fractional share being
issued, an amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common Stock on the last
business day prior to the conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Stock
Depositary. However, any amendment that materially and adversely alters the
rights of the holders of Depositary Receipts or that would be materially and
adversely inconsistent with the rights granted to
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the holders of the related class or series of Preferred Stock will not be
effective unless such amendment has been approved by the existing holders of at
least two thirds of the Depositary Shares evidenced by the Depositary Receipts
then outstanding. No amendment shall impair the right, subject to certain
exceptions in the Deposit Agreement, of any holder of Depositary Receipts to
surrender any Depositary Receipt with instructions to deliver to the holder the
related class or series of Preferred Stock and all money and other property, if
any, represented thereby, except in order to comply with law. Every holder of an
outstanding Depositary Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold such Receipt, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby.
The Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the Preferred Stock Depositary if (i) such
termination is necessary to preserve the Company's status as a REIT or (ii) a
majority of each class or series of Preferred Stock subject to such Deposit
Agreement consents to such termination, whereupon the Preferred Stock Depositary
shall deliver or make available to each holder of Depositary Receipts, upon
surrender of the Depositary Receipts held by such holder, such number of whole
or fractional shares of each such class or series of Preferred Stock as are
represented by the Depositary Shares evidenced by such Depositary Receipts
together with any other property held by the Preferred Stock Depositary with
respect to such Depositary Receipts. The Company has agreed that if the Deposit
Agreement is terminated to preserve the Company's status as a REIT, then the
Company will use its best efforts to list each class or series of Preferred
Stock issued upon surrender of the related Depositary Shares on a national
securities exchange. In addition, the Deposit Agreement will automatically
terminate if (i) all outstanding Depositary Shares issued thereunder shall have
been redeemed, (ii) there shall have been a final distribution in respect of
each class or series of Preferred Stock subject to such Deposit Agreement in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Depositary
Receipts evidencing the Depositary Shares representing such class or series of
Preferred Stock or (iii) each share of Preferred Stock subject to such Deposit
Agreement shall have been converted into stock of the Company not so represented
by Depositary Shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the Preferred Stock Depositary in
connection with the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and expenses of the
Preferred Stock Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary. A successor
Preferred Stock Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Preferred Stock Depositary under the Deposit Agreement will be
limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of a class or
series of Preferred Stock represented by the Depositary Shares), gross
negligence or
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willful misconduct, and the Company and the Preferred Stock Depositary will not
be obligated to prosecute or defend any legal proceeding in respect of any
Depositary Receipts, Depositary Shares or shares of a class or series of
Preferred Stock represented thereby unless satisfactory indemnity is furnished.
The Company and the Preferred Stock Depositary may rely on written advice of
counsel or accountants, or information provided by persons presenting shares of
a class or series of Preferred Stock represented thereby for deposit, holders of
Depositary Receipts or other persons believed in good faith to be competent to
give such information, and on documents believed in good faith to be genuine and
signed by a proper party.
In the event the Preferred Stock Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on the
one hand, and the Company, on the other hand, the Preferred Stock Depositary
shall be entitled to act on such claims, requests or instructions received from
the Company.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for the quarter ended
March 31, 1996 and for the years ended December 31, 1995, 1994, 1993 and 1992
was 3.1, 2.8, 2.9, 2.7 and 1.9, respectively. The Company's ratio of earnings to
combined fixed charges and preferred stock dividend requirements for the quarter
ended March 31, 1996 and for the years ended December 31, 1995, 1994 and 1993
was 2.3, 2.2, 2.3 and 2.5, respectively. Prior to the year ended December 31,
1993, the Company had not issued any preferred stock; therefore the ratios of
earnings to combined fixed charges and preferred stock dividend requirements for
prior periods are unchanged from the ratios of earnings to fixed charges in the
previous sentence.
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges (excluding capitalized interest) to income (loss) before
income taxes and extraordinary items. Fixed charges consist of interest costs,
whether expensed or capitalized, the interest component of rental expense, and
amortization of debt discounts and issue costs, whether expensed or capitalized.
Prior to completion of the IPO, the Company, as a privately-held taxable
corporation, operated in a manner so as to minimize net taxable income. As a
result, although the Company's properties have historically generated positive
net cash flow, the Company had a net loss for its fiscal year ended April 30,
1991 and in the eight-month period ended December 31, 1991. Consequently, the
computation of the ratio of earnings to fixed charges for such periods indicates
that earnings were inadequate to cover fixed charges by approximately $15.3
million and $.3 million, respectively.
The reorganization and recapitalization of the Company effected in
connection with the IPO permitted the Company to divest properties with
substantial mortgage debt and to significantly deleverage those shopping center
properties which remained in its portfolio resulting in a significantly improved
ratio of earnings to fixed charges for periods subsequent to November 1991.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
TO THE COMPANY OF ITS REIT ELECTION
The following summary of certain federal income tax considerations to the
Company is based on current law, is for general information only, and is not tax
advice. The tax treatment of a holder of any of the Offered Securities will vary
depending upon the terms of the specific securities acquired by such holder, as
well as his particular situation, and this discussion does not attempt to
address any aspects of federal income taxation relating to holders of Offered
Securities. Certain federal income tax considerations relevant to holders of the
Offered Securities will be provided in the applicable Prospectus Supplement
relating thereto.
EACH INVESTOR IS ADVISED TO CONSULT THE APPLICABLE PROSPECTUS SUPPLEMENT,
AS WELL AS HIS OWN TAX ADVISOR, REGARDING THE TAX CONSEQUENCES TO HIM OF THE
ACQUISITION, OWNERSHIP AND SALE OF THE OFFERED SECURITIES, INCLUDING THE
FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH ACQUISITION,
OWNERSHIP AND SALE AND OF POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
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TAXATION OF THE COMPANY AS A REIT
General. The Company has elected to be taxed as a real estate investment
trust under Sections 856 through 860 of the Code, commencing with its taxable
year beginning January 1, 1992. The Company believes that, commencing with its
taxable year beginning January 1, 1992, it has been organized and is operating
in such a manner as to qualify for taxation as a REIT under the Code commencing
with such taxable year, and the Company intends to continue to operate in such a
manner, but no assurance can be given that it has operated or will operate in a
manner so as to qualify or remain qualified.
These sections of the Code are highly technical and complex. The following
sets forth the material aspects of the sections that govern the federal income
tax treatment of a REIT. This summary is qualified in its entirety by the
applicable Code provisions, rules and regulations promulgated thereunder, and
administrative and judicial interpretations thereof. Latham & Watkins has acted
as tax counsel to the Company in connection with the Offering and the Company's
election to be taxed as a REIT.
As a condition to the closing of each offering of Offered Securities, other
than offerings of medium term notes and as otherwise specified in the applicable
Prospectus Supplement, tax counsel to the Company will render an opinion to the
Company to the effect that, commencing with the Company's taxable year which
began January 1, 1992, the Company has been organized in conformity with the
requirements for qualification as a REIT, and its proposed method of operation
will enable it to continue to meet the requirements for qualification and
taxation as a REIT under the Code. It must be emphasized that this opinion will
be based on various assumptions and will be conditioned upon certain
representations to be made by the Company as to factual matters and that such
tax counsel to the Company undertakes no obligation hereby to update any such
opinion subsequent to its date. In addition, this opinion will be based upon the
factual representations of the Company as set forth in this Prospectus and
assumes that the actions described in this Prospectus are completed in a timely
fashion. Moreover, such qualification and taxation as a REIT depends upon the
Company's ability to meet, through actual annual operating results, distribution
levels and diversity of stock ownership, the various qualification tests imposed
under the Code discussed below, the results of which have not been and will not
be reviewed by such tax counsel to the Company. Accordingly, no assurance can be
given that the actual results of the Company's operation of any particular
taxable year will satisfy such requirements. See'--Failure to Qualify.'
If the Company qualifies for taxation as a REIT, it generally will not be
subject to federal corporate income taxes on its net income that is currently
distributed to stockholders. This treatment substantially eliminates the 'double
taxation' (at the corporate and stockholder levels) that generally results from
investment in a regular corporation. However, the Company will be subject to
federal income tax as follows: First, the Company will be taxed at regular
corporate rates on any undistributed real estate investment trust taxable
income, including undistributed net capital gains. Second, under certain
circumstances, the Company may be subject to the 'alternative minimum tax' on
its items of tax preference. Third, if the Company has (i) net income from the
sale or other disposition of 'foreclosure property' which is held primarily for
sale to customers in the ordinary course of business or (ii) other
non-qualifying income from foreclosure property, it will be subject to tax at
the highest corporate rate on such income. Fourth, if the Company has net income
from prohibited transactions (which are, in general, certain sales or other
dispositions of property held primarily for sale to customers in the ordinary
course of business other than foreclosure property), such income will be subject
to a 100% tax. Fifth, if the Company should fail to satisfy the 75% gross income
test or the 95% gross income test (as discussed below), but has nonetheless
maintained its qualification as a real estate investment trust because certain
other requirements have been met, it will be subject to a 100% tax on an amount
equal to (a) the gross income attributable to the greater of the amount by which
the Company fails the 75% or 95% test, multiplied by (b) a fraction intended to
reflect the Company's profitability. Sixth, if the Company should fail to
distribute during each calendar year at least the sum of (i) 85% of its real
estate investment trust ordinary income for such year, (ii) 95% of its real
estate investment trust capital gain net income for such year, and (iii) any
undistributed taxable income from prior periods, the Company would be subject to
a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. Seventh, if during the 10-year period (the 'Recognition
Period') beginning on the first day of the first taxable year for which the
Company qualified as a REIT, the Company recognizes gain on the disposition of
any asset held by the Company as of the beginning of such Recognition Period,
then, to the extent of the excess of (a) the fair market value of such asset as
of the beginning
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of such Recognition Period over (b) the Company's adjusted basis in such asset
as of the beginning of such Recognition Period (the 'Built-in Gain'), such gain
will be subject to tax at the highest regular corporate rate pursuant to
Internal Revenue Service ('IRS') regulations that have not yet been promulgated.
Eighth, if the Company acquires any asset from a C Corporation (i.e., generally
a corporation subject to full corporate-level tax) in certain transactions in
which the basis of the asset in the hands of the Company is determined by
reference to the basis of the asset (or any other property) in the hands of the
C corporation, and the Company recognizes gain on the disposition of such asset
during the Recognition Period beginning on the date on which such asset was
acquired by the Company, then, to the extent of the Built-in Gain, such gain
will be subject to tax at the highest regular corporate rate pursuant to IRS
regulations that have not yet been promulgated. The results described above with
respect to the recognition of Built-In Gain assume that the Company will make an
election pursuant to IRS Notice 88-19.
Requirements for Qualification. The Code defines a REIT as a corporation,
trust or association (1) which is managed by one or more trustees or directors,
(2) the beneficial ownership of which is evidenced by transferable shares, or by
transferable certificates of beneficial interest, (3) which would be taxable as
a domestic corporation, but for Sections 856 through 859 of the Code, (4) which
is neither a financial institution nor an insurance company subject to certain
provisions of the Code, (5) the beneficial ownership of which is held by 100 or
more persons, (6) during the last half of each taxable year, not more than 50%
in value of the outstanding stock of which is owned, directly or constructively,
by five or fewer individuals (as defined in the Code to include certain
entities) and (7) which meets certain other tests, described below, regarding
the nature of its income and assets. The Code provides that conditions (1) to
(4) must be met during the entire taxable year and that condition (5) must be
met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months. Conditions (5) and
(6) will not apply until after the first taxable year for which an election is
made to be taxed as a real estate investment trust.
The Company has satisfied condition (5) and believes that it has issued
sufficient shares to allow it to satisfy condition (6). In addition, the
Company's charter provides (and the Articles Supplementary for any series of
Preferred Stock will provide) for restrictions regarding ownership and transfer
of the Company's capital stock, which restrictions are intended to assist the
Company in continuing to satisfy the share ownership requirements described in
(5) and (6) above. The ownership and transfer restrictions pertaining generally
to the Common Stock and the Preferred Stock are described in 'Description of
Common Stock--Restrictions on Ownership and Transfer' and 'Description of
Preferred Stock--Restrictions on Ownership and Transfer' or, to the extent such
restrictions differ from those described in this Prospectus, such restrictions
will be described in the applicable Prospectus Supplement. There can be no
assurance, however, that such transfer restrictions will in all cases prevent a
violation of the stock ownership provisions described in (5) and (6) above.
The Company owns and operates a number of properties through subsidiaries.
Code Section 856(i) provides that a corporation which is a 'qualified REIT
subsidiary' shall not be treated as a separate corporation, and all assets,
liabilities, and items of income, deduction, and credit of a 'qualified REIT
subsidiary' shall be treated as assets, liabilities and such items (as the case
may be) of the REIT. Thus, in applying the requirements described herein, the
Company's 'qualified REIT subsidiaries' will be ignored, and all assets,
liabilities and items of income, deduction, and credit of such subsidiaries will
be treated as assets, liabilities and items of the Company. The Company has
received a ruling from the IRS to the effect that all of the subsidiaries that
were held by the Company prior to January 1, 1992, the effective date of its
election to be taxed as a REIT, will be 'qualified REIT subsidiaries' upon such
effective date of the Company's REIT election. Moreover, with respect to each
subsidiary of the Company formed subsequent to January 1, 1992, the Company has
owned 100% of the stock of such subsidiary at all times during the period such
subsidiary has been in existence. Therefore, all of the Company's subsidiaries
are 'qualified REIT subsidiaries' within the meaning of the Code.
In the case of a REIT that is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of the assets of the partnership and will be deemed to be entitled to the income
of the partnership attributable to such share. In addition, the character of the
assets and gross income of the partnership will retain the same character in the
hands of the real estate investment trust for purposes of Section 856 of the
Code, including satisfying the gross income tests and the asset tests. Thus, the
Company's proportionate share of the assets, liabilities and items of income of
the partnerships in which the Company is a
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partner will be treated as assets, liabilities and items of income of the
Company for purposes of applying the requirements described herein.
Income Tests. In order to maintain qualification as a REIT, the Company
annually must satisfy three gross income requirements. First, at least 75% of
the Company's gross income (excluding gross income from prohibited transactions)
for each taxable year must be derived directly or indirectly from investments
relating to real property or mortgages on real property (including 'rents from
real property' and, in certain circumstances, interest) or from certain types of
temporary investments. Second, at least 95% of the Company's gross income
(excluding gross income from prohibited transactions) for each taxable year must
be derived from such real property investments, dividends, interest and gain
from the sale or disposition of stock or securities (or from any combination of
the foregoing). Third, short-term gain from the sale or other disposition of
stock or securities, gain from prohibited transactions and gain on the sale or
other disposition of real property held for less than four years (apart from
involuntary conversions and sales of foreclosure property) must represent less
than 30% of the Company's gross income (including gross income from prohibited
transactions) for each taxable year.
Rents received by the Company will qualify as 'rents from real property' in
satisfying the gross income requirements for a real estate investment trust
described above only if several conditions are met. First, the amount of rent
must not be based in whole or in part on the income or profits of any person.
However, an amount received or accrued generally will not be excluded from the
term 'rents from real property' solely by reason of being based on a fixed
percentage or percentages of receipts or sales. Second, the Code provides that
rents received from a tenant will not qualify as 'rents from real property' in
satisfying the gross income tests if the real estate investment trust, or an
owner of 10% or more of the real estate investment trust, directly or
constructively owns 10% or more of such tenant (a 'Related Party Tenant').
Third, if rent attributable to personal property leased in connection with a
lease of real property is greater than 15% of the total rent received under the
lease, then the portion of rent attributable to such personal property will not
qualify as 'rents from real property.' Finally, for rents received to qualify as
'rents from real property,' the real estate investment trust generally must not
operate or manage the property or furnish or render services to the tenants of
such property, other than through an independent contractor from whom the real
estate investment trust derives no revenue; provided, however, the Company may
directly perform certain services that are 'usually or customarily rendered' in
connection with the rental of space for occupancy only and are not otherwise
considered 'rendered to the occupant' of the property. The Company has not
charged and will not charge rent for any property that is based in whole or in
part on the income or profits of any person (except by reason of being based on
a percentage of receipts or sales, as described above), the Company has not and
will not rent any property to a Related Party Tenant, and the Company has not
and will not derive rental income attributable to personal property (other than
personal property leased in connection with the lease of real property, the
amount of which is less than 15% of the total rent received under the lease).
The Company directly performs services under certain of its leases. The Company
has received a ruling from the IRS providing that the performance of the types
of services provided by the Company will not cause the rents received with
respect to such leases to fail to qualify as 'rents from real property.'
The term 'interest' generally does not include any amount received or
accrued (directly or indirectly) if the determination of such amount depends in
whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term 'interest'
solely by reason of being based on a fixed percentage or percentages of receipts
or sales.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a real estate
investment trust for such year if it is entitled to relief under certain
provisions of the Code. These relief provisions will generally be available if
the Company's failure to meet such tests was due to reasonable cause and not due
to willful neglect, the Company attaches a schedule of the sources of its income
to its federal income tax return, and any incorrect information on the schedule
was not due to fraud with intent to evade tax. It is not possible, however, to
state whether in all circumstances the Company would be entitled to the benefit
of these relief provisions. As discussed above under '--General,' even if these
relief provisions apply, a tax would be imposed with respect to the excess net
income.
Asset Tests. The Company, at the close of each quarter of its taxable year,
must also satisfy three tests relating to the nature of its assets. First, at
least 75% of the value of the Company's total assets must be represented by real
estate assets (including (i) assets held by the Company's qualified REIT
subsidiaries and the
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Company's allocable share of real estate assets held by partnerships in which
the Company owns an interest and (ii) stock or debt instruments held for not
more than one year purchased with the proceeds of a stock offering or long-term
(at least five years) debt offering of the Company), cash, cash items and
government securities. Second, not more than 25% of the Company's total assets
may be represented by securities other than those in the 75% asset class. Third,
of the investments included in the 25% asset class, the value of any one
issuer's securities owned by the Company may not exceed 5% of the value of the
Company's total assets and the Company may not own more than 10% of any one
issuer's outstanding voting securities.
The Company currently has numerous direct and indirect wholly-owned
subsidiaries. As set forth above, the ownership of more than 10% of the voting
securities of any one issuer by a REIT is prohibited by the asset tests.
However, if the Company's subsidiaries are 'qualified REIT subsidiaries' as
defined in the Code, such subsidiaries will not be treated as separate
corporations for federal income tax purposes. Thus, the Company's ownership of
stock of a 'qualified REIT subsidiary' will not cause the Company to fail the
asset tests.
Annual Distribution Requirements. The Company, in order to qualify as a
REIT, is required to distribute dividends (other than capital gain dividends) to
its stockholders in an amount at least equal to (A) the sum of (i) 95% of the
Company's 'REIT taxable income' (computed without regard to the dividends paid
deduction and the Company's net capital gain) and (ii) 95% of the net income
(after tax), if any, from foreclosure property, minus (B) the sum of certain
items of non-cash income. In addition, if the Company disposes of any asset
during its Recognition Period, the Company will be required, pursuant to IRS
regulations which have not yet been promulgated, to distribute at least 95% of
the Built-in Gain (after tax), if any, recognized on the disposition of such
asset. Such distributions must be paid in the taxable year to which they relate,
or in the following taxable year if declared before the Company timely files its
tax return for such year and if paid on or before the first regular dividend
payment after such declaration. To the extent that the Company does not
distribute all of its net capital gain or distributes at least 95%, but less
than 100%, of its 'real estate investment trust taxable income,' as adjusted, it
will be subject to tax thereon at regular ordinary and capital gain corporate
tax rates. Furthermore, if the Company should fail to distribute during each
calendar year at least the sum of (i) 85% of its real estate investment trust
ordinary income for such year, (ii) 95% of its real estate investment trust
capital gain income for such year, and (iii) any undistributed taxable income
from prior periods, the Company would be subject to a 4% excise tax on the
excess of such required distribution over the amounts actually distributed. The
Company intends to make timely distributions sufficient to satisfy this annual
distribution requirement.
It is possible that the Company, from time to time, may not have sufficient
cash or other liquid assets to meet the 95% distribution requirement due to
timing differences between (i) the actual receipt of income and actual payment
of deductible expenses and (ii) the inclusion of such income and deduction of
such expenses in arriving at taxable income of the Company. In the event that
such timing differences occur, in order to meet the 95% distribution
requirement, the Company may find it necessary to arrange for short-term, or
possibly long-term, borrowings or to pay dividends in the form of taxable stock
dividends.
Under certain circumstances, the Company may be able to rectify a failure
to meet the distribution requirement for a year by paying 'deficiency dividends'
to stockholders in a later year, which may be included in the Company's
deduction for dividends paid for the earlier year. Thus, the Company may be able
to avoid being taxed on amounts distributed as deficiency dividends; however,
the Company will be required to pay interest based upon the amount of any
deduction taken for deficiency dividends.
FAILURE TO QUALIFY
If the Company fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Such a failure to qualify for taxation as a REIT could
have an adverse effect on the market value and marketability of the Offered
Securities. Distributions to stockholders in any year in which the Company fails
to qualify will not be deductible by the Company nor will they be required to be
made. In such event, to the extent of current and accumulated earnings and
profits, all distributions to stockholders will be taxable as ordinary income
and, subject to certain limitations of the Code, corporate distributees may be
eligible for the dividends received deduction. Unless entitled to relief under
specific statutory provisions, the Company will also be disqualified from
taxation as a REIT for the four taxable years following the year during which
31
<PAGE>
qualification was lost. It is not possible to state whether in all circumstances
the Company would be entitled to such statutory relief.
OTHER TAX MATTERS
Certain of the Company's investments are through partnerships which may
involve special tax risks. Such risks include possible challenge by the IRS of
(a) allocations of income and expense items, which could affect the computation
of income of the Company and (b) the status of the partnerships as partnerships
(as opposed to associations taxable as corporations) for income tax purposes. If
any of the partnerships is treated as an association, it would be taxable as a
corporation. In such a situation, if the Company's ownership in any of the
partnerships exceeded 10% of the partnership's voting interests or the value of
such interest exceeded 5% of the value of the Company's assets, the Company
would cease to qualify as a REIT. Furthermore, in such a situation,
distributions from any of the partnerships to the Company would be treated as
dividends, which are not taken into account in satisfying the 75% gross income
test described above and which could therefore make it more difficult for the
Company to qualify as a REIT for the taxable year in which such distribution was
received. In addition, in such a situation, the interest in any of the
partnerships held by the Company would not qualify as a 'real estate asset,'
which could make it more difficult for the Company to meet the 75% asset test
described above. Finally, in such a situation, the Company would not be able to
deduct its share of losses generated by the partnerships in computing its
taxable income. See 'Failure to Qualify' above for a discussion of the effect of
the Company's failure to meet such tests for a taxable year. The Company
believes that each of the partnerships will be treated for tax purposes as a
partnership (and not as an association taxable as a corporation). However, no
assurance can be given that the IRS may not successfully challenge the tax
status of any of the partnerships.
The Company may be subject to state or local taxation in various state or
local jurisdictions, including those in which it transacts business. The state
or local tax treatment of the Company may not conform to the federal income tax
consequences described above. Consequently, prospective investors should consult
their own tax advisors regarding the effect of state and local tax laws on an
investment in the Company.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to one or more underwriters for
public offering and sale by them or may sell the Offered Securities to investors
directly or through agents. Any such underwriter or agent involved in the offer
and sale of the Offered Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, at prices related to the prevailing market prices
at the time of sale or at negotiated prices. The Company also may, from time to
time, authorize underwriters acting as the Company's agents to offer and sell
the Offered Securities upon the terms and conditions as are set forth in the
applicable Prospectus Supplement. In connection with the sale of Offered
Securities, underwriters may be deemed to have received compensation from the
Company in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Offered Securities for whom they may act
as agent. Underwriters may sell Offered 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 agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Offered Securities may be
deemed to be underwriters, and any discounts and commissions received by them
and any profit realized by them on resale of the Offered Securities may be
deemed to be underwriting discounts and commissions, under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered into
with the Company, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase Offered Securities from the Company at the public
offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ('Contracts') providing for payment and delivery on the date
or dates stated in such Prospectus Supplement.
32
<PAGE>
Each Contract will be for an amount not less than, and the aggregate principal
amount of Offered Securities sold pursuant to Contracts shall be not less nor
more than, the respective amounts stated in the applicable Prospectus
Supplement. Institutions with whom Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Offered Securities covered by its Contracts shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Offered Securities
are being sold to underwriters, the Company shall have sold to such underwriters
the total principal amount of the Offered Securities less the principal amount
thereof covered by Contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company and its
subsidiaries in the ordinary course of business.
EXPERTS
The consolidated financial statements and related financial statement
schedules included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 and incorporated by reference herein have been audited
by Coopers & Lybrand L.L.P., independent accountants, to the extent and for the
periods indicated in their report, and have been incorporated herein in reliance
on the report of Coopers & Lybrand L.L.P., given on the authority of that firm
as experts in accounting and auditing.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Latham & Watkins, New York, New York and for any underwriters, dealers or
agents by Brown & Wood, New York, New York. Latham & Watkins and Brown & Wood
will rely on Ballard Spahr Andrews & Ingersoll, Baltimore, Maryland, as to
certain matters of Maryland law. Certain members of Latham & Watkins and their
families own beneficial interests in less than 1% of the common stock of the
Company.
33
<PAGE>
------------------------------------------------------
------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN CONTAINED OR INCORPORATED
BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT, THE APPLICABLE PRICING SUPPLEMENT OR
THE PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT,
THE APPLICABLE PRICING SUPPLEMENT AND THE PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR THE AGENTS. NEITHER THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT, THE APPLICABLE PRICING SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE
MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION
THAT THERE HAS NOT BEEN ANY CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF. THIS PROSPECTUS SUPPLEMENT, THE APPLICABLE PRICING SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING
SUCH OFFER IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
PROSPECTUS SUPPLEMENT
<S> <C>
Certain Risk Factors............................ S-2
Description of Notes............................ S-3
Special Provisions Relating to Foreign Currency
Notes......................................... S-18
Certain United States Federal Income Tax
Considerations................................ S-21
Plan of Distribution............................ S-28
<CAPTION>
PROSPECTUS
<S> <C>
Available Information........................... 2
Incorporation of Certain Documents by
Reference..................................... 2
The Company..................................... 3
Use of Proceeds................................. 3
Description of Debt Securities.................. 3
Description of Common Stock..................... 15
Description of Common Stock Warrants............ 17
Description of Preferred Stock.................. 17
Description of Depositary Shares................ 23
Ratio of Earnings to Fixed Charges.............. 27
Certain Federal Income Tax Considerations to the
Company of its REIT Election.................. 27
Plan of Distribution............................ 32
Experts......................................... 33
Legal Matters................................... 33
</TABLE>
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
$150,000,000
[LOGO]
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
------------------------
PROSPECTUS SUPPLEMENT
------------------------
MERRILL LYNCH & CO.
CHASE SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
J.P. MORGAN & CO.
MORGAN STANLEY & CO.
INCORPORATED
, 1996
------------------------------------------------------
------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offerings of the Securities are as follows:
<TABLE>
<S> <C>
Securities Act Registration Fee............................... $114,608
'Blue Sky' Fees and Expenses.................................. 15,000
Printing and Engraving Expenses............................... 50,000
Legal Fees and Expenses....................................... 35,000
Accounting Fees and Expenses.................................. 12,500
Miscellaneous................................................. 22,892
--------
$250,000
--------
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Maryland General Corporation Law (the 'MGCL') permits a Maryland
corporation to include in its charter a provision limiting the liability of its
directors and officers to the corporation and its stockholders for money damages
except for liability resulting from (a) actual receipt of an improper benefit or
profit in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
charter of the Company contains such a provision which eliminates such liability
to the maximum extent permitted by Maryland law.
The charter of the Company authorizes it, to the maximum extent permitted
by Maryland law, to obligate itself to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to (a) any
present or former director or officer or (b) any individual who, while a
director of the Company and at the request of the Company, serves or has served
another corporation, partnership, joint venture, trust, employee benefit plan or
any other enterprise as a director, officer, partner or trustee of such
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. The Bylaws of the Company obligate it, to the maximum extent
permitted by Maryland law, to indemnify and to pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (a) any present or
former director or officer who is made a party to the proceeding by reason of
his service in that capacity or (b) any individual who, while a director of the
Company and at the request of the Company, serves or has served another
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise as a director, officer, partner or trustee of such corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and
who is made a party to the proceeding by reason of his service in that capacity.
The charter and Bylaws also permit the Company to indemnify and advance expenses
to any person who served a predecessor of the Company in any of the capacities
described above and to any employee or agent of the Company or a predecessor of
the Company.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Company's charter does not) to indemnify a director or officer who has
been successful, on the merits or otherwise, in the defense of any proceeding to
which he is made a party by reason of his service in that capacity. The MGCL
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service in those or other
capacities unless it is established that (a) the act or omission of the director
or officer was material to the matter giving rise to the proceeding and (i) was
committed in bad faith or (ii) was the result of active and deliberate
dishonesty, (b) the director or officer actually received an improper personal
benefit in money, property or services or (c) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. However, a Maryland corporation may not indemnify for
an adverse judgment in a suit by or in the right of the corporation. In
addition, the MGCL requires the Company, as a condition to advancing expenses,
to obtain (a) a written affirmation by the director or officer of his good faith
belief that he has met the standard of conduct necessary for indemnification by
the Company as authorized by the Bylaws and (b) a written statement
II-1
<PAGE>
by or on his behalf to repay the amount paid or reimbursed by the Company if it
shall ultimately be determined that the standard of conduct was not met.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C> <C>
1(a) -- Form of Underwriting Agreement for Debt Securities (filed as Exhibit 1(a) to Registrant's
Registration Statement on Form S-3, dated August 18, 1993, File No. 33-67552)
(b) -- Form of Underwriting Agreement for Equity Securities
(c) -- Form of Distribution Agreement for Medium-Term Notes (filed as Exhibit 1(a) to Registrant's Current
Report on Form 8-K, dated April 7, 1995)
4(a) -- Indenture, dated as of September 1, 1993 (filed as Exhibit 4(a) to Registrant's Registration
Statement on Form S-3, dated August 31, 1994, File No. 33-83102)
(b) -- First Supplemental Indenture, dated as of August 4, 1994 (filed as Exhibit 4.6 to Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995)
(c) -- Second Supplemental Indenture, dated as of April 7, 1995 (filed as Exhibit 4(a) to Registrant's
Current Report on Form 8-K, dated April 7, 1995)
(d) -- Form of Debt Security (filed as Exhibit 4(b) to Registrant's Registration Statement on Form S-3,
dated August 18, 1993, File No. 33-67552)
(e) -- Form of Common Stock Warrant Agreement (1)
(f) -- Form of Articles Supplementary for the Preferred Stock (1)
(g) -- Form of Preferred Stock Certificate (1)
(h) -- Form of Common Stock Certificate
(i) -- Form of Deposit Agreement (filed as Exhibit 4(f) to Registrant's Registration Statement on Form S-3,
dated August 31, 1994, File No. 33-83102)
(j) -- Form of Medium-Term Note (Fixed Rate) (filed as Exhibit 4(b) to Registrant's Current Report on Form
8-K, dated April 7, 1995)
(k) -- Form of Medium-Term Note (Floating Rate) (filed as Exhibit 4(c) to Registrant's Current Report on
Form 8-K, dated April 7, 1995)
5 -- Opinion of Latham & Watkins (1)
8 -- Opinion of Latham & Watkins regarding tax matters (1)
12(a) -- Calculation of Ratios of Earnings to Fixed Charges and Ratios of Earnings to Fixed Charges and
Preferred Stock Dividends (1)
23(a) -- Consent of Coopers & Lybrand L.L.P. (1)
(b) -- Consent of Latham & Watkins (included in Exhibit 5) (1)
25 -- Statement of Eligibility of Trustee on Form T-1 (filed under separate cover)(1)
</TABLE>
- ------------------
(1) To be filed by amendment or incorporated by reference in connection with an
offering of Offered Securities.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement;
II-2
<PAGE>
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the Registrant
pursuant to Section 13 or Section l5(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the Securities offered
herein, and the offering of such Securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the Securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further undertakes that, for the purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section l5(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the Securities offered herein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the Securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1993, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Town of New Hyde Park, State of New York on this 30th day of
May, 1996.
KIMCO REALTY CORPORATION
By: /s/ MILTON COOPER
--------------------------------
Milton Cooper
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Milton Cooper and David M. Samber and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said 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, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------------------------- -------------
<S> <C> <C>
/s/ MARTIN S. KIMMEL Director May 30, 1996
- ------------------------------------------
Martin S. Kimmel
/s/ MILTON COOPER Chairman of the Board of Directors and Chief May 30, 1996
- ------------------------------------------ Executive Officer
Milton Cooper
/s/ MICHAEL J. FLYNN Vice Chairman of the Board of Directors May 30, 1996
- ------------------------------------------
Michael J. Flynn
/s/ LOUIS J. PETRA Vice President and Chief Financial Officer, Chief May 30, 1996
- ------------------------------------------ Accounting Officer
Louis J. Petra
/s/ DAVID M. SAMBER President, Chief Operating Officer and Director May 30, 1996
- ------------------------------------------
David M. Samber
/s/ RICHARD G. DOOLEY Director May 30, 1996
- ------------------------------------------
Richard G. Dooley
/s/ FRANK LOURENSO Director May 30, 1996
- ------------------------------------------
Frank Lourenso
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------- ----------- ----------
<S> <C> <C> <C>
1(a) -- Form of Underwriting Agreement for Debt Securities (filed as Exhibit 1(a) to
Registrant's Registration Statement on Form S-3, dated August 18, 1993, File No.
33-67552)
(b) -- Form of Underwriting Agreement for Equity Securities
(c) -- Form of Distribution Agreement for Medium-Term Notes (filed as Exhibit 1(a) to
Registrant's Current Report on Form 8-K, dated April 7, 1995)
4(a) -- Indenture, dated as of September 1, 1993 (filed as Exhibit 4(a) to Registrant's
Registration Statement on Form S-3, dated August 31, 1994, File No. 33-83102)
(b) -- First Supplemental Indenture, dated as of August 4, 1994 (filed as Exhibit 4.6 to
Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1995)
(c) -- Second Supplemental Indenture, dated as of April 7, 1995 (filed as Exhibit 4(a) to
Registrant's Current Report on Form 8-K, dated April 7, 1995)
(d) -- Form of Debt Security (filed as Exhibit 4(b) to Registrant's Registration Statement on
Form S-3, dated August 18, 1993, File No. 33-67552)
(e) -- Form of Common Stock Warrant Agreement (1)
(f) -- Form of Articles Supplementary for the Preferred Stock (1)
(g) -- Form of Preferred Stock Certificate (1)
(h) -- Form of Common Stock Certificate
(i) -- Form of Deposit Agreement (filed as Exhibit 4(f) to Registrant's Registration Statement
on Form S-3, dated August 31, 1994, File No. 33-83102)
(j) -- Form of Medium-Term Note (Fixed Rate) (filed as Exhibit 4(b) to Registrant's Current
Report on Form 8-K, dated April 7, 1995)
(k) -- Form of Medium-Term Note (Floating Rate) (filed as Exhibit 4(c) to Registrant's Current
Report on Form 8-K, dated April 7, 1995)
5 -- Opinion of Latham & Watkins (1)
8 -- Opinion of Latham & Watkins regarding tax matters (1)
12(a) -- Calculation of Ratios of Earnings to Fixed Charges and Ratios of Earnings to Fixed
Charges and Preferred Stock Dividends
23(a) -- Consent of Coopers & Lybrand L.L.P. (1)
(b) -- Consent of Latham & Watkins (included in Exhibit 5) (1)
25 -- Statement of Eligibility of Trustee on Form T-1 (filed under separate cover)(1)
</TABLE>
- ------------------
(1) To be filed by amendment or incorporated by reference in connection with an
offering of Offered Securities.
KIMCO REALTY CORPORATION
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock, Preferred Stock
and Depositary Shares
UNDERWRITING AGREEMENT
July 21, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1305
Dear Sirs:
Kimco Realty Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell shares of Common Stock,
$.01 par value (the "Common Stock"), or warrants to purchase a
number of shares of Common Stock (the "Common Stock Warrants"),
or both, or shares of Preferred Stock, $1.00 par value (the
"Preferred Shares"), from time to time, in one or more offerings
on terms to be determined at the time of sale. The Preferred
Shares may be offered in the form of depositary shares (the
"Depositary Shares") represented by depositary receipts (the
"Depositary Receipts"). The Common Stock Warrants will be issued
pursuant to a Common Stock Warrant Agreement (the "Warrant
Agreement") between the Company and a warrant agent (the "Warrant
Agent"). Each series of Preferred Shares may vary as to the
specific number of shares, title, stated value, liquidation
preference, issuance price, ranking, dividend rate or rates (or
method of calculation), dividend payment dates, any redemption or
sinking fund requirements, any conversion provisions and any
other variable terms as set forth in the applicable articles
supplementary (each, the "Articles Supplementary") relating to
such Preferred Shares. As used herein, "Securities" shall mean
the Common Stock, the Common Stock Warrants, the Preferred
Shares, the Depositary Shares and the Depositary Receipts; and
"Warrant Securities" shall mean the Common Stock issuable upon
exercise of Common Stock Warrants. As used herein, "you" and
"your", unless the context otherwise requires, shall mean the
parties to whom this Agreement is addressed together with the
other parties, if any, identified in the applicable Terms
Agreement (as hereinafter defined) as additional co-managers with
respect to Underwritten Securities (as hereinafter defined)
purchased pursuant thereto.
Whenever the Company determines to make an offering of
Securities through you or through an underwriting syndicate
managed by you, the Company will enter into an agreement (the
"Terms Agreement") providing for the sale of such Securities (the
"Underwritten Securities") to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on
their behalf (the "Underwriters", which term shall include you
whether acting alone in the sale of the Underwritten Securities
or as a member of an underwriting syndicate and any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify
the number of Underwritten Securities of each class or series to
be initially issued, including the number of Common Stock
Warrants, if any (the "Initial Underwritten Securities"), whether
the Initial Underwritten Securities shall be in the form of
Depositary Shares and the fractional amount of Preferred Shares
represented by each Depositary Share, the names of the
Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof), the number of
Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, the names of such of you or such
other Underwriters acting as co-managers, if any, in connection
with such offering, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the time, date and
place of delivery and payment, any delayed delivery arrangements
and any other variable terms of the Initial Underwritten
Securities (including, but not limited to, current ratings (in
the case of Preferred Shares and Depositary Shares only),
designations, liquidation preferences, conversion provisions,
redemption provisions and sinking fund requirements and the terms
of the Warrant Securities and the terms, prices and dates upon
which such Warrant Securities may be purchased). In addition,
each Terms Agreement shall specify whether the Company has agreed
to grant to the Underwriters an option to purchase additional
Underwritten Securities to cover over-allotments, if any, and the
number of Underwritten Securities subject to such option (the
"Option Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and
all or any portion of the Option Securities agreed to be
purchased by the Underwriters as provided herein, if any. The
Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any
standard form of written telecommunication between you and the
Company. Each offering of Underwritten Securities through you or
2
through an underwriting syndicate managed by you will be governed
by this Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed with the Securities and Exchange Com-
mission (the "Commission") a registration statement on Form S-3
(No. 33-83102) (which also constitutes post-effective amendment
No. 1 to registration statement No. 33-67552) for the
registration of the Securities and Warrant Securities and certain
of the Company's debt securities, under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from
time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company has filed such amendments thereto
as may have been required prior to the execution of the
applicable Terms Agreement. Such registration statement (as
amended, if applicable) has been declared effective by the
Commission. Such registration statement and the prospectus
constituting a part thereof, and each prospectus supplement
relating to the offering of Underwritten Securities (the
"Prospectus Supplement"), including all documents incorporated
therein by reference and the information, if any, deemed to be a
part thereof pursuant to Rule 430A(b) or Rule 434 of the 1933 Act
Regulations, as from time to time amended or supplemented
pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or otherwise, are collectively referred
to herein as the "Registration Statement" and the "Prospectus",
respectively; provided, however, that a Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with
respect to the offering of Underwritten Securities to which it
relates. All references in this Agreement to financial
statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement
or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is or is
deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, all
references to the Prospectus shall be deemed to include, without
limitation, the form of prospectus and the abbreviated term
sheet, taken together, provided to the Underwriters by the
Company in reliance on Rule 434 under the 1933 Act (the "Rule 434
Prospectus"). If the Company files a registration statement to
register a portion of the Securities and Warrant Securities and
3
relies on Rule 462(b) for such registration statement to become
effective upon filing with the Commission (the "Rule 462
Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration
statement referred to above (No. 33-83102) and the Rule 462
Registration Statement, as each such registration statement may
be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to you, as of the
date hereof, and to you and each other Underwriter named in the
applicable Terms Agreement, as of the date thereof (in each case,
a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective and at
each time thereafter on which the Company filed an Annual
Report on Form 10-K with the Commission, complied, and as of
each Representation Date will comply, in all material
respects with the requirements of the 1933 Act and 1933 Act
Regulations; the Registration Statement, at the time the
Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on
Form 10-K with the Commission, did not, and at each time
thereafter on which any amendment to the Registration
Statement becomes effective or the Company files an Annual
Report on Form 10-K with the Commission and as of each
Representation Date will not, contain an untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading; and the Prospectus, as of the date
hereof, does not, and as of each Representation Date will
not, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however,
that the representations and warranties in this subsection
shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Company
in writing by any Underwriter through you expressly for use
in the Registration Statement or Prospectus.
(ii) The accountants who certified the financial
statements, financial statement schedules and historical
summaries of revenue and certain operating expenses for the
properties related thereto included or incorporated by
reference in the Registration Statement and the Prospectus
4
are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iii) The historical financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as at the dates
indicated and the results of their operations for the
periods specified; except as may otherwise be stated in the
Registration Statement and the Prospectus, said financial
statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent
basis; and the financial statement schedules and other
financial information and data included or incorporated by
reference in the Registration Statement and the Prospectus
present fairly the information required to be stated
therein.
(iv) The historical summaries of revenue and certain
operating expenses included or incorporated by reference in
the Registration Statement and the Prospectus present fairly
the revenue and those operating expenses included in such
summaries for the periods specified in conformity with
generally accepted accounting principles; the pro forma
condensed consolidated financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus, if any, present fairly the pro forma
financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the pro forma
results of their operations for the periods specified; and
the pro forma condensed consolidated financial statements
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, the
assumptions on which such pro forma financial statements
have been prepared are reasonable and are set forth in the
notes thereto, such pro forma financial statements have been
prepared, and the pro forma adjustments set forth therein
have been applied, in accordance with the applicable
accounting requirements of the 1933 Act and the 1933 Act
Regulations, and such pro forma adjustments have been
properly applied to the historical amounts in the
compilation of such statements.
(v) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as may otherwise be stated therein or contemplated
thereby, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or
5
not arising in the ordinary course of business, (B) there
have been no transactions or acquisitions entered into by
the Company or any of its subsidiaries other than those
arising in the ordinary course of business, which are
material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular
quarterly dividends on the Company's common stock, or
dividends declared, paid or made in accordance with the
terms of any series of the Company's preferred stock, there
has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital
stock.
(vi) The Company has been duly incorporated and is
validly existing as a corporation under the laws of Maryland
and is in good standing with the State Department of
Assessments and Taxation of Maryland with corporate power
and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus; and
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so
qualify would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and the
Articles Supplementary relating to the Preferred Shares or
Depositary Shares, if applicable, will be in full force and
effect as of each Representation Date.
(vii)Each significant subsidiary (as defined in Rule
1-02 of Regulation S-X promulgated under the 1933 Act) of
the Company (each, a "Significant Subsidiary") has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise;
and all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly
6
issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity, except for security interests granted in
respect of indebtedness of the Company or any of its
subsidiaries and referred to in the Prospectus.
(viii)The authorized, issued and outstanding stock of
the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit
plans, dividend reinvestment plans, employee and director
stock option plans or the exercise of convertible securities
referred to in the Prospectus); and such shares of stock
have been duly authorized and validly issued and are fully
paid and non-assessable and are not subject to preemptive or
other similar rights.
(ix) The Underwritten Securities being sold
pursuant to the applicable Terms Agreement and, if
applicable, the deposit of the Preferred Shares in
accordance with the provisions of a Deposit Agreement
(each, a "Deposit Agreement"), among the Company, the
financial institution named in the Deposit Agreement
(the "Depositary") and the holders of the Depositary
Receipts issued thereunder, have, as of each
Representation Date, been duly authorized by the
Company and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this
Agreement and such Underwritten Securities, when issued
and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in the
applicable Terms Agreement or any Delayed Delivery
Contract (as hereinafter defined), will be validly
issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights; the
Preferred Shares, if applicable, conform to the
provisions of the Articles Supplementary; and the
Underwritten Securities being sold pursuant to the
applicable Terms Agreement conform in all material
respects to all statements relating thereto contained
in the Prospectus.
(x) If applicable, the Common Stock Warrants have been
duly authorized and, when issued and delivered pursuant to
this Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement, will have been duly
executed, countersigned, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant
7
Agreement under which they are to be issued; the issuance of
the Warrant Securities upon exercise of the Common Stock
Warrants will not be subject to preemptive or other similar
rights; and the Common Stock Warrants conform in all
material respects to all statements relating thereto
contained in the Prospectus.
(xi) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Shares or the
Depositary Shares, or the Warrant Securities, will have been
duly and validly authorized and reserved for issuance upon
such conversion or exercise by all necessary corporate
action and such shares, when issued upon such conversion or
exercise, will be duly and validly issued and will be fully
paid and non-assessable, and the issuance of such shares
upon such conversion or exercise will not be subject to
preemptive or other similar rights; the shares of Common
Stock issuable upon conversion of any of the Preferred
Shares or the Depositary Shares, or the Warrant Securities,
conform in all material respects to the descriptions thereof
in the Prospectus.
(xii) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, will have been duly
authorized, executed and delivered by the Company prior to
the issuance of any applicable Underwritten Securities, and
each constitutes a valid and legally binding agreement of
the Company enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting
creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Warrant Agreement,
if any, and the Deposit Agreement, if any, each conforms in
all material respects to all statements relating thereto
contained in the Prospectus.
(xiii) If applicable, upon execution and delivery of the
Depositary Receipts pursuant to the terms of the Deposit
Agreement, the persons in whose names such Depositary
Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement, except as
enforcement of such rights may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting
creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiv) Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws or in default in the
8
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, except for any such violation
or default that would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the applicable Warrant
Agreement, if any, or the applicable Deposit Agreement, if
any, and the consummation of the transactions contemplated
herein and therein and compliance by the Company with its
obligations hereunder and thereunder have been duly
authorized by all necessary corporate action, and will not
conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the charter or by-laws of the Company or any
applicable law, administrative regulation or administrative
or court order or decree.
(xv) The Company has operated and intends to continue
to operate in such a manner as to qualify to be taxed as a
"real estate investment trust" under the Internal Revenue
Code of 1986, as amended (the "Code"), for the taxable year
in which sales of the Underwritten Securities are to occur.
(xvi) Neither the Company nor any of its subsidiaries is
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(xvii) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the
Prospectus (other than as disclosed therein), or which might
result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries
9
considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which
might materially and adversely affect the consummation of
this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement, if any, or the applicable
Deposit Agreement, if any, or the transactions contemplated
herein or therein; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries
is a party or of which any of its property or assets is the
subject which are not described in the Prospectus, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material; and there are no
contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
(xviii) Neither the Company nor any of its subsidiaries is
required to own or possess any trademarks, service marks,
trade names or copyrights in order to conduct the business
now operated by it, other than those the failure to possess
or own would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xix) No authorization, approval or consent of any court
or governmental authority or agency is required that has not
been obtained in connection with the consummation by the
Company of the transactions contemplated by this Agreement,
the applicable Terms Agreement, any Warrant Agreement or any
Deposit Agreement, except such as may be required under the
1933 Act or the 1933 Act Regulations, state securities laws
or real estate syndication laws.
(xx) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by
them, other than those the failure to possess or own would
not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries
considered as one enterprise, and neither the Company nor
any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of
any such certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business
10
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxi) The Company has full corporate power and authority
to enter into this Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, and this
Agreement has been, and as of each Representation Date, the
applicable Terms Agreement and the Delayed Delivery
Contracts, if any, will have been, duly authorized, executed
and delivered by the Company.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations
of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration
Statement became effective and as of the applicable
Representation Date or Closing Time (as defined herein) or
during the period specified in Section 3(f), did not and
will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(xxiii) Except as otherwise disclosed in the Prospectus
and except as would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise: (i) all
properties and assets described in the Prospectus are owned
with good and marketable title by the Company, KC Holdings,
Inc., a Delaware corporation ("KC Holdings"), their
respective subsidiaries and/or a joint venture or
partnership in which any such party is a participant (a
"Related Entity"); (ii) all of the leases under which any of
the Company, KC Holdings, their respective subsidiaries or,
to the knowledge of the Company, Related Entities holds or
uses real properties or assets as a lessee are in full force
and effect, and neither the Company, KC Holdings nor any of
their respective subsidiaries or, to the knowledge of the
Company, Related Entities is in material default in respect
of any of the terms or provisions of any of such leases and
no claim has been asserted by anyone adverse to any such
party's rights as lessee under any of such leases, or
affecting or questioning any such party's right to the
continued possession or use of the leased property or assets
11
under any such leases; (iii) all liens, charges,
encumbrances, claims or restrictions on or affecting the
properties and assets of any of the Company, KC Holdings or
their respective subsidiaries or Related Entities which are
required to be disclosed in the Prospectus are disclosed
therein; (iv) neither the Company, KC Holdings nor any of
their respective subsidiaries or, to the knowledge of the
Company, Related Entities nor any lessee of any portion of
any such party's properties is in default under any of the
leases pursuant to which any of the Company, KC Holdings or
their respective subsidiaries or, to the knowledge of the
Company, Related Entities leases its properties and neither
the Company, KC Holdings nor any of their respective
subsidiaries or Related Entities knows of any event which,
but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases;
(v) no tenant under any of the leases pursuant to which any
of the Company, KC Holdings or their respective subsidiaries
or, to the knowledge of the Company, Related Entities leases
its properties has an option or right of first refusal to
purchase the premises demised under such lease; (vi) each of
the properties of any of the Company, KC Holdings or, to the
knowledge of the Company, their respective subsidiaries or
Related Entities complies with all applicable codes and
zoning laws and regulations; and (vii) neither the Company
nor KC Holdings nor any of their respective subsidiaries has
knowledge of any pending or threatened condemnation, zoning
change or other proceeding or action that will in any manner
affect the size of, use of, improvements on, construction
on, or access to the properties of any of the Company, KC
Holdings or their respective subsidiaries or Related
Entities.
(xxiv) Title insurance in favor of the mortgagee or the
Company, KC Holdings, their respective subsidiaries and/or
their Related Entities is maintained with respect to each
shopping center property owned by any such entity in an
amount at least equal to (a) the cost of acquisition of such
property or (b) the cost of construction of such property
(measured at the time of such construction), except, in each
case, where the failure to maintain such title insurance
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries
considered as one enterprise or of KC Holdings and its
subsidiaries considered as one enterprise.
(xxv) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not
convertible nor does any of the Company, KC Holdings or
12
their respective subsidiaries hold a participating interest
therein, and said mortgages and deeds of trust with respect
to property owned by the Company and its subsidiaries are
not cross-defaulted or cross-collateralized to any property
owned by KC Holdings and its subsidiaries.
(xxvi) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries
is a party, and which relates to real property described in
the Prospectus, has been duly authorized, executed and
delivered by such applicable party and constitutes the valid
agreement thereof, enforceable in accordance with its terms,
except as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting the
rights or remedies of creditors or (b) 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,
and the execution, delivery and performance of any of such
agreements did not, at the time of execution and delivery,
and does not constitute a breach of, or default under, the
charter or by-laws of such party or any material contract,
lease or other instrument to which such party is a party or
by which its properties may be bound or any law,
administrative regulation or administrative or court order
or decree.
(xxvii) None of the Company, KC Holdings or any of their
respective subsidiaries has any knowledge of (a) the
unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the
properties owned by it or the Related Entities, or (b) any
unlawful spills, releases, discharges or disposal of
Hazardous Materials that have occurred or are presently
occurring off such properties as a result of any
construction on or operation and use of such properties
which presence or occurrence would have a material adverse
effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise or
of KC Holdings and its subsidiaries considered as one
enterprise; and in connection with the construction on or
operation and use of the properties owned by the Company, KC
Holdings, their respective subsidiaries and Related
Entities, each of the Company, KC Holdings and their
respective subsidiaries represents that, as of each
Representation Date, it has no knowledge of any material
failure to comply with all applicable local, state and
13
federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling,
transport and disposal of any Hazardous Materials.
(b) Any certificate signed by any officer of the Company
and delivered to you or to counsel for the Underwriters in
connection with the offering of the Underwritten Securities shall
be deemed a representation and warranty by the Company to each
Underwriter participating in such offering as to the matters
covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date
subsequent thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Company may grant, if so
provided in the applicable Terms Agreement relating to the
Initial Underwritten Securities, an option to the Underwriters
named in such Terms Agreement, severally and not jointly, to
purchase up to the number of Option Securities set forth therein
at the same price per Option Security as is applicable to the
Initial Underwritten Securities. Such option, if granted, will
expire 30 days or such lesser number of days as may be specified
in the applicable Terms Agreement after the Representation Date
relating to the Initial Underwritten Securities, and may be
exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial
Underwritten Securities upon notice by you to the Company setting
forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time, date
and place of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall
be determined by you, but shall not be later than three full
business days and not be earlier than two full business days
after the exercise of said option, unless otherwise agreed upon
by you and the Company. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion
of the total number of Option Securities then being purchased
which the number of Initial Underwritten Securities each such
14
Underwriter has severally agreed to purchase as set forth in the
applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the
applicable Terms Agreement), subject to such adjustments as you
in your discretion shall make to eliminate any sales or purchases
of fractional Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall
be made at the office of Brown & Wood, 58th Floor, One World
Trade Center, New York, New York 10048-0557, or at such other
place as shall be agreed upon by you and the Company, at 10:00
A.M., New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 10)
following the date of the applicable Terms Agreement or, if
pricing takes place after 4:30 p.m., New York City time, on the
date of the applicable Terms Agreement, on the fourth business
day (unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement
or at such other time as shall be agreed upon by you and the
Company (each such time and date being referred to as a "Closing
Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates representing,
such Option Securities, shall be made at the above-mentioned
offices of Brown & Wood, or at such other place as shall be
agreed upon by you and the Company on each Date of Delivery as
specified in the notice from you to the Company. Unless
otherwise specified in the applicable Terms Agreement, payment
shall be made to the Company by certified or official bank check
or checks in New York Clearing House or similar next-day funds
payable to the order of the Company against delivery to you for
the respective accounts of the Underwriters for the Underwritten
Securities to be purchased by them. The Underwritten Securities
or, if applicable, Depositary Receipts evidencing the Depositary
Shares, shall be in such authorized denominations and registered
in such names as you may request in writing at least one business
day prior to the applicable Closing Time or Date of Delivery, as
the case may be. The Underwritten Securities, which may be in
temporary form, will be made available for examination and
packaging by you on or before the first business day prior to the
Closing Time or Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase
Underwritten Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially
in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to you at Closing Time,
15
for the respective accounts of the Underwriters, a fee specified
in the applicable Terms Agreement for each of the Underwritten
Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement.
Any Delayed Delivery Contracts are to be with institutional
investors of the types described in the Prospectus. At the
Closing Time, the Company will enter into Delayed Delivery
Contracts (for not less than the minimum number of Underwritten
Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as provided
below, but not for an aggregate number of Underwritten Securities
in excess of that specified in the applicable Terms Agreement.
The Underwriters will not have any responsibility for the
validity or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days
prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter
into Delayed Delivery Contracts and the number of Underwritten
Securities to be purchased by each of them, and the Company will
advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the number of
Underwritten Securities to be covered by each such Delayed
Delivery Contract.
The number of Underwritten Securities agreed to be purchased
by the several Underwriters pursuant to the applicable Terms
Agreement shall be reduced by the number of Underwritten
Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by you to
the Company; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall
be the total number of Underwritten Securities covered by the
applicable Terms Agreement, less the number of Underwritten
Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants
with you, and with each Underwriter participating in the offering
of Underwritten Securities, as follows:
(a) If the Company does not elect to rely on Rule 434 under
the 1933 Act Regulations, immediately following the execution of
the applicable Terms Agreement, the Company will prepare a
Prospectus Supplement setting forth the number of Underwritten
Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters
participating in the offering and the number of Underwritten
16
Securities which each severally has agreed to purchase, the names
of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to
be purchased by the Underwriters from the Company, the initial
public offering price, if any, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in
connection with the offering of the Underwritten Securities; and
the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424(b)
of the 1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus (including such
Prospectus Supplement) as you shall reasonably request. If the
Company elects to rely on Rule 434 under the 1933 Act
Regulations, immediately following the execution of the
applicable Terms Agreement, the Company will prepare an
abbreviated term sheet that complies with the requirements of
Rule 434 under the 1933 Act Regulations and will provide the
Underwriters with copies of the form of Rule 434 Prospectus, in
such number as you shall reasonably request, and promptly file or
transmit for filing with the Commission the form of Prospectus
complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations.
(b) The Company will notify you immediately, and confirm
such notice in writing, of (i) the effectiveness of any amendment
to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus Supplement or other
supplement or amendment to the Prospectus or any document to be
filed pursuant to the 1934 Act, (iii) the receipt of any comments
from the Commission, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and
(v) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose; and the Company will make
every reasonable effort to prevent the issuance of any such stop
order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, the Company will give you
notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise (including any revised prospectus which the Company
proposes for use by the Underwriters in connection with an
offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration
17
Statement first becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the
1933 Act Regulations, or any abbreviated term sheet prepared in
reliance on Rule 434 of the 1933 Act Regulations), and will
furnish you with copies of any such amendment or supplement or
other documents proposed to be filed or used a reasonable amount
of time prior to such proposed filing or use, as the case may be,
and will not file any such amendment or supplement or other
documents in a form to which you or counsel for the Underwriters
shall reasonably object.
(d) The Company will deliver to each Underwriter as many
signed and conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time
to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations.
(f) If at any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities any event shall occur or
condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for the
Company, to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations,
then the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing
documents pursuant to the 1933 Act, the 1934 Act or otherwise, as
may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with
such requirements.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities, the Warrant
18
Securities, if any, and the shares of Common Stock issuable upon
conversion of the Preferred Shares or the Depositary Shares, if
any, for offering and sale under the applicable securities laws
and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate. In each
jurisdiction in which the Underwritten Securities, the Warrant
Securities, if any, and the shares of Common Stock issuable upon
conversion of the Preferred Shares or the Depositary Shares, if
any, have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long
as may be required for the distribution of the Underwritten
Securities and the Warrant Securities, if any; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities,
the Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later
than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in such Rule 158) of the Regis-
tration Statement.
(i) The Company will use its best efforts to meet the
requirements to qualify as a "real estate investment trust" under
the Code for the taxable year in which sales of the Underwritten
Securities are to occur.
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, will file
all documents required to be filed with the Commission pursuant
to Section 13, 14 or 15 of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Company will not, during a period of 90 days from
the date of the applicable Terms Agreement, with respect to the
Underwritten Securities covered thereby, without your prior
written consent, offer or sell, grant any option for the sale of,
or enter into any agreement to sell, any Securities of the same
class or series or ranking on a parity with such Underwritten
Securities (other than the Underwritten Securities which are to
be sold pursuant to such Terms Agreement) or, if such Terms
Agreement relates to Underwritten Securities that are convertible
into Common Stock, any Common Stock or any security convertible
into Common Stock (except for Common Stock issued pursuant to
reservations, agreements, employee benefit plans, dividend
19
reinvestment plans, employee and director stock option plans or
as partial or full payment for properties to be acquired by the
Company), except as may be otherwise provided in the applicable
Terms Agreement.
(l) If the Preferred Shares or Depositary Shares are
convertible into shares of Common Stock or if Common Stock
Warrants are issued, the Company will reserve and keep available
at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock or Preferred Shares,
as the case may be, for the purpose of enabling the Company to
satisfy any obligations to issue such shares upon conversion of
the Preferred Shares or the Depositary Shares, as the case may
be, or upon exercise of the Common Stock Warrants.
(m) If the Preferred Shares or Depository Shares are
convertible into shares of Common Stock, the Company will use its
best efforts to list the shares of Common Stock issuable upon
conversion of the Preferred Shares or Depositary Shares on the
New York Stock Exchange or such other national exchange on which
the Company's shares of Common Stock are then listed.
(n) The Company has complied and will comply with the
provisions of Florida H.B. 1771, codified as Section 517.075 of
the Florida Statutes, 1987, as amended, and all regulations
thereunder relating to issuers doing business with Cuba.
Section 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under
this Agreement or the applicable Terms Agreement, including (i)
the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the printing
and filing of this Agreement and the applicable Terms Agreement,
(iii) the preparation, issuance and delivery of the Underwritten
Securities to the Underwriters and the Warrant Securities, if
any, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Underwritten
Securities, the Warrant Securities, if any, and the shares of
Common Stock issuable upon conversion of the Preferred Shares or
the Depositary Shares, if any, under securities laws and real
estate syndication laws in accordance with the provisions of
Section 3(g), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of
each amendment thereto, and of the Prospectus and any amendments
or supplements thereto, including each abbreviated term sheet
delivered by the Company pursuant to Rule 434 of the 1933 Act
20
Regulations, (vii) the printing and delivery to the Underwriters
of copies of the applicable Deposit Agreement, if any, and the
applicable Warrant Agreement, if any, (viii) any fees charged by
nationally recognized statistical rating organizations for the
rating of the Securities, (ix) the fees and expenses, if any,
incurred with respect to the listing of the Underwritten
Securities, the Warrant Securities, if any, or the shares of
Common Stock issuable upon conversion of the Preferred Shares or
the Depositary Shares, if any, on any national securities
exchange, and (x) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc.
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i),
the Company shall reimburse the Underwriters named in such Terms
Agreement for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase Underwritten
Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the
Company herein contained, to the accuracy of the statements of
the Company's officers made in any certificate pursuant to the
provisions hereof, to the performance by the Company of all of
its covenants and other obligations hereunder, and to the
following further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) if Preferred Shares or
Depositary Shares are being offered, the rating assigned by any
nationally recognized statistical rating organization to any
preferred stock of the Company as of the date of the applicable
Terms Agreement shall not have been lowered since such date nor
shall any such rating organization have publicly announced that
it has placed any preferred stock of the Company on what is
commonly termed a "watch list" for possible downgrading, and
(iii) there shall not have come to your attention any facts that
would cause you to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to
be delivered to purchasers of the Underwritten Securities,
included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not
misleading.
21
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time,
of Latham & Watkins, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the
State of Maryland and is in good standing with the
State Department of Assessments and Taxation of
Maryland.
(ii) The Company has corporate power and authority
to own, lease and operate its properties and to conduct
its business as described in the Prospectus.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which it owns or
leases real property, except where the failure to so
qualify would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(iv) The authorized, issued and outstanding stock
of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee
benefit plans, dividend reinvestment plans or employee
and director stock option plans referred to in the
Prospectus); and such shares of stock are duly
authorized, validly issued, fully paid and non-
assessable and are not subject to preemptive or other
similar rights arising by operation of law or, to the
best of such counsel's knowledge and information,
otherwise.
(v) The Underwritten Securities being sold
pursuant to the applicable Terms Agreement and, if
applicable, the deposit of the Preferred Shares in
accordance with the provisions of a Deposit Agreement,
have been duly and validly authorized by all necessary
corporate action and such Underwritten Securities have
been duly authorized for issuance and sale pursuant to
this Agreement and such Underwritten Securities, when
issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set
forth in the applicable Terms Agreement or any Delayed
22
Delivery Contract, will be validly issued, fully paid
and non-assessable and will not be subject to
preemptive or other similar rights; and the Preferred
Shares, if applicable, conform to the provisions of the
Articles Supplementary.
(vi) If applicable, the Common Stock Warrants have
been duly authorized and, when issued and delivered
pursuant to this Agreement and countersigned by the
Warrant Agent as provided in the Warrant Agreement,
will have been duly executed, countersigned, issued and
delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Warrant Agreement under which they are
to be issued.
(vii) If applicable, the shares of Common Stock
issuable upon conversion of any of the Preferred Shares
or Depositary Shares, or the exercise of Warrant
Securities, have been duly and validly authorized and
reserved for issuance upon such conversion or exercise
by all necessary corporate action on the part of the
Company and such shares, when issued upon such
conversion or exercise in accordance with the charter
of the Company, the Deposit Agreement, the Terms
Agreement, the Delayed Delivery Contract or the Warrant
Agreement, as the case may be, will be duly and validly
issued and will be fully paid and non-assessable, and
the issuance of such shares upon such conversion or
exercise will not be subject to preemptive or other
similar rights arising by operation of law or, to the
best of such counsel's knowledge, otherwise.
(viii) The applicable Warrant Agreement, if any, and
the applicable Deposit Agreement, if any, have been
duly authorized, executed and delivered by the Company,
and (assuming due authorization, execution and delivery
by the Warrant Agent in the case of the Warrant
Agreement, and the Depositary, in the case of the
Deposit Agreement) each constitutes a valid and legally
binding agreement of the Company enforceable in
accordance with its terms; and the Warrant Agreement,
if any, and the Deposit Agreement, if any, each
conforms in all material respects to all statements
relating thereto contained in the Prospectus.
(ix) If applicable, upon execution and delivery of
the Depositary Receipts pursuant to the terms of the
Deposit Agreement, the persons in whose names such
Depositary Receipts are registered will be entitled to
23
the rights specified therein and in the Deposit
Agreement.
(x) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any,
has been duly authorized, executed and delivered by the
Company.
(xi) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(xii) The Registration Statement and the
Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or
issue dates, comply as to form in all material respects
with the requirements for registration statements on
Form S-3 under the 1933 Act and the 1933 Act
Regulations; it being understood, however, that no
opinion need be rendered with respect to the financial
statements, schedules and other financial and
statistical data included or incorporated by reference
in the Registration Statement or the Prospectus; it
being understood, further, that in passing upon the
compliance as to form of the Registration Statement and
the Prospectus, such counsel may assume that the
statements made therein are correct and complete. If
applicable, the Rule 434 Prospectus conforms in all
material respects to the requirements of Rule 434 under
the 1933 Act Regulations.
(xiii) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and
other financial and statistical data included therein,
as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed as to form in
all material respects with the 1934 Act and the 1934
Act Regulations. In passing upon compliance as to form
of such documents, such counsel may assume that the
statements made therein are correct and complete.
(xiv) If applicable, the relative rights,
preferences, interests and powers of the Preferred
Shares or Depositary Shares, as the case may be, are as
set forth in the Articles Supplementary relating
thereto, and all such provisions are valid under the
24
Maryland General Corporation Law ("MGCL"); and, as
applicable, the form of certificate used to evidence
the Preferred Shares being represented by the
Depositary Shares and the form of certificate used to
evidence the related Depositary Receipts are in due and
proper form under the MGCL and comply with all
applicable statutory requirements under the MGCL.
(xv) The Underwritten Securities, the Warrant
Securities, and the shares of Common Stock issuable
upon conversion of the Preferred shares or Depository
shares, if applicable, conform in all material respects
to the statements relating thereto contained in the
Prospectus.
(xvi) No authorization, approval or consent of any
court or governmental authority or agency is required
that has not been obtained in connection with the
consummation by the Company of the transactions
contemplated by this Agreement, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or
the applicable Warrant Agreement, if any, except such
as may be required under the 1933 Act, 1934 Act and
state securities laws or real estate syndication laws.
(xvii)Neither the Company nor any of its
subsidiaries is required to be registered under the
1940 Act.
(xviii)Commencing with the Company's taxable year
beginning January 1, 1992, the Company has been
organized in conformity with the requirements for
qualification as a "real estate investment trust", and
its method of operation will enable it to meet the
requirements for qualification and taxation as a "real
estate investment trust" under the Code, provided that
such counsel's opinion as to this matter shall be
conditioned upon certain representations as to factual
matters made by the Company to such counsel as
described therein.
(xix) The statements set forth (a) in the Prospectus
under the caption "Certain Federal Income Tax
Considerations to the Company of its REIT Election" and
(b) in the Prospectus Supplement under the caption
"Certain Federal Income Tax Considerations", to the
extent such statements constitute matters of law,
summaries of legal matters, or legal conclusions, have
been reviewed by them and are accurate in all material
respects.
25
The opinions rendered in (vi), (viii) and (ix) of
subsection (b)(1) 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; and (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.
(2) The favorable opinion, dated as of Closing Time,
of Robert P. Shulman, Esq., counsel for the Company and KC
Holdings, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) To the best of his knowledge and information,
there are no legal or governmental proceedings pending
or threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of
which any of the property of the Company or its
subsidiaries is the subject which are not described in
the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the
aggregate, not material.
(ii) To the best of his knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required
to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits
to the Registration Statement other than those
described or referred to therein or filed as exhibits
thereto, the descriptions thereof or references thereto
are correct, and, to the best of his knowledge and
information, no default exists in the due performance
or observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, (except as otherwise described in
the Prospectus) loan agreement, note, lease or other
instrument so described, referred to or filed which
would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or
business prospects of the Company and its subsidiaries
considered as one enterprise or of KC Holdings and its
subsidiaries considered as one enterprise.
26
(iii) To the best of his knowledge and information,
the execution and delivery of this Agreement, the
applicable Terms Agreement, the applicable Deposit
Agreement, if any, or the applicable Warrant Agreement,
if any, and the consummation of the transactions
contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder
will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries
pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in
violation of the provisions of the charter or by-laws
of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
(iv) Each of the partnership and joint venture
agreements to which the Company or any of its
subsidiaries is a party, and which relates to real
property described in the Prospectus, has been duly
authorized, executed and delivered by such applicable
party and constitutes the valid agreement thereof,
enforceable in accordance with its terms, except as
limited by bankruptcy and general equitable principles
and the execution, delivery and performance of any of
such agreements did not, at the time of execution and
delivery, and does not constitute a breach of, or
default under, the charter or by-laws of such party or
any material contract, lease or other instrument to
which such party is a party or by which its properties
may be bound or any law, administrative regulation or
administrative or court order or decree.
(v) The Company, KC Holdings, their respective
subsidiaries and their Related Entities hold title to
the properties and assets described in the Prospectus,
subject only to the liens and encumbrances securing
indebtedness reflected in the Prospectus and such other
liens, encumbrances and matters of record which do not
materially and adversely affect the value of such
properties and assets considered in the aggregate.
(vi) Each Significant Subsidiary of the Company
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
27
jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties
and to conduct its business as described in the
Prospectus and, to the best of his knowledge and
information, is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which it owns or leases real property,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise; and all of the issued and
outstanding capital stock of each such Significant
Subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and, to the best of
their knowledge and information, is owned by the
Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for security
interests granted in respect of indebtedness of the
Company or any of its subsidiaries and described in the
Prospectus.
(3) The favorable opinion, dated as of Closing Time,
of Brown & Wood, counsel for the Underwriters, with respect
to the matters set forth in (i), (v) to (xii), inclusive,
and (xv) of subsection (b)(1) of this Section.
(4) In giving their opinions required by subsections
(b)(1), (b)(2) and (b)(3), respectively, of this Section,
Latham & Watkins, Robert P. Shulman, Esq. and Brown & Wood
shall each additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement or any amendment thereto, at the time
it became effective (or, if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed by
the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the
time such amendment becomes effective or at the time of the
most recent filing of such Annual Report, as the case may
be) or at the Representation Date, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, at the
Representation Date or at Closing Time, included or includes
an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
28
which they were made, not misleading. In giving their
opinions, Latham & Watkins, Robert P. Shulman, Esq. and
Brown & Wood may rely, (1) as to matters involving the laws
of the State of Maryland the opinion of Ballard Spahr
Andrews & Ingersoll (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and
substance satisfactory to counsel for the Underwriters, (2)
as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for
the Company, and (3) as to the qualification and good
standing of the Company or any of its subsidiaries to do
business in any state or jurisdiction, upon certificates of
appropriate government officials or opinions of counsel in
such jurisdictions.
(c) At Closing Time, there shall not have been, since the
date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; and
you shall have received a certificate of the Chief Executive
Officer, the President or Vice President and the chief financial
officer or chief accounting officer of the Company, dated as of
such Closing Time, to the effect that (i) there has been no such
material adverse change and (ii) the representations and
warranties in Section 1 are true and correct with the same force
and effect as though such Closing Time were a Representation
Date. As used in this Section 5(c), the term "Prospectus" means
the Prospectus in the form first used by the Underwriters to
confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms
Agreement, you shall have received from Coopers & Lybrand L.L.P.
a letter dated such date, in form and substance satisfactory to
you, to the effect that (i) they are independent accountants with
respect to the Company within the meaning of the 1933 Act and the
1933 Act Regulations thereunder; (ii) it is their opinion that
the consolidated financial statements and financial statement
schedules of the Company and the historical summaries of revenue
and certain operating expenses for the properties related thereto
included or incorporated by reference in the Registration
Statement and the Prospectus and audited by them and covered by
their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the
latest available unaudited interim consolidated financial
29
statements of the Company, a reading of the minute books of the
Company, inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, and on the basis of such limited review and procedures
nothing came to their attention that caused them to believe that
(A) any material modifications should be made to the unaudited
financial statements and financial statement schedules of the
Company included or incorporated by reference in the Registration
Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles, (B) the unaudited
financial statements and financial statement schedules of the
Company included or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the 1934 Act as it relates to Form 10-Q and the 1934 Act
Regulations, (C) the unaudited operating data and balance sheet
data of the Company in the Registration Statement and the
Prospectus under the caption "Selected Consolidated Financial
Data" were not determined on a basis substantially consistent
with that used in determining the corresponding amounts in the
audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, or
(D) at a specified date not more than three days prior to the
date of the applicable Terms Agreement, there has been any change
in the capital stock of the Company or in the consolidated long
term debt of the Company or any decrease in the net assets of the
Company, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus or, during the
period from the date of the most recent consolidated statement of
operations included or incorporated by reference in the
Registration Statement and the Prospectus to a specified date not
more that three days prior to the date of the applicable Terms
Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated
revenues, or decrease in net income or net income per share of
the Company, except in all instances for changes, increases or
decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the
audit referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and the Prospectus and which are specified by you, and
have found such amounts, percentages and financial information to
be in agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such
letter.
30
(e) At Closing Time, you shall have received from Coopers &
Lybrand L.L.P. a letter dated as of Closing Time to the effect
that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the
"specified date" referred to shall be a date not more than three
days prior to such Closing Time.
(f) At the time of the execution of the applicable Terms
Agreement, you shall have received a letter from Hays & Company,
dated such date, in form and substance satisfactory to the
Underwriters, to the effect that (i) they are independent
accountants with respect to the Company within the meaning of the
1933 Act and the 1933 Act Regulations and (ii) it is their
opinion that the historical summaries of revenue and certain
operating expenses for the properties related thereto included in
each of the Company's Form 8-Ks and Form 8-K/As incorporated by
reference in the Registration Statement and the Prospectus and
audited by them and covered by their opinions therein comply in
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations.
(g) At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Underwritten Securities and the
Warrant Securities, if any, as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the
Underwritten Securities and the Warrant Securities, if any, as
herein contemplated shall be satisfactory in form and substance
to you and counsel for the Underwriters.
(h) In the event the Underwriters exercise their option
provided in a Terms Agreement as set forth in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company
hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chief Executive Officer, the President or the chief
financial or chief accounting officer of the Company, in
their capacities as such, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of Delivery.
31
(2) The favorable opinion of Latham & Watkins, counsel
for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by
Sections 5(b)(1) and 5(b)(4) hereof.
(3) The favorable opinion of Robert P. Shulman, Esq.,
counsel for the Company and KC Holdings, in form and
substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as
the opinion required by Sections 5(b)(2) and 5(b)(4) hereof.
(4) The favorable opinion of Brown & Wood, counsel for
the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as
the opinion required by Sections 5(b)(3) and 5(b)(4) hereof.
(5) A letter from Coopers & Lybrand L.L.P., in form
and substance satisfactory to you and dated such Date of
Delivery, substantially the same in scope and substance as
the letter furnished to you pursuant to Section 5(d) hereof,
except that the "specified date" in the letter furnished
pursuant to this Section 5(h)(5) shall be a date not more
than three days prior to such Date of Delivery.
(6) A letter from Hays & Company, in form and
substance satisfactory to you and dated such Date of
Delivery, reaffirming the statements made in the letter
furnished to you pursuant to Section 5(f) hereof.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement may be terminated by you by notice to
the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any un-
true statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), including the information deemed to be
part of the Registration Statement pursuant to Rule 430A(b)
32
or Rule 434 of the 1933 Act Regulations, if applicable, or
the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material
fact included in the Prospectus (or any amendment or
supplement thereto) or the omission, or alleged omission
therefrom, of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(2) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission referred to
in subsection (1) above, or any such alleged untrue
statement or omission, if such settlement is effected with
the written consent of the Company; and
(3) against any and all expense whatsoever (including,
the fees and disbursements of counsel chosen by you), as
incurred, which was reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any
amendment or supplement thereto); provided further, that with
respect to any preliminary prospectus, such indemnity shall not
inure to the benefit of any Underwriter (or the benefit of any
person controlling such Underwriter) if the person asserting any
such losses, liabilities, claims, damages or expenses purchased
the Underwritten Securities which are the subject thereof from
such Underwriter and if such person was not sent or given a copy
of the Prospectus at or prior to confirmation of the sale of such
Underwritten Securities to such person in any case where such
sending or giving is required by the 1933 Act and the untrue
statement or omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus and the
33
Prospectus was delivered to such Underwriter a reasonable amount
of time prior to the date of delivery of such confirmation.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who
signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933
Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability which it
may have otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the
defense of such action. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with
any other indemnifying parties receiving such notice, may assume
the defense of such action with counsel chosen by it and approved
by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which
are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense
of such action, the indemnifying parties shall not be liable for
any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event
shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations
or circumstances.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters with
34
respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such
proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus in respect
of such offering bears to the initial public offering price
appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. Notwith-
standing the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by
which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay in respect of such losses, liabilities, claims,
damages and expenses. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement or the applicable Terms Agreement, or
contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of this Agreement or the
applicable Terms Agreement, or investigation made by or on behalf
of any Underwriter or any controlling person, or by or on behalf
of the Company and shall survive delivery of and payment for the
Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement
(excluding the applicable Terms Agreement) may be terminated for
any reason at any time by the Company or by you upon the giving
of 30 days' written notice of such termination to the other party
hereto.
(b) You may also terminate the applicable Terms Agreement,
by notice to the Company, at any time at or prior to the Closing
Time if (i) there has been, since the date of such Terms
35
Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any
material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities or other
national or international calamity or crisis, the effect of which
is such as to make it, in your judgment, impracticable to market
the Underwritten Securities or enforce contracts for the sale of
the Underwritten Securities, or (iii) trading in any of the
securities of the Company has been suspended by the Commission or
the New York Stock Exchange, or if trading generally on either
the New York Stock Exchange or the American Stock Exchange has
been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or Maryland
authorities, or (iv) Preferred Shares or Depositary Shares are
being offered and the rating assigned by any nationally
recognized statistical rating organization to any preferred stock
of the Company as of the date of the applicable Terms Agreement
shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any
preferred stock of the Company on what is commonly termed a
"watch list" for possible downgrading. As used in this Section
9(b), the term "Prospectus" means the Prospectus in the form
first used by the Underwriters to confirm sales of the
Underwritten Securities.
(c) In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of
Underwritten Securities shall remain in effect so long as any
Underwriter owns any such Underwritten Securities purchased from
the Company pursuant to the applicable Terms Agreement and (y)
the covenant set forth in Section 3(h) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections
8 and 13 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time to
purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities
36
in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not
exceed 10% of the total number of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10%
of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement
shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default
under this Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the
Company shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
c/o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, World Financial Center, North Tower, New York, New
York 10281-1305, attention of Richard B. Saltzman, Managing
Director; and notices to the Company shall be directed to it at
3333 New Hyde Park Road, New Hyde Park, New York 11042-0020,
attention of Milton Cooper, Chairman of the Board.
Section 12. Parties. This Agreement and the applicable
Terms Agreement shall inure to the benefit of and be binding upon
you and the Company and any Underwriter who becomes a party to
such Terms Agreement, and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable Terms
Agreement is intended or shall be construed to give any person,
firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or such Terms Agreement or any provision herein or
37
therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors and
said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified
times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the
applicable Terms Agreement may be executed in one or more
counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.
38
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counter-
part hereof, whereupon this instrument, along with all counter-
parts, will become a binding agreement between you and the
Company in accordance with its terms.
Very truly yours,
KIMCO REALTY CORPORATION
By: _______________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ____________________________
39
Exhibit A
KIMCO REALTY CORPORATION
(a Maryland Corporation)
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: Kimco Realty Corporation
1044 Northern Boulevard
Roslyn, New York 11576
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Representative") understand that Kimco Realty
Corporation, a Maryland corporation (the "Company"), proposes to
issue and sell the number of shares of its [Common Stock, $.01
par value (the "Common Stock")] [ Warrants (the
"Common Stock Warrants") to purchase shares of Common
Stock (the "Warrant Securities")] [Preferred Stock, $1.00 par
value (the "Preferred Shares")] [interests in Preferred Shares in
the form of depositary shares (the "Depositary
Shares") represented by depositary receipts (the "Depositary
Receipts")] (such [Common Stock] [Common Stock Warrants]
[Preferred Shares] [Depositary Shares and Depositary Receipts]
being collectively hereinafter] [also] referred to as the
"Underwritten Securities"). Subject to the terms and conditions
set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and
not jointly, the respective numbers of [Initial Underwritten
Securities (as defined in the Underwriting Agreement referenced
to below)] [and] [Common Stock Warrants] set forth below opposite
their respective names, and a proportionate share of Option
Securities (as defined in the Underwriting Agreement referred to
below) to the extent any are purchased) at the purchase price set
forth below.
A-1
Number of Shares Number of
of Initial Common Stock
Underwriter Underwritten Securities Warrants
__________ __________
Total $ $
__________ __________
__________ __________
The Underwritten Securities shall have the following terms:
[Common Stock] [Preferred Shares] [Depositary Shares]
Title of Securities:
Number of Shares:
[If applicable, fractional amount of Preferred Shares represented
by each Depositary Share:]
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated
dividends, if any, from , 19 .]
Purchase price per share: $ [, plus accumulated dividends,
if any, from , 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee: ]
Additional co-managers, if any:
Other terms:
Closing date and location:
Common Stock Warrants
Number of Common Stock Warrants to be issued:
Warrant Agent:
Issuable jointly with Common Stock: [Yes] [No]
[Number of Common Stock Warrants issued
with each share of
Common Stock:]
[Detachable data:]
Date from which Common Stock Warrants are exercisable:
Date on which Common Stock Warrants expire:
Exercise price(s) of Common Stock Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Common Stock Warrant:
A-2
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
All the provisions contained in the document attached as
Annex A hereto entitled "Kimco Realty Corporation-Common Stock,
Warrants to Purchase Common Stock, Preferred Stock and Depositary
Shares-Underwriting Agreement" are hereby incorporated by
reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Please accept this offer no later than o'clock P.M. (New
York City time) on by signing a copy of this Terms
Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By _________________________
Acting on behalf of itself and
the other named Underwriters.
Accepted:
KIMCO REALTY CORPORATION
By _________________________
Name:
Title:
A-3
Exhibit B
KIMCO REALTY CORPORATION
(a Maryland corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
, 199_
Kimco Realty Corporation
1044 Northern Boulevard
Roslyn, New York 11576
Attention: Chairman of the Board of Directors
Dear Sirs:
The undersigned hereby agrees to purchase from Kimco Realty
Corporation (the "Company"), and the Company agrees to sell to
the undersigned on __________, 19__ (the "Delivery Date"),
of the Company's [insert title of security] (the "Securities"),
offered by the Company's Prospectus dated __________, 19__, as
supplemented by its Prospectus Supplement dated ___________,
19__, receipt of which is hereby acknowledged at a purchase price
of [$__________] [and, $__________ per Warrant, respectively] to
the Delivery Date, and on the further terms and conditions set
forth in this contract.
Payment for the Securities which the undersigned has agreed
to purchase on the Delivery Date shall be made to the Company or
its order by certified or official bank check in New York
Clearing House funds at the office of
, on the Delivery Date, upon delivery
to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date shall be subject
only to the conditions that (1) the purchase of Securities to be
B-1
made by the undersigned shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before
__________, 19__, shall have sold to the Underwriters of the
Securities (the "Underwriters") such principal amount of the
Securities as is to be sold to them pursuant to the Terms
Agreement dated __________, 19__ between the Company and the
Underwriters. The obligation of the undersigned to take delivery
of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments
for Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters,
the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a
copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the Company that all necessary corporate action for
the due execution and delivery of this contract and the payment
for and purchase of the Securities has been taken by it and no
further authorization or approval of any governmental or other
regulatory authority is required for such execution, delivery,
payment or purchase, and that, upon acceptance hereof by the
Company and mailing or delivery of a copy as provided below, this
contract will constitute a valid and binding agreement of the
undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon
the parties hereto and their respective successors, but will not
be assignable by either party hereto without the written consent
of the other.
It is understood that the Company will not accept Delayed
Delivery Contracts for a number of Securities in excess of
________ and that the acceptance of any Delayed Delivery Contract
is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address
set forth below. This will become a binding contract between the
Company and the undersigned when such copy is so mailed or
delivered.
B-2
This Agreement shall be governed by the laws of the State of
New York.
Yours very truly,
_____________________________
(Name of Purchaser)
By___________________________
(Title)
_____________________________
_____________________________
(Address)
Accepted as of the date first above written.
KIMCO REALTY CORPORATION
By___________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may
be discussed are as follows: (Please print.)
Telephone No.
(including
Name Area Code)
---- -------------
B-3
Exhibit 1.H
<TABLE>
<S> <C>
NUMBER SHARES
KR _______ _______
COMMON COMMON
THIS CERTIFICATE IS CUSIP 49446R 10 9
TRANSFERABLE IN INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
BOSTON, MA OR NEW YORK, NY KIMCO REALTY CORPORATION
This Certifies that SEE REVERSE FOR
CERTAIN DEFINITIONS
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $.01 EACH OF THE COMMON STOCK OF
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Kimco Realty Corporation, transferable on the books of the Corporation by the
holder in person or by duly authorized attorney on surrender of this
certificate properly endorsed. This certificate and the shares represented
hereby are issued and shall be subject to all the provisions of the
Certificate of Incorporation and Amendments thereto of the Corporation (copies
of which are on file with the Transfer Agent), to which provisions the holder by
acceptance hereof assents. This certificates is not valid until countersigned
by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
STATE OF INCORPORATION HAS BEEN CHANGED TO MARYLAND
KIMCO REALTY CORPORATION
CORPORATE Dated:
SEAL 1973
DELAWARE /s/ Robert Schulman /s/ illegible
SECRETARY PRESIDENT
(Copyright) SECURITY-COLUMBIAN UNITED STATES BANKNOTE COMPANY
AMERICAN BANK NOTE COMPANY
KIMCO REALTY CORPORATION
The shares of Common Stock represented by this certificate are
subject to restrictions on transfer for the purpose of the corporation's
maintenance of its status as a Real Estate Investment Trust under the
Internal Revenue Code of 1986, as amended. No person may Beneficially
Own shares of Common Stock in excess of 2.0% (or such greater percentage
as may be determined by the Board of Directors of the corporation) of
the outstanding Common Equity Stock of the corporation (unless such
Person is an Existing Holder) and no Person may Constructively Own
shares of Common Stock in excess of 9.8% of the outstanding Common
Equity Stock of the corporation. Any Person who attempts to
Beneficially Own or Constructively Own shares of Common Stock in excess
of the above limitations must immediately notify the corporation. All
capitalized terms in this legend have the meanings defined in the
corporation's certificate of incorporation, a copy of which, including
the restrictions on transfer, will be sent without charge to each
stockholder who so requests. If the restrictions on transfer are
violated, the shares of Common Stock represented hereby may be
automatically exchanged for shares of Excess Stock which will be held in
trust by the corporation.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. ANY SUCH REQUEST MAY BE MADE TO THE SECRETARY OF THE
CORPORATION.
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
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<S> <C> <C> <C>
TEN COM -as tenants in common UNIF GIFT MIN ACT- .......Custodian.......
TEN ENT -as tenants by the entireties (Cust) (Minor)
JT TEN -as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants
in common.
Act............................
(State)
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Additional abbreviations may also be used though not in the above list.
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
For value received, ________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/ / / /-/ / /-/ / / / /
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________Shares of the
capital stock represented by the within Certificate and do hereby irrevocably
constitute and appoint __________________________________
___________________________________________________________________________
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated, ______________________
_____________________________
