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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
EQUITY RESIDENTIAL PROPERTIES TRUST
(Exact Name of Registrant as Specified in its Charter)
Maryland 13-3877868
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
------------------- ------------------------------
Series H Cumulative Convertible New York Stock Exchange
Preferred Shares of Beneficial
Interest
Series J Cumulative Convertible New York Stock Exchange
Preferred Shares of Beneficial
Interest
Series L Cumulative Redeemable New York Stock Exchange
Preferred Shares of Beneficial
Interest
Securities to be registered pursuant to Section 12(g) of the Act:
None
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Item 1. Description of Registrant's Securities to be Registered.
The Description of the Series H Cumulative Convertible Preferred
Shares of Beneficial Interest ("Series H Preferred"), to be registered
hereunder, set forth under the caption "Description of Series A
Preferred Stock" in the final prospectus of Merry Land & Investment
Company, Inc. ("Merry Land") (filed as part of Registration Statement
No. 33-62876) pursuant to Rule 424(b) on May 17, 1993 is incorporated
herein by reference and is deemed to be attached as Exhibit 99.1
hereto. The Series H Preferred is being issued in connection with the
merger of the Registrant and Merry Land.
The Description of the Series J Cumulative Convertible Preferred
Shares of Beneficial Interest ("Series J Preferred"), to be registered
hereunder, set forth under the caption "Description of Series C
Preferred Stock" in the final prospectus of Merry Land (filed as part
of Registration Statement No. 33-57453) pursuant to Rule 424(b) on
March 8, 1995 is incorporated herein by reference and is deemed to be
attached as Exhibit 99.2 hereto. The Series J Preferred is being
issued in connection with the merger of the Registrant and Merry Land.
The Description of the Series L Cumulative Redeemable Preferred Shares
of Beneficial Interest ("Series L Preferred"), to be registered
hereunder, set forth under the caption "Description of Series E
Preferred Stock" in the final prospectus of Merry Land (filed as part
of Registration Statement No. 33-65067) pursuant to Rule 424(b) on
February 6, 1998 is incorporated herein by reference and is deemed to
be attached as Exhibit 99.3 hereto. The Series L Preferred is being
issued in connection with the merger of the Registrant and Merry Land.
Item 2. Exhibits.
Exhibit
Number Description of Exhibit
- - ------- ----------------------
1.1 Form S-4 Registration Statement of the Registrant, declared effective
on September 9, 1998 by the Securities and Exchange Commission, File
No. 333-61449, is incorporated herein by reference.
4.1 Second Amended and Restated Declaration of Trust of Equity Residential
Properties Trust (filed as Exhibit 3.1 to the Registrant's Current
Report on Form 8-K dated May 30, 1997, filed with the Securities and
Exchange Commission on June 5, 1997, and is incorporated herein by
reference).
4.2 Second Amended and Restated Bylaws of Equity Residential Properties
Trust (filed as Exhibit 3.2 to the Registrant's Current Report on Form
8-K dated May 30, 1997, filed with the Securities and Exchange
Commission on June 5, 1997, and is incorporated herein by reference).
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4.3 Form of Articles Supplementary to the Second Amended and Restated
Declaration of Trust of Equity Residential Properties Trust.
5.1 Form of Specimen Series H Cumulative Convertible Preferred Share
Certificate.
5.2 Form of Specimen Series J Cumulative Convertible Preferred Share
Certificate.
5.3 Form of Specimen Series L Cumulative Redeemable Preferred Share
Certificate.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: October 16, 1998
EQUITY RESIDENTIAL PROPERTIES TRUST
(Registrant)
By: /s/ David J. Neithercut
-----------------------------------
David J. Neithercut
Executive Vice President and Chief
Financial Officer
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EQUITY RESIDENTIAL PROPERTIES TRUST
ARTICLES SUPPLEMENTARY TO THE
SECOND AMENDED AND RESTATED DECLARATION OF TRUST
Equity Residential Properties Trust, a Maryland real estate investment
trust (the "Trust"), hereby certifies to the State Department of Assessments and
Taxation of Maryland, pursuant to section 8-203(b) of the Corporations and
Associations Article of the Annotated Code of Maryland, that:
FIRST: Pursuant to the authority granted by the Second Amended and
Restated Declaration of Trust of the Trust (the "Declaration of Trust"), on July
8, 1998, the Board of Trustees adopted a resolution designating and classifying
164,951 preferred shares of beneficial interest of the Trust, $.01 par value per
share (the "Preferred Shares"), as Series H Cumulative Convertible Preferred
Shares of Beneficial Interest ($.01 Par Value Per Share) (Liquidation Preference
$25.00 Per Share) (the "Series H Preferred Shares"), 4,000,000 Preferred Shares
as Series I Cumulative Convertible Preferred Shares of Beneficial Interest ($.01
Par Value Per Share) (Liquidation Preference $25.00 Per Share) (the "Series I
Preferred Shares"), 4,599,400 Preferred Shares as Series J Cumulative
Convertible Preferred Shares of Beneficial Interest ($.01 Par Value Per Share)
(Liquidation Preference $25.00 Per Share) (the "Series J Preferred Shares"),
1,000,000 Preferred Shares as Series K Cumulative Redeemable Preferred Shares of
Beneficial Interest ($.01 Par Value Per Share) (Liquidation Preference $50.00
Per Share) (the "Series K Preferred Shares") and 4,000,000 Preferred Shares as
Series L Cumulative Redeemable Preferred Shares of Beneficial Interest ($.01 Par
Value Per Share) (Liquidation Preference $25.00 Per Share) (the "Series L
Preferred Shares").
SECOND: The following is a description of the Series H Preferred Shares,
the Series I Preferred Shares, the Series J Preferred Shares, the Series K
Preferred Shares and the Series L Preferred Shares, including the preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption thereof, which, upon any restatement of the Declaration of Trust, may
be made a part of Article XIII of the Declaration of Trust with any appropriate
changes in the enumeration or lettering of any section or subsections thereof:
A. SERIES H PREFERRED SHARES
Section 1. NUMBER OF SHARES AND DESIGNATION. This series of
Preferred Shares shall be designated as Series H Cumulative Convertible
Preferred Shares of Beneficial Interest ($.01 Par Value Per Share)
(Liquidation Preference $25.00 Per Share) (the "Series H Preferred Shares")
and 164,951 shall be the number of shares constituting such series.
Section 2. DEFINITIONS. For purposes of the Series H Preferred
Shares, the following terms shall have the meanings indicated:
"Act" shall have the meaning set forth in paragraph (g) of Section 5
hereof.
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"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee of the Board of Trustees authorized by such Board of Trustees to
perform any of its responsibilities with respect to the Series H Preferred
Shares.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in Chicago,
Illinois or New York, New York are not required to be open.
"Call Date" shall have the meaning set forth in paragraph (c) of
Section 5 hereof.
"Common Shares" shall mean the common shares of beneficial interest of
the Trust, $.01 par value per share.
"Constituent Person" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Conversion Price" shall mean the conversion price per Common Share
for which a Series H Preferred Share is convertible, as such Conversion Price
may be adjusted pursuant to Section 7 hereof. The initial conversion price
shall be $34.53 (equivalent to a conversion rate of .7240 Common Shares for each
Series H Preferred Share).
"Current Market Price" of publicly traded Common Shares or any other
class of shares of beneficial interest or other security of the Trust or any
other issuer for any day shall mean the last reported sales price, regular way
on such day, or, if no sale takes place on such day, the average of the reported
closing bid and asked prices on such day, regular way, in either case as
reported on the New York Stock Exchange ("NYSE") or, if such security is not
listed or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if not
listed or admitted for trading on any national securities exchange, on the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if such security is not quoted on
such National Market System, the average of the closing bid and asked prices on
such day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for such security on such day shall not have been reported through
NASDAQ, the average of the bid and asked prices on such day as furnished by any
NYSE member firm regularly making a market in such security selected for such
purpose by the Chief Executive Officer or the Board of Trustees.
"Dividend Payment Date" shall mean the last calendar day of March,
June, September and December, in each year, commencing on December 31, 1998;
PROVIDED, HOWEVER, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period.
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"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Share during the five (5) consecutive Trading Days selected
by the Trust commencing not more than 20 Trading Days before, and ending not
later than, the earlier of the day in question and the day before the "ex date"
with respect to the issuance or distribution requiring such computation. The
term "ex date," when used with respect to any issuance or distribution, means
the first day on which the Common Shares trade regular way, without the right to
receive such issuance or distribution, on the exchange or in the market, as the
case may be, used to determine that day's Current Market Price.
"Issue Date" shall mean the first day on which Series H Preferred
Shares are issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of shares of the Trust over which the Series H Preferred Shares and the
Parity Shares have preference or priority in the payment of dividends or in the
distribution of assets on any liquidation, dissolution or winding up of the
Trust.
"Non-Electing Share" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Parity Shares" shall have the meaning set forth in paragraph (b) of
Section 8 hereof.
"Permitted Common Share Cash Distributions" means cash dividends and
distributions paid after December 31, 1997 not in excess of the Trust's
cumulative undistributed net earnings at December 31, 1997, plus the cumulative
amount of funds from operations, as determined by the Board of Trustees on a
basis consistent with the financial reporting practices of the Trust, after
December 31, 1997, minus the cumulative amount of dividends accrued or paid on
the Series H Preferred Shares or any other class of Preferred Shares after the
date of these Articles Supplementary.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
"Press Release" shall have the meaning set forth in paragraph (b) of
Section 5 hereof.
"Securities" shall have the meaning set forth in paragraph (d)(iii) of
Section 7 hereof.
"Series H Preferred Shares" shall have the meaning set forth in
Section 1 hereof.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Trust in its accounting ledgers
of any accounting or bookkeeping entry which indicates, pursuant to an
authorization of dividends or other distribution by the Board of Trustees, the
allocation of funds to be so paid on any series or class of shares of
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beneficial interest of the Trust; PROVIDED, HOWEVER, that if any funds for any
class or series of Junior Shares or any class or series of shares ranking on a
parity with the Series H Preferred Shares as to the payment of dividends are
placed in a separate account of the Trust or delivered to a disbursing, paying
or other similar agent, then "set apart for payment" with respect to the
Series H Preferred Shares shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which such
securities are listed or admitted, or if not listed or admitted for trading on
any national securities exchange, on the National Market System of NASDAQ, or if
such securities are not quoted on such National Market System, in the applicable
securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
"Transfer Agent" means Boston Equiserve LP, Boston, Massachusetts, or
such other agent or agents of the Trust as may be designated by the Board of
Trustees or their designee as the transfer agent for the Series H Preferred
Shares.
"Voting Preferred Shares" shall have the meaning set forth in
Section 9 hereof.
Section 3. DIVIDENDS. (a) The holders of Series H Preferred Shares
shall be entitled to receive, when, as and if authorized by the Board of
Trustees out of funds legally available for that purpose, dividends payable in
cash at the rate per annum of $1.75 per Series H Preferred Share. Such dividends
shall be cumulative from October 1, 1998, whether or not in any Dividend Period
or Periods there shall be funds of the Trust legally available for the payment
of such dividends, and shall be payable quarterly, when, as and if authorized by
the Board of Trustees, in arrears on Dividend Payment Dates, commencing on the
first Dividend Payment Date after the Issue Date. Each such dividend shall be
payable in arrears to the holders of record of Series H Preferred Shares, as
they appear on the share records of the Trust at the close of business on such
record dates, not more than 60 days preceding such Dividend Payment Dates
thereof, as shall be fixed by the Board of Trustees. Accrued and unpaid
dividends for any past Dividend Periods may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to holders of record on
such date, not exceeding 45 days preceding the payment date thereof, as may be
fixed by the Board of Trustees.
(b) The amount of dividends payable for each full Dividend Period for
the Series H Preferred Shares shall be computed by dividing the annual dividend
rate by four. The amount of dividends payable for any period shorter or longer
than a full Dividend Period on the Series H Preferred Shares shall be computed
on the basis of twelve 30-day months and a 360-day year. Holders of Series H
Preferred Shares shall not be entitled to any dividends, whether payable in
cash, property or shares, in excess of cumulative dividends, as herein provided,
on the Series H Preferred Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on the
Series H Preferred Shares that may be in arrears.
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(c) So long as any Series H Preferred Shares are outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity
Shares for any period unless 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 Series H Preferred Shares for
all Dividend Periods terminating on or prior to the Dividend Payment Date on
such class or series of Parity Shares. When dividends are not paid in full or a
sum sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon the Series H Preferred Shares and all dividends declared upon any
other class or series of Parity Shares shall be declared ratably in proportion
to the respective amounts of dividends accumulated and unpaid on the Series H
Preferred Shares and accumulated and unpaid on such Parity Shares.
(d) So long as any Series H Preferred Shares are outstanding, no
dividends (other than dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase, Junior Shares), shall be
declared or paid or set apart for payment or other distribution declared or made
upon Junior Shares, nor shall Junior Shares be redeemed, purchased or otherwise
acquired (other than a redemption, purchase or other acquisition of Common
Shares made for purposes of an employee incentive or benefit plan of the Trust
or any subsidiary) 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 Junior
Shares) by the Trust, directly or indirectly (except by conversion into or
exchange for Junior Shares), unless in each case (i) the full cumulative
dividends on all outstanding Series H Preferred Shares and any other Parity
Shares of the Trust shall have been paid or set apart for payment for all past
Dividend Periods with respect to the Series H Preferred Shares and all past
dividend periods with respect to such Parity Shares and (ii) sufficient funds
shall have been paid or set apart for the payment of the dividend for the
current Dividend Period with respect to the Series H Preferred Shares and the
current dividend period with respect to such Parity Shares.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the Trust, whether voluntary or
involuntary, before any payment or distribution of the assets of the Trust
(whether capital or surplus) shall be made to or set apart for the holders of
Junior Shares, the holders of the Series H Preferred Shares shall be entitled to
receive Twenty-five Dollars ($25.00) per Series H Preferred Share plus an amount
equal to all dividends (whether or not earned or declared) accrued and unpaid
thereon to the date of final distribution to such holders; but such holders
shall not be entitled to any further payment. If, upon any liquidation,
dissolution or winding up of the Trust, the assets of the Trust, or proceeds
thereof, distributable among the holders of the Series H Preferred Shares shall
be insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Shares, then such
assets, or the proceeds thereof, shall be distributed among the holders of
Series H Preferred Shares and any such other Parity Shares ratably in accordance
with the respective amounts that would be payable on such Series H Preferred
Shares and any such other Parity Shares if all amounts payable thereon were paid
in full. For the purposes of this Section 4, (i) a consolidation or merger of
the Trust with one or more entities, (ii) a sale or transfer of all or
substantially all of the Trust's assets, or (iii) a statutory share exchange
shall not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Trust.
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(b) Subject to the rights of the holders of shares of any series or
class or classes of shares ranking on a parity with or prior to the Series H
Preferred Shares upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Trust, after payment shall have
been made in full to the holders of the Series H Preferred Shares, as provided
in this Section 4, any other series or class or classes of Junior Shares shall,
subject to the respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets remaining to be paid or distributed, and
the holders of the Series H Preferred Shares shall not be entitled to share
therein.
Section 5. REDEMPTION AT THE OPTION OF THE TRUST.
(a) The Trust, at its option, may redeem the Series H Preferred
Shares in whole or in part, as set forth herein, subject to the provisions
described below.
(b) The Series H Preferred Shares may be redeemed, in whole or in
part, at the option of the Trust, at any time, only if for 20 Trading Days,
within any period of 30 consecutive Trading Days, including the last Trading Day
of such period, the Current Market Price of the Common Shares on each of such 20
Trading Days equals or exceeds the Conversion Price in effect on such Trading
Day. In order to exercise its redemption option, the Trust must issue a press
release announcing the redemption (the "Press Release") prior to the opening of
business on the second Trading Day after the condition in the preceding sentence
has, from time to time, been met. The Press Release shall announce the
redemption and set forth the number of Series H Preferred Shares which the Trust
intends to redeem. The Call Date shall be selected by the Trust, shall be
specified in the notice of redemption and shall be not less than 30 days or more
than 60 days after the date on which the Trust issues the Press Release.
(c) Upon redemption of Series H Preferred Shares by the Trust on the
date specified in the notice to holders required under subparagraph (e) of this
Section 5 (the "Call Date"), each Series H Preferred Share so redeemed shall be
converted into a number of Common Shares equal to the liquidation preference
(excluding any accrued and unpaid dividends) of the Series H Preferred Shares
being redeemed divided by the Conversion Price as of the opening of business on
the Call Date.
Upon any redemption of Series H Preferred Shares, the Trust shall pay
any accrued and unpaid dividends in arrears for any Dividend Period ending on or
prior to the Call Date. If the Call Date falls after a dividend payment record
date and prior to the corresponding Dividend Payment Date, then each holder of
Series H Preferred Shares at the close of business on such dividend payment
record date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such
shares before such Dividend Payment Date. Except as provided above, the Trust
shall make no payment or allowance for unpaid dividends, whether or not in
arrears, on Series H Preferred Shares called for redemption or on the Common
Shares issued upon such redemption.
(d) If full cumulative dividends on the Series H Preferred Shares and
any other class or series of Parity Shares of the Trust have not been paid or
declared and set apart for payment, the Series H Preferred Shares may not be
redeemed in part and the Trust may not
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purchase or acquire Series H Preferred Shares, otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of Series H
Preferred Shares.
(e) If the Trust shall redeem Series H Preferred Shares pursuant to
paragraph (a) of this Section 5, notice of such redemption shall be given not
more than four Business Days after the date on which the Trust issues the Press
Release to each holder of record of the shares to be redeemed. Such notice
shall be provided by first class mail, postage prepaid, at such holder's address
as the same appears on the share records of the Trust, or by publication in The
Wall Street Journal or The New York Times, or if neither such newspaper is then
being published, any other daily newspaper of national circulation. If the
Trust elects to provide such notice by publication, it shall also promptly mail
notice of such redemption to the holders of the Series H Preferred Shares to be
redeemed. Neither the failure to mail any notice required by this paragraph
(e), nor any defect therein or in the mailing thereof, to any particular holder,
shall affect the sufficiency of the notice or the validity of the proceedings
for redemption with respect to the other holders. Any notice which was mailed
in the manner herein provided shall be conclusively presumed to have been duly
given on the date mailed whether or not the holder receives the notice. Each
such mailed or published notice shall state, as appropriate: (1) the Call Date;
(2) the number of Series H Preferred Shares to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder; (3) the number of Common Shares to be issued
with respect to each Series H Preferred Share; (4) the place or places at which
certificates for such shares are to be surrendered for certificates evidencing
Common Shares; (5) the then-current Conversion Price; and (6) that dividends on
the shares to be redeemed shall cease to accrue on such Call Date except as
otherwise provided herein. Notice having been published or mailed as aforesaid,
from and after the Call Date (unless the Trust shall fail to make available a
number of Common Shares or amount of cash necessary to effect such redemption),
(i) except as otherwise provided herein, dividends on the Series H Preferred
Shares so called for redemption shall cease to accrue, (ii) said shares shall no
longer be deemed to be outstanding, and (iii) all rights of the holders thereof
as holders of Series H Preferred Shares of the Trust shall cease (except the
rights to receive the Common Shares and cash payable upon such redemption,
without interest thereon, upon surrender and endorsement of their certificates
if so required and to receive any dividends payable thereon). The Trust's
obligation to provide Common Shares and cash in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the Call Date, the Trust
shall deposit with a bank or trust company (which may be an affiliate of the
Trust) that has an office in the Borough of Manhattan, City of New York, or in
Chicago, Illinois and that has, or is an affiliate of a bank or trust company
that has, a capital and surplus of at least $50,000,000, Common Shares and any
cash necessary for such redemption, in trust, with irrevocable instructions that
such Common Shares and cash be applied to the redemption of the Series H
Preferred Shares so called for redemption. At the close of business on the Call
Date, each holder of Series H Preferred Shares to be redeemed (unless the Trust
defaults in the delivery of the Common Shares or cash payable on such Call Date)
shall be deemed to be the record holder of the number of Common Shares into
which such Series H Preferred Shares are to be redeemed, regardless of whether
such holder has surrendered the certificates evidencing the Series H Preferred
Shares. No interest shall accrue for the benefit of the holders of Series H
Preferred Shares to be redeemed on any cash so set aside by the Trust. Subject
to applicable escheat laws, any such cash unclaimed at the end of two years from
the Call Date shall
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revert to the general funds of the Trust, after which reversion the holders of
such shares so called for redemption shall look only to the general funds of the
Trust for the payment of such cash.
As promptly as practicable after the surrender in accordance with said
notice of the certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Trust shall so require and if the notice shall so
state), such shares shall be exchanged for certificates of Common Shares and any
cash (without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series H Preferred Shares are to be redeemed,
shares to be redeemed shall be selected by the Trust from outstanding Series H
Preferred Shares not previously called for redemption by lot or pro rata (as
nearly as may be) or by any other method determined by the Board of Trustees of
the Trust in its sole discretion to be equitable. If fewer than all the
Series H Preferred Shares evidenced by any certificate are redeemed, then new
certificates evidencing the unredeemed shares shall be issued without cost to
the holder thereof.
(f) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon redemption of the Series H Preferred Shares.
Instead of any fractional interest in a Common Share that would otherwise be
deliverable upon the redemption of a Series H Preferred Share, the Trust shall
pay to the holder of such share an amount in cash (computed to the nearest cent)
based upon the Current Market Price of Common Shares on the Trading Day
immediately preceding the Call Date. If more than one share shall be
surrendered for redemption at one time by the same holder, the number of full
Common Shares issuable upon redemption thereof shall be computed on the basis of
the aggregate number of Series H Preferred Shares so surrendered.
(g) The Trust covenants that any Common Shares issued upon redemption
of the Series H Preferred Shares shall be validly issued, fully paid and
non-assessable. The Trust shall endeavor to list the Common Shares required to
be delivered upon redemption of the Series H Preferred Shares, prior to such
redemption, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
The Trust shall endeavor to take any action necessary to ensure that
any Common Shares issued upon the redemption of Series H Preferred Shares are
freely transferable and not subject to any resale restrictions under the
Securities Act of 1933, as amended (the "Act"), or any applicable state
securities or blue sky laws (other than any Common Shares issued upon redemption
of any Series H Preferred Shares which are held by an "affiliate" (as defined in
Rule 144 under the Act) of the Trust).
Section 6. SHARES TO BE RETIRED.
All Series H Preferred Shares which shall have been issued and reacquired
in any manner by the Trust shall be restored to the status of authorized but
unissued Preferred Shares, without designation as to series.
Section 7. CONVERSION.
Holders of Series H Preferred Shares shall have the right to convert all or
a portion of such Series H Preferred Shares into Common Shares, as follows:
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(a) Subject to and upon compliance with the provisions of this
Section 7, a holder of Series H Preferred Shares shall have the right, at his or
her option, at any time to convert such shares into the number of fully paid and
non-assessable Common Shares obtained by dividing the aggregate liquidation
preference (excluding any accrued and unpaid dividends) of such shares by the
Conversion Price (as in effect at the time and on the date provided for in the
last paragraph of paragraph (b) of this Section 7) by surrendering such shares
to be converted, such surrender to be made in the manner provided in Section 7
paragraph (b); PROVIDED, HOWEVER, that the right to convert shares called for
redemption pursuant to Section 5 shall terminate at the close of business on the
Call Date fixed for such redemption, unless the Trust shall default in making
payment of the Common Shares and any cash payable upon such redemption under
Section 5 hereof.
(b) In order to exercise the conversion right, the holder of each
Series H Preferred Share to be converted shall surrender the certificate
evidencing such share, duly endorsed or assigned to the Trust or in blank, at
the office of the Transfer Agent, accompanied by written notice to the Trust
that the holder thereof elects to convert such Series H Preferred Shares.
Unless the shares issuable on conversion are to be issued in the same name as
the name in which such Series H Preferred Share is registered, each share
surrendered for conversion shall be accompanied by instruments of transfer, in
form satisfactory to the Trust, duly executed by the holder or such holder's
duly authorized attorney and an amount sufficient to pay any transfer or similar
tax (or evidence reasonably satisfactory to the Trust demonstrating that such
taxes have been paid).
Holders of Series H Preferred Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend payable
on such shares on the corresponding Dividend Payment Date notwithstanding the
conversion thereof following such dividend payment record date and prior to such
Dividend Payment Date. However, Series H Preferred Shares surrendered for
conversion during the period between the close of business on any dividend
payment record date and the opening of business on the corresponding Dividend
Payment Date (except shares converted after the issuance of notice of redemption
with respect to a Call Date during such period, such Series H Preferred Shares
being entitled to such dividend on the Dividend Payment Date) must be
accompanied by payment of an amount equal to the dividend payable on such shares
on such Dividend Payment Date. A holder of Series H Preferred Shares on a
dividend payment record date who (or whose transferee) tenders any such shares
for conversion into Common Shares on such Dividend Payment Date will receive the
dividend payable by the Trust on such Series H Preferred Shares on such date,
and the converting holder need not include payment of the amount of such
dividend upon surrender of Series H Preferred Shares for conversion. Except as
provided above, the Trust shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for dividends on
the Common Shares issued upon such conversion.
As promptly as practicable after the surrender of certificates for
Series H Preferred Shares as aforesaid, the Trust shall issue and shall deliver
at such office to such holder, or on his or her written order, a certificate or
certificates for the number of full Common Shares issuable upon the conversion
of such shares in accordance with provisions of this Section 7, and any
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fractional interest in respect of a Common Share arising upon such conversion
shall be settled as provided in paragraph (c) of this Section 7.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series H Preferred Shares shall have been surrendered and such notice (and if
applicable, payment of an amount equal to the dividend payable on such shares)
received by the Trust as aforesaid, and the person or persons in whose name or
names any certificate or certificates for Common Shares shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby at such time on such date and such conversion
shall be at the Conversion Price in effect at such time on such date unless the
share transfer books of the Trust shall be closed on that date, in which event
such person or persons shall be deemed to have become such holder or holders of
record at the close of business on the next succeeding day on which such share
transfer books are open, but such conversion shall be at the Conversion Price in
effect on the date on which such shares shall have been surrendered and such
notice received by the Trust.
(c) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon conversion of the Series H Preferred Shares.
Instead of any fractional interest in a Common Share that would otherwise be
deliverable upon the conversion of a Series H Preferred Share, the Trust shall
pay to the holder of such share an amount in cash based upon the Current Market
Price of a Common Share on the Trading Day immediately preceding the date of
conversion. If more than one share shall be surrendered for conversion at one
time by the same holder, the number of full Common Shares issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
Series H Preferred Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Trust shall after the Issue Date (A) pay a dividend
or make a distribution on its shares of beneficial interest of its Common
Shares, (B) subdivide its outstanding Common Shares into a greater number
of shares, (C) combine its outstanding Common Shares into a smaller number
of shares or (D) issue any shares by reclassification of its Common Shares,
the Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such dividend or distribution or at the opening of business on the
day following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall be adjusted
so that the holder of any Series H Preferred Share thereafter surrendered
for conversion shall be entitled to receive the number of Common Shares
that such holder would have owned or have been entitled to receive after
the happening of any of the events described above had such Series H
Preferred Share been converted immediately prior to the record date in the
case of a dividend or distribution or the effective date in the case of a
subdivision, combination or reclassification. An adjustment made pursuant
to this subparagraph (i) shall become effective immediately after the
opening of business on the day next following the record date (except as
provided in paragraph (h) below) in the case of a dividend or distribution
and shall become effective
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immediately after the opening of business on the day next following the
effective date in the case of a subdivision, combination or
reclassification.
(ii) If the Trust shall issue after the Issue Date rights,
options or warrants to all holders of Common Shares entitling them (for a
period expiring within 45 days after the record date mentioned below) to
subscribe for or purchase Common Shares at a price per share less than the
Fair Market Value per Common Share on the record date for the determination
of shareholders entitled to receive such rights or warrants, then the
Conversion Price in effect at the opening of business on the day next
following such record date shall be adjusted to equal the price determined
by multiplying (I) the Conversion Price in effect immediately prior to the
opening of business on the day following the date fixed for such
determination by (II) a fraction, the numerator of which shall be the sum
of (A) the number of Common Shares outstanding on the close of business on
the date fixed for such determination and (B) the number of shares that the
aggregate proceeds to the Trust from the exercise of such rights or
warrants for Common Shares would purchase at such Fair Market Value, and
the denominator of which shall be the sum of (A) the number of Common
Shares outstanding on the close of business on the date fixed for such
determination and (B) the number of additional Common Shares offered for
subscription or purchase pursuant to such rights or warrants. Such
adjustment shall become effective immediately after the opening of business
on the day next following such record date (except as provided in paragraph
(h) below). In determining whether any rights or warrants entitle the
holders of Common Shares to subscribe for or purchase Common Shares at less
than such Fair Market Value, there shall be taken into account any
consideration received by the Trust upon issuance and upon exercise of such
rights or warrants, the value of such consideration, if other than cash, to
be determined by the Chief Executive Officer or the Board of Trustees.
(iii) If the Trust shall distribute to all holders of its Common
Shares any shares of beneficial interest of the Trust (other than Common
Shares) or evidence of its indebtedness or assets (excluding Permitted
Common Share Cash Distributions) or rights or warrants to subscribe for or
purchase any of its securities (excluding those rights and warrants issued
to all holders of Common Shares entitling them for a period expiring within
45 days after the record date referred to in subparagraph (ii) above to
subscribe for or purchase Common Shares, which rights and warrants are
referred to in and treated under subparagraph (ii) above) (any of the
foregoing being hereinafter in this subparagraph (iii) called the
"Securities"), then in each such case the Conversion Price shall be
adjusted so that it shall equal the price determined by multiplying (I) the
Conversion Price in effect immediately prior to the close of business on
the date fixed for the determination of shareholders entitled to receive
such distribution by (II) a fraction, the numerator of which shall be the
Fair Market Value per Common Share on the record date mentioned below less
the then fair market value (as determined by the Chief Executive Officer or
the Board of Trustees, whose determination shall be conclusive), of the
portion of the shares or assets or evidences of indebtedness so distributed
or of such rights or warrants applicable to one Common Share, and the
denominator of which shall be the Fair Market Value per Common Share on the
record date mentioned below. Such adjustment shall become
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effective immediately at the opening of business on the Business Day next
following (except as provided in paragraph (h) below) the record date for
the determination of shareholders entitled to receive such distribution.
For the purposes of this clause (iii), the distribution of a Security,
which is distributed not only to the holders of the Common Shares on the
date fixed for the determination of shareholders entitled to such
distribution of such Security, but also s distributed with each Common
Share delivered to a Person converting a Series H Preferred Share after
such determination date, shall not require an adjustment of the Conversion
Price pursuant to this clause (iii); PROVIDED that on the date, if any, on
which a person converting a Series H Preferred Share would no longer be
entitled to receive such Security with a Common Share (other than as a
result of the termination of all such Securities), a distribution of such
Securities shall be deemed to have occurred and the Conversion Price shall
be adjusted as provided in this clause (iii) and such day shall be deemed
to be "the date fixed for the determination of the shareholders entitled to
receive such distribution" and "the record date" within the meaning of the
two preceding sentences.
(iv) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease of
at least 1% in such price; PROVIDED, HOWEVER, that any adjustments that by
reason of this subparagraph (iv) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment until
made; and PROVIDED, FURTHER, that any adjustment shall be required and made
in accordance with the provisions of this Section 7 (other than this
subparagraph (iv)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of Common
Shares. Notwithstanding any other provisions of this Section 7, the Trust
shall not be required to make any adjustment of the Conversion Price for
the issuance of any Common Shares pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the Trust
and the investment of additional optional amounts in Common Shares under
such plan. All calculations under this Section 7 shall be made to the
nearest cent (with $.005 being rounded upward) or to the nearest one-tenth
of a share (with .05 of a share being rounded upward), as the case may be.
Anything in this paragraph (d) to the contrary notwithstanding, the Trust
shall be entitled, to the extent permitted by law, to make such reductions
in the Conversion Price, in addition to those required by this paragraph
(d), as it in its discretion shall determine to be advisable in order that
any share dividends, subdivision of shares, reclassification or combination
of shares, distribution of rights or warrants to purchase shares or
securities, or a distribution of other assets (other than cash dividends)
hereafter made by the Trust to its shareholders shall not be taxable.
(e) If the Trust shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for all or substantially all Common Shares, sale of all or
substantially all of the Trust's assets or recapitalization of the Common Shares
and excluding any transaction as to which subparagraph (d)(i) of this Section 7
applies) (each of the foregoing being referred to herein as a "Transaction"), in
each case as a result of which Common Shares shall be converted into the right
to receive shares, securities or other property (including cash or any
combination thereof), each Series H Preferred Share which is not
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converted into the right to receive shares, securities or other property in
connection with such Transaction shall thereafter be convertible into the kind
and amount of shares, securities and other property (including cash or any
combination thereof) receivable upon the consummation of such Transaction by a
holder of that number of Common Shares into which one Series H Preferred Share
was convertible immediately prior to such Transaction, assuming such holder of
Common Shares (i) is not a Person with which the Trust consolidated or into
which the Trust merged or which merged into the Trust or to which such sale or
transfer was made, as the case may be ("Constituent Person"), or an affiliate of
a Constituent Person and (ii) failed to exercise his rights of election, if any,
as to the kind or amount of shares, securities and other property (including
cash) receivable upon such Transaction (PROVIDED that if the kind or amount of
shares, securities and other property (including cash) receivable upon such
Transaction is not the same for each Common Share of the Trust held immediately
prior to such Transaction by other than a Constituent Person or an affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("Non-Electing Share"), then for the purpose of this paragraph (e) the
kind and amount of shares, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
non-electing shares). The Trust shall not be a party to any Transaction unless
the terms of such Transaction are consistent with the provisions of this
paragraph (e), and it shall not consent or agree to the occurrence of any
Transaction until the Trust has entered into an agreement with the successor or
purchasing entity, as the case may be, for the benefit of the holders of the
Series H Preferred Shares that will contain provisions enabling the holders of
the Series H Preferred Shares that remain outstanding after such Transaction to
convert into the consideration received by holders of Common Shares at the
Conversion Price in effect immediately prior to such Transaction. The provisions
of this paragraph (e) shall similarly apply to successive Transactions.
(f) If:
(i) the Trust shall declare a dividend (or any other
distribution) on the Common Shares (other than Permitted Common Share Cash
Distributions); or
(ii) the Trust shall authorize the granting to the holders of
the Common Shares of rights or warrants to subscribe for or purchase any
shares of any class or any other rights or warrants; or
(iii) there shall be any reclassification of the Common Shares
(other than an event to which subparagraph (d)(i) of this Section 7
applies) or any consolidation or merger to which the Trust is a party and
for which approval of any shareholders of the Trust is required, or a
statutory share exchange, or a self tender offer by the Trust for all or
substantially all of its outstanding Common Shares or the sale or transfer
of all or substantially all of the assets of the Trust as an entirety; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Trust;
then the Trust shall cause to be filed with the Transfer Agent and shall
cause to be mailed to the holders of Series H Preferred Shares at their
addresses
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as shown on the share records of the Trust, as promptly as possible, but at
least 15 days prior to the applicable date hereinafter specified, a notice
stating (A) the date on which a record is to be taken for the purpose of
such dividend or other distribution or grant of rights or warrants, or, if
a record is not to be taken, the date as of which the holders of Common
Shares of record to be entitled to such dividend or other distribution
of rights or warrants are to be determined or (B) the date on which
such reclassification, consolidation, merger, statutory share exchange,
sale, transfer, liquidation, dissolution or winding up is expected to
become effective, and the date as of which it is expected that holders of
Common Shares of record shall be entitled to exchange their Common Shares
for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, statutory share exchange, sale,
transfer, liquidation, dissolution or winding up. Failure to give or
receive such notice or any defect therein shall not affect the legality or
validity of the proceedings described in this Section 7.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Trust shall promptly file with the Transfer Agent an officer's certificate
setting forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment which certificate shall
be conclusive evidence of the correctness of such adjustment absent manifest
error. Promptly after delivery of such certificate, the Trust shall prepare a
notice of such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the effective date that such adjustment becomes effective
and shall mail such notice of such adjustment of the Conversion Price to the
holder of each Series H Preferred Share at such holder's last address as shown
on the share records of the Trust.
(h) In any case in which paragraph (d) of this Section 7 provides
that an adjustment shall become effective on the day next following the record
date for an event, the Trust may defer until the occurrence of such event (A)
issuing to the holder of any Series H Preferred Share converted after such
record date and before the occurrence of such event the additional Common Shares
issuable upon such conversion by reason of the adjustment required by such event
over and above the Common Shares issuable upon such conversion before giving
effect to such adjustment and (B) paying to such holder any amount of cash in
lieu of any fraction pursuant to paragraph (c) of this Section 7.
(i) There shall be no adjustment of the Conversion Price in case of
the issuance of any shares of the Trust in a reorganization, acquisition or
other similar transaction except as specifically set forth in this Section 7.
If any action or transaction would require adjustment of the Conversion Price
pursuant to more than one paragraph of this Section 7, only one adjustment shall
be made and such adjustment shall be the amount of adjustment that has the
highest absolute value.
(j) If the Trust shall take any action affecting the Common Shares,
other than action described in this Section 7, that in the opinion of the Board
of Trustees would materially adversely affect the conversion rights of the
holders of the Series H Preferred Shares, the Conversion Price for the Series H
Preferred Shares may be adjusted, to the extent permitted by
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law, in such manner, if any, and at such time, as the Board of Trustees, in its
sole discretion, may determine to be equitable in the circumstances.
(k) The Trust covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued Common Shares, for the purpose of effecting conversion of the
Series H Preferred Shares, the full number of Common Shares deliverable upon the
conversion of all outstanding Series H Preferred Shares not theretofore
converted. For purposes of this paragraph (k), the number of Common Shares that
shall be deliverable upon the conversion of all outstanding Series H Preferred
Shares shall be computed as if at the time of computation all such outstanding
shares were held by a single holder.
The Trust covenants that any Common Shares issued upon conversion of
the Series H Preferred Shares shall be validly issued, fully paid and
non-assessable.
The Trust shall endeavor to list the Common Shares required to be
delivered upon conversion of the Series H Preferred Shares, prior to such
delivery, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
Prior to the delivery of any securities that the Trust shall be
obligated to deliver upon conversion of the Series H Preferred Shares, the Trust
shall endeavor to comply with all federal and state laws and regulations
thereunder requiring the registration of such securities with, or any approval
of or consent to the delivery thereof by, any governmental authority.
(l) The Trust will pay any and all documentary stamp or similar issue
or transfer taxes payable in respect of the issue or delivery of Common Shares
or other securities or property on conversion of the Series H Preferred Shares
pursuant hereto; PROVIDED, HOWEVER, that the Trust shall not be required to pay
any tax that may be payable in respect of any transfer involved in the issue or
delivery of Common Shares or other securities or property in a name other than
that of the holder of the Series H Preferred Shares to be converted, and no such
issue or delivery shall be made unless and until the person requesting such
issue or delivery has paid to the Trust the amount of any such tax or
established, to the reasonable satisfaction of the Trust, that such tax has been
paid.
Section 8. RANKING. Any class or series of shares of the Trust shall
be deemed to rank:
(a) Prior to the Series H Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series H Preferred Shares;
(b) On a parity with the Series H Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof be different from those of
the Series H Preferred Shares, if the holders of such class of
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shares or series and the Series H Preferred Shares shall be entitled to the
receipt of dividends and of amounts distributable upon liquidation, dissolution
or winding up in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or priority
one over the other ("Parity Shares"), which Parity Shares include, as of the
Issue Date, the Trust's Series A Preferred Shares, Series B Preferred Shares,
Series C Preferred Shares, Series D Preferred Shares, Series E Preferred Shares,
Series F Preferred Shares, Series G Preferred Shares, Series I Preferred Shares,
Series J Preferred Shares, Series K Preferred Shares and Series L Preferred
Shares; and
(c) Junior to the Series H Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution or
winding up, if such shares or series shall be Common Shares or if the holders of
Series H Preferred Shares shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of such shares or series.
Section 9. VOTING. If and whenever six quarterly dividends (whether
or not consecutive) payable on the Series H Preferred Shares or any series or
class of Parity Shares shall be in arrears (which shall, with respect to any
such quarterly dividend, mean that any such dividend has not been paid in full),
whether or not earned or declared, the number of trustees then constituting the
Board of Trustees shall be increased by two and the holders of Series H
Preferred Shares, together with the holders of every other series of Parity
Shares (any such other series, the "Voting Preferred Shares"), voting as a
single class regardless of series, shall be entitled to elect the two additional
trustees to serve on the Board of Trustees at any annual meeting of shareholders
or special meeting held in place thereof, or at a special meeting of the holders
of the Series H Preferred Shares and the Voting Preferred Shares called as
hereinafter provided. Whenever all arrears in dividends on the Series H
Preferred Shares and the Voting Preferred Shares then outstanding shall have
been paid and dividends thereon for the current quarterly dividend period shall
have been paid or declared and set apart for payment, then the right of the
holders of the Series H Preferred Shares and the Voting Preferred Shares to
elect such additional two trustees shall cease (but subject always to the same
provision for the vesting of such voting rights in the case of any similar
future arrearages in six quarterly dividends), and the terms of office of all
persons elected as trustees by the holders of the Series H Preferred Shares and
the Voting Preferred Shares shall forthwith terminate and the number of the
Board of Trustees shall be reduced accordingly. At any time after such voting
power shall have been so vested in the holders of Series H Preferred Shares and
the Voting Preferred Shares, the secretary of the Trust may, and upon the
written request of any holder of Series H Preferred Shares (addressed to the
secretary at the principal office of the Trust) shall, call a special meeting of
the holders of the Series H Preferred Shares and of the Voting Preferred Shares
for the election of the two trustees to be elected by them as herein provided,
such call to be made by notice similar to that provided in the Bylaws of the
Trust for a special meeting of the shareholders or as required by law. If any
such special meeting required to be called as above provided shall not be called
by the secretary within 20 days after receipt of any such request, then any
holder of Series H Preferred Shares may call such meeting, upon the notice above
provided, and for that purpose shall have access to the share books of the
Trust. The trustees elected at any such special meeting shall hold office until
the next annual meeting of the shareholders or special meeting held in lieu
thereof if such office shall not
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have previously terminated as above provided. If any vacancy shall occur among
the trustees elected by the holders of the Series H Preferred Shares and the
Voting Preferred Shares, a successor shall be elected by the Board of Trustees,
upon the nomination of the then-remaining trustee elected by the holders of the
Series H Preferred Shares and the Voting Preferred Shares or the successor of
such remaining trustee, to serve until the next annual meeting of the
shareholders or special meeting held in place thereof if such office shall not
have previously terminated as provided above.
So long as any Series H Preferred Shares are outstanding, in addition
to any other vote or consent of shareholders required by law or by the
Declaration of Trust, as amended, the affirmative vote of at least 66 2/3% of
the votes entitled to be cast by the holders of the Series H Preferred Shares
and the Voting Preferred Shares, at the time outstanding, acting as a single
class regardless of series, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of
the Declaration of Trust that materially adversely affects the voting powers,
rights or preferences of the holders of the Series H Preferred Shares or the
Voting Preferred Shares; PROVIDED, HOWEVER, that the amendment of the provisions
of the Declaration of Trust so as to authorize or create, or to increase the
authorized amount of, any Junior Shares or any shares of any class ranking on a
parity with the Series H Preferred Shares or the Voting Preferred Shares shall
not be deemed to materially adversely affect the voting powers, rights or
preferences of the holders of Series H Preferred Shares, and PROVIDED FURTHER,
that if any such amendment, alteration or repeal would materially adversely
affect any voting powers, rights or preferences of the Series H Preferred Shares
or another series of Voting Preferred Shares that are not enjoyed by some or all
of the other series which otherwise would be entitled to vote in accordance
herewith, the affirmative vote of at least 66 2/3% of the votes entitled to be
cast by the holders of all series similarly affected, similarly given, shall be
required in lieu of the affirmative vote of at least 66 2/3% of the votes
entitled to be cast by the holders of the Series H Preferred Shares and the
Voting Preferred Shares which otherwise would be entitled to vote in accordance
herewith; or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security convertible into
shares of any class ranking prior to the Series H Preferred Shares in the
distribution of assets on any liquidation, dissolution or winding up of the
Trust or in the payment of dividends; PROVIDED, HOWEVER, that no such vote of
the holders of Series H Preferred Shares shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take effect, or when
the issuance of any such prior shares or convertible security is to be made, as
the case may be, provision is made for the redemption of all Series H Preferred
Shares at the time outstanding.
For purposes of the foregoing provisions of this Section 9, each
Series H Preferred Share shall have one (1) vote per share, except that when any
other series of Preferred Shares shall have the right to vote with the Series H
Preferred Shares as a single class on any matter, then the Series H Preferred
Shares and such other series shall have with respect to such matters one (1)
vote per $25.00 of stated liquidation preference. Except as otherwise required
by applicable law
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or as set forth herein, the Series H Preferred Shares shall not have any
voting rights and powers other than as set forth herein, and the consent of
the holders thereof shall not be required for the taking of any trust action.
Section 10. RECORD HOLDERS. The Trust and the Transfer Agent may deem
and treat the record holder of any Series H Preferred Shares as the true and
lawful owner thereof for all purposes, and neither the Trust nor the Transfer
Agent shall be affected by any notice to the contrary.
B. SERIES I PREFERRED SHARES
Section 1. NUMBER OF SHARES AND DESIGNATION. This series of
Preferred Shares shall be designated as Series I Cumulative Convertible
Preferred Shares of Beneficial Interest ($.01 Par Value Per Share) (Liquidation
Preference $25.00 Per Share) (the "Series I Preferred Shares") and 4,000,000
shall be the number of Preferred Shares constituting such series.
Section 2. DEFINITIONS. For purposes of the Series I Preferred
Shares, the following terms shall have the meanings indicated:
"Act" shall mean the Securities Act of 1933, as amended.
"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee authorized by such Board of Trustees to perform any of its
responsibilities with respect to the Series I Preferred Shares.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New
York are not required to be open.
"Call Date" shall have the meaning set forth in paragraph (c) of
Section 5 hereof.
"Common Shares" shall mean the common shares of beneficial interest of
the Trust, $.01 par value per share, or such shares of beneficial interest into
which such Common Shares shall be reclassified.
"Constituent Person" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Conversion Price" shall mean the conversion price per Common Share
for which a Series I Preferred Share is convertible, as such Conversion Price
may be adjusted pursuant to Section 7. The initial conversion price shall be
$38.96 (equivalent to a conversion rate of .6417 Common Shares for each Series I
Preferred Share).
"Current Market Price" of publicly traded Common Shares or any other
class of shares of beneficial interest or other security of the Trust or any
other issuer for any day shall mean the last reported sales price, regular way
on such day, or, if no sale takes place on such day, the average of the reported
closing bid and asked prices on such day, regular way, in either case
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as reported on the New York Stock Exchange ("NYSE") or, if such security is not
listed or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if not
listed or admitted for trading on any national securities exchange, on the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if such security is not quoted on
such National Market System, the average of the closing bid and asked prices on
such day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for such security on such day shall not have been reported through
NASDAQ, the average of the bid and asked prices on such day as furnished by any
NYSE member firm regularly making a market in such security selected for such
purpose by the Chief Executive Officer or the Board of Trustees or if the shares
of any class of securities are not publicly traded, the fair value of the shares
of such class as determined reasonably and in good faith by the Board of
Trustees.
"Dividend Payment Date" shall mean the last calendar day of March,
June, September and December, in each year, commencing on December 31, 1998;
PROVIDED, HOWEVER, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period.
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Share during five (5) consecutive Trading Days selected by
the Trust commencing not more than 20 Trading Days before, and ending not later
than, the earlier of the day in question and the day before the "ex" date with
respect to the issuance or distribution requiring such computation. The term "ex
date," when used with respect to any issuance or distribution, means the first
day on which the Common Shares trade regular way, without the right to receive
such issuance or distribution, on the exchange or in the market, as the case may
be, used to determine that day's Current Market Price.
"Issue Date" shall mean the first date on which Series I Preferred
Shares are issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of shares of the Trust over which the Series I Preferred Shares have
preference or priority in the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding up of the Trust.
"Non-Electing Share" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Parity Shares" shall have the meaning set forth in paragraph (b) of
Section 8 hereof.
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"Permitted Common Share Cash Distributions" means cash dividends and
distributions paid after December 31, 1997 not in excess of the Trust's
cumulative undistributed net earnings at December 31, 1997, plus the cumulative
amount of funds from operations, as determined by the Board of Trustees on a
basis consistent with the financial reporting practices of the Trust, after
December 31, 1997, minus the cumulative amount of dividends accrued or paid on
the Series I Preferred Shares or any other class of Parity Shares after the date
of these Articles Supplementary.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
"Press Release" shall have the meaning set forth in paragraph (b) of
Section 5 hereof.
"Securities" shall have the meaning set forth in paragraph (d)(iii) of
Section 7 hereof.
"Series I Preferred Shares" shall have the meaning set forth in
Section 1 hereof.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Trust in its accounting ledgers
of any accounting or bookkeeping entry which indicates, pursuant to an
authorization of dividends or other distribution by the Board of Trustees, the
allocation of funds to be so paid on any series or class of shares of beneficial
interest of the Trust; PROVIDED, HOWEVER, that if any funds for any class or
series of Junior Shares or any class or series of Parity Shares are placed in a
separate account of the Trust or delivered to a disbursing, paying or other
similar agent, then "set apart for payment" with respect to the Series I
Preferred Shares shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which such
securities are listed or admitted, or if not listed or admitted for trading on
any national securities exchange, on the National Market System of NASDAQ, or if
such securities are not quoted on such National Market System, in the applicable
securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
"Transfer Agent" means Boston Equiserve LP, Boston, Massachusetts, or
such other U.S. bank with aggregate capital, surplus and undivided profits, as
shown on its last published report, of at least $50,000,000 as may be designated
by the Board of Trustees or their designee as the transfer agent for the
Series I Preferred Shares.
"Voting Preferred Shares" shall have the meaning set forth in
Section 9 hereof.
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Section 3. DIVIDENDS. (a) The holders of Series I Preferred Shares
shall be entitled to receive, when, as and if authorized by the Board of
Trustees out of funds legally available for that purpose, dividends payable in
cash at the rate per annum of $2.205 per Series I Preferred Share. Such
dividends shall be cumulative from October 1, 1998, whether or not in any
Dividend Period or Periods there shall be funds of the Trust legally available
for the payment of such dividends, and shall be payable quarterly, when, as and
if authorized by the Board of Trustees, in arrears, on Dividend Payment Dates,
commencing on the first Dividend Payment Date after the Issue Date. Each such
dividend shall be payable in arrears to the holders of record of Series I
Preferred Shares, as they appear on the share records of the Trust at the close
of business on such record dates, which shall be not more than 60 days preceding
such Dividend Payment Dates thereof, as shall be fixed by the Board of Trustees,
which record dates shall coincide with the record dates for the regular
quarterly dividends, if any, payable on Common Shares. Accrued and unpaid
dividends for any past Dividend Periods may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to holders of record on
such date, which date shall not precede by more than 45 days the payment date
thereof, as may be fixed by the Board of Trustees.
(b) The amount of dividends payable for each full Dividend Period for
the Series I Preferred Shares shall be computed by dividing the annual dividend
rate by four. The amount of dividends payable for any period shorter or longer
than a full Dividend Period, on the Series I Preferred Shares shall be computed
ratably on the basis of twelve 30-day months and a 360-day year. Holders of
Series I Preferred Shares shall not be entitled to any dividends, whether
payable in cash, property or shares, in excess of cumulative dividends, as
herein provided, on the Series I Preferred Shares. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series I Preferred Shares that may be in arrears.
(c) So long as any Series I Preferred Shares are outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment by the Trust or other distribution of
cash or other property declared or made directly or indirectly by the Trust or
any affiliate or any person acting on behalf of the Trust or any of its
affiliates with respect to any class or series of Parity Shares for any period
unless 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 Series I Preferred Shares for all Dividend Periods terminating on
or prior to the Dividend Payment Date on such class or series of Parity Shares.
When dividends are not paid in full or a sum sufficient for such payment is not
set apart, as aforesaid, all dividends declared upon Series I Preferred Shares
and all dividends declared upon any other class or series of Parity Shares shall
be declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series I Preferred Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series I Preferred Shares are outstanding, no
dividends (other than dividends or distributions paid in shares of Junior
Shares), shall be declared or paid or set apart for payment by the Trust or
other distribution of cash or other property declared or made directly or
indirectly by the Trust or any affiliate or any person acting on behalf of the
Trust
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or any of its affiliates with respect to Junior Shares, nor shall Junior Shares
be redeemed, purchased or otherwise acquired (other than a redemption, purchase
or other acquisition of Common Shares made for purposes of an employee incentive
or benefit plan of the Trust or any subsidiary) for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption of any
such shares) directly or indirectly by the Trust or any affiliate or any person
acting on behalf of the Trust or any of its affiliates (except by conversion
into or exchange for Junior Shares), nor shall any other cash or other property
otherwise be paid or distributed to or for the benefit of any holder of Junior
Shares in respect thereof, directly or indirectly, by the Trust or any affiliate
or any person acting on behalf of the Trust or any of its affiliates unless in
each case (i) the full cumulative dividends on all outstanding Series I
Preferred Shares and any other Parity Shares of the Trust shall have been paid
or set apart for payment for all past Dividend Periods with respect to the
Series I Preferred Shares and all past dividend periods with respect to such
Parity Shares and (ii) sufficient funds shall have been paid or set apart for
the payment of the dividend for the current Dividend Period with respect to the
Series I Preferred Shares and the current dividend period with respect to such
Parity Shares.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the Trust, whether voluntary or
involuntary, before any payment or distribution of the assets of the Trust
(whether capital or surplus) shall be made to or set apart for the holders of
Junior Shares, the holders of the Series I Preferred Shares shall be entitled to
receive Twenty-five Dollars ($25.00) per Series I Preferred Share plus an amount
equal to all dividends (whether or not earned or declared) accrued and unpaid
thereon to the date of final distribution to such holders; but such holders
shall not be entitled to any further payment. If, upon any liquidation,
dissolution or winding up of the Trust, the assets of the Trust, or proceeds
thereof, distributable among the holders of the Series I Preferred Shares shall
be insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Shares, then such
assets, or the proceeds thereof, shall be distributed among the holders of
Series I Preferred Shares and any such other Parity Shares ratably in accordance
with the respective amounts that would be payable on such Series I Preferred
Shares and any such other Parity Shares if all amounts payable thereon were paid
in full. For the purposes of this Section 4, (i) a consolidation or merger of
the Trust with one or more entities, (ii) a sale or transfer of all or
substantially all of the Trust's assets, or (iii) a statutory share exchange
shall not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Trust.
(b) Subject to the rights of the holders of any Parity Shares, upon
any liquidation, dissolution or winding up of the Trust, after payment shall
have been made in full to the holders of the Series I Preferred Shares and any
Parity Shares, as provided in this Section 4, any other series or class or
classes of Junior Shares shall, subject to the respective terms thereof, be
entitled to receive any and all assets remaining to be paid or distributed, and
the holders of the Series I Preferred Shares and any Parity Shares shall not be
entitled to share therein.
Section 5. REDEMPTION AT THE OPTION OF THE TRUST.
(a) The Series I Preferred Shares shall not be redeemable by the
Trust prior to October 31, 1999. On and after October 31, 1999, the Trust, at
its option, may redeem the
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Series I Preferred Shares in whole or in part, as set forth herein, subject to
the provisions described below.
(b) The Series I Preferred Shares may be redeemed, in whole or in
part, at the option of the Trust, at any time, only if for 20 Trading Days,
within any period of 30 consecutive Trading Days, including the last Trading Day
of such period, the Current Market Price of the Common Shares on each of such 20
Trading Days equals or exceeds the Conversion Price in effect on such Trading
Day. In order to exercise its redemption option, the Trust must issue a press
release announcing the redemption (the "Press Release") prior to the opening of
business on the second Trading Day after the condition in the preceding sentence
has, from time to time, been met. The Trust may not issue a Press Release prior
to October 1, 1999. The Press Release shall announce the redemption and set
forth the number of Series I Preferred Shares which the Trust intends to redeem.
(c) Upon redemption of Series I Preferred Shares by the Trust on the
date specified in the notice to holders required under subparagraph (e) of this
Section 5 (the "Call Date"), each Series I Preferred Share so redeemed shall be
converted into a number of Common Shares equal to the liquidation preference
(excluding any accrued and unpaid dividends) of the Series I Preferred Share
being redeemed divided by the Conversion Price as in effect as of the opening of
business on the Call Date. The Call Date shall be selected by the Trust, shall
be specified in the notice of redemption and shall be not less than 30 days or
more than 60 days after the date on which the Trust issues the Press Release.
Upon any redemption of Series I Preferred Shares, the Trust shall pay
any accrued and unpaid dividends in arrears for any Dividend Period ending on or
prior to the Call Date. If the Call Date falls after a dividend payment record
date and prior to the corresponding Dividend Payment Date, then each holder of
Series I Preferred Shares at the close of business on such dividend payment
record date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such
shares before such Dividend Payment Date. Except as provided above, the Trust
shall make no payment or allowance for unpaid dividends, whether or not in
arrears, on Series I Preferred Shares called for redemption or on the Common
Shares issued upon such redemption.
(d) If full cumulative dividends on the Series I Preferred Shares and
any other class or series of Parity Shares of the Trust have not been paid or
declared and set apart for payment, the Series I Preferred Shares may not be
redeemed in part and the Trust or any subsidiary may not purchase or acquire
Series I Preferred Shares, otherwise than pursuant to a purchase or exchange
offer made on the same terms to all holders of Series I Preferred Shares.
(e) If the Trust shall redeem Series I Preferred Shares pursuant to
paragraph (a) of this Section 5, notice of such redemption shall be given not
more than four Business Days after the date on which the Trust issues the Press
Release to each holder of record of the shares to be redeemed. Such notice
shall be provided by first class mail, postage prepaid, at such holder's address
as the same appears on the share records of the Trust, or by publication in The
Wall Street Journal or The New York Times, or if neither such newspaper is then
being published,
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any other daily newspaper of national circulation. If the Trust elects to
provide such notice by publication, it shall also promptly mail notice of such
redemption to the holders of the Series I Preferred Shares to be redeemed.
Neither the failure to mail any notice required by this paragraph (e), nor any
defect therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for redemption
with respect to the other holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given on the
date mailed whether or not the holder receives the notice. Each such mailed or
published notice shall state, as appropriate: (1) the Call Date; (2) the number
of Series I Preferred Shares to be redeemed and, if fewer than all such shares
held by such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (3) the number of Common Shares to be issued with respect to
each Series I Preferred Share; (4) the place or places at which certificates for
such shares are to be surrendered for certificates evidencing Common Shares; (5)
the then-current Conversion Price; and (6) that dividends on the shares to be
redeemed shall cease to accrue on such Call Date except as otherwise provided
herein. Notice having been published or mailed as aforesaid, from and after the
Call Date (unless the Trust shall fail to issue and make available a number of
Common Shares or amount of cash necessary to effect such redemption), (i) except
as otherwise provided herein, dividends on the Series I Preferred Shares so
called for redemption shall cease to accrue, (ii) said shares shall no longer be
deemed to be outstanding, and (iii) all rights of the holders thereof as holders
of Series I Preferred Shares of the Trust shall cease (except the rights to
receive the Common Shares and cash payable upon such redemption, without
interest thereon, upon surrender and endorsement of their certificates if so
required and to receive any dividends payable thereon). The Trust's obligation
to provide Common Shares and cash in accordance with the preceding sentence
shall be deemed fulfilled if, on or before the Call Date, the Trust shall
deposit with a bank or trust company (which may be an affiliate of the Trust)
that has an office in the Borough of Manhattan, The City of New York, or in
Chicago, Illinois and that has, or is an affiliate of a bank or trust company
that has, a capital and surplus of at least $50,000,000, Common Shares and such
amount of cash as is necessary for such redemption, in trust, with irrevocable
instructions that such Common Shares and cash be applied to the redemption of
the Series I Preferred Shares so called for redemption. At the close of
business on the Call Date, each holder of Series I Preferred Shares to be
redeemed (unless the Trust defaults in the delivery of the Common Shares or cash
payable on such Call Date) shall be deemed to be the record holder of the number
of Common Shares into which such Series I Preferred Shares are to be redeemed,
regardless of whether such holder has surrendered the certificates evidencing
the Series I Preferred Shares. No interest shall accrue for the benefit of the
holders of Series I Preferred Shares to be redeemed on any cash so set aside by
the Trust. Subject to applicable escheat laws, any such cash unclaimed at the
end of two years from the Call Date shall revert to the general funds of the
Trust, after which reversion the holders of such shares so called for redemption
shall look only to the general funds of the Trust for the payment of such cash.
As promptly as practicable after the surrender in accordance with said
notice of the certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Trust shall so require and if the notice shall so
state), such certificates shall be exchanged for certificates evidencing Common
Shares and any cash (without interest thereon) for which such shares have been
redeemed. If fewer than all the outstanding Series I Preferred Shares are to be
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redeemed, shares to be redeemed shall be selected by the Trust from outstanding
Series I Preferred Shares not previously called for redemption by lot or pro
rata (as nearly as may be). If fewer than all the Series I Preferred Shares
evidenced by any certificate are redeemed, then new certificates evidencing the
unredeemed shares shall be issued without cost to the holders thereof.
(f) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon redemption of the Series I Preferred Shares.
Instead of any fractional interest in a share of Common Shares that would
otherwise be deliverable upon the redemption of a Series I Preferred Share, the
Trust shall pay to the holder of such share an amount in cash (computed to the
nearest cent) based upon the Current Market Price of Common Shares on the
Trading Day immediately preceding the Call Date. If more than one share shall
be surrendered for redemption at one time by the same holder, the number of full
Common Shares issuable upon redemption thereof shall be computed on the basis of
the aggregate number of Series I Preferred Shares so surrendered.
(g) The Trust covenants that any Common Shares issued upon redemption
of the Series I Preferred Shares shall be validly issued, fully paid and
non-assessable. The Trust shall endeavor to list the Common Shares required to
be delivered upon redemption of the Series I Preferred Shares, prior to such
redemption, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
The Trust shall endeavor to take any action necessary to ensure that
any Common Shares issued upon the redemption of Series I Preferred Shares are
transferable and not subject to any resale restrictions under the Act, or any
applicable state securities or blue sky laws except the provisions of Rule 144
under the Act.
Section 6. SHARES TO BE RETIRED.
All Series I Preferred Shares which shall have been issued and
reacquired in any manner by the Trust shall be restored to the status of
authorized but unissued Preferred Shares, without designation as to series.
Section 7. CONVERSION.
Holders of Series I Preferred Shares shall have the right to convert
all or a portion of their Series I Preferred Shares into authorized but unissued
Common Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 7, a holder of Series I Preferred Shares shall have the right, at his or
her option, at any time to convert such shares into the number of fully paid and
non-assessable Common Shares obtained by dividing the aggregate liquidation
preference (excluding any accrued and unpaid dividends) of such shares by the
Conversion Price (as in effect at the time and on the date provided for in the
last paragraph of paragraph (b) of this Section 7) by surrendering such shares
to be converted, such surrender to be made in the manner provided in Section 7
paragraph (b); PROVIDED, HOWEVER, that the right to convert Series I Preferred
Shares called for redemption pursuant to Section 5 shall terminate at the close
of business on the Call Date fixed for such redemption, unless the Trust shall
default
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in making payment of the Common Shares and any cash payable upon such redemption
under Section 5 hereof.
(b) In order to exercise the conversion right, the holder of each
Series I Preferred Share to be converted shall surrender the certificate
evidencing such share, duly endorsed or assigned to the Trust or in blank, at
the office of the Transfer Agent, accompanied by written notice to the Trust
that the holder thereof elects to convert such Series I Preferred Shares.
Unless the shares issuable on conversion are to be issued in the same name as
the name in which such Series I Preferred Share is registered, each share
surrendered for conversion shall be accompanied by instruments of transfer, in
form satisfactory to the Trust, duly executed by the holder or such holder's
duly authorized attorney and an amount sufficient to pay any transfer or similar
tax (or evidence reasonably satisfactory to the Trust demonstrating that such
taxes have been paid).
Holders of Series I Preferred Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend payable
on such shares on the corresponding Dividend Payment Date notwithstanding the
conversion thereof following such dividend payment record date and prior to such
Dividend Payment Date. Except as provided above, the Trust shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the Common Shares issued upon such
conversion.
As promptly as practicable after the surrender of certificates for
Series I Preferred Shares as aforesaid, the Trust shall issue and shall deliver
at such office to such holder, or send on his or her written order, a
certificate or certificates for the number of full Common Shares issuable upon
the conversion of such shares in accordance with provisions of this Section 7,
and any fractional interest in respect of a Common Share arising upon such
conversion shall be settled as provided in paragraph (c) of this Section 7.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series I Preferred Shares shall have been surrendered and such notice (and if
applicable, payment of an amount equal to the dividend payable on such shares)
received by the Trust as aforesaid, and the person or persons in whose name or
names any certificate or certificates for Common Shares shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares evidenced thereby at such time on such date and such conversion
shall be at the Conversion Price in effect at such time on such date.
(c) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon conversion of the Series I Preferred Shares.
Instead of any fractional interest in a Common Share that would otherwise be
deliverable upon the conversion of a Series I Preferred Share, the Trust shall
pay to the holder of such share an amount in cash based upon the Current Market
Price of Common Shares on the Trading Day immediately preceding the date of
conversion. If more than one share shall be surrendered for conversion at one
time by the same holder, the number of full Common Shares issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
Series I Preferred Shares so surrendered.
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(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Trust shall after the Issue Date (A) pay a dividend
or make a distribution on its shares of beneficial interest in its Common
Shares, (B) subdivide its outstanding Common Shares into a greater number
of shares, (C) combine its outstanding Common Shares into a smaller number
of shares or (D) issue any shares by reclassification of its Common Shares,
the Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such dividend or distribution or at the opening of business on the
day following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall be adjusted
so that the holder of any Series I Preferred Share thereafter surrendered
for conversion shall be entitled to receive the number of Common Shares
that such holder would have owned or have been entitled to receive after
the happening of any of the events described above had such Series I
Preferred Share been converted immediately prior to the record date in the
case of a dividend or distribution or the effective date in the case of a
subdivision, combination or reclassification. An adjustment made pursuant
to this subparagraph (i) shall become effective immediately after the
opening of business on the day next following the record date (except as
provided in paragraph (h) below) in the case of a dividend or distribution
and shall become effective immediately after the opening of business on the
day next following the effective date in the case of a subdivision,
combination or reclassification.
(ii) If the Trust shall issue after the Issue Date rights,
options or warrants to all holders of Common Shares entitling them (for a
period expiring within 45 days after the record date described below in
this subparagraph 7(d)(ii)) to subscribe for or purchase Common Shares at a
price per share less than the Fair Market Value per Common Share on the
record date for the determination of shareholders entitled to receive such
rights or warrants, then the Conversion Price in effect at the opening of
business on the day next following such record date shall be adjusted to
equal the price determined by multiplying (I) the Conversion Price in
effect immediately prior to the opening of business on the day following
the date fixed for such determination by (II) a fraction, the numerator of
which shall be the sum of (A) the number of Common Shares outstanding on
the close of business on the date fixed for such determination and (B) the
number of shares that the aggregate proceeds to the Trust from the exercise
of such rights or warrants for Common Shares would purchase at such Fair
Market Value, and the denominator of which shall be the sum of (A) the
number of Common Shares outstanding on the close of business on the date
fixed for such determination and (B) the number of additional Common Shares
offered for subscription or purchase pursuant to such rights or warrants.
Such adjustment shall become effective immediately after the opening of
business on the day next following such record date (except as provided in
paragraph (h) below). In determining whether any rights or warrants
entitle the holders of Common Shares to subscribe for or purchase Common
Shares at less than such Fair Market Value, there shall be taken into
account any consideration received by the Trust upon issuance and upon
exercise of such rights or warrants, the value of such consideration, if
other than cash, to be determined in good faith by the Board of Trustees.
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(iii) If the Trust shall distribute to all holders of its Common
Shares any shares of beneficial interest of the Trust (other than Common
Shares) or evidence of its indebtedness or assets (excluding Permitted
Common Share Cash Distributions) or rights or warrants to subscribe for or
purchase any of its securities (excluding those rights and warrants issued
to all holders of Common Shares entitling them for a period expiring within
45 days after the record date referred to in subparagraph (ii) above to
subscribe for or purchase Common Shares, which rights and warrants are
referred to in and treated under subparagraph (ii) above) (any of the
foregoing being hereinafter in this subparagraph (iii) called the
"Securities"), then in each such case the Conversion Price shall be
adjusted so that it shall equal the price determined by multiplying (I) the
Conversion Price in effect immediately prior to the close of business on
the date fixed for the determination of shareholders entitled to receive
such distribution by (II) a fraction, the numerator of which shall be the
Fair Market Value per Common Share on the record date mentioned below less
the then fair market value (as determined by the Board of Trustees, whose
determination shall be conclusive and described in a Board resolution), of
the portion of the shares or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one Common Share,
and the denominator of which shall be the Fair Market Value per Common
Share on the record date mentioned below. Such adjustment shall become
effective immediately at the opening of business on the Business Day next
following (except as provided in paragraph (h) below) the record date for
the determination of shareholders entitled to receive such distribution.
For the purposes of this clause (iii), the distribution of a Security,
which is distributed not only to the holders of the Common Shares on the
date fixed for the determination of shareholders entitled to such
distribution of such Security, but also is distributed with each Common
Share delivered to a Person converting a Series I Preferred Share after
such determination date, shall not require an adjustment of the Conversion
Price pursuant to this clause (iii); PROVIDED that on the date, if any, on
which a person converting a Series I Preferred Share would no longer be
entitled to receive such Security with a Common Share (other than as a
result of the termination of all such Securities), a distribution of such
Securities shall be deemed to have occurred and the Conversion Price shall
be adjusted as provided in this clause (iii) and such day shall be deemed
to be "the date fixed for the determination of the shareholders entitled to
receive such distribution" and "the record date" within the meaning of the
two preceding sentences.
(iv) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease of
at least 1% in such price; PROVIDED, HOWEVER, that any adjustments that by
reason of this subparagraph (iv) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment until
made; and PROVIDED, FURTHER, that any adjustment shall be required and made
in accordance with the provisions of this Section 7 (other than this
subparagraph (iv)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of Common
Shares. Notwithstanding any other provisions of this Section 7, the Trust
shall not be required to make any adjustment of the Conversion Price for
the issuance of any Common Shares pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the Trust
and the investment
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of additional optional amounts in Common Shares under such plan. All
calculations under this Section 7 shall be made to the nearest cent (with
$.005 being rounded upward) or to the nearest one-tenth of a share (with
.05 of a share being rounded upward), as the case may be. Anything in this
paragraph (d) to the contrary notwithstanding, the Trust shall be entitled,
to the extent permitted by law, to make such reductions in the Conversion
Price, in addition to those required by this paragraph (d), as it in its
discretion shall determine to be advisable in order that any share
dividends, subdivision of shares, reclassification or combination of
shares, distribution of rights or warrants to purchase shares or
securities, or a distribution of other assets (other than cash dividends)
hereafter made by the Trust to its shareholders shall not be taxable, or if
that is not possible, to diminish any income taxes that are otherwise
payable because of such event.
(e) If the Trust shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for all or a substantial portion of its Common Shares, sale of all
or substantially all of the Trust's assets or recapitalization of the Common
Shares and excluding any transaction as to which subparagraph (d)(i) of this
Section 7 applies) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which Common Shares shall be
converted into the right to receive shares, securities or other property
(including cash or any combination thereof), each Series I Preferred Share which
is not converted into the right to receive shares, securities or other property
in connection with such Transaction shall thereupon be convertible into the kind
and amount of shares, securities and other property (including cash or any
combination thereof) receivable upon such consummation by a holder of that
number of Common Shares into which one Series I Preferred Share was convertible
immediately prior to such Transaction, assuming such holder of Common Shares (i)
is not a Person with which the Trust consolidated or into which the Trust merged
or which merged into the Trust or to which such sale or transfer was made, as
the case may be ("Constituent Person"), or an affiliate of a Constituent Person
and (ii) failed to exercise his rights of election, if any, as to the kind or
amount of shares, securities and other property (including cash) receivable upon
such Transaction (PROVIDED that if the kind or amount of shares, securities and
other property (including cash) receivable upon such Transaction is not the same
for each Common Share of the Trust held immediately prior to such Transaction by
other than a Constituent Person or an affiliate thereof and in respect of which
such rights of election shall not have been exercised ("Non-Electing Share"),
then for the purpose of this paragraph (e) the kind and amount of shares,
securities and other property (including cash) receivable upon such Transaction
by each Non-Electing Share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). The Trust
shall not be a party to any Transaction unless the terms of such Transaction are
consistent with the provisions of this paragraph (e), and it shall not consent
or agree to the occurrence of any Transaction until the Trust has entered into
an agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series I Preferred Shares that will contain
provisions enabling the holders of the Series I Preferred Shares that remain
outstanding after such Transaction to convert into the consideration received by
holders of Common Shares at the Conversion Price in effect immediately prior to
such Transaction. The provisions of this paragraph (e) shall similarly apply to
successive Transactions.
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(f) If:
(i) the Trust shall declare a dividend (or any other
distribution) on the Common Shares (other than Permitted Common Share Cash
Distributions); or
(ii) the Trust shall authorize the granting to the holders of
the Common Shares of rights or warrants to subscribe for or purchase any
shares of any class or any other rights or warrants; or
(iii) there shall be any reclassification of the Common Shares
or any consolidation or merger to which the Trust is a party and for which
approval of any shareholders of the Trust is required, or a statutory share
exchange, or a self tender offer by the Trust for all or a substantial
portion of its outstanding Common Shares (or an amendment thereto changing
the maximum number of shares sought or the amount or type of consideration
being offered therefor) or the sale or transfer of all or substantially all
of the assets of the Trust as an entirety; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Trust;
then the Trust shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series I Preferred Shares
at their addresses as shown on the share records of the Trust, as
promptly as possible, but at least 15 days prior to the applicable date
hereinafter specified, a notice stating (A) the record date for the
payment of such dividend or other distribution or grant of rights or
warrants, or, if a record date is not established, the date as of
which the holders of Common Shares of record to be entitled to such
dividend or other distribution or rights or warrants are to be
determined or (B) the date on which such reclassification, consolidation,
merger, statutory share exchange, sale, transfer, liquidation, dissolution
or winding up is expected to become effective, and the date as of which it
is expected that holders of Common Shares of record shall be entitled to
exchange their Common Shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, statutory
share exchange, sale, transfer, liquidation, dissolution or winding up or
(C) the date on which such tender offer commenced, the date on which such
tender offer is scheduled to expire unless extended, the consideration
offered and the other material terms thereof (or the material terms of any
amendment thereto). Failure to give or receive such notice or any defect
therein shall not affect the legality or validity of the proceedings
described in this Section 7.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Trust shall promptly file with the Transfer Agent an officer's certificate
setting forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment which certificate shall
be conclusive evidence of the correctness of such adjustment absent manifest
error. Promptly after delivery of such certificate, the Trust shall prepare a
notice of such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the effective date that such adjustment becomes effective
and shall mail such notice of such adjustment
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of the Conversion Price to the holder of each Series I Preferred Share at such
holder's last address as shown on the share records of the Trust.
(h) In any case in which paragraph (d) of this Section 7 provides
that an adjustment shall become effective on the day next following the record
date for an event, the Trust may defer until the occurrence of such event (A)
issuing to the holder of any Series I Preferred Shares converted after such
record date and before the occurrence of such event the additional Common Shares
issuable upon such conversion by reason of the adjustment required by such event
over and above the Common Shares issuable upon such conversion before giving
effect to such adjustment and (B) paying to such holder any amount of cash in
lieu of any fraction pursuant to paragraph (c) of this Section 7.
(i) There shall be no adjustment of the Conversion Price in case of
the issuance of any shares of the Trust in a reorganization, acquisition or
other similar transaction except as specifically set forth in this Section 7.
If any action or transaction would require adjustment of the Conversion Price
pursuant to more than one paragraph of this Section 7, only one adjustment shall
be made and such adjustment shall be the amount of adjustment that has the
highest absolute value.
(j) If the Trust shall take any action affecting the Common Shares,
other than action described in this Section 7, that in the opinion of the Board
of Trustees would materially adversely affect the conversion rights of the
holders of the Series I Preferred Shares, the Conversion Price for the Series I
Preferred Shares may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time, as the Board of Trustees, in its sole
discretion, may determine to be equitable in the circumstances.
(k) The Trust will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Shares, solely for the purpose of effecting conversion of the Series I Preferred
Shares, the full number of Common Shares deliverable upon the conversion of all
outstanding Series I Preferred Shares not theretofore converted into Common
Shares. For purposes of this paragraph (k), the number of Common Shares that
shall be deliverable upon the conversion of all outstanding Series I Preferred
Shares shall be computed as if at the time of computation all such outstanding
shares were held by a single holder.
The Trust covenants that any Common Shares issued upon conversion of
the Series I Preferred Shares shall be validly issued, fully paid and
non-assessable.
The Trust shall endeavor to list the Common Shares required to be
delivered upon conversion of the Series I Preferred Shares, prior to such
delivery, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
Prior to the delivery of any securities that the Trust shall be
obligated to deliver upon conversion of the Series I Preferred Shares, the Trust
shall endeavor to comply with all federal and state laws and regulations
thereunder requiring the registration of such securities with,
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or any approval of or consent to the delivery thereof by, any governmental
authority and to take action necessary to insure that any Common Shares issued
upon conversion of the Series I Preferred Shares are transferable under the
provisions of Rule 144A, Regulation S and Rule 144 of the Act and any applicable
state securities or blue sky laws.
(l) The Trust will pay any and all documentary stamp or similar issue
or transfer taxes payable in respect of the issue or delivery of Common Shares
or other securities or property on conversion of the Series I Preferred Shares
pursuant hereto; PROVIDED, HOWEVER, that the Trust shall not be required to pay
any tax that may be payable in respect of any transfer involved in the issue or
delivery of Common Shares or other securities or property in a name other than
that of the holder of the Series I Preferred Shares to be converted, and no such
issue or delivery shall be made unless and until the person requesting such
issue or delivery has paid to the Trust the amount of any such tax or
established, to the reasonable satisfaction of the Trust, that such tax has been
paid.
Section 8. RANKING. Any class or series of shares of the Trust shall
be deemed to rank:
(a) Prior to the Series I Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series I Preferred Shares;
(b) On a parity with the Series I Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof be different from those of
the Series I Preferred Shares, if the holders of such class of shares or series
and the Series I Preferred Shares shall be entitled to the receipt of dividends
and of amounts distributable upon liquidation, dissolution or winding up in
proportion to their respective amounts of accrued and unpaid dividends per share
or liquidation preferences, without preference or priority one over the other
("Parity Shares"), which Parity Shares include, as of the Issue Date, the
Trust's Series A Preferred Shares, Series B Preferred Shares, Series C Preferred
Shares, Series D Preferred Shares, Series E Preferred Shares, Series F Preferred
Shares, Series G Preferred Shares, Series H Preferred Shares, Series J Preferred
Shares, Series K Preferred Shares and Series L Preferred Shares; and
(c) Junior to the Series I Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution or
winding up, if such shares or series shall be Common Shares or if the holders of
Series I Preferred Shares shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of such shares or series.
Section 9. VOTING. If and whenever six quarterly dividends (whether
or not consecutive) payable on the Series I Preferred Shares or any series or
class of Parity Shares shall be in arrears (which shall, with respect to any
such quarterly dividend, mean that any such dividend has not been paid in full),
whether or not earned or declared, the number of trustees then
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constituting the Board of Trustees shall be increased by two (if not already
increased by reason of a similar arrearage with respect to any Parity Shares)
and the holders of Series I Preferred Shares, together with the holders of every
other series of Parity Shares (any such other series, the "Voting Preferred
Shares"), voting as a single class regardless of series, shall be entitled to
elect the two additional trustees to serve on the Board of Trustees at any
annual meeting of shareholders or special meeting held in place thereof, or at a
special meeting of the holders of the Series I Preferred Shares and the Voting
Preferred Shares called as hereinafter provided. Whenever all arrears in
dividends on the Series I Preferred Shares and the Voting Preferred Shares then
outstanding shall have been paid and dividends thereon for the current quarterly
dividend period shall have been paid or declared and set apart for payment, then
the right of the holders of the Series I Preferred Shares and the Voting
Preferred Shares to elect such additional two trustees shall cease (but subject
always to the same provision for the vesting of such voting rights in the case
of any similar future arrearages in six quarterly dividends), and the terms of
office of all persons elected as trustees by the holders of the Series I
Preferred Shares and the Voting Preferred Shares shall forthwith terminate and
the number of the Board of Trustees shall be reduced accordingly. At any time
after such voting power shall have been so vested in the holders of Series I
Preferred Shares and the Voting Preferred Shares, the secretary of the Trust
may, and upon the written request of any holder of Series I Preferred Shares
(addressed to the secretary at the principal office of the Trust) shall, call a
special meeting of the holders of the Series I Preferred Shares and of the
Voting Preferred Shares for the election of the two trustees to be elected by
them as herein provided, such call to be made by notice similar to that provided
in the Bylaws of the Trust for a special meeting of the shareholders or as
required by law. If any such special meeting required to be called as above
provided shall not be called by the secretary within 20 days after receipt of
any such request, then any holder of Series I Preferred Shares may call such
meeting, upon the notice above provided, and for that purpose shall have access
to the share books of the Trust. The trustees elected at any such special
meeting shall hold office until the next annual meeting of the shareholders or
special meeting held in lieu thereof if such office shall not have previously
terminated as above provided. If any vacancy shall occur among the trustees
elected by the holders of the Series I Preferred Shares and the Voting Preferred
Shares, a successor shall be elected by the Board of Trustees, upon the
nomination of the then-remaining trustee elected by the holders of the Series I
Preferred Shares and the Voting Preferred Shares or the successor of such
remaining trustee, to serve until the next annual meeting of the shareholders or
special meeting held in place thereof if such office shall not have previously
terminated as provided above.
So long as any Series I Preferred Shares are outstanding, in addition
to any other vote or consent of shareholders required by law or by the
Declaration of Trust, as amended, the affirmative vote of at least 66 2/3% of
the votes entitled to be cast by the holders of the Series I Preferred Shares
and the Voting Preferred Shares, at the time outstanding, acting as a single
class regardless of series, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of
the Declaration of Trust or the Bylaws of the Trust that materially adversely
affects the voting powers, rights or preferences of the holders of the Series I
Preferred Shares or the Voting Preferred
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Shares; PROVIDED, HOWEVER, that the amendment of the provisions of the
Declaration of Trust so as to authorize or create, or to increase the authorized
amount of, any Junior Shares or any shares of any class ranking on a parity with
the Series I Preferred Shares or the Voting Preferred Shares shall not be deemed
to materially adversely affect the voting powers, rights or preferences of the
holders of Series I Preferred Shares, and PROVIDED FURTHER, that if any such
amendment, alteration or repeal would materially adversely affect any voting
powers, rights or preferences of the Series I Preferred Shares or another series
of Voting Preferred Shares that are not enjoyed by some or all of the other
series which otherwise would be entitled to vote in accordance herewith, the
affirmative vote of at least 66 2/3% of the votes entitled to be cast by the
holders of all series similarly affected, similarly given, shall be required in
lieu of the affirmative vote of at least 66 2/3% of the votes entitled to be
cast by the holders of the Series I Preferred Shares and the Voting Preferred
Shares which otherwise would be entitled to vote in accordance herewith; or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security convertible into
shares of any class ranking prior to the Series I Preferred Shares in the
distribution of assets on any liquidation, dissolution or winding up of the
Trust or in the payment of dividends; PROVIDED, HOWEVER, that no such vote of
the holders of Series I Preferred Shares shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take effect, or when
the issuance of any such prior shares or convertible security is to be made, as
the case may be, provision is made for the redemption of all Series I Preferred
Shares at the time outstanding.
For purposes of the foregoing provisions of this Section 9, each
Series I Preferred Share shall have one (1) vote per share, except that when
any other series of Preferred Shares shall have the right to vote with the
Series I Preferred Shares as a single class on any matter, then the Series I
Preferred Shares and such other series shall have with respect to such
matters one (1) vote per $25.00 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the Series I
Preferred Shares shall not have any voting rights and powers other than as
set forth herein, and the consent of the holders thereof shall not be
required for the taking of any trust action.
Section 10. RECORD HOLDERS. The Trust and the Transfer Agent may deem
and treat the record holder of any Series I Preferred Shares as the true and
lawful owner thereof for all purposes, and neither the Trust nor the Transfer
Agent shall be affected by any notice to the contrary.
C. SERIES J PREFERRED SHARES
Section 1. NUMBER OF SHARES AND DESIGNATION. This series of
Preferred Shares shall be designated as Series J Cumulative Convertible
Preferred Shares of Beneficial Interest ($.01 Par Value Per Share) (Liquidation
Preference $25.00 Per Share) (the "Series J Preferred Shares") and 4,599,400
shall be the number of Preferred Shares constituting such series.
Section 2. DEFINITIONS. For purposes of the Series J Preferred
Shares, the following terms shall have the meanings indicated:
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"Act" shall have the meaning set forth in paragraph (g) of Section 5
hereof.
"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee authorized by such Board of Trustees to perform any of its
responsibilities with respect to the Series J Preferred Shares.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in Chicago,
Illinois or New York, New York are not required to be open.
"Call Date" shall have the meaning set forth in paragraph (c) of
Section 5 hereof.
"Common Shares" shall mean the common shares of beneficial interest of
the Trust, $.01 par value per share.
"Constituent Person" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Conversion Price" shall mean the conversion price per Common Share
for which a Series J Preferred Share is convertible, as such Conversion Price
may be adjusted pursuant to Section 7. The initial conversion price shall be
$40.74 (equivalent to a conversion rate of .6136 Common Shares for each Series J
Preferred Share).
"Current Market Price" of publicly traded Common Shares or any other
class of shares of beneficial interest or other security of the Trust or any
other issuer for any day shall mean the last reported sales price, regular way
on such day, or, if no sale takes place on such day, the average of the reported
closing bid and asked prices on such day, regular way, in either case as
reported on the New York Stock Exchange ("NYSE") or, if such security is not
listed or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if not
listed or admitted for trading on any national securities exchange, on the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if such security is not quoted on
such National Market System, the average of the closing bid and asked prices on
such day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for such security on such day shall not have been reported through
NASDAQ, the average of the bid and asked prices on such day as furnished by any
NYSE member firm regularly making a market in such security selected for such
purpose by the Chief Executive Officer or the Board of Trustees.
"Dividend Payment Date" shall mean the last calendar day of March,
June, September and December, in each year, commencing on December 31, 1998;
PROVIDED, HOWEVER, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day
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preceding the first day of the next succeeding Dividend Period (other than the
initial Dividend Period, which shall commence on the Issue Date and end on and
include December 31, 1998).
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Share during the five (5) consecutive Trading Days selected
by the Trust commencing not more than 20 Trading Days before, and ending not
later than, the earlier of the day in question and the day before the "ex" date
with respect to the issuance or distribution requiring such computation. The
term "ex date," when used with respect to any issuance or distribution, means
the first day on which the Common Shares trade regular way, without the right to
receive such issuance or distribution, on the exchange or in the market, as the
case may be, used to determine that day's Current Market Price.
"Issue Date" shall mean the first date on which Series J Preferred
Shares are issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of shares of the Trust over which the Series J Preferred Shares have
preference or priority in the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding up of the Trust.
"Non-Electing Share" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Parity Shares" shall have the meaning set forth in paragraph (b) of
Section 8 hereof.
"Permitted Common Share Cash Distributions" means cash dividends and
distributions paid after December 31, 1997, not in excess of the Trust's
cumulative undistributed net earnings at December 31, 1997, plus the cumulative
amount of funds from operations, as determined by the Board of Trustees on a
basis consistent with the financial reporting practices of the Trust, after
December 31, 1997, minus the cumulative amount of dividends accrued or paid on
the Series J Preferred Shares or any other class of Preferred Shares after
December 31, 1997.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
"Press Release" shall have the meaning set forth in paragraph (b) of
Section 5 hereof.
"Securities" shall have the meaning set forth in paragraph (d)(iii) of
Section 7 hereof.
"Series J Preferred Shares" shall have the meaning set forth in
Section 1 hereof.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Trust in its accounting ledgers
of any accounting or
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bookkeeping entry which indicates, pursuant to an authorization of dividends or
other distribution by the Board of Trustees, the allocation of funds to be so
paid on any series or class of shares of beneficial interest of the Trust;
PROVIDED, HOWEVER, that if any funds for any class or series of Junior Shares or
any class or series of shares ranking on a parity with the Series J Preferred
Shares as to the payment of dividends are placed in a separate account of the
Trust or delivered to a disbursing, paying or other similar agent, then "set
apart for payment" with respect to the Series J Preferred Shares shall mean
placing such funds in a separate account or delivering such funds to a
disbursing, paying or other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which such
securities are listed or admitted, or if not listed or admitted for trading on
any national securities exchange, on the National Market System of NASDAQ, or if
such securities are not quoted on such National Market System, in the applicable
securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
"Transfer Agent" means Boston Equiserve LP, Boston, Massachusetts, or
such other agent or agents of the Trust as may be designated by the Board of
Trustees or their designee as the transfer agent for the Series J Preferred
Shares.
"Voting Preferred Shares" shall have the meaning set forth in
Section 9 hereof.
Section 3. DIVIDENDS. (a) The holders of Series J Preferred Shares
shall be entitled to receive, when, as and if authorized by the Board of
Trustees, out of funds legally available for that purpose, dividends payable in
cash in an amount per Series J Preferred Share equal to the greater of (i)
$.5375 per quarter (equivalent to $2.15 per annum) or (ii) the cash dividend on
the number of Common Shares, or portion thereof, into which a Series J Preferred
Share is convertible. The amount referred to in (ii) of the immediately
preceding sentence shall be determined as of each Dividend Payment Date by
multiplying the number of Common Shares, or portion thereof, calculated to the
fourth decimal place, into which a Series J Preferred Share is convertible at
the opening of business on such Dividend Payment Date by the quarterly cash
dividend payable in respect of a Common Share on such Dividend Payment Date.
Such dividends shall be cumulative from the October 1, 1998, whether or not in
any Dividend Period or Periods there shall be funds of the Trust legally
available for the payment of such dividends, and shall be payable quarterly,
when, as and if authorized by the Board of Trustees, in arrears on Dividend
Payment Dates, commencing on December 31, 1998. Each such dividend shall be
payable in arrears to the holders of record of Series J Preferred Shares, as
they appear on the share records of the Trust at the close of business on such
record dates, not more than 60 days preceding such Dividend Payment Dates
thereof, as shall be fixed by the Board of Trustees which record dates shall
coincide with the record dates for the quarterly dividends, if any, payable on
Common Shares, and which Dividend Payment Dates on the Series J Preferred Shares
shall coincide with or precede the Dividend Payment Dates for the quarterly
dividends, if any, payable on Common Shares. Accrued and unpaid dividends for
any past Dividend Periods may be declared and paid at any time, without
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reference to any regular Dividend Payment Date, to holders of record on such
date, not exceeding 45 days preceding the payment date thereof, as may be fixed
by the Board of Trustees.
(b) The amount of dividends payable for each full Dividend Period for
the Series J Preferred Shares shall be computed by dividing the annual dividend
rate by four. The amount of dividends payable for any period shorter or longer
than a full Dividend Period on the Series J Preferred Shares shall be computed
on the basis of twelve 30-day months and a 360-day year. Holders of Series J
Preferred Shares shall not be entitled to any dividends, whether payable in
cash, property or shares, in excess of cumulative dividends, as herein provided,
on the Series J Preferred Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on the
Series J Preferred Shares that may be in arrears.
(c) So long as any Series J Preferred Shares are outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity
Shares for any period unless 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 Series J Preferred Shares for
all Dividend Periods terminating on or prior to the Dividend Payment Date on
such class or series of Parity Shares. When dividends are not paid in full or a
sum sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon Series J Preferred Shares and all dividends declared upon any
other class or series of Parity Shares shall be declared ratably in proportion
to the respective amounts of dividends accumulated and unpaid on the Series J
Preferred Shares and accumulated and unpaid on such Parity Shares.
(d) So long as any Series J Preferred Shares are outstanding, no
dividends (other than dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase, Junior Shares), shall be
declared or paid or set apart for payment or other distribution declared or made
upon Junior Shares, nor shall Junior Shares be redeemed, purchased or otherwise
acquired (other than a redemption, purchase or other acquisition of Common
Shares made for purposes of an employee incentive or benefit plan of the Trust
or any subsidiary) for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such shares) by the
Trust, directly or indirectly (except by conversion into or exchange for Junior
Shares), unless in each case (i) the full cumulative dividends on all
outstanding Series J Preferred Shares and any other Parity Shares of the Trust
shall have been paid or set apart for payment for all past Dividend Periods with
respect to the Series J Preferred Shares and all past dividend periods with
respect to such Parity Shares and (ii) sufficient funds shall have been paid or
set apart for the payment of the dividend for the current Dividend Period with
respect to the Series J Preferred Shares and the current dividend period with
respect to such Parity Shares.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the Trust, whether voluntary or
involuntary, before any payment or distribution of the assets of the Trust
(whether capital or surplus) shall be made to or set apart for the holders of
Junior Shares, the holders of the Series J Preferred Shares shall be entitled to
receive Twenty-five Dollars ($25.00) per Series J Preferred Share plus an amount
equal to all dividends (whether or not earned or declared) accrued and unpaid
thereon to the date of final distribution to such holders;
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but such holders shall not be entitled to any further payment. If, upon any
liquidation, dissolution or winding up of the Trust, the assets of the Trust, or
proceeds thereof, distributable among the holders of the Series J Preferred
Shares shall be insufficient to pay in full the preferential amount aforesaid
and liquidating payments on any other shares of any class or series of Parity
Shares, then such assets, or the proceeds thereof, shall be distributed among
the holders of Series J Preferred Shares and any such other Parity Shares
ratably in accordance with the respective amounts that would be payable on such
Series J Preferred Shares and any such other Parity Shares if all amounts
payable thereon were paid in full. For the purposes of this Section 4, (i) a
consolidation or merger of the Trust with one or more entities, (ii) a sale or
transfer of all or substantially all of the Trust's assets, or (iii) a statutory
share exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary, of the Trust.
(b) Subject to the rights of the holders of shares of any series or
class or classes of Shares ranking on a parity with or prior to the Series J
Preferred Shares upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Trust, after payment shall have
been made in full to the holders of the Series J Preferred Shares, as provided
in this Section 4, any other series or class or classes of Junior Shares shall,
subject to the respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets remaining to be paid or distributed, and
the holders of the Series J Preferred Shares shall not be entitled to share
therein.
Section 5. REDEMPTION AT THE OPTION OF THE TRUST.
(a) The Series J Preferred Shares shall not be redeemable by the
Trust prior to March 31, 2000. On and after March 31, 2000, the Trust, at its
option, may redeem the Series J Preferred Shares in whole or in part, as set
forth herein, subject to the provisions described below.
(b) The Series J Preferred Shares may be redeemed, in whole or in
part, at the option of the Trust, at any time, only if for 20 Trading Days,
within any period of 30 consecutive Trading Days, including the last Trading Day
of such period, the Current Market Price of the Common Shares on each of such 20
Trading Days equals or exceeds the Conversion Price in effect on such Trading
Day. In order to exercise its redemption option, the Trust must issue a press
release announcing the redemption (the "Press Release") prior to the opening of
business on the second Trading Day after the condition in the preceding sentence
has, from time to time, been met. The Trust may not issue a Press Release prior
to February 28, 2000. The Press Release shall announce the redemption and set
forth the number of Series J Preferred Shares which the Trust intends to redeem.
The Call Date shall be selected by the Trust, shall be specified in the notice
of redemption and shall be not less than 30 days or more than 60 days after the
date on which the Trust issues the Press Release.
(c) Upon redemption of Series J Preferred Shares by the Trust on the
date specified in the notice to holders required under subparagraph (e) of this
Section 5 (the "Call Date"), each Series J Preferred Share so redeemed shall be
converted into a number of Common Shares equal to the liquidation preference
(excluding any accrued and unpaid dividends) of the
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Series J Preferred Share being redeemed divided by the Conversion Price as of
the opening of business on the Call Date.
Upon any redemption of Series J Preferred Shares, the Trust shall pay
any accrued and unpaid dividends in arrears for any Dividend Period ending on or
prior to the Call Date. If the Call Date falls after a dividend payment record
date and prior to the corresponding Dividend Payment Date, then each holder of
Series J Preferred Shares at the close of business on such dividend payment
record date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such
shares before such Dividend Payment Date. Except as provided above, the Trust
shall make no payment or allowance for unpaid dividends, whether or not in
arrears, on Series J Preferred Shares called for redemption or on the Common
Shares issued upon such redemption.
(d) If full cumulative dividends on the Series J Preferred Shares and
any other class or series of Parity Shares of the Trust have not been paid or
declared and set apart for payment, the Series J Preferred Shares may not be
redeemed in part and the Trust may not purchase or acquire Series J Preferred
Shares, otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of Series J Preferred Shares.
(e) If the Trust shall redeem Series J Preferred Shares pursuant to
paragraph (a) of this Section 5, notice of such redemption shall be given not
more than four Business Days after the date on which the Trust issues the Press
Release to each holder of record of the shares to be redeemed. Such notice
shall be provided by first class mail, postage prepaid, at such holder's address
as the same appears on the share records of the Trust, or by publication in THE
WALL STREET JOURNAL or THE NEW YORK TIMES, or if neither such newspaper is then
being published, any other daily newspaper of national circulation. If the
Trust elects to provide such notice by publication, it shall also promptly mail
notice of such redemption to the holders of the Series J Preferred Shares to be
redeemed. Neither the failure to mail any notice required by this paragraph
(e), nor any defect therein or in the mailing thereof, to any particular holder,
shall affect the sufficiency of the notice or the validity of the proceedings
for redemption with respect to the other holders. Any notice which was mailed
in the manner herein provided shall be conclusively presumed to have been duly
given on the date mailed whether or not the holder receives the notice. Each
such mailed or published notice shall state, as appropriate: (1) the Call Date;
(2) the number of Series J Preferred Shares to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder; (3) the number of Common Shares to be issued
with respect to each Series J Preferred Share; (4) the place or places at which
certificates for such shares are to be surrendered for certificates evidencing
Common Shares; (5) the then-current Conversion Price; and (6) that dividends on
the shares to be redeemed shall cease to accrue on such Call Date except as
otherwise provided herein. Notice having been published or mailed as aforesaid,
from and after the Call Date (unless the Trust shall fail to make available a
number of Common Shares or amount of cash necessary to effect such redemption),
(i) except as otherwise provided herein, dividends on the Series J Preferred
Shares so called for redemption shall cease to accrue, (ii) said shares shall no
longer be deemed to be outstanding, and (iii) all rights of the holders thereof
as holders of Series J Preferred Shares of the Trust shall cease (except the
rights to receive the Common Shares and cash payable upon such
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redemption, without interest thereon, upon surrender and endorsement of their
certificates if so required and to receive any dividends payable thereon). The
Trust's obligation to provide Common Shares and cash in accordance with the
preceding sentence shall be deemed fulfilled if, on or before the Call Date, the
Trust shall deposit with a bank or trust company (which may be an affiliate of
the Trust) that has an office in the Borough of Manhattan, City of New York, or
in Chicago, Illinois and that has, or is an affiliate of a bank or trust company
that has, a capital and surplus of at least $50,000,000, Common Shares and any
cash necessary for such redemption, in trust, with irrevocable instructions that
such Common Shares and cash be applied to the redemption of the Series J
Preferred Shares so called for redemption. At the close of business on the Call
Date, each holder of Series J Preferred Shares to be redeemed (unless the Trust
defaults in the delivery of the Common Shares or cash payable on such Call Date)
shall be deemed to be the record holder of the number of Common Shares into
which such Series J Preferred Shares are to be redeemed, regardless of whether
such holder has surrendered the certificates evidencing the Series J Preferred
Shares. No interest shall accrue for the benefit of the holders of Series J
Preferred Shares to be redeemed on any cash so set aside by the Trust. Subject
to applicable escheat laws, any such cash unclaimed at the end of two years from
the Call Date shall revert to the general funds of the Trust, after which
reversion the holders of such shares so called for redemption shall look only to
the general funds of the Trust for the payment of such cash.
As promptly as practicable after the surrender in accordance with said
notice of the certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Trust shall so require and if the notice shall so
state), such shares shall be exchanged for certificates evidencing Common Shares
and any cash (without interest thereon) for which such shares have been
redeemed. If fewer than all the outstanding Series J Preferred Shares are to be
redeemed, shares to be redeemed shall be selected by the Trust from outstanding
Series J Preferred Shares not previously called for redemption by lot or pro
rata (as nearly as may be) or by any other method determined by the Trust in its
sole discretion to be equitable. If fewer than all the Series J Preferred
Shares evidenced by any certificate are redeemed, then new certificates
evidencing the unredeemed shares shall be issued without cost to the holder
thereof.
(f) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon redemption of the Series J Preferred Shares.
Instead of any fractional interest in a Common Share that would otherwise be
deliverable upon the redemption of a Series J Preferred Share, the Trust shall
pay to the holder of such share an amount in cash (computed to the nearest cent)
based upon the Current Market Price of Common Shares on the Trading Day
immediately preceding the Call Date. If more than one share shall be
surrendered for redemption at one time by the same holder, the number of full
Common Shares issuable upon redemption thereof shall be computed on the basis of
the aggregate number of Series J Preferred Shares so surrendered.
(g) The Trust covenants that any Common Shares issued upon redemption
of the Series J Preferred Shares shall be validly issued, fully paid and
non-assessable. The Trust shall endeavor to list the Common Shares required to
be delivered upon redemption of the Series J Preferred Shares, prior to such
redemption, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
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The Trust shall endeavor to take any action necessary to ensure that
any Common Shares issued upon the redemption of Series J Preferred Shares are
freely transferable and not subject to any resale restrictions under the
Securities Act of 1933, as amended (the "Act"), or any applicable state
securities or blue sky laws (other than any Common Shares issued upon redemption
of any Series J Preferred Shares which are held by an "affiliate" (as defined in
Rule 144 under the Act) of the Trust).
Section 6. SHARES TO BE RETIRED.
All Series J Preferred Shares which shall have been issued and
reacquired in any manner by the Trust shall be restored to the status of
authorized but unissued Preferred Shares, without designation as to series. The
Trust may also reclassify any unissued Series J Preferred Shares, and such
shares shall then be restored to the status of authorized but unissued Preferred
Shares, without designation as to series.
Section 7. CONVERSION.
Holders of Series J Preferred Shares shall have the right to convert
all or a portion of their Series J Preferred Shares into Common Shares, as
follows:
(a) Subject to and upon compliance with the provisions of this
Section 7, a holder of Series J Preferred Shares shall have the right, at his or
her option, at any time to convert such shares into the number of fully paid and
non-assessable Common Shares obtained by dividing the aggregate liquidation
preference (excluding any accrued and unpaid dividends) of such shares by the
Conversion Price (as in effect at the time and on the date provided for in the
last paragraph of paragraph (b) of this Section 7) by surrendering such shares
to be converted, such surrender to be made in the manner provided in Section 7
paragraph (b); PROVIDED, HOWEVER, that the right to convert shares called for
redemption pursuant to Section 5 shall terminate at the close of business on the
Call Date fixed for such redemption, unless the Trust shall default in making
payment of the Common Shares and any cash payable upon such redemption under
Section 5 hereof.
(b) In order to exercise the conversion right, the holder of each
Series J Preferred Share to be converted shall surrender the certificate
evidencing such share, duly endorsed or assigned to the Trust or in blank, at
the office of the Transfer Agent, accompanied by written notice to the Trust
that the holder thereof elects to convert such Series J Preferred Shares.
Unless the shares issuable on conversion are to be issued in the same name as
the name in which such share of Series J Preferred Shares is registered, each
share surrendered for conversion shall be accompanied by instruments of
transfer, in form satisfactory to the Trust, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any transfer
or similar tax (or evidence reasonably satisfactory to the Trust demonstrating
that such taxes have been paid).
Holders of Series J Preferred Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend payable
on such shares on the corresponding Dividend Payment Date notwithstanding the
conversion thereof following such dividend payment
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record date and prior to such Dividend Payment Date. However, Series J
Preferred Shares surrendered for conversion during the period between the close
of business on any dividend payment record date and the opening of business on
the corresponding Dividend Payment Date (except shares converted after the
issuance of notice of redemption with respect to a Call Date during such period,
such Series J Preferred Shares being entitled to such dividend on the Dividend
Payment Date) must be accompanied by payment of an amount equal to the dividend
payable on such shares on such Dividend Payment Date. A holder of Series J
Preferred Shares on a dividend payment record date who (or whose transferee)
tenders any such shares for conversion into Common Shares on such Dividend
Payment Date will receive the dividend payable by the Trust on such Series J
Preferred Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series J Preferred
Shares for conversion. Except as provided above, the Trust shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the Common Shares issued upon such
conversion.
As promptly as practicable after the surrender of certificates for
Series J Preferred Shares as aforesaid, the Trust shall issue and shall deliver
at such office to such holder, or on his or her written order, a certificate or
certificates for the number of full Common Shares issuable upon the conversion
of such shares in accordance with provisions of this Section 7, and any
fractional interest in respect of a Common Share arising upon such conversion
shall be settled as provided in paragraph (c) of this Section 7.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series J Preferred Shares shall have been surrendered and such notice (and if
applicable, payment of an amount equal to the dividend payable on such shares)
received by the Trust as aforesaid, and the person or persons in whose name or
names any certificate or certificates for Common Shares shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares evidenced thereby at such time on such date and such conversion
shall be at the Conversion Price in effect at such time on such date unless the
share transfer books of the Trust shall be closed on that date, in which event
such person or persons shall be deemed to have become such holder or holders of
record at the close of business on the next succeeding day on which such share
transfer books are open, but such conversion shall be at the Conversion Price in
effect on the date on which such shares shall have been surrendered and such
notice received by the Trust.
(c) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon conversion of the Series J Preferred Shares.
Instead of any fractional interest in a Common Share that would otherwise be
deliverable upon the conversion of a Series J Preferred Share, the Trust shall
pay to the holder of such share an amount in cash based upon the Current Market
Price of Common Shares on the Trading Day immediately preceding the date of
conversion. If more than one share shall be surrendered for conversion at one
time by the same holder, the number of full Common Shares issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
Series J Preferred Shares so surrendered.
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(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Trust shall after the Issue Date (A) pay a dividend
or make a distribution on its shares of beneficial interest in its Common
Shares, (B) subdivide its outstanding Common Shares into a greater number
of shares, (C) combine its outstanding Common Shares into a smaller number
of shares or (D) issue any shares by reclassification of its Common Shares,
the Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such dividend or distribution or at the opening of business on the
day following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall be adjusted
so that the holder of any Series J Preferred Share thereafter surrendered
for conversion shall be entitled to receive the number of Common Shares
that such holder would have owned or have been entitled to receive after
the happening of any of the events described above had such Series J
Preferred Share been converted immediately prior to the record date in the
case of a dividend or distribution or the effective date in the case of a
subdivision, combination or reclassification. An adjustment made pursuant
to this subparagraph (i) shall become effective immediately after the
opening of business on the day next following the record date (except as
provided in paragraph (h) below) in the case of a dividend or distribution
and shall become effective immediately after the opening of business on the
day next following the effective date in the case of a subdivision,
combination or reclassification.
(ii) If the Trust shall issue after the Issue Date rights,
options or warrants to all holders of Common Shares entitling them (for a
period expiring within 45 days after the record date mentioned below) to
subscribe for or purchase Common Shares at a price per share less than the
Fair Market Value per Common Share on the record date for the determination
of shareholders entitled to receive such rights or warrants, then the
Conversion Price in effect at the opening of business on the day next
following such record date shall be adjusted to equal the price determined
by multiplying (I) the Conversion Price in effect immediately prior to the
opening of business on the day following the date fixed for such
determination by (II) a fraction, the numerator of which shall be the sum
of (A) the number of Common Shares outstanding on the close of business on
the date fixed for such determination and (B) the number of shares that the
aggregate proceeds to the Trust from the exercise of such rights or
warrants for Common Shares would purchase at such Fair Market Value, and
the denominator of which shall be the sum of (A) the number of Common
Shares outstanding on the close of business on the date fixed for such
determination and (B) the number of additional Common Shares offered for
subscription or purchase pursuant to such rights or warrants. Such
adjustment shall become effective immediately after the opening of business
on the day next following such record date (except as provided in paragraph
(h) below). In determining whether any rights or warrants entitle the
holders of Common Shares to subscribe for or purchase Common Shares at less
than such Fair Market Value, there shall be taken into account any
consideration received by the Trust upon issuance and upon exercise of such
rights or warrants, the value of such consideration, if other than cash, to
be determined by the Chief Executive Officer or the Board of Trustees.
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(iii) If the Trust shall distribute to all holders of its Common
Shares any shares of beneficial interest of the Trust (other than Common
Shares) or evidence of its indebtedness or assets (excluding Permitted
Common Share Cash Distributions and cash dividends which result in a
payment of an equal cash dividend to the holders of the Series J Preferred
Shares pursuant to subparagraph (ii) of Section 3(a) hereof) or rights or
warrants to subscribe for or purchase any of its securities (excluding
those rights and warrants issued to all holders of Common Shares entitling
them for a period expiring within 45 days after the record date referred to
in subparagraph (ii) above to subscribe for or purchase Common Shares,
which rights and warrants are referred to in and treated under subparagraph
(ii) above) (any of the foregoing being hereinafter in this subparagraph
(iii) called the "Securities"), then in each such case the Conversion Price
shall be adjusted so that it shall equal the price determined by
multiplying (I) the Conversion Price in effect immediately prior to the
close of business on the date fixed for the determination of shareholders
entitled to receive such distribution by (II) a fraction, the numerator of
which shall be the Fair Market Value per Common Share on the record date
mentioned below less the then fair market value (as determined by the Chief
Executive Officer or the Board of Trustees, whose determination shall be
conclusive), of the portion of the shares or assets or evidences of
indebtedness so distributed or of such rights or warrants applicable to one
Common Share, and the denominator of which shall be the Fair Market Value
per Common Share on the record date mentioned below. Such adjustment shall
become effective immediately at the opening of business on the Business Day
next following (except as provided in paragraph (h) below) the record date
for the determination of shareholders entitled to receive such
distribution. For the purposes of this clause (iii), the distribution of a
Security, which is distributed not only to the holders of the Common Shares
on the date fixed for the determination of shareholders entitled to such
distribution of such Security, but also is distributed with each Common
Share delivered to a Person converting a Series J Preferred Share after
such determination date, shall not require an adjustment of the Conversion
Price pursuant to this clause (iii); PROVIDED that on the date, if any, on
which a person converting a Series J Preferred Share would no longer be
entitled to receive such Security with a Common Share (other than as a
result of the termination of all such Securities), a distribution of such
Securities shall be deemed to have occurred and the Conversion Price shall
be adjusted as provided in this clause (iii) and such day shall be deemed
to be "the date fixed for the determination of the shareholders entitled to
receive such distribution" and "the record date" within the meaning of the
two preceding sentences.
(iv) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease of
at least 1% in such price; PROVIDED, HOWEVER, that any adjustments that by
reason of this subparagraph (iv) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment until
made; and PROVIDED, FURTHER, that any adjustment shall be required and made
in accordance with the provisions of this Section 7 (other than this
subparagraph (iv)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of Common
Shares. Notwithstanding any other provisions of this Section 7, the Trust
shall not be required to make any adjustment of the Conversion
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Price for the issuance of any Common Shares pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of the
Trust and the investment of additional optional amounts in Common Shares
under such plan. All calculations under this Section 7 shall be made to
the nearest cent (with $.005 being rounded upward) or to the nearest
one-tenth of a share (with .05 of a share being rounded upward), as the
case may be. Anything in this paragraph (d) to the contrary
notwithstanding, the Trust shall be entitled, to the extent permitted by
law, to make such reductions in the Conversion Price, in addition to those
required by this paragraph (d), as it in its discretion shall determine to
be advisable in order that any share dividends, subdivision of shares,
reclassification or combination of shares, distribution of rights or
warrants to purchase shares or securities, or a distribution of other
assets (other than cash dividends) hereafter made by the Trust to its
shareholders shall not be taxable, or if that is not possible, to diminish
any income taxes that are otherwise payable because of such event.
(e) If the Trust shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for all or substantially all Common Shares, sale of all or
substantially all of the Trust's assets or recapitalization of the Common Shares
and excluding any transaction as to which subparagraph (d)(i) of this Section 7
applies) (each of the foregoing being referred to herein as a "Transaction"), in
each case as a result of which Common Shares shall be converted into the right
to receive shares, securities or other property (including cash or any
combination thereof), each Series J Preferred Share which is not converted into
the right to receive shares, securities or other property in connection with
such Transaction shall thereafter be convertible into the kind and amount of
shares, securities and other property (including cash or any combination
thereof) receivable upon the consummation of such Transaction by a holder of
that number of Common Shares into which one Series J Preferred Share was
convertible immediately prior to such Transaction, assuming such holder of
Common Shares (i) is not a Person with which the Trust consolidated or into
which the Trust merged or which merged into the Trust or to which such sale or
transfer was made, as the case may be ("Constituent Person"), or an affiliate of
a Constituent Person and (ii) failed to exercise his rights of election, if any,
as to the kind or amount of shares, securities and other property (including
cash) receivable upon such Transaction (PROVIDED that if the kind or amount of
shares, securities and other property (including cash) receivable upon such
Transaction is not the same for each Common Share of the Trust held immediately
prior to such Transaction by other than a Constituent Person or an affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("Non-Electing Share"), then for the purpose of this paragraph (e) the
kind and amount of shares, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
non-electing shares). The Trust shall not be a party to any Transaction unless
the terms of such Transaction are consistent with the provisions of this
paragraph (e), and it shall not consent or agree to the occurrence of any
Transaction until the Trust has entered into an agreement with the successor or
purchasing entity, as the case may be, for the benefit of the holders of the
Series J Preferred Shares that will contain provisions enabling the holders of
the Series J Preferred Shares that remain outstanding after such Transaction to
convert into the consideration received by holders of Common Shares at the
Conversion Price in effect
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immediately prior to such Transaction. The provisions of this paragraph (e)
shall similarly apply to successive Transactions.
(f) If:
(i) the Trust shall declare a dividend (or any other
distribution) on the Common Shares (other than Permitted Common Share Cash
Distributions); or
(ii) the Trust shall authorize the granting to the holders of
the Common Shares of rights or warrants to subscribe for or purchase any
shares of any class or any other rights or warrants; or
(iii) there shall be any reclassification of the Common Shares
(other than an event to which subparagraph (d)(i) of this Section 7
applies) or any consolidation or merger to which the Trust is a party and
for which approval of any shareholders of the Trust is required, or a
statutory share exchange, or a self tender offer by the Trust for all or
substantially all of its outstanding Common Shares or the sale or transfer
of all or substantially all of the assets of the Trust as an entirety; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Trust;
then the Trust shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series J Preferred Shares
at their addresses as shown on the share records of the Trust, as
promptly as possible, but at least 15 days prior to the applicable date
hereinafter specified, a notice stating (A) the date on which a record
is to be taken for the purpose of such dividend or other distribution
or grant of rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Shares of record to be
entitled to such dividend or other distribution or rights or
warrants are to be determined or (B) the date on which such
reclassification, consolidation, merger, statutory share exchange, sale,
transfer, liquidation, dissolution or winding up is expected to become
effective, and the date as of which it is expected that holders of Common
Shares of record shall be entitled to exchange their Common Shares for
securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, statutory share exchange, sale,
transfer, liquidation, dissolution or winding up. Failure to give or
receive such notice or any defect therein shall not affect the legality or
validity of the proceedings described in this Section 7.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Trust shall promptly file with the Transfer Agent an officer's certificate
setting forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment which certificate shall
be conclusive evidence of the correctness of such adjustment absent manifest
error. Promptly after delivery of such certificate, the Trust shall prepare a
notice of such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the effective date that such adjustment becomes effective
and shall mail such notice of such adjustment of the Conversion Price to the
holder of each Series J Preferred Share at such holder's last address as shown
on the share records of the Trust.
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(h) In any case in which paragraph (d) of this Section 7 provides
that an adjustment shall become effective on the day next following the record
date for an event, the Trust may defer until the occurrence of such event (A)
issuing to the holder of any Series J Preferred Share converted after such
record date and before the occurrence of such event the additional Common Shares
issuable upon such conversion by reason of the adjustment required by such event
over and above the Common Shares issuable upon such conversion before giving
effect to such adjustment and (B) paying to such holder any amount of cash in
lieu of any fraction pursuant to paragraph (c) of this Section 7.
(i) There shall be no adjustment of the Conversion Price in case of
the issuance of any shares of the Trust in a reorganization, acquisition or
other similar transaction except as specifically set forth in this Section 7.
If any action or transaction would require adjustment of the Conversion Price
pursuant to more than one paragraph of this Section 7, only one adjustment shall
be made and such adjustment shall be the amount of adjustment that has the
highest absolute value.
(j) If the Trust shall take any action affecting the Common Shares,
other than action described in this Section 7, that in the opinion of the Board
of Trustees would materially adversely affect the conversion rights of the
holders of the Series J Preferred Shares, the Conversion Price for the Series J
Preferred Shares may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time, as the Board of Trustees, in its sole
discretion, may determine to be equitable in the circumstances.
(k) The Trust covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued Common Shares, for the purpose of effecting conversion of the
Series J Preferred Shares, the full number of Common Shares deliverable upon the
conversion of all outstanding Series J Preferred Shares not theretofore
converted. For purposes of this paragraph (k), the number of Common Shares that
shall be deliverable upon the conversion of all outstanding Series J Preferred
Shares shall be computed as if at the time of computation all such outstanding
shares were held by a single holder.
The Trust covenants that any Common Shares issued upon conversion of
the Series J Preferred Shares shall be validly issued, fully paid and
non-assessable.
The Trust shall endeavor to list the Common Shares required to be
delivered upon conversion of the Series J Preferred Shares, prior to such
delivery, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
Prior to the delivery of any securities that the Trust shall be
obligated to deliver upon conversion of the Series J Preferred Shares, the Trust
shall endeavor to comply with all federal and state laws and regulations
thereunder requiring the registration of such securities with, or any approval
of or consent to the delivery thereof by, any governmental authority.
(l) The Trust will pay any and all documentary stamp or similar issue
or transfer taxes payable in respect of the issue or delivery of Common Shares
or other securities or
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property on conversion of the Series J Preferred Shares pursuant hereto;
PROVIDED, HOWEVER, that the Trust shall not be required to pay any tax that may
be payable in respect of any transfer involved in the issue or delivery of
Common Shares or other securities or property in a name other than that of the
holder of the Series J Preferred Shares to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue or
delivery has paid to the Trust the amount of any such tax or established, to the
reasonable satisfaction of the Trust, that such tax has been paid.
Section 8. RANKING. Any class or series of shares of the Trust shall
be deemed to rank:
(a) prior to the Series J Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series J Preferred Shares;
(b) on a parity with the Series J Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof be different from those of
the Series J Preferred Shares, if the holders of such class of shares or series
and the Series J Preferred Shares shall be entitled to the receipt of dividends
and of amounts distributable upon liquidation, dissolution or winding up in
proportion to their respective amounts of accrued and unpaid dividends per share
or liquidation preferences, without preference or priority one over the other
("Parity Shares"), which Parity Shares include, as of the Issue Date, the
Trust's Series A Preferred Shares, Series B Preferred Shares, Series C Preferred
Shares, Series D Preferred Shares, Series E Preferred Shares, Series F Preferred
Shares, Series G Preferred Shares, Series H Preferred Shares, Series I Preferred
Shares, Series K Preferred Shares and Series L Preferred Shares; and
(c) junior to the Series J Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution or
winding up, if such shares or series shall be Common Shares or if the holders of
Series J Preferred Shares shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of such shares or series.
Section 9. VOTING. If and whenever six quarterly dividends (whether
or not consecutive) payable on the Series J Preferred Shares or any series or
class of Parity Shares shall be in arrears (which shall, with respect to any
such quarterly dividend, mean that any such dividend has not been paid in full),
whether or not earned or declared, the number of trustees then constituting the
Board of Trustees shall be increased by two (if not already increased by reason
of a similar arrearage with respect to any Parity Shares) and the holders of
Series J Preferred Shares, together with the holders of shares of every other
series of Parity Shares (any such other series, the "Voting Preferred Shares"),
voting as a single class regardless of series, shall be entitled to elect the
two additional trustees to serve on the Board of Trustees at any annual meeting
of shareholders or special meeting held in place thereof, or at a special
meeting of the holders of
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the Series J Preferred Shares and the Voting Preferred Shares called as
hereinafter provided. Whenever all arrears in dividends on the Series J
Preferred Shares and the Voting Preferred Shares then outstanding shall have
been paid and dividends thereon for the current quarterly dividend period shall
have been paid or declared and set apart for payment, then the right of the
holders of the Series J Preferred Shares and the Voting Preferred Shares to
elect such additional two trustees shall cease (but subject always to the same
provision for the vesting of such voting rights in the case of any similar
future arrearages in six quarterly dividends), and the terms of office of all
persons elected as trustees by the holders of the Series J Preferred Shares and
the Voting Preferred Shares shall forthwith terminate and the number of the
Board of Trustees shall be reduced accordingly. At any time after such voting
power shall have been so vested in the holders of Series J Preferred Shares and
the Voting Preferred Shares, the secretary of the Trust may, and upon the
written request of any holder of Series J Preferred Shares (addressed to the
secretary at the principal office of the Trust) shall, call a special meeting of
the holders of the Series J Preferred Shares and of the Voting Preferred Shares
for the election of the two trustees to be elected by them as herein provided,
such call to be made by notice similar to that provided in the Bylaws of the
Trust for a special meeting of the Shareholders or as required by law. If any
such special meeting required to be called as above provided shall not be called
by the secretary within 20 days after receipt of any such request, then any
holder of Series J Preferred Shares may call such meeting, upon the notice above
provided, and for that purpose shall have access to the share books of the
Trust. The trustees elected at any such special meeting shall hold office until
the next annual meeting of the shareholders or special meeting held in lieu
thereof if such office shall not have previously terminated as above provided.
If any vacancy shall occur among the trustees elected by the holders of the
Series J Preferred Shares and the Voting Preferred Shares, a successor shall be
elected by the Board of Trustees, upon the nomination of the then-remaining
trustee elected by the holders of the Series J Preferred Shares and the Voting
Preferred Shares or the successor of such remaining trustee, to serve until the
next annual meeting of the Shareholders or special meeting held in place thereof
if such office shall not have previously terminated as provided above.
So long as any Series J Preferred Shares are outstanding, in addition
to any other vote or consent of shareholders required by law or by the
Declaration of Trust, as amended, the affirmative vote of at least 66 2/3% of
the votes entitled to be cast by the holders of the Series J Preferred Shares
and the Voting Preferred Shares, at the time outstanding, acting as a single
class regardless of series, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of
the Declaration of Trust that materially adversely affects the voting powers,
rights or preferences of the holders of the Series J Preferred Shares or the
Voting Preferred Shares; PROVIDED, HOWEVER, that the amendment of the provisions
of the Declaration of Trust so as to authorize or create, or to increase the
authorized amount of, any Junior Shares or any shares of any class ranking on a
parity with the Series J Preferred Shares or the Voting Preferred Shares shall
not be deemed to materially adversely affect the voting powers, rights or
preferences of the holders of Series J Preferred Shares, and PROVIDED FURTHER,
that if any such amendment, alteration or repeal would materially adversely
affect any voting powers, rights or preferences of the Series J Preferred
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Shares or another series of Voting Preferred Shares that are not enjoyed by some
or all of the other series which otherwise would be entitled to vote in
accordance herewith, the affirmative vote of at least 66 2/3% of the votes
entitled to be cast by the holders of all series similarly affected, similarly
given, shall be required in lieu of the affirmative vote of at least 66 2/3% of
the votes entitled to be cast by the holders of the Series J Preferred Shares
and the Voting Preferred Shares which otherwise would be entitled to vote in
accordance herewith; or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security convertible into
shares of any class ranking prior to the Series J Preferred Shares in the
distribution of assets on any liquidation, dissolution or winding up of the
Trust or in the payment of dividends; PROVIDED, HOWEVER, that no such vote of
the holders of Series J Preferred Shares shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take effect, or when
the issuance of any such prior shares or convertible security is to be made, as
the case may be, provision is made for the redemption of all Series J Preferred
Shares at the time outstanding.
For purposes of the foregoing provisions of this Section 9, each
Series J Preferred Share shall have one (1) vote per share, except that when
any other series of Preferred Shares shall have the right to vote with the
Series J Preferred Shares as a single class on any matter, then the Series H
Preferred Shares and such other series shall have with respect to such
matters one (1) vote per $25.00 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the Series J
Preferred Shares shall not have any voting rights and powers other than as
set forth herein, and the consent of the holders thereof shall not be
required for the taking of any trust action.
Section 10. RECORD HOLDERS. The Trust and the Transfer Agent may deem
and treat the record holder of any Series J Preferred Shares as the true and
lawful owner thereof for all purposes, and neither the Trust nor the Transfer
Agent shall be affected by any notice to the contrary.
D. SERIES K PREFERRED SHARES
Section 1. NUMBER OF SHARES AND DESIGNATION. This series of
Preferred Shares shall be designated as Series K Cumulative Redeemable Preferred
Shares of Beneficial Interest ($.01 Par Value Per Share) (Liquidation Preference
$50.00 Per Share) (the "Series K Preferred Shares") and 1,000,000 shall be the
number of Preferred Shares constituting such series.
Section 2. DEFINITIONS. For purposes of the Series K Preferred
Shares, the following terms shall have the meanings indicated:
"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee authorized by such Board of Trustees to perform any of its
responsibilities with respect to the Series K Preferred Shares.
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"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in Chicago,
Illinois or New York, New York are not required to be open.
"Call Date" shall have the meaning set forth in paragraph (c) of
Section 5 hereof.
"Common Shares" shall mean the common shares of beneficial interest of
the Trust, $.01 par value per share.
"Dividend Payment Date" shall mean the last calendar day of March,
June, September and December, in each year, commencing on December 31, 1998;
PROVIDED, HOWEVER, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid no later than the Business Day immediately following such Dividend Payment
Date.
"Dividend Periods" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend Period
(other than the initial Dividend Period, which shall commence on the Issue Date
and end on and include December 31, 1998).
"Issue Date" shall mean the date on which the Trust first issues a
Series K Preferred Share.
"Junior Shares" shall mean the Common Shares and any other class or
series of shares of the Trust over which the Series K Preferred Shares have
preference or priority in the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding up of the Trust.
"Parity Shares" shall have the meaning set forth in paragraph (b) of
Section 8 hereof.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
"Press Release" shall have the meaning set forth in paragraph (b) of
Section 5 hereof.
"Series K Preferred Shares" shall have the meaning set forth in
Section 1 hereof.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Trust in its accounting ledgers
of any accounting or bookkeeping entry which indicates, pursuant to an
authorization of dividends or other distribution by the Board of Trustees, the
allocation of funds to be so paid on any series or class of shares of beneficial
interest of the Trust; PROVIDED, HOWEVER, that if any funds for any class or
series of Junior Shares or any class or series of shares ranking on a parity
with the Series K Preferred Shares as to the payment of dividends are placed in
a separate account of the Trust or delivered
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to a disbursing, paying or other similar agent, then "set apart for payment"
with respect to the Series K Preferred Shares shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
"Transfer Agent" means Boston Equiserve LP, Boston, Massachusetts, or
such other agent or agents of the Trust as may be designated by the Board of
Trustees or their designee as the transfer agent for the Series K Preferred
Shares.
"Voting Preferred Shares" shall have the meaning set forth in
Section 9 hereof.
Section 3. DIVIDENDS. (a) The holders of Series K Preferred Shares
shall be entitled to receive, when, as and if authorized by the Board of
Trustees, out of funds legally available for that purpose, dividends payable in
cash in an amount per Series K Preferred Share equal to $4.145 per annum. Such
dividends shall be cumulative from October 1, 1998, whether or not in any
Dividend Period or Periods there shall be funds of the Trust legally available
for the payment of such dividends, and shall be payable quarterly, when, as and
if authorized by the Board of Trustees, in arrears on Dividend Payment Dates,
commencing on December 31, 1998. Each such dividend shall be payable in arrears
to the holders of record of Series K Preferred Shares, as they appear on the
share records of the Trust at the close of business on such record dates, which
shall be on or about the 15th day of the calendar months in which the Dividend
Payment Dates fall or such other dates not less than 10 days nor more than 60
days preceding such Dividend Payment Dates thereof, as shall be fixed by the
Board of Trustees. Accrued and unpaid dividends for any past Dividend Periods
may be declared and paid at any time, without reference to any regular Dividend
Payment Date, to holders of record on such date, not exceeding 45 days preceding
the payment date thereof, as may be fixed by the Board of Trustees.
(b) The amount of dividends payable for each full Dividend Period for
the Series K Preferred Shares shall be computed by dividing the annual dividend
rate by four. The amount of dividends payable for any period shorter or longer
than a full Dividend Period, on the Series K Preferred Shares shall be computed
on the basis of twelve 30-day months and a 360-day year. Holders of Series K
Preferred Shares shall not be entitled to any dividends, whether payable in
cash, property or shares, in excess of cumulative dividends, as herein provided,
on the Series K Preferred Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on the
Series K Preferred Shares that may be in arrears.
(c) So long as any Series K Preferred Shares are outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity
Shares for any period unless 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 Series K Preferred Shares for
all Dividend Periods terminating on or prior to the Dividend Payment Date on
such class or series of Parity Shares. When dividends are not paid in full or a
sum sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon Series K Preferred Shares and all dividends declared upon any
other class or series of Parity Shares shall be declared ratably in proportion
to the
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respective amounts of dividends accumulated and unpaid on the Series K Preferred
Shares and accumulated and unpaid on such Parity Shares.
(d) So long as any Series K Preferred Shares are outstanding, no
dividends (other than dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase, Junior Shares), shall be
declared or paid or set apart for payment or other distribution declared or made
upon Junior Shares, nor shall Junior Shares be redeemed, purchased or otherwise
acquired (other than a redemption, purchase or other acquisition of Common
Shares made for purposes of an employee incentive or benefit plan of the Trust
or any subsidiary) for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such shares) by the
Trust, directly or indirectly (except by conversion into or exchange for Junior
Shares), unless in each case (i) the full cumulative dividends on all
outstanding Series K Preferred Shares and any other Parity Shares of the Trust
shall have been paid or set apart for payment for all past Dividend Periods with
respect to the Series K Preferred Shares and all past dividend periods with
respect to such Parity Shares and (ii) sufficient funds shall have been paid or
set apart for the payment of the dividend for the current Dividend Period with
respect to the Series K Preferred Shares and the current dividend period with
respect to such Parity Shares.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the Trust, whether voluntary or
involuntary, before any payment or distribution of the assets of the Trust
(whether capital or surplus) shall be made to or set apart for the holders of
Junior Shares, the holders of the Series K Preferred Shares shall be entitled to
receive Fifty Dollars ($50.00) per Series K Preferred Share plus an amount equal
to all dividends (whether or not earned or declared) accrued and unpaid thereon
to the date of final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the Trust, the assets of the Trust, or proceeds thereof,
distributable among the holders of the Series K Preferred Shares shall be
insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Shares, then such
assets, or the proceeds thereof, shall be distributed among the holders of
Series K Preferred Shares and any such other Parity Shares ratably in accordance
with the respective amounts that would be payable on such Series K Preferred
Shares and any such other Parity Shares if all amounts payable thereon were paid
in full. For the purposes of this Section 4, (i) a consolidation or merger of
the Trust with one or more entities, (ii) a sale or transfer of all or
substantially all of the Trust's assets, or (iii) a statutory share exchange
shall not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Trust.
(b) Subject to the rights of the holders of shares of any series or
class or classes of shares ranking on a parity with or prior to the Series K
Preferred Shares upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Trust, after payment shall have
been made in full to the holders of the Series K Preferred Shares, as provided
in this Section 4, any other series or class or classes of Junior Shares shall,
subject to the respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets remaining to be paid or distributed, and
the holders of the Series K Preferred Shares shall not be entitled to share
therein.
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Section 5. REDEMPTION AT THE OPTION OF THE TRUST. (a) The Series K
Preferred Shares shall not be redeemable by the Trust prior to December 10,
2026. On and after December 10, 2026, the Trust, at its option, may redeem the
Series K Preferred Shares in whole or in part, as set forth herein, subject to
the provisions described below.
(b) No Series K Preferred Share may be redeemed except from proceeds
from the sale of other shares of beneficial interest of the Trust, including but
not limited to Common Shares, Preferred Shares, depositary shares, interests,
participations or other ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing. In order to exercise
its redemption option, the Trust must issue a press release announcing the
redemption (the "Press Release"). The Press Release shall announce the
redemption and set forth the number of Series K Preferred Shares which the Trust
intends to redeem. The Call Date shall be selected by the Trust, shall be
specified in the notice of redemption and shall be not less than 30 days or more
than 60 days after the date on which the Trust issues the Press Release.
(c) Upon redemption of Series K Preferred Shares by the Trust on the
date specified in the notice to holders required under subparagraph (e) of this
Section 5 (the "Call Date"), for each Series K Preferred Share so redeemed, the
Trust shall pay in cash the liquidation preference, including all dividends
(whether or not earned or declared) accrued and unpaid thereon to the Call Date,
except that if the Call Date falls after a dividend payment record date and
prior to the corresponding Dividend Payment Date, then each holder of Series K
Preferred Shares at the close of business on such dividend payment record date
shall be entitled to the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the redemption of such shares before such
Dividend Payment Date. Except as provided above, the Trust shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series K Preferred Shares called for redemption, after the date of redemption.
(d) If full cumulative dividends on the Series K Preferred Shares and
any other class or series of Parity Shares of the Trust have not been paid or
declared and set apart for payment, the Series K Preferred Shares may not be
redeemed in part and the Trust may not purchase or acquire Series K Preferred
Shares, otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of Series K Preferred Shares.
(e) If the Trust shall redeem Series K Preferred Shares pursuant to
paragraph (a) of this Section 5, notice of such redemption shall be given not
more than four Business Days after the date on which the Trust issues the Press
Release to each holder of record of the shares to be redeemed. Such notice
shall be provided by first class mail, postage prepaid, at such holder's address
as the same appears on the share records of the Trust, or by publication in a
newspaper of general circulation in the City of New York once per week for at
least two successive weeks. If the Trust elects to provide such notice by
publication, it shall also promptly mail notice of such redemption to the
holders of the Series K Preferred Shares to be redeemed not less than 30 nor
more than 60 days prior to the Call Date. Neither the failure to mail any
notice required by this paragraph (e), nor any defect therein or in the mailing
thereof, to any particular holder, shall affect the sufficiency of the notice or
the validity of the proceedings for redemption
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with respect to the other holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given on the
date mailed whether or not the holder receives the notice. Each such mailed or
published notice shall state, as appropriate: (1) the Call Date; (2) the number
of Series K Preferred Shares to be redeemed and, if fewer than all the shares
held by such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (3) the redemption price with respect to each Series K
Preferred Share, including dividends accrued through the Call Date; (4) the
place or places at which certificates for such shares are to be surrendered for
payment; and (5) that dividends on the shares to be redeemed shall cease to
accrue on such Call Date except as otherwise provided herein. Notice having
been published or mailed as aforesaid, from and after the Call Date (unless the
Trust shall fail to make available the amount of cash necessary to effect such
redemption), (i) except as otherwise provided herein, dividends on the Series K
Preferred Shares so called for redemption shall cease to accrue, (ii) said
shares shall no longer be deemed to be outstanding, and (iii) all rights of the
holders thereof as holders of Series K Preferred Shares of the Trust shall cease
(except the rights to receive the cash payable upon such redemption, without
interest thereon, upon surrender and endorsement of their certificates if so
required and to receive any dividends payable thereon). The Trust's obligation
to provide cash in accordance with the preceding sentence shall be deemed
fulfilled if, on or before the Call Date, the Trust shall deposit with a bank or
trust company (which may be an affiliate of the Trust) that has an office in the
Borough of Manhattan, City of New York, or in Chicago, Illinois and that has, or
is an affiliate of a bank or trust company that has, a capital and surplus of at
least $50,000,000, cash necessary for such redemption, in trust, with
irrevocable instructions that cash be applied to the redemption of the Series K
Preferred Shares so called for redemption. At the close of business on the Call
Date, each holder of Series K Preferred Shares to be redeemed (unless the Trust
defaults in the delivery of the cash payable on such Call Date) shall no longer
be deemed to be the record holder of the number of such Series K Preferred
Shares to be redeemed, regardless of whether such holder has surrendered the
certificates evidencing the Series K Preferred Shares. The Trust shall be
entitled to receive from such bank or trust company the interest or other
earnings, if any, earned on any money so deposited in trust, and the holders of
any shares redeemed shall have no claim to such interest or other earnings. No
interest shall accrue for the benefit of the holders of Series K Preferred
Shares to be redeemed on the cash so set aside by the Trust. Subject to
applicable escheat laws, any such cash unclaimed at the end of two years from
the Call Date shall revert to the general funds of the Trust, after which
reversion the holders of such shares so called for redemption shall look only to
the general funds of the Trust for the payment of such cash.
As promptly as practicable after the surrender in accordance with said
notice of the certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Trust shall so require and if the notice shall so
state), the Trust shall pay the cash (without interest thereon) representing the
redemption price for the redeemed shares. If fewer than all the outstanding
Series K Preferred Shares are to be redeemed, shares to be redeemed shall be
selected by the Trust from outstanding Series K Preferred Shares not previously
called for redemption by lot or pro rata (as nearly as may be) or by any other
method determined by the Trust in its sole discretion to be equitable. If fewer
than all the Series K Preferred Shares evidenced by any certificate are
redeemed, then new certificates evidencing the unredeemed shares shall be issued
without cost to the holder thereof.
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Section 6. SHARES TO BE RETIRED.
All Series K Preferred Shares which shall have been issued and
reacquired in any manner by the Trust shall be restored to the status of
authorized but unissued Preferred Shares, without designation as to series. The
Trust may also reclassify any unissued Series K Preferred Shares, and such
shares shall then be restored to the status of authorized but unissued Preferred
Shares, without designation as to series.
Section 7. CONVERSION.
Holders of Series K Preferred Shares shall not have the right to
convert all or a portion of such shares into Common Shares or any other class of
shares of the Trust.
Section 8. RANKING. Any class or series of shares of the Trust shall
be deemed to rank:
(a) prior to the Series K Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series K Preferred Shares;
(b) on a parity with the Series K Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof be different from those of
the Series K Preferred Shares, if the holders of such class of shares or series
and the Series K Preferred Shares shall be entitled to the receipt of dividends
and of amounts distributable upon liquidation, dissolution or winding up in
proportion to their respective amounts of accrued and unpaid dividends per share
or liquidation preferences, without preference or priority one over the other
("Parity Shares"), which Parity Shares include, as of the Issue Date, the
Trust's Series A Preferred Shares, Series B Preferred Shares, Series C Preferred
Shares, Series D Preferred Shares, Series E Preferred Shares, Series F Preferred
Shares, Series G Preferred Shares, Series H Preferred Shares, Series I Preferred
Shares, Series J Preferred Shares and Series L Preferred Shares; and
(c) junior to the Series K Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution or
winding up, if such shares or series shall be Common Shares or if the holders of
Series K Preferred Shares shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of such shares or series.
Section 9. VOTING. If and whenever six quarterly dividends (whether
or not consecutive) payable on the Series K Preferred Shares or any series or
class of Parity Shares shall be in arrears (which shall, with respect to any
such quarterly dividend, mean that any such dividend has not been paid in full),
whether or not earned or declared, the number of trustees then constituting the
Board of Trustees shall be increased by two (if not already increased by reason
of a similar arrearage with respect to any Parity Shares) and the holders of
Series K Preferred
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Shares, together with the holders of shares of every other series of Parity
Shares (any such other series, the "Voting Preferred Shares"), voting as a
single class regardless of series, shall be entitled to elect the two additional
trustees to serve on the Board of Trustees at any annual meeting of shareholders
or special meeting held in place thereof, or at a special meeting of the holders
of the Series K Preferred Shares and the Voting Preferred Shares called as
hereinafter provided. Whenever all arrears in dividends on the Series K
Preferred Shares and the Voting Preferred Shares then outstanding shall have
been paid and dividends thereon for the current quarterly dividend period shall
have been paid or declared and set apart for payment, then the right of the
holders of the Series K Preferred Shares and the Voting Preferred Shares to
elect such additional two trustees shall cease (but subject always to the same
provision for the vesting of such voting rights in the case of any similar
future arrearages in six quarterly dividends), and the terms of office of all
persons elected as trustees by the holders of the Series K Preferred Shares and
the Voting Preferred Shares shall forthwith terminate and the number of the
Board of Trustees shall be reduced accordingly. At any time after such voting
power shall have been so vested in the holders of Series K Preferred Shares and
the Voting Preferred Shares, the secretary of the Trust may, and upon the
written request of any holder of Series K Preferred Shares (addressed to the
secretary at the principal office of the Trust) shall, call a special meeting of
the holders of the Series K Preferred Shares and of the Voting Preferred Shares
for the election of the two trustees to be elected by them as herein provided,
such call to be made by notice similar to that provided in the Bylaws of the
Trust for a special meeting of the shareholders or as required by law. If any
such special meeting required to be called as above provided shall not be called
by the secretary within 20 days after receipt of any such request, then any
holder of Series K Preferred Shares may call such meeting, upon the notice above
provided, and for that purpose shall have access to the share books of the
Trust. The trustees elected at any such special meeting shall hold office until
the next annual meeting of the shareholders or special meeting held in lieu
thereof if such office shall not have previously terminated as above provided.
If any vacancy shall occur among the trustees elected by the holders of the
Series K Preferred Shares and the Voting Preferred Shares, a successor shall be
elected by the Board of Trustees, upon the nomination of the then-remaining
trustee elected by the holders of the Series K Preferred Shares and the Voting
Preferred Shares or the successor of such remaining trustee, to serve until the
next annual meeting of the shareholders or special meeting held in place thereof
if such office shall not have previously terminated as provided above.
So long as any Series K Preferred Shares are outstanding, in addition
to any other vote or consent of shareholders required by law or by the
Declaration of Trust, as amended, the affirmative vote of at least 66 2/3% of
the votes entitled to be cast by the holders of the Series K Preferred Shares
and the Voting Preferred Shares, at the time outstanding, acting as a single
class regardless of series, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of
the Declaration of Trust that materially adversely affects the voting powers,
rights or preferences of the holders of the Series K Preferred Shares or the
Voting Preferred Shares; PROVIDED, HOWEVER, that the amendment of the provisions
of the Declaration of Trust so as to authorize or create, or to increase the
authorized amount of, any Junior Shares or any shares of any class ranking on a
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parity with the Series K Preferred Shares or the Voting Preferred Shares shall
not be deemed to materially adversely affect the voting powers, rights or
preferences of the holders of Series K Preferred Shares, and PROVIDED FURTHER,
that if any such amendment, alteration or repeal would materially adversely
affect any voting powers, rights or preferences of the Series K Preferred Shares
or another series of Voting Preferred Shares that are not enjoyed by some or all
of the other series which otherwise would be entitled to vote in accordance
herewith, the affirmative vote of at least 66 2/3% of the votes entitled to be
cast by the holders of all series similarly affected, similarly given, shall be
required in lieu of the affirmative vote of at least 66 2/3% of the votes
entitled to be cast by the holders of the Series K Preferred Shares and the
Voting Preferred Shares which otherwise would be entitled to vote in accordance
herewith; or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security convertible into
shares of any class ranking prior to the Series K Preferred Shares in the
distribution of assets on any liquidation, dissolution or winding up of the
Trust or in the payment of dividends; PROVIDED, HOWEVER, that no such vote of
the holders of Series K Preferred Shares shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take effect, or when
the issuance of any such prior shares or convertible security is to be made, as
the case may be, provision is made for the redemption of all Series K Preferred
Shares at the time outstanding.
For purposes of the foregoing provisions of this Section 9, each
Series K Preferred Share shall have one (1) vote per share, except that when
any other series of preferred shares shall have the right to vote with the
Series K Preferred Shares as a single class on any matter, then the Series K
Preferred Shares and such other series shall have with respect to such
matters one (1) vote per $25.00 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the Series K
Preferred Shares shall not have any voting rights and powers other than as
set forth herein, and the consent of the holders thereof shall not be
required for the taking of any trust action.
Section 10. RECORD HOLDERS. The Trust and the Transfer Agent may deem
and treat the record holder of any Series K Preferred Shares as the true and
lawful owner thereof for all purposes, and neither the Trust nor the Transfer
Agent shall be affected by any notice to the contrary.
E. SERIES L PREFERRED SHARES
Section 1. NUMBER OF SHARES AND DESIGNATION. This series of Preferred
Shares shall be designated as Series L Cumulative Redeemable Preferred Shares of
Beneficial Interest ($.01 Par Value Per Share) (Liquidation Preference $25.00
Per Share) (the "Series L Preferred Shares") and 4,000,000 shall be the number
of Preferred Shares constituting such series.
Section 2. DEFINITIONS. For purposes of the Series L Preferred
Shares, the following terms shall have the meanings indicated:
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"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee authorized by such Board of Trustees to perform any of its
responsibilities with respect to the Series L Preferred Shares.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in Chicago,
Illinois or New York, New York are not required to be open.
"Call Date" shall have the meaning set forth in paragraph (c) of
Section 5 hereof.
"Common Shares" shall mean the common shares of beneficial interest of
the Trust, $.01 par value per share.
"Dividend Payment Date" shall mean the last calendar day of March,
June, September and December, in each year, commencing on December 31,1998;
PROVIDED, HOWEVER, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid no later than the Business Day immediately following such Dividend Payment
Date.
"Dividend Periods" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend Period
(other than the initial Dividend Period, which shall commence on the Issue Date
and end on and include December 31, 1998).
"Issue Date" shall mean the date on which the Trust first issues a
Series L Preferred Share.
"Junior Shares" shall mean the Common Shares and any other class or
series of shares of the Trust over which the Series L Preferred Shares have
preference or priority in the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding up of the Trust.
"Parity Shares" shall have the meaning set forth in paragraph (b) of
Section 8 hereof.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
"Press Release" shall have the meaning set forth in paragraph (b) of
Section 5 hereof.
"Series L Preferred Shares" shall have the meaning set forth in
Section 1 hereof.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Trust in its accounting ledgers
of any accounting or bookkeeping entry which indicates, pursuant to an
authorization of dividends or other distribution by the Board of Trustees, the
allocation of funds to be so paid on any series or class of shares of
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beneficial interest of the Trust; PROVIDED, HOWEVER, that if any funds for any
class or series of Junior Shares or any class or series of shares ranking on a
parity with the Series L Preferred Shares as to the payment of dividends are
placed in a separate account of the Trust or delivered to a disbursing, paying
or other similar agent, then "set apart for payment" with respect to the
Series L Preferred Shares shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
"Transfer Agent" means Boston Equiserve LP, Boston, Massachusetts, or
such other agent or agents of the Trust as may be designated by the Board of
Trustees or their designee as the transfer agent for the Series L Preferred
Shares.
"Voting Preferred Shares" shall have the meaning set forth in
Section 9 hereof.
Section 3. DIVIDENDS. (a) The holders of Series L Preferred Shares
shall be entitled to receive, when, as and if authorized by the Board of
Trustees, out of funds legally available for that purpose, dividends payable in
cash in an amount per Series L Preferred Share equal to $1.90625 per annum. Such
dividends shall be cumulative from October 1, 1998, whether or not in any
Dividend Period or Periods there shall be funds of the Trust legally available
for the payment of such dividends, and shall be payable quarterly, when, as and
if authorized by the Board of Trustees, in arrears on Dividend Payment Dates,
commencing on December 31, 1998. Each such dividend shall be payable in arrears
to the holders of record of Series L Preferred Shares, as they appear on the
share records of the Trust at the close of business on such record dates, which
shall be on or about the 15th day of the calendar months in which the Dividend
Payment Dates fall or such other dates not less than 10 days nor more than 60
days preceding such Dividend Payment Dates thereof, as shall be fixed by the
Board of Trustees. Accrued and unpaid dividends for any past Dividend Periods
may be declared and paid at any time, without reference to any regular Dividend
Payment Date, to holders of record on such date, not exceeding 45 days preceding
the payment date thereof, as may be fixed by the Board of Trustees.
(b) The amount of dividends payable for each full Dividend Period for
the Series L Preferred Shares shall be computed by dividing the annual dividend
rate by four. The amount of dividends payable for any period shorter or longer
than a full Dividend Period, on the Series L Preferred Shares shall be computed
on the basis of twelve 30-day months and a 360-day year. Holders of Series L
Preferred Shares shall not be entitled to any dividends, whether payable in
cash, property or shares, in excess of cumulative dividends, as herein provided,
on the Series L Preferred Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on the
Series L Preferred Shares that may be in arrears.
(c) So long as any Series L Preferred Shares are outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity
Shares for any period unless 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 Series L Preferred Shares for
all Dividend Periods terminating on or prior to the Dividend Payment Date on
such class or series of Parity Shares. When dividends are not paid in full or a
sum sufficient for such payment is not set apart,
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as aforesaid, all dividends declared upon Series L Preferred Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series L Preferred Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series L Preferred Shares are outstanding, no
dividends (other than dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase, Junior Shares), shall be
declared or paid or set apart for payment or other distribution declared or made
upon Junior Shares, nor shall Junior Shares be redeemed, purchased or otherwise
acquired (other than a redemption, purchase or other acquisition of Common
Shares made for purposes of an employee incentive or benefit plan of the Trust
or any subsidiary) for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such shares) by the
Trust, directly or indirectly (except by conversion into or exchange for Junior
Shares), unless in each case (i) the full cumulative dividends on all
outstanding Series L Preferred Shares and any other Parity Shares of the Trust
shall have been paid or set apart for payment for all past Dividend Periods with
respect to the Series L Preferred Shares and all past dividend periods with
respect to such Parity Shares and (ii) sufficient funds shall have been paid or
set apart for the payment of the dividend for the current Dividend Period with
respect to the Series L Preferred Shares and the current dividend period with
respect to such Parity Shares.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the Trust, whether voluntary or
involuntary, before any payment or distribution of the assets of the Trust
(whether capital or surplus) shall be made to or set apart for the holders of
Junior Shares, the holders of the Series L Preferred Shares shall be entitled to
receive Twenty-fifty Dollars ($25.00) per Series L Preferred Share plus an
amount equal to all dividends (whether or not earned or declared) accrued and
unpaid thereon to the date of final distribution to such holders; but such
holders shall not be entitled to any further payment. If, upon any liquidation,
dissolution or winding up of the Trust, the assets of the Trust, or proceeds
thereof, distributable among the holders of the Series L Preferred Shares shall
be insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Shares, then such
assets, or the proceeds thereof, shall be distributed among the holders of
Series L Preferred Shares and any such other Parity Shares ratably in accordance
with the respective amounts that would be payable on such Series L Preferred
Shares and any such other Parity Shares if all amounts payable thereon were paid
in full. For the purposes of this Section 4, (i) a consolidation or merger of
the Trust with one or more entities, (ii) a sale or transfer of all or
substantially all of the Trust's assets, or (iii) a statutory share exchange
shall not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Trust.
(b) Subject to the rights of the holders of shares of any series or
class or classes of shares ranking on a parity with or prior to the Series L
Preferred Shares upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Trust, after payment shall have
been made in full to the holders of the Series L Preferred Shares, as provided
in this Section 4, any other series or class or classes of Junior Shares shall,
subject to the respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets
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remaining to be paid or distributed, and the holders of the Series L Preferred
Shares shall not be entitled to share therein.
Section 5. REDEMPTION AT THE OPTION OF THE TRUST. (a) The Series L
Preferred Shares shall not be redeemable by the Trust prior to February 13,
2003. On and after February 13, 2003, the Trust, at its option, may redeem the
Series L Preferred Shares in whole or in part, as set forth herein, subject to
the provisions described below.
(b) No Series L Preferred Share may be redeemed except from proceeds
from the sale of other shares of beneficial interest of the Trust, including but
not limited to Common Shares, Preferred Shares, depositary shares, interests,
participations or other ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing. In order to exercise
its redemption option, the Trust must issue a press release announcing the
redemption (the "Press Release"). The Press Release shall announce the
redemption and set forth the number of Series L Preferred Shares which the Trust
intends to redeem. The Call Date shall be selected by the Trust, shall be
specified in the notice of redemption and shall be not less than 30 days or more
than 60 days after the date on which the Trust issues the Press Release.
(c) Upon redemption of Series L Preferred Shares by the Trust on the
date specified in the notice to holders required under subparagraph (e) of this
Section 5 (the "Call Date"), for each Series L Preferred Share so redeemed, the
Trust shall pay in cash the liquidation preference, including all dividends
(whether or not earned or declared) accrued and unpaid thereon to the Call Date,
except that if the Call Date falls after a dividend payment record date and
prior to the corresponding Dividend Payment Date, then each holder of Series L
Preferred Shares at the close of business on such dividend payment record date
shall be entitled to the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the redemption of such shares before such
Dividend Payment Date. Except as provided above, the Trust shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series L Preferred Shares called for redemption, after the date of redemption.
(d) If full cumulative dividends on the Series L Preferred Shares and
any other class or series of Parity Shares of the Trust have not been paid or
declared and set apart for payment, the Series L Preferred Shares may not be
redeemed in part and the Trust may not purchase or acquire Series L Preferred
Shares, otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of Series L Preferred Shares.
(e) If the Trust shall redeem Series L Preferred Shares pursuant to
paragraph (a) of this Section 5, notice of such redemption shall be given not
more than four Business Days after the date on which the Trust issues the Press
Release to each holder of record of the shares to be redeemed. Such notice shall
be provided by first class mail, postage prepaid, at such holder's address as
the same appears on the share records of the Trust, or by publication in a
newspaper of general circulation in the City of New York once per week for at
least two successive weeks. If the Trust elects to provide such notice by
publication, it shall also promptly mail notice of such redemption to the
holders of the Series L Preferred Shares to be redeemed not less than 30 nor
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more than 60 days prior to the Call Date. Neither the failure to mail any notice
required by this paragraph (e), nor any defect therein or in the mailing
thereof, to any particular holder, shall affect the sufficiency of the notice or
the validity of the proceedings for redemption with respect to the other
holders. Any notice which was mailed in the manner herein provided shall be
conclusively presumed to have been duly given on the date mailed whether or not
the holder receives the notice. Each such mailed or published notice shall
state, as appropriate: (1) the Call Date; (2) the number of Series L Preferred
Shares to be redeemed and, if fewer than all the shares held by such holder are
to be redeemed, the number of such shares to be redeemed from such holder; (3)
the redemption price with respect to each Series L Preferred Share, including
dividends accrued through the Call Date; (4) the place or places at which
certificates for such shares are to be surrendered for payment; and (5) that
dividends on the shares to be redeemed shall cease to accrue on such Call Date
except as otherwise provided herein. Notice having been published or mailed as
aforesaid, from and after the Call Date (unless the Trust shall fail to make
available the amount of cash necessary to effect such redemption), (i) except as
otherwise provided herein, dividends on the Series L Preferred Shares so called
for redemption shall cease to accrue, (ii) said shares shall no longer be deemed
to be outstanding, and (iii) all rights of the holders thereof as holders of
Series L Preferred Shares of the Trust shall cease (except the rights to receive
the cash payable upon such redemption, without interest thereon, upon surrender
and endorsement of their certificates if so required and to receive any
dividends payable thereon). The Trust's obligation to provide cash in accordance
with the preceding sentence shall be deemed fulfilled if, on or before the Call
Date, the Trust shall deposit with a bank or trust company (which may be an
affiliate of the Trust) that has an office in the Borough of Manhattan, City of
New York, or in Chicago, Illinois and that has, or is an affiliate of a bank or
trust company that has, a capital and surplus of at least $50,000,000, cash
necessary for such redemption, in trust, with irrevocable instructions that cash
be applied to the redemption of the Series L Preferred Shares so called for
redemption. At the close of business on the Call Date, each holder of Series L
Preferred Shares to be redeemed (unless the Company defaults in the delivery of
the cash payable on such Call Date) shall no longer be deemed to be the record
holder of the number of such Series L Preferred Shares to be redeemed,
regardless of whether such holder has surrendered the certificates evidencing
the Series L Preferred Shares. The Trust shall be entitled to receive from such
bank or trust company the interest or other earnings, if any, earned on any
money so deposited in trust, and the holders of any shares redeemed shall have
no claim to such interest or other earnings. No interest shall accrue for the
benefit of the holders of Series L Preferred Shares to be redeemed on the cash
so set aside by the Trust. Subject to applicable escheat laws, any such cash
unclaimed at the end of two years from the Call Date shall revert to the general
funds of the Trust, after which reversion the holders of such shares so called
for redemption shall look only to the general funds of the Trust for the payment
of such cash.
As promptly as practicable after the surrender in accordance with said
notice of the certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Trust shall so require and if the notice shall so
state), the Trust shall pay the cash (without interest thereon) representing the
redemption price for the redeemed shares. If fewer than all the outstanding
Series L Preferred Shares are to be redeemed, shares to be redeemed shall be
selected by the Trust from outstanding Series L Preferred Shares not previously
called for redemption by lot or pro rata (as nearly as may be) or by any other
method determined by the Trust in its sole
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discretion to be equitable. If fewer than all the Series L Preferred Shares
evidenced by any certificate are redeemed, then new certificates evidencing the
unredeemed shares shall be issued without cost to the holder thereof.
Section 6. SHARES TO BE RETIRED.
All Series L Preferred Shares which shall have been issued and
reacquired in any manner by the Trust shall be restored to the status of
authorized but unissued Preferred Shares, without designation as to series. The
Trust may also reclassify any unissued Series L Preferred Shares, and such
shares shall then be restored to the status of authorized but unissued Preferred
Shares, without designation as to series.
Section 7. CONVERSION.
Holders of Series L Preferred Shares shall not have the right to
convert all or a portion of such shares into Common Shares or any other class of
shares of the Trust.
Section 8. RANKING. Any class or series of shares of the Trust shall
be deemed to rank: (a) prior to the Series L Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series L Preferred Shares;
(b) on a parity with the Series L Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof be different from those of
the Series L Preferred Shares, if the holders of such class or series of shares
and the Series L Preferred Shares shall be entitled to the receipt of dividends
and of amounts distributable upon liquidation, dissolution or winding up in
proportion to their respective amounts of accrued and unpaid dividends per share
or liquidation preferences, without preference or priority one over the other
("Parity Shares"), which Parity Shares include, as of the Issue Date, the
Trust's Series A Preferred Shares, Series B Preferred Shares, Series C Preferred
Shares, Series D Preferred Shares, Series E Preferred Shares, Series F Preferred
Shares, Series G Preferred Shares, Series H Preferred Shares, Series I Preferred
Shares, Series J Preferred Shares and Series K Preferred Shares; and
(c) junior to the Series L Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution or
winding up, if such shares or series shall be Common Shares or if the holders of
Series L Preferred Shares shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of such shares or series.
Section 9. VOTING. If and whenever six quarterly dividends (whether
or not consecutive) payable on the Series L Preferred Shares or any series or
class of Parity Shares shall be in arrears (which shall, with respect to any
such quarterly dividend, mean that any such
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dividend has not been paid in full), whether or not earned or declared, the
number of trustees then constituting the Board of Trustees shall be increased by
two (if not already increased by reason of a similar arrearage with respect to
any Parity Shares) and the holders of Series L Preferred Shares, together with
the holders of shares of every other series of Parity Shares (any such other
series, the "Voting Preferred Shares"), voting as a single class regardless of
series, shall be entitled to elect the two additional trustees to serve on the
Board of Trustees at any annual meeting of shareholders or special meeting held
in place thereof, or at a special meeting of the holders of the Series L
Preferred Shares and the Voting Preferred Shares called as hereinafter provided.
Whenever all arrears in dividends on the Series L Preferred Shares and the
Voting Preferred Shares then outstanding shall have been paid and dividends
thereon for the current quarterly dividend period shall have been paid or
declared and set apart for payment, then the right of the holders of the
Series L Preferred Shares and the Voting Preferred Shares to elect such
additional two trustees shall cease (but subject always to the same provision
for the vesting of such voting rights in the case of any similar future
arrearage in six quarterly dividends), and the terms of office of all persons
elected as trustees by the holders of the Series L Preferred Shares and the
Voting Preferred Shares shall forthwith terminate and the number of the Board of
Trustees shall be reduced accordingly. At any time after such voting power shall
have been so vested in the holders of Series L Preferred Shares and the Voting
Preferred Shares, the secretary of the Trust may, and upon the written request
of any holder of Series L Preferred Shares (addressed to the secretary at the
principal office of the Trust) shall, call a special meeting of the holders of
the Series L Preferred Shares and of the Voting Preferred Shares for the
election of the two trustees to be elected by them as herein provided, such call
to be made by notice similar to that provided in the Bylaws of the Trust for a
special meeting of the shareholders or as required by law. If any such special
meeting required to be called as above provided shall not be called by the
secretary within 20 days after receipt of any such request, then any holder of
Series L Preferred Shares may call such meeting, upon the notice above provided,
and for that purpose shall have access to the share books of the Trust. The
trustees elected at any such special meeting shall hold office until the next
annual meeting of the shareholders or special meeting held in lieu thereof if
such office shall not have previously terminated as above provided. If any
vacancy shall occur among the trustees elected by the holders of the Series L
Preferred Shares and the Voting Preferred Shares, a successor shall be elected
by the Board of Trustees, upon the nomination of the then-remaining trustee
elected by the holders of the Series L Preferred Shares and the Voting Preferred
Shares or the successor of such remaining trustee, to serve until the next
annual meeting of the shareholders or special meeting held in place thereof if
such office shall not have previously terminated as provided above.
So long as any Series L Preferred Shares are outstanding, in addition
to any other vote or consent of shareholders required by law or by the
Declaration of Trust, as amended, the affirmative vote of at least 66 2/3% of
the votes entitled to be cast by the holders of the Series L Preferred Shares
and the Voting Preferred Shares, at the time outstanding, acting as a single
class regardless of series, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of
the Declaration of Trust that materially adversely affects the voting powers,
rights or preferences of
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the holders of the Series L Preferred Shares or the Voting Preferred Shares;
PROVIDED, HOWEVER, that the amendment of the provisions of the Declaration of
Trust so as to authorize or create, or to increase the authorized amount of, any
Junior Shares or any shares of any class ranking on a parity with the Series L
Preferred Shares or the Voting Preferred Shares shall not be deemed to
materially adversely affect the voting powers, rights or preferences of the
holders of Series L Preferred Shares, and PROVIDED, HOWEVER, that if any such
amendment, alteration or repeal would materially adversely affect any voting
powers, rights or preferences of the Series L Preferred Shares or another series
of Voting Preferred Shares that are not enjoyed by some or all of the other
series which otherwise would be entitled to vote in accordance herewith, the
affirmative vote of at least 66 2/3% of the votes entitled to be cast by the
holders of all series similarly affected, similarly given, shall be required in
lieu of the affirmative vote of at least 66 2/3% of the votes entitled to be
cast by the holders of the Series L Preferred Shares and the Voting Preferred
Shares which otherwise would be entitled to vote in accordance herewith; or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security convertible into
shares of any class ranking prior to the Series L Preferred Shares in the
distribution of assets on any liquidation, dissolution or winding up of the
Trust or in the payment of dividends; PROVIDED, HOWEVER, that no such vote of
the holders of Series L Preferred Shares shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take effect, or when
the issuance of any such prior shares or convertible security is to be made, as
the case may be, provision is made for the redemption of all Series L Preferred
Shares at the time outstanding.
For purposes of the foregoing provisions of this Section 9, each
Series L Preferred Share shall have one (1) vote per share, except that when
any other series of Preferred Shares shall have the right to vote with the
Series L Preferred Shares as a single class on any matter, then the Series L
Preferred Shares and such other series shall have with respect to such
matters one (1) vote per $25.00 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the Series L
Preferred Shares shall not have any voting rights and powers other than as
set forth herein, and the consent of the holders thereof shall not be
required for the taking of any trust action.
Section 10. RECORD HOLDERS. The Trust and the Transfer Agent may deem and
treat the record holder of any Series L Preferred Shares as the true and lawful
owner thereof for all purposes, and neither the Trust nor the Transfer Agent
shall be affected by any notice to the contrary.
These Articles Supplementary were duly adopted by the Board of Trustees of
the Trust. Shareholder action was not required.
67
<PAGE>
IN WITNESS WHEREOF, I hereby certify that I am an Executive Vice
President of the Trust and that as such, I am authorized to execute and file
with the Maryland State Department of Assessments and Taxation these Articles
Supplementary to the Second Amended and Restated Declaration of Trust (the
"Articles Supplementary") on behalf of the Trust and I further certify on
behalf of the Trust that these Articles Supplementary were authorized by the
Board of Trustees at a meeting held on July 8, 1998 and are still in full
force and effect as of the date hereof. I further certify that my signature
to this document is my free act and deed, that to the best of my knowledge,
information and belief, the matters and facts set forth herein are true in
all material respects and that this statement is made under penalty of
perjury.
EQUITY RESIDENTIAL PROPERTIES TRUST
-----------------------------------
Michael J. McHugh, Executive Vice President, (SEAL)
Chief Accounting Officer and Treasurer
The undersigned, Bruce C. Strohm, the Secretary of the Trust, hereby
certifies that Michael J. McHugh is an Executive Vice President of the Trust and
that the signature set forth above is his genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 30th day
of September, 1998.
-----------------------------------
Bruce C. Strohm, Secretary
68
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
NUMBER H _____
SERIES H CUMULATIVE CONVERTIBLE THIS CERTIFICATE IS TRANSFERABLE
PREFERRED SHARES OF BENEFICIAL INTEREST, IN BOSTON, MA OR NEW YORK, NY
($.01 PAR VALUE PER SHARE)
(LIQUIDATION PREFERENCE $25.00 PER SHARE)
CUSIP 29476L 84 2
SEE REVERSE FOR IMPORTANT NOTICE
ABOUT RESTRICTIONS ON
TRANSFERABILITY AND OTHER
INFORMATION
</TABLE>
EQUITY RESIDENTIAL PROPERTIES TRUST
A REAL ESTATE INVESTMENT TRUST ORGANIZED UNDER THE LAWS OF THE STATE OF MARYLAND
This Certifies that__________________________________________________________
is the owner of______________________________________________________________
FULLY PAID AND NONASSESSABLE PREFERRED SHARES OF BENEFICIAL INTEREST,
PAR VALUE $.01 PER SHARE ("PREFERRED SHARES"), OF
EQUITY RESIDENTIAL PROPERTIES TRUST, A REAL ESTATE INVESTMENT TRUST FORMED UNDER
THE LAWS OF THE STATE OF MARYLAND, WHICH PREFERRED SHARES ARE HELD SUBJECT TO
THE DECLARATION OF TRUST AND BYLAWS OF THE TRUST AND ANY AMENDMENT THERETO.
SUCH DECLARATION OF TRUST IS FILED AND OF RECORD WITH THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND.
THE HOLDER HEREOF HAS NO INTEREST, LEGAL OR EQUITABLE, IN ANY SPECIFIC
PROPERTY OF THE TRUST AND NO TRANSFER OF THIS CERTIFICATE WILL BE EFFECTIVE
UNTIL THIS CERTIFICATE HAS BEEN SURRENDERED, PROPERLY ENDORSED, TO THE OFFICES
OF TRANSFER AGENT AND THE TRANSFER RECORDED IN THE BOOKS OF THE REGISTRAR. THIS
CERTIFICATE IS NOT VALID UNLESS COUNTERSIGNED BY THE TRANSFER AGENT AND
REGISTERED BY THE REGISTRAR.
WITNESS THE FACSIMILE SEAL OF THE TRUST AND THE FACSIMILE SIGNATURES OF ITS
DULY AUTHORIZED OFFICERS.
Dated:
Countersigned and Registered:
BANKBOSTON, N.A.
Transfer Agent and Registrar
By:____________________________ ________________ _____________________
Authorized Signature Secretary President
<PAGE>
EQUITY RESIDENTIAL PROPERTIES TRUST
IMPORTANT NOTICE
THE DECLARATION OF TRUST ON FILE IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND SETS FORTH A FULL STATEMENT OF (A) ALL OF
THE DESIGNATIONS, PREFERENCES, CONVERSION, AND OTHER RIGHTS, VOTING POWERS,
RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND
CONDITIONS OF REDEMPTION, AND OTHER RELATIVE RIGHTS OF THE SHARES OF EACH CLASS
OF SHARES AUTHORIZED TO BE ISSUED AND (B) THE AUTHORITY OF THE BOARD OF TRUSTEES
TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, THE DIFFERENCES IN RELATIVE
RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE
BEEN SET AND THE AUTHORITY OF THE BOARD OF TRUSTEES TO SET THE RELATIVE RIGHTS
AND PREFERENCES OF SERIES OF PREFERRED SHARES OF BENEFICIAL INTEREST. THE TRUST
WILL FURNISH TO ANY SHAREHOLDER, ON REQUEST AND WITHOUT CHARGE, A FULL STATEMENT
OF THE INFORMATION REQUIRED BY SECTION 8-203(d) OF THE CORPORATIONS AND
ASSOCIATIONS ARTICLE OF THE ANNOTATED CODE OF MARYLAND. SUCH REQUEST MUST BE
MADE TO THE SECRETARY OF THE TRUST AT ITS PRINCIPAL OFFICE OR TO THE TRANSFER
AGENT. THE DECLARATION OF TRUST OF THE TRUST IMPOSES VARIOUS RESTRICTIONS ON
TRANSFERABILITY OF THE SHARES REPRESENTED BY THIS CERTIFICATE. THE DECLARATION
OF TRUST OF THE TRUST IS ON FILE AND MAY BE INSPECTED AT THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND, BALTIMORE, MARYLAND. IN ADDITION, THE
TRUST WILL FURNISH A COPY OF THE DECLARATION OF TRUST OF THE TRUST OR A FULL
STATEMENT ABOUT THE RESTRICTIONS ON TRANSFERABILITY TO ANY HOLDER OF SHARES
WITHOUT CHARGE UPON REQUEST, DIRECTED TO THE PRINCIPAL OFFICE OF THE TRUST.
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:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT-________ _______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as tenants with the right of under Uniform Gifts to Minors Act
survivorship and not as tenants _________________________________
in common (State)
UNIF TRF MIN ACT-________ ________
(Cust) (Minor)
(until age ___) under Uniform
Transfers to Minors Act
_________________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
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
____________________________ SERIES H CUMULATIVE CONVERTIBLE PREFERRED SHARES OF
BENEFICIAL INTEREST REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT ____________________________________ATTORNEY
TO TRANSFER THE SAID SHARES ON THE BOOKS OF THE WITHIN NAMED TRUST WITH FULL
POWER OF SUBSTITUTION IN THE PREMISES.
DATED ___________________________ __________________________________________
__________________________________________
__________________________________________
Signature Guarantee
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
NUMBER J _____
SERIES J CUMULATIVE CONVERTIBLE THIS CERTIFICATE IS TRANSFERABLE
PREFERRED SHARES OF BENEFICIAL INTEREST, IN BOSTON, MA OR NEW YORK, NY
($.01 PAR VALUE PER SHARE)
(LIQUIDATION PREFERENCE $25.00 PER SHARE)
CUSIP 29476L 82 6
SEE REVERSE FOR IMPORTANT NOTICE
ABOUT RESTRICTIONS ON
TRANSFERABILITY AND OTHER
INFORMATION
</TABLE>
EQUITY RESIDENTIAL PROPERTIES TRUST
A REAL ESTATE INVESTMENT TRUST ORGANIZED UNDER THE LAWS OF THE STATE OF MARYLAND
This Certifies that____________________________________________________________
is the owner of________________________________________________________________
FULLY PAID AND NONASSESSABLE PREFERRED SHARES OF BENEFICIAL INTEREST, PAR
VALUE $.01 PER SHARE ("PREFERRED SHARES"), OF
EQUITY RESIDENTIAL PROPERTIES TRUST, A REAL ESTATE INVESTMENT TRUST FORMED UNDER
THE LAWS OF THE STATE OF MARYLAND, WHICH PREFERRED SHARES ARE HELD SUBJECT TO
THE DECLARATION OF TRUST AND BYLAWS OF THE TRUST AND ANY AMENDMENT THERETO.
SUCH DECLARATION OF TRUST IS FILED AND OF RECORD WITH THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND.
THE HOLDER HEREOF HAS NO INTEREST, LEGAL OR EQUITABLE, IN ANY SPECIFIC
PROPERTY OF THE TRUST AND NO TRANSFER OF THIS CERTIFICATE WILL BE EFFECTIVE
UNTIL THIS CERTIFICATE HAS BEEN SURRENDERED, PROPERLY ENDORSED, TO THE OFFICES
OF TRANSFER AGENT AND THE TRANSFER RECORDED IN THE BOOKS OF THE REGISTRAR. THIS
CERTIFICATE IS NOT VALID UNLESS COUNTERSIGNED BY THE TRANSFER AGENT AND
REGISTERED BY THE REGISTRAR.
WITNESS THE FACSIMILE SEAL OF THE TRUST AND THE FACSIMILE SIGNATURES OF ITS
DULY AUTHORIZED OFFICERS.
Dated:
Countersigned and Registered:
BANKBOSTON, N.A.
Transfer Agent and Registrar
By:_______________________ _________________ _____________________
Authorized Signature Secretary President
<PAGE>
EQUITY RESIDENTIAL PROPERTIES TRUST
IMPORTANT NOTICE
THE DECLARATION OF TRUST ON FILE IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND SETS FORTH A FULL STATEMENT OF (A) ALL OF
THE DESIGNATIONS, PREFERENCES, CONVERSION, AND OTHER RIGHTS, VOTING POWERS,
RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND
CONDITIONS OF REDEMPTION, AND OTHER RELATIVE RIGHTS OF THE SHARES OF EACH CLASS
OF SHARES AUTHORIZED TO BE ISSUED AND (B) THE AUTHORITY OF THE BOARD OF TRUSTEES
TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, THE DIFFERENCES IN RELATIVE
RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE
BEEN SET AND THE AUTHORITY OF THE BOARD OF TRUSTEES TO SET THE RELATIVE RIGHTS
AND PREFERENCES OF SERIES OF PREFERRED SHARES OF BENEFICIAL INTEREST. THE TRUST
WILL FURNISH TO ANY SHAREHOLDER, ON REQUEST AND WITHOUT CHARGE, A FULL STATEMENT
OF THE INFORMATION REQUIRED BY SECTION 8-203(d) OF THE CORPORATIONS AND
ASSOCIATIONS ARTICLE OF THE ANNOTATED CODE OF MARYLAND. SUCH REQUEST MUST BE
MADE TO THE SECRETARY OF THE TRUST AT ITS PRINCIPAL OFFICE OR TO THE TRANSFER
AGENT. THE DECLARATION OF TRUST OF THE TRUST IMPOSES VARIOUS RESTRICTIONS ON
TRANSFERABILITY OF THE SHARES REPRESENTED BY THIS CERTIFICATE. THE DECLARATION
OF TRUST OF THE TRUST IS ON FILE AND MAY BE INSPECTED AT THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND, BALTIMORE, MARYLAND. IN ADDITION, THE
TRUST WILL FURNISH A COPY OF THE DECLARATION OF TRUST OF THE TRUST OR A FULL
STATEMENT ABOUT THE RESTRICTIONS ON TRANSFERABILITY TO ANY HOLDER OF SHARES
WITHOUT CHARGE UPON REQUEST, DIRECTED TO THE PRINCIPAL OFFICE OF THE TRUST.
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:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT-_________ ________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as tenants with the right of under Uniform Gifts to Minors Act
survivorship and not as _________________________________
tenants in common (State)
UNIF TRF MIN ACT-__________ ________
(Cust) (Minor)
(until age ___) under Uniform
Transfers to Minors Act
_________________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
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
____________________________ SERIES J CUMULATIVE CONVERTIBLE PREFERRED SHARES OF
BENEFICIAL INTEREST REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT ____________________________________ATTORNEY
TO TRANSFER THE SAID SHARES ON THE BOOKS OF THE WITHIN NAMED TRUST WITH FULL
POWER OF SUBSTITUTION IN THE PREMISES.
DATED ___________________________ __________________________________________
__________________________________________
__________________________________________
Signature Guarantee
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
NUMBER L _____
SERIES L CUMULATIVE REDEEMABLE THIS CERTIFICATE IS TRANSFERABLE
PREFERRED SHARES OF BENEFICIAL INTEREST, IN BOSTON, MA OR NEW YORK, NY
($.01 PAR VALUE PER SHARE)
(LIQUIDATION PREFERENCE $25.00 PER SHARE)
CUSIP 29476L 79 2
SEE REVERSE FOR IMPORTANT NOTICE
ABOUT RESTRICTIONS ON
TRANSFERABILITY AND OTHER
INFORMATION
</TABLE>
EQUITY RESIDENTIAL PROPERTIES TRUST
A REAL ESTATE INVESTMENT TRUST ORGANIZED UNDER THE LAWS OF THE STATE OF MARYLAND
This Certifies that____________________________________________________________
is the owner of________________________________________________________________
FULLY PAID AND NONASSESSABLE PREFERRED SHARES OF BENEFICIAL INTEREST, PAR
VALUE $.01 PER SHARE ("PREFERRED SHARES"), OF
EQUITY RESIDENTIAL PROPERTIES TRUST, A REAL ESTATE INVESTMENT TRUST FORMED UNDER
THE LAWS OF THE STATE OF MARYLAND, WHICH PREFERRED SHARES ARE HELD SUBJECT TO
THE DECLARATION OF TRUST AND BYLAWS OF THE TRUST AND ANY AMENDMENT THERETO.
SUCH DECLARATION OF TRUST IS FILED AND OF RECORD WITH THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND.
THE HOLDER HEREOF HAS NO INTEREST, LEGAL OR EQUITABLE, IN ANY SPECIFIC
PROPERTY OF THE TRUST AND NO TRANSFER OF THIS CERTIFICATE WILL BE EFFECTIVE
UNTIL THIS CERTIFICATE HAS BEEN SURRENDERED, PROPERLY ENDORSED, TO THE OFFICES
OF TRANSFER AGENT AND THE TRANSFER RECORDED IN THE BOOKS OF THE REGISTRAR. THIS
CERTIFICATE IS NOT VALID UNLESS COUNTERSIGNED BY THE TRANSFER AGENT AND
REGISTERED BY THE REGISTRAR.
WITNESS THE FACSIMILE SEAL OF THE TRUST AND THE FACSIMILE SIGNATURES OF ITS
DULY AUTHORIZED OFFICERS.
Dated:
Countersigned and Registered:
BANKBOSTON, N.A.
Transfer Agent and Registrar
By:_________________________ __________________ ______________________
Authorized Signature Secretary President
<PAGE>
EQUITY RESIDENTIAL PROPERTIES TRUST
IMPORTANT NOTICE
THE DECLARATION OF TRUST ON FILE IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND SETS FORTH A FULL STATEMENT OF (A) ALL OF
THE DESIGNATIONS, PREFERENCES, CONVERSION, AND OTHER RIGHTS, VOTING POWERS,
RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND
CONDITIONS OF REDEMPTION, AND OTHER RELATIVE RIGHTS OF THE SHARES OF EACH CLASS
OF SHARES AUTHORIZED TO BE ISSUED AND (B) THE AUTHORITY OF THE BOARD OF TRUSTEES
TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, THE DIFFERENCES IN RELATIVE
RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE
BEEN SET AND THE AUTHORITY OF THE BOARD OF TRUSTEES TO SET THE RELATIVE RIGHTS
AND PREFERENCES OF SERIES OF PREFERRED SHARES OF BENEFICIAL INTEREST. THE TRUST
WILL FURNISH TO ANY SHAREHOLDER, ON REQUEST AND WITHOUT CHARGE, A FULL STATEMENT
OF THE INFORMATION REQUIRED BY SECTION 8-203(d) OF THE CORPORATIONS AND
ASSOCIATIONS ARTICLE OF THE ANNOTATED CODE OF MARYLAND. SUCH REQUEST MUST BE
MADE TO THE SECRETARY OF THE TRUST AT ITS PRINCIPAL OFFICE OR TO THE TRANSFER
AGENT. THE DECLARATION OF TRUST OF THE TRUST IMPOSES VARIOUS RESTRICTIONS ON
TRANSFERABILITY OF THE SHARES REPRESENTED BY THIS CERTIFICATE. THE DECLARATION
OF TRUST OF THE TRUST IS ON FILE AND MAY BE INSPECTED AT THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND, BALTIMORE, MARYLAND. IN ADDITION, THE
TRUST WILL FURNISH A COPY OF THE DECLARATION OF TRUST OF THE TRUST OR A FULL
STATEMENT ABOUT THE RESTRICTIONS ON TRANSFERABILITY TO ANY HOLDER OF SHARES
WITHOUT CHARGE UPON REQUEST, DIRECTED TO THE PRINCIPAL OFFICE OF THE TRUST.
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:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT-_______ _______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as tenants with the right of under Uniform Gifts to Minors Act
survivorship and not as tenants _________________________________
in common (State)
UNIF TRF MIN ACT-______ ________
(Cust) (Minor)
(until age ___) under Uniform
Transfers to Minors Act
__________________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
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
____________________________ SERIES L CUMULATIVE REDEEMABLE PREFERRED SHARES OF
BENEFICIAL INTEREST REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT ____________________________________ATTORNEY
TO TRANSFER THE SAID SHARES ON THE BOOKS OF THE WITHIN NAMED TRUST WITH FULL
POWER OF SUBSTITUTION IN THE PREMISES.
DATED ___________________________ __________________________________________
__________________________________________
__________________________________________
Signature Guarantee
