<PAGE> 1
As filed with the Securities and Exchange Commission on August 7, 1997
Registration Statement No. 333-30093
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
Pre-Effective Amendment
No. 1 to
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
GABLES RESIDENTIAL TRUST
AND GABLES REALTY LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
GABLES RESIDENTIAL TRUST - MARYLAND 58-2077868
GABLES REALTY LIMITED PARTNERSHIP - DELAWARE 58-2077966
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer
Identification No.)
2859 PACES FERRY ROAD
OVERLOOK III, SUITE 1450
ATLANTA, GEORGIA 30339
(770) 436-4600
(Address and Telephone Number of Principal Executive Offices)
MARCUS E. BROMLEY
CHIEF EXECUTIVE OFFICER
GABLES RESIDENTIAL TRUST
2859 PACES FERRY ROAD
OVERLOOK III, SUITE 1450
ATLANTA, GEORGIA 30339
(770) 436-4600
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
--------------------
copy to:
GILBERT G. MENNA, P.C.
ETTORE A. SANTUCCI, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109
(617) 570-1000
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to time
after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.__
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. X
--
If this form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration Statement number of the earlier
effective registration statement for the same offering.__
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act Registration Statement number of the earlier effective registration
statement for the same offering.__
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box.__
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Securities Being Amount to be Proposed Maximum Proposed Maximum Amount of
- ------------------------------------------------------------------------------------------------------------------------------------
Registered(1) Registered (2) Offering Price Per Unit (3) Aggregate Offering Price (4) Registration Fee (5)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Gables Residential Trust
Preferred Shares(6) $300,000,000 N.A. $300,000,000 $57,272
Common Shares(7)
Warrants(8)
- ------------------------------------------------------------------------------------------------------------------------------------
Gables Realty Limited Partnership $200,000,000 N.A. $200,000,000 $38,182
Debt Securities
====================================================================================================================================
</TABLE>
(1) This registration statement also covers contracts which may be issued by
Gables Residential Trust or Gables Realty Limited Partnership under
which the counter party may be required to purchase Preferred Shares or
Common Shares of Gables Residential Trust or Debt Securities of Gables
Realty Limited Partnership, which contracts would be issued with the
Preferred Shares, Common Shares and/or Warrants of Gables Residential
Trust or Debt Securities of Gables Realty Limited Partnership registered
hereby, as the case may be. In addition, the Securities registered
hereunder may be sold separately, together or as units with other
Securities registered hereunder.
(2) The amount to be registered consists of up to $300,000,000 of an
indeterminate amount of Preferred Shares, Common Shares and/or
Warrants to be issued by Gables Residential Trust and up to $200,000,000
of non-convertible investment grade Debt Securities to be issued by
Gables Realty Limited Partnership. There is also being registered
hereunder such currently indeterminate number of Preferred Shares or
Common Shares as may be issued upon conversion of the Preferred Shares
or upon exercise of the Warrants registered hereby, as the case may be.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
amount includes the amount of securities covered by the Registration
Statement on Form S-3 (No.333-14329), which have not been sold.
(3) The proposed maximum offering price per unit has been omitted pursuant
to Securities Act Release No. 6964. The registration fee has been
calculated in accordance with Rule 457(o) under the Securities Act of
1933, as amended, and reflects the offering price rather than the
principal amount of any Debt Securities issued at a discount.
(4) Estimated solely for purposes of computing the registration fee. No
separate consideration will be received for Preferred Shares or Common
Shares issued upon conversion of Preferred Shares or upon exercise of
the Warrants.
(5) The total registration fee for all $500 million of securities is
$151,515. A portion of this registration fee in the amount of
$60,606 was paid on June 26, 1997 in connection with the initial filing
of this Registration Statement. In addition, pursuant to Rule 429 under
the Securities Act of 1933, as amended, the amount of $185,000,000 of
securities covered by the Registration Statement on Form S-3 (File No.
333-14329) is being carried forward and the corresponding registration
fee of $56,061 that was previously paid at the time of filing shall be
applied to this Registration Statement. Accordingly, after application
of total credits, an additional amount of $34,848 is being paid
simultaneously with this filing.
(6) Including such indeterminate number of Preferred Shares as may issued
from time to time at indeterminate prices or upon conversion of or upon
exercise of Warrants registered hereby, as the case may be.
(7) Including such indeterminate number of Common Shares as may be issued
from time to time at indeterminate prices or upon conversion of
Preferred Shares registered hereby or upon exercise of Warrants
registered hereby, as the case may be.
(8) Including such indeterminate number of Warrants or other rights,
including without limitation share purchase or subscription rights, as
may be issued from time to time at indeterminate prices.
The Prospectus contained in this Registration Statement relates to and
constitutes a Post-Effective Amendment to the Registration Statement on Form S-3
(No. 333-14329) of the Registrant, and it is intended to be the combined
prospectus referred to in Rule 429 under the Securities Act of 1933, as amended.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell nor the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST 7, 1997
PROSPECTUS
- ----------
$300,000,000
GABLES RESIDENTIAL TRUST
PREFERRED SHARES
COMMON SHARES
WARRANTS
$200,000,000
GABLES REALTY LIMITED PARTNERSHIP
DEBT SECURITIES
---------------
Gables Residential Trust ("Gables" or the "Company") may offer from
time to time in one or more series, (i) preferred shares of beneficial interest,
$.01 par value per share ("Preferred Shares"), (ii) common shares of beneficial
interest, $.01 par value per share ("Common Shares"), and (iii) warrants or
other rights to purchase Preferred Shares or Common Shares ("Warrants"). Gables
Realty Limited Partnership (the "Operating Partnership") may offer from time to
time in one or more series unsecured, non-convertible investment grade debt
securities (the "Debt Securities"). The aggregate public offering price of the
Preferred Shares, Common Shares and Warrants shall be up to $300,000,000 and the
aggregate public offering price of the Debt Securities shall be up to
$200,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale) in amounts, at prices and on terms to be determined at the
time of offering. The Debt Securities, Preferred Shares, Common Shares and
Warrants (collectively, the "Securities") may be offered separately or together,
in separate series, in amounts, at prices and on terms to be set forth in one or
more supplements to this Prospectus (each a "Prospectus Supplement").
The specific terms of the Securities for which this Prospectus is being
delivered will be set forth in the applicable Prospectus Supplement and will
include, where applicable: (i) in the case of Preferred Shares, the specific
designation and stated value per share, any dividend, liquidation, redemption,
conversion, voting and other rights, and any initial public offering price; (ii)
in the case of Common Shares, any initial public offering price; (iii) in the
case of Warrants, the duration, offering price, exercise price and
detachability; and (iv) in the case of Debt Securities, the specific title,
aggregate principal amount, ranking, currency, form (which may be registered or
bearer, or certificated or global), authorized denominations, maturity, rate (or
manner of calculation thereof) and time of payment of interest, terms for
redemption at the option of the Operating Partnership or repayment at the option
of the holder, terms for sinking fund payments, covenants and any initial public
offering price. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Securities,
in each case as may be consistent with the Company's Amended and Restated
Declaration of Trust, as then in effect, or otherwise appropriate to preserve
the status of the Company as a real estate investment trust ("REIT") for Federal
income tax purposes. See "Restrictions on Transfers of Shares of Beneficial
Interest."
The applicable Prospectus Supplement will also contain information,
where appropriate, about certain United States Federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities covered
by such Prospectus Supplement.
The Preferred Shares, Common Shares and Warrants may be offered by the
Company and the Debt Securities may be offered by the Operating Partnership
directly to one or more purchasers, through agents designated from time to time
by the Company or the Operating Partnership, respectively, or to or through
underwriters or dealers. If any agents or underwriters are involved in the sale
of any of the Securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in an accompanying Prospectus
Supplement. See "Plan of Distribution." No Securities may be sold without
delivery of a Prospectus Supplement describing the method and terms of the
offering of such Securities.
SEE "RISK FACTORS" ON PAGE 3 FOR CERTAIN FACTORS THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
-------------------
The date of this Prospectus is August 7, 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company and the Operating Partnership have filed with the Securities
and Exchange Commission (the "SEC" or "Commission") a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities. This Prospectus,
which constitutes part of the Registration Statement, omits certain of the
information contained in the Registration Statement and the exhibits thereto on
file with the Commission pursuant to the Securities Act and the rules and
regulations of the Commission thereunder. The Registration Statement, including
exhibits thereto, may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, and at the Commission's Regional Offices at 7 World Trade Center,
13th Floor, New York, New York 10048, and Citicorp Center, 500 W. Madison
Street, Suite 1400, Chicago, Illinois 60661-2511, and copies may be obtained at
the prescribed rates from the Public Reference Section of the Commission at its
principal office in Washington, D.C. Statements contained in this Prospectus as
to the contents of any contract or other document referred to are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference.
The Company and the Operating Partnership file information
electronically with the Commission, and the Commission maintains a Web Site that
contains reports, proxy and information statements and other information
regarding registrants (including the Company and the Operating Partnership) that
file electronically with the Commission. The address of the Commission's Web
Site is (http://www.sec.gov.).
The Company and the Operating Partnership (effective August, 1997) are
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith the Company
and the Operating Partnership file reports and proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the locations described above.
Copies of such materials can be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. In addition, the Common Shares are listed on
the New York Stock Exchange (the "NYSE"), and such materials can be inspected
and copied at the NYSE, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated herein by reference: (i) the
Company's Annual Report on Form 10-K for the year ended December 31, 1996,
filed with the Commission pursuant to the Exchange Act (File No. 1-12590), and
the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1997, filed with the Commission pursuant to the Exchange Act (File No.
1-12590); (ii) the Company's Current Report on Form 8-K dated July 24, 1997
filed with the Commission pursuant to the Exchange Act (File No. 1-12590);
(iii) the description of the Company's Common Shares contained in its
Registration Statement on Form 8-A filed with the Commission pursuant to the
Exchange Act, including all amendments and reports updating such description
(File No. 1-12590); (iv) the description of the Company's 8.30% Series A
Cumulative Redeemable Preferred Shares on Form 8-A filed with the Commission
pursuant to the Exchange Act (File No. 1-12590); (v) the Proxy Statement
prepared by the Company in connection with its 1997 Annual Meeting of
Shareholders (File No. 1-12590); and (vi) the Operating Partnership's
Registration Statement on Form 10, as filed June 11,1997 with the Commission
pursuant to the Exchange Act, including all amendments and reports updating
such Registration Statement (File No. 000-22683).
All other documents filed with the Commission by the Company or the
Operating Partnership pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities are to be incorporated herein by
reference and such documents shall be deemed to be a part hereof from the date
of filing of such documents. Any statement contained in this Prospectus or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN, WITHOUT
CHARGE, UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS
INCORPORATED BY REFERENCE HEREIN, EXCEPT FOR THE EXHIBITS TO SUCH DOCUMENTS.
WRITTEN REQUESTS SHOULD BE MAILED TO GABLES RESIDENTIAL TRUST, 2859 PACES FERRY
ROAD, OVERLOOK III, SUITE 1450, ATLANTA, GEORGIA, ATTENTION: DIRECTOR OF
INVESTOR RELATIONS. TELEPHONE REQUESTS MAY BE DIRECTED TO (770) 436-4600.
2
<PAGE> 4
RISK FACTORS
"Safe Harbor" statement under the Private Securities Litigation Reform
Act of 1995: This Prospectus, including the information incorporated by
reference herein, and the applicable Prospectus Supplement contain
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended. Actual results could differ materially from those projected in the
forward-looking statements as a result of the risk factors set forth below, and
prospective investors should carefully consider such risk factors in conjunction
with the other information contained or incorporated by reference in this
Prospectus and the applicable Prospectus Supplement before making a decision to
purchase any Securities. Unless the context otherwise requires, the "Company"
shall also hereinafter refer to the Operating Partnership and its subsidiaries.
RISKS OF DEVELOPMENT, CONSTRUCTION AND ACQUISITION ACTIVITIES
The Company intends to actively continue development and construction of
multifamily apartment communities. There can be no assurance that the Company
will undertake to develop any particular site or that it will be able to
complete such development if it is undertaken. Risks associated with the
Company's development and construction activities include: development
opportunities may be abandoned; construction costs of a community may exceed
original estimates, possibly making the community uneconomical; occupancy rates
and rents at a newly completed community may not be sufficient to make the
community profitable; financing may not be available on favorable terms for
development of a community; and construction and lease-up may not be completed
on schedule, resulting in increased debt service and construction costs.
Development activities are also subject to risks relating to the inability to
obtain, or delays in obtaining, all necessary zoning, land-use, building,
occupancy, and other required governmental permits and authorizations.
The Company intends to continue to acquire multifamily apartment
communities on a select basis. Acquisitions of multifamily communities entail
risks that investments will fail to perform in accordance with expectations.
Estimates of the costs of improvements to bring an acquired property up to
standards established for the market position intended for that property may
prove inaccurate.
The Company anticipates that future developments and acquisitions will
be financed, in whole or in part, under existing credit facilities or loan
commitments or other lines of credit or other forms of secured or unsecured
financing or through the issuance of additional equity by the Company. The use
of equity financing, rather than debt, for future developments or acquisitions
could have a dilutive effect on the interest of existing shareholders of the
Company. If new developments are financed under existing lines of credit, there
is a risk that, unless substitute financing is obtained, further availability
under the lines of credit for new development may not be available or may be
available only on disadvantageous terms. In addition there is a risk that upon
the maturity of such existing lines of credit, the lines of credit will not be
able to be refinanced or that the terms of such refinancing will not be as
favorable as the terms of the existing indebtedness.
REAL ESTATE FINANCING RISKS
No Limitation on Debt. The Company currently has a policy of incurring
debt only if upon such incurrence the ratio of debt to total market
capitalization (i.e., the total consolidated debt of the Company as a percentage
of the market value of issued and outstanding equity securities plus total
consolidated debt) would be 60% or less, but the organizational documents of the
Company do not contain any limitation on the amount of indebtedness the Company
may incur. Accordingly, the Company's Board of Trustees could alter or eliminate
this policy. In addition, except as may be set forth in any Prospectus
Supplement, the Debt Securities will not contain any provision that would afford
holders of the Debt Securities protection in the event of a highly leveraged
transaction or change in control of the Operating Partnership or the Company.
Existing Debt Maturities, Balloon Payments and Refinancing Risks. The
Company is subject to the risks normally associated with debt financing,
including the risk that the Company's cash flow will be insufficient to meet
required payments of principal and interest. Because the Company anticipates
that only a small portion of the principal of the Company's mortgage
indebtedness will be repaid prior to maturity, it will be necessary for the
Company to refinance debt. Accordingly, there is a risk that existing
indebtedness on the Communities will not be able to be refinanced or that the
terms of such refinancing will not be as favorable as the terms of the existing
indebtedness.
3
<PAGE> 5
Risk of Rising Interest Rates. The Company incurred and expects in the
future to incur floating rate indebtedness in connection with the construction
of multifamily apartment communities, as well as for other purposes. In
addition, additional indebtedness that the Company incurs under the Company's
unsecured revolving credit facility also bears interest at a floating rate.
Accordingly, increases in interest rates would increase the Company's interest
costs (to the extent that the related indebtedness was not protected by the
Company's interest rate protection arrangements).
Bond Compliance Requirements. Certain of the Company's multifamily
apartment communities are or may be financed with obligations issued by various
local government agencies or instrumentalities, the interest on which is exempt
from Federal income taxation. These obligations are commonly referred to as
"tax-exempt bonds." Under the terms of such bonds, the Company must comply with
various restrictions on the use of the Company's multifamily apartment
communities including the restriction that a percentage of apartments be made
available to low and middle income households. The bond compliance requirements
in effect, and the requirements of any future tax-exempt bond financing utilized
by the Company, may have the effect of limiting the Company's income from the
Company's multifamily apartment communities subject to the financing. In
addition, certain of the tax-exempt bond financing documents require that a
financial institution (the "credit enhancer") guarantee payment of principal of,
and interest on, the bonds, which may take the form of a letter of credit,
surety bond, guarantee agreement or other additional collateral. If the credit
enhancer defaults in its credit enhancement obligations, or the Company is
unable to renew the applicable credit enhancement or otherwise post satisfactory
collateral, a default will occur under the applicable tax-exempt bonds and the
property could be foreclosed upon.
REAL ESTATE INVESTMENT RISKS
General Risks. Real property investments are subject to varying degrees
of risk. If the Company's communities do not generate revenues sufficient to
meet operating expenses, including debt service and capital expenditures, the
Company's cash flow and ability to make distributions to its shareholders will
be adversely affected. A multifamily community's revenues and value may be
adversely affected by the general economic climate; the local economic climate
(including the fiscal condition of the relevant governmental bodies); local real
estate conditions (such as oversupply of or reduced demand for apartment homes);
the perceptions by prospective residents of the safety, convenience and
attractiveness of the communities or neighborhoods in which they are located and
the quality of local schools and other amenities; the ability of the owner to
provide adequate management, maintenance and insurance; and increased operating
cost (including real estate taxes and utilities). Certain significant
expenditures associated with each equity investment (such as mortgage payments,
if any, real estate taxes, insurance and maintenance costs) are generally not
reduced when circumstances cause a reduction in income from the investment.
Dependence on Primary Markets. The Company's multifamily apartment
communities are located in various metropolitan areas in the Southeastern and
Southwestern United States, particularly Atlanta, Houston and Dallas, and the
Company's performance and its ability to make distributions to shareholders
could be adversely affected by economic and social conditions in these
geographic areas.
Market Illiquidity. Equity real estate investments are relatively
illiquid. Such illiquidity will tend to limit the ability of the Company to vary
its portfolio promptly in response to changes in economic or other conditions.
In addition, the Internal Revenue Code (the "Code") limits the Company's ability
to sell properties held for fewer than four years, which may affect the
Company's ability to sell properties without adversely affecting returns to
holders of Common Shares.
Operating Risks. The Company's multifamily apartment communities are
subject to all operating risks common to multifamily apartment communities in
general, any and all of which might adversely affect apartment occupancy or
rental rates. Increases in unemployment in the areas in which the communities
owned or managed by the Company are located might adversely affect multifamily
occupancy or rental rates. Increases in operating costs due to inflation and
other factors may not necessarily be offset by increased rents. Residents may be
unable or unwilling to pay rent increases. Future enactment of rent control or
rent stabilization laws or other laws regulating multifamily housing may reduce
rental revenue or increase operating costs. If operating expenses increase, the
local rental market may limit the extent to which rents may be increased to meet
increased expenses without decreasing occupancy rates.
Competition. There are numerous housing alternatives that compete with
the Company's multifamily apartment communities in attracting residents. The
Company's multifamily apartment communities compete directly with other
multifamily rental apartments and single family homes that are available for
rent or purchase in the markets in which the Company's multifamily apartment
communities are located. In addition, other competitors for development and
4
<PAGE> 6
acquisitions of properties, including other REITs, may have greater resources
than the Company. Increased supply of apartment homes in the Company's principal
markets over the past few years and the next few years may adversely affect the
current favorable demand environment for apartment homes, including occupancy
and rental rates.
Affordable Housing Laws. Certain of the Company's multifamily apartment
communities are, and will be in the future, subject to federal, state and local
statutes or other restrictions requiring that a percentage of apartments be made
available to low and middle income households. These laws and obligations, as
well as any changes thereto making it more difficult to meet such requirements,
or a reduction in or elimination of certain financing advantages available to
those persons satisfying such requirements, could adversely affect the Company's
profitability and its ability to develop certain communities in the future.
RISK OF FEE MANAGEMENT BUSINESS
The Company manages properties owned by third parties for a fee. Risks
associated with the management of properties owned by third parties include the
risk that the management contracts will be terminated and/or that the rental
revenues upon which management fees are based will decline, resulting in
decreased management fee income.
LIMITS ON CHANGES IN CONTROL
Certain provisions contained in the Company's Amended and Restated
Declaration of Trust (the "Declaration of Trust") and Second Amended and
Restated Bylaws and under Maryland law may have the effect of discouraging a
third party from making an acquisition proposal for the Company and may thereby
inhibit a change in control of the Company. For example, such provisions may (i)
deter tender offers for Common Shares, which offers may be attractive to the
shareholders, or (ii) deter purchases of large blocks of Common Shares, thereby
limiting the opportunity for shareholders to receive a premium for their Common
Shares over then-prevailing market prices.
POSSIBLE ADVERSE CONSEQUENCES OF LIMITS ON OWNERSHIP OF SHARES OF BENEFICIAL
INTEREST
In order to maintain its qualification as a REIT, not more than 50% in
value of the outstanding shares of beneficial interest of the Company may be
owned, directly or indirectly, by five or fewer persons. In order to protect the
Company against the risk of losing its status as a REIT due to a concentration
of ownership among its shareholders, the Company has limited ownership of shares
of beneficial interest by any single shareholder to 9.8% of the outstanding
shares of beneficial interest. Although the Board of Trustees presently has no
intention of doing so, the Board of Trustees could waive this restriction if it
were satisfied, based upon the advice of tax counsel, that ownership in excess
of this limit would not jeopardize the Company's status as a REIT and the Board
of Trustees otherwise decided such action would be in the best interest of the
Company. This restriction also does not apply with respect to an offeror in the
event of an all-cash tender offer by it which has been accepted by shareholders
representing at least two-thirds of the Company's outstanding shares. Shares
acquired or transferred in breach of the limitation will be automatically
exchanged for shares not entitled to vote or to participate in dividends or
other distributions. In addition, shares acquired or transferred in breach of
the limitation may be purchased by the Company for the lesser of the price paid
and the market price (as determined in the manner set forth in the Declaration
of Trust).
COST OF COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT AND SIMILAR LAWS
Under the Americans with Disabilities Act of 1990 (the "ADA"), all
places of public accommodation are required to meet certain Federal requirements
related to access and use by disabled persons. Although management of the
Company believes that the Company's communities are substantially in compliance
with the present requirements of the ADA, the Company may incur additional costs
of complying with the ADA. A number of additional federal, state and local laws
exist which also may require modifications to the Company's communities, or
restrict certain further renovations thereof, with respect to access thereto by
disabled persons. For example, the Fair Housing Act of 1988 (the "FHAA")
requires apartment communities first occupied after March 13, 1990 to be
accessible to the handicapped. Noncompliance with the FHAA could result in the
imposition of fines or an award of damages to private litigants. Additional
legislation may impose further burdens or restrictions on owners with respect to
access by disabled persons.
5
<PAGE> 7
The ultimate amount of the cost of compliance with the ADA or such legislation
is not currently ascertainable, and, while such costs are not expected to have a
material effect on the Company, such costs could be substantial.
ADVERSE CONSEQUENCES OF FAILURE TO QUALIFY AS A REIT; OTHER TAX LIABILITIES
The Company intends at all times to operate so as to qualify as a REIT
under the Code. Although management of the Company believes that the Company is
organized and operates in such a manner, no assurance can be given that the
Company qualifies or will remain qualified as a REIT. Qualification as a REIT
involves the application of highly technical and complex Code provisions for
which there are only limited judicial and administrative interpretations. The
determination of various factual matters and circumstances not entirely within
the Company's control may affect the Company's ability to qualify as a REIT. If
the Company fails to qualify as a REIT, it will be subject to Federal income tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. In addition, unless entitled to relief under certain
statutory provisions, the Company will be disqualified from treatment as a REIT
for the four taxable years following the year during which qualification is
lost. The additional tax would significantly reduce the cash flow available for
distribution to shareholders.
POSSIBLE ADVERSE IMPACT OF MARKET CONDITIONS ON MARKET PRICE
The market value of the Securities could be substantially affected by
general market conditions, including changes in interest rates. An increase in
market interest rates would lead purchasers of the Debt Securities and may lead
purchasers of the Common Shares, Preferred Shares and Warrants to demand a
higher annual yield, which could adversely affect the market price of the
outstanding Common Shares and other Securities. Moreover, numerous other factors
such as government regulatory action and changes in tax laws could have a
significant impact on the future market price of the Common Shares or other
Securities.
POSSIBLE ENVIRONMENTAL LIABILITIES
Under various Federal, state and local environmental laws, a current or
previous owner or operator of real estate may be required (typically regardless
of knowledge or responsibility) to investigate and clean up hazardous or toxic
substances or petroleum product releases at such property and may be held liable
to a governmental entity or to third parties for property damage and for
investigation and clean-up costs incurred by such parties in connection with the
contamination, which may be substantial. The presence of such substances (or the
failure to properly remediate the contamination) may adversely affect the
owner's ability to borrow against, sell or rent such property.
THE COMPANY AND THE OPERATING PARTNERSHIP
GENERAL
Gables is one of the largest managers, developers and owners of
multifamily apartment communities in the Southeastern and Southwestern United
States. The Company is a self-administered and self-managed real estate
investment trust (a "REIT") and has elected to be treated as a REIT under the
Internal Revenue Code of 1986, as amended, beginning with its taxable year
ending December 31, 1994. The Company's Common Shares are listed on the New York
Stock Exchange under the symbol "GBP."
The Company currently engages in the multifamily apartment community
management, development, construction and acquisition businesses, including the
provision of related brokerage and corporate rental housing services.
Substantially all of the Company's business is conducted through, and
substantially all of the Company's interests in its properties are held by or
through, the Operating Partnership. Through its ownership of Gables GP, Inc.
("GGPI"), a Texas corporation and wholly-owned subsidiary of the Company that
is the sole general partner of the Operating Partnership, and its ownership of
a direct limited partnership interest in the Operating Partnership, the Company
is currently an 84.6% economic owner of the Operating Partnership (excluding
the Company's direct or indirect ownership of 100% of the Series A Preferred
Units issued in connection with the Company's sale of 4,600,000 shares of 8.30%
Series A Cumulative Redeemable Preferred Shares on July 24, 1997)(this
structure is commonly referred to as an umbrella partnership REIT or "UPREIT").
At March 31, 1997, the Company owned 48 completed multifamily apartment
communities and had an indirect 25% interest in two multifamily apartment
communities, collectively comprising 15,480 apartment homes. The Company also
had seven multifamily apartment communities under development as of March 31,
1997 which are
6
<PAGE> 8
expected to comprise 2,025 apartment homes. In addition, the Company owns four
sites on which it intends to develop apartment communities and has rights to
acquire six additional sites. Although there is no assurance that the Company
will develop multifamily apartment communities at any sites or pursuant to any
such development rights, an estimated 2,771 apartment homes could be added to
its portfolio from the successful development of all such locations. In May,
1997, the Company acquired an existing multifamily apartment community
comprising 438 apartment homes. The Company also has rights to acquire an
existing multifamily apartment community comprising 82 apartment homes.
The Company was organized as a REIT under the laws of the State of
Maryland in 1993 to continue and expand the operations of its privately owned
predecessor organization. The Operating Partnership was organized as a limited
partnership under the laws of Delaware in 1993. The Company's Common Shares have
been traded on the New York Stock Exchange since the completion of the Company's
initial public offering on January 26, 1994 (the "Initial Offering"). The
Company's and the Operating Partnership's executive offices are located at 2859
Paces Ferry Road, Atlanta, Georgia 30339 and their telephone number is (770)
436-4600.
USE OF PROCEEDS
The Company is required by the terms of the partnership agreement of the
Operating Partnership to invest the net proceeds of any sale of Common Shares or
Preferred Shares in the Operating Partnership in exchange for additional units
of limited partnership of the Operating Partnership ("Units") or preferred
Units, as the case may be. As will be more fully described in the applicable
Prospectus Supplement, the Company and the Operating Partnership intend to use
the net proceeds from the sale of Securities for one or more of the following:
repayment of indebtedness, acquisition of or investment in new properties and
developments, maintenance of currently owned properties and general corporate
purposes.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Company conducts its business principally through the Operating
Partnership. Consequently, the Operating Partnership, and not the Company, will
issue the Debt Securities. The Debt Securities will be direct unsecured
obligations of the Operating Partnership and may be either senior Debt
Securities ("Senior Securities") or subordinated Debt Securities ("Subordinated
Securities"). The Debt Securities will be issued under one or more indentures,
each dated as of a date prior to the issuance of the Debt Securities to which it
relates. Senior Securities and Subordinated Securities may be issued pursuant to
separate indentures (respectively, a "Senior Indenture" and a "Subordinated
Indenture"), in each case between the Operating Partnership and First Union
National Bank (a "Trustee"), and in the form that has been filed as an exhibit
to the Registration Statement of which this Prospectus is a part, subject to
such amendments or supplements as may be adopted from time to time. The Trustee
is one of the lenders to the Company's revolving line of credit, and may, from
time to time, enter into other commercial relationships with the Company and the
Operating Partnership. The Senior Indenture and the Subordinated Indenture, as
amended or supplemented from time to time, are sometimes hereinafter referred to
collectively as the "Indentures." The Indentures will be subject to and governed
by the Trust Indenture Act of 1939, as amended (the "TIA"). The statements made
under this heading relating to the Debt Securities and the Indentures are
summaries of the material provisions thereof, do not purport to be complete and
are qualified in their entirety by reference to the Indentures and such Debt
Securities.
Capitalized terms used herein and not defined shall have the meanings
assigned to them in the applicable Indenture.
TERMS
The indebtedness represented by the Senior Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Operating
Partnership. The indebtedness represented by Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior Debt
of the Operating Partnership as described under "--Subordination." The
particular terms of the Debt Securities offered by a Prospectus Supplement will
be described in the applicable Prospectus Supplement, along with any applicable
modifications of or additions to the general terms of the Debt Securities as
described herein and in the applicable Indenture and any applicable Federal
income tax considerations. Accordingly, for a description of the terms of any
series of Debt Securities, reference must be made to both the Prospectus
Supplement relating thereto and the description of the Debt Securities set forth
in this Prospectus.
7
<PAGE> 9
Except as set forth in any Prospectus Supplement, the Debt Securities
may be issued without limit as to aggregate principal amount, in one or more
series, in each case as established from time to time by the Operating
Partnership or as set forth in the applicable Indenture or in one or more
indentures supplemental to such Indenture. All Debt Securities of one series
need not be issued at the same time and, unless otherwise provided, a series may
be reopened, without the consent of the holders of the Debt Securities of such
series, for issuance of additional Debt Securities of such series.
Each Indenture provides that the Operating Partnership may, but need
not, designate more than one Trustee thereunder, each with respect to one or
more series of Debt Securities. Any Trustee under an Indenture may resign or be
removed with respect to one or more series of Debt Securities and a successor
Trustee may be appointed to act with respect to such series. In the event that
two or more persons are acting as Trustee with respect to different series of
Debt Securities, each such Trustee shall be a Trustee of a trust under the
applicable Indenture separate and apart from the trust administered by any other
Trustee, and, except as otherwise indicated herein, any action described herein
to be taken by each Trustee may be taken by each such Trustee with respect to,
and only with respect to, the one or more series of Debt Securities for which it
is Trustee under the applicable Indenture.
The following summaries set forth the material terms and provisions of
the Indentures and the Debt Securities. The Prospectus Supplement relating to
the series of Debt Securities being offered will contain further terms of such
Debt Securities, including the following specific terms:
(1) The title of such Debt Securities and whether such Debt Securities
are Senior Securities or Subordinated Securities;
(2) The aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Debt Securities will be issued and, if
other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration
of the maturity thereof;
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be
payable;
(5) The rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which such
Debt Securities will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on
which any such interest will be payable, the record dates for such
interest payment dates, or the method by which such dates shall be
determined, the persons to whom such interest shall be payable,
and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(7) The place or places where the principal of (and premium, if any)
and interest, if any, on such Debt Securities will be payable,
where such Debt Securities may be surrendered for registration of
transfer or exchange and where notices or demands to or upon the
Operating Partnership in respect of such Debt Securities and the
applicable Indenture may be served;
(8) The period or periods, if any, within which, the price or prices
at which and the other terms and conditions upon which such Debt
Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, as a whole or in part, at the option of
the Operating Partnership;
(9) The obligation, if any, of the Operating Partnership to redeem,
repay or purchase such Debt Securities pursuant to any sinking
fund or analogous provision or at the option of a holder thereof,
and the period or periods within which, the price or prices at
which and the other terms and conditions upon which such Debt
Securities will be redeemed, repaid or purchased, as a whole or in
part, pursuant to such obligation;
8
<PAGE> 10
(10) If other than U.S. dollars, the currency or currencies in which
such Debt Securities are denominated and payable, which may be a
foreign currency or units of two or more foreign currencies or a
composite currency or currencies, and the terms and conditions
relating thereto;
(11) Whether the amount of payments of principal of (and premium, if
any) or interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method
(which index, formula or method may, but need not be, based on a
currency, currencies, currency unit or units, or composite
currency or currencies) and the manner in which such amounts shall
be determined;
(12) Whether such Debt Securities will be issued in certificated or
book-entry form and, if in book entry form, the identity of the
depository for such Debt Securities;
(13) Whether such Debt Securities will be in registered or bearer form
and, if in registered form, the denominations thereof if other
than $1,000 and any integral multiple thereof and, if in bearer
form, the denominations thereof and terms and conditions relating
thereto;
(14) The applicability, if any, of the defeasance and covenant
defeasance provisions described herein or set forth in the
applicable Indenture, or any modification thereof;
(15) Whether and under what circumstances the Operating Partnership
will pay any additional amounts on such Debt Securities in respect
of any tax, assessment or governmental charge and, if so, whether
the Operating Partnership will have the option to redeem such Debt
Securities in lieu of making such payment;
(16) Any deletions from, modifications of or additions to the events of
default or covenants of the Operating Partnership, to the extent
different from those described herein or set forth in the
applicable Indenture with respect to such Debt Securities, and any
change in the right of any Trustee or any of the holders to
declare the principal amount of any of such Debt Securities due
and payable;
(17) With respect to any Debt Securities that provide for optional
redemption or prepayment upon the occurrence of certain events
(such as a change of control of the Operating Partnership), (i)
the possible effects of such provisions on the market price of the
Operating Partnership's or the Company's securities or in
deterring certain mergers, tender offers or other takeover
attempts, and the intention of the Operating Partnership to comply
with the requirements of Rule 14e-1 under the Exchange Act and any
other applicable securities laws in connection with such
provisions; (ii) whether the occurrence of the specified events
may give rise to cross-defaults on other indebtedness such that
payment on such Debt Securities may be effectively subordinated;
and (iii) the existence of any limitation on the Operating
Partnership's financial or legal ability to repurchase such Debt
Securities upon the occurrence of such an event (including, if
true, the lack of assurance that such a repurchase can be
effected) and the impact, if any, under the Indenture of such a
failure, including whether and under what circumstances such a
failure may constitute an event of default;
(18) The name of the applicable trustee and the nature of any material
relationship with the Operating Partnership or with any of its
affiliates, and the percentage of Debt Securities of the class
necessary to require the trustee to take action; and
(19) Any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture.
If so provided in the applicable Prospectus Supplement, the Debt Securities
may be issued at a discount below their principal amount and provide for less
than the entire principal amount thereof to be payable upon declaration of
acceleration of the maturity thereof ("Original Issue Discount Securities"). In
such cases, all material U.S. Federal income tax, accounting and other
considerations applicable to Original Issue Discount Securities will be
described in the applicable Prospectus Supplement.
9
<PAGE> 11
Except as described under "-- Merger, Consolidation or Sale of Assets"
or as may be set forth in any Prospectus Supplement, the Debt Securities will
not contain any provisions that would limit the ability of the Operating
Partnership to incur indebtedness or that would afford holders of Debt
Securities protection in the event of (i) a highly leveraged or similar
transaction involving the Operating Partnership, the management of the Operating
Partnership or the Company, or any affiliate of any such party, (ii) a change of
control, or (iii) a reorganization, restructuring, merger or similar transaction
involving the Operating Partnership that may adversely affect the holders of the
Debt Securities. In addition, subject to the limitations set forth under "--
Merger, Consolidation or Sale of Assets," the Operating Partnership may, in the
future, enter into certain transactions, such as the sale of all or
substantially all of its assets or the merger or consolidation of the Operating
Partnership, that would increase the amount of the Operating Partnership's
indebtedness or substantially reduce or eliminate the Operating Partnership's
indebtedness or substantially reduce or eliminate the Operating Partnership's
assets, which may have an adverse effect on the Operating Partnership's ability
to service its indebtedness, including the Debt Securities. Neither Maryland
General Corporation Law nor the governing instruments of the Company and the
Operating Partnership define the term "substantially all" in connection with the
sale of assets. Additionally, Maryland cases interpreting the words
"substantially all" all rely heavily upon the facts and circumstances of the
particular case. Consequently, to determine whether a sale of "substantially
all" of the Operating Partnership's assets has occurred, a holder of Debt
Securities must review the financial and other information disclosed by the
Operating Partnership to the public. Restrictions on ownership and transfers of
the Common Shares and Preferred Shares are designed to preserve the Company's
status as a REIT and, therefore, may act to prevent or hinder a change of
control. See "Limits on Ownership of Shares of Beneficial Interest." Reference
is made to the applicable Prospectus Supplement for information with respect to
any deletions from, modifications of, or additions to, the events of default or
covenants that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
DENOMINATION, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for any
authorized denomination of other Debt Securities of the same series and of a
like aggregate principal amount and tenor upon surrender of such Debt Securities
at the corporate trust office of the applicable Trustee or at the office of any
transfer agent designated by the Operating Partnership for such purpose. In
addition, subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series may be surrendered for
registration of transfer or exchange thereof at the corporate trust office of
the applicable Trustee or at the office of any transfer agent designated by the
Operating Partnership for such purpose. Every Debt Security surrendered
registration of transfer or exchange must be duly endorsed or accompanied by a
written instrument of transfer, and the person requesting such action must
provide evidence of title and identity satisfactory to the applicable Trustee or
transfer agent. No service charge will be made for any registration of transfer
or exchange of any Debt Securities, but the Trustee or the Operating Partnership
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the applicable Trustee) initially
designated by the Operating Partnership with respect to any series of Debt
Securities, the Operating Partnership may at any time rescind the designation of
any such transfer agent or approve a change in the location through which any
such transfer agent acts, except that the Operating Partnership will be required
to maintain a transfer agent in each place of payment for such series. The
Operating Partnership may at any time designate additional transfer agents with
respect to any series of Debt Securities.
Neither the Operating Partnership nor any Trustee shall be required (i)
to issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption of any Debt Securities that may be selected
for redemption and ending at the close of business on the day of such mailing;
(ii) to register the transfer of or exchange any Debt Security, or portion
thereof, so selected for redemption, in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part; or (iii) to issue, register
the transfer of or exchange any Debt Security that has been surrendered for
repayment at the option of the holder, except the portion, if any, of such Debt
Security not to be so repaid.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Indentures provide that the Operating Partnership may, without the
consent of the holders of any outstanding Debt Securities, consolidate with, or
sell, lease or convey all or substantially all of its assets to, or merge with
or into,
10
<PAGE> 12
any other entity provided that (i) either the Operating Partnership shall be the
continuing entity, or the successor entity (if other than the Operating
Partnership) formed by or resulting from any such consolidation or merger or
which shall have received the transfer of such assets, and which is organized
under the laws of any domestic jurisdiction and assumes (A) the Operating
Partnership's obligations to pay principal of (and premium, if any) and interest
on all of the Debt Securities and (B) the due and punctual performance and
observance of all of the covenants and conditions contained in each Indenture;
(ii) immediately after giving effect to such transaction and treating any
indebtedness that becomes an obligation of the Operating Partnership or any
subsidiary as a result thereof as having been incurred by the Operating
Partnership or such subsidiary at the time of such transaction, no event of
default under the Indentures, and no event which, after notice or the lapse of
time, or both, would become such an event of default, shall have occurred and be
continuing; and (iii) an officers' certificate and legal opinion covering such
conditions shall be delivered to each Trustee.
CERTAIN COVENANTS
Existence. Except as permitted under "--Merger, Consolidation or Sale of
Assets," the Indentures require the Operating Partnership to do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights and franchises; provided, however, that the Operating
Partnership shall not be required to preserve any right or franchise if it
determines that the preservation thereof is no longer desirable in the conduct
of its business.
Maintenance of Properties. The Indentures require the Operating
Partnership to cause all of its material properties used or useful in the
conduct of its business or the business of any subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Operating Partnership may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Operating Partnership and its subsidiaries shall not
be prevented from selling or otherwise disposing of their properties for value
in the ordinary course of business.
Insurance. The Indentures require the Operating Partnership to cause
each of its and its subsidiaries' insurable properties to be insured against
loss or damage at least equal to their then full insurable value with insurers
of recognized responsibility and, if described in the applicable Prospectus
Supplement, having a specified rating from a recognized insurance rating
service.
Payment of Taxes and Other Claims. The Indentures require the Operating
Partnership to pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon it or any subsidiary or upon the income, profits
or property of the Operating Partnership or any subsidiary and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Operating Partnership or any subsidiary; provided,
however, that the Operating Partnership shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith.
Additional Covenants. Any additional covenants of the Operating
Partnership with respect to any series of Debt Securities will be set forth in
the Prospectus Supplement relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Unless otherwise provided in the applicable Prospectus Supplement, each
Indenture provides that the following events are "Events of Default" with
respect to any series of Debt Securities issued thereunder: (i) default for 30
days in the payment of any installment of interest on any Debt Security of such
series; (ii) default for 5 days in the payment of principal of (or premium, if
any, on) any Debt Security of such series at its maturity; (iii) default for 5
days in making any sinking fund payment as required for any Debt Security of
such series; (iv) default in the performance or breach of any other covenant or
warranty of the Operating Partnership contained in the Indenture (other than a
covenant added to the Indenture solely for the benefit of a series of Debt
Securities issued thereunder other than such series), continued for 60 days
after written notice as provided in the applicable Indenture; (v) a default
under any bond, debenture, note, mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Operating Partnership (or by any of its
subsidiaries, the repayment of which the Operating Partnership has guaranteed
or for which the Operating Partnership is directly responsible or liable as
obligor or guarantor) having an aggregate principal amount outstanding of at
least $25,000,000, whether such indebtedness exists on the date of such
Indenture or shall thereafter be created, which default shall have resulted in
such indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
11
<PAGE> 13
indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within a period of 10 days after there shall have been given, by
registered or certified mail, to the Operating Partnership by the Trustee or to
the Operating Partnership and the Trustee by the holders of at least 10% in
principal amount of the outstanding Debt Securities of that series a written
notice specifying such default and requiring the Operating Partnership to cause
such indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" under such
Indenture; provided, however, that such a default on indebtedness which
constitutes tax-exempt financing that results solely from a failure of an entity
providing credit support for such indebtedness to honor a demand for payment on
a letter of credit shall not constitute an Event of Default; (vi) certain events
of bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Operating Partnership or any Significant Subsidiary
of the Operating Partnership; and (vii) any other event of default provided with
respect to a particular series of Debt Securities. The term "Significant
Subsidiary" has the meaning ascribed to such term in Regulation S-X promulgated
under the Securities Act.
If an Event of Default under any Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing, then
in every such case the applicable Trustee or the holders of not less than 25% in
principal amount of the Debt Securities of that series will have the right to
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or indexed securities, such portion of the
principal amount as may be specified in the terms thereof) of all the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Operating Partnership (and to the applicable Trustee if given by
the holders). However, at any time after such a declaration of acceleration with
respect to Debt Securities of such series (or of all Debt Securities then
outstanding under any Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
applicable Trustee, the holders of not less than a majority in principal amount
of outstanding Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (i) the Operating Partnership
shall have deposited with the applicable Trustee all required payments of the
principal of (and premium, if any) and interest on the Debt Securities of such
series (or of all Debt Securities then outstanding under the applicable
Indenture, as the case may be), plus certain fees, expenses, disbursements and
advances of the applicable Trustee; and (ii) all events of default, other than
the non-payment of accelerated principal (or specified portion thereof), with
respect to Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) have been cured
or waived as provided in such Indenture. The Indentures also provide that the
holders of not less than a majority in principal amount of the outstanding Debt
Securities of any series (or of all Debt Securities then outstanding under the
applicable Indenture, as the case may be) may waive any past default with
respect to such series and its consequences, except a default (i) in the payment
of the principal of (or premium, if any) or interest on any Debt Security of
such series; or (ii) in respect of a covenant or provision contained in the
applicable Indenture that cannot be modified or amended without the consent of
the holder of each outstanding Debt Security affected thereby.
The Indentures require each Trustee to give notice to the holders of
Debt Securities within 90 days of a default under the applicable Indenture
unless such default shall have been cured or waived; provided, however, that
such Trustee may withhold notice to the holders of any series of Debt Securities
of any default with respect to such series (except a default in the payment of
the principal of (or premium, if any) or interest on any Debt Security of such
series or in the payment of any sinking fund installment in respect of any Debt
Security of such series) if specified responsible officers of such Trustee
consider such withholding to be in the interest of such holders.
The Indentures provide that no holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to such
Indenture or for any remedy thereunder, except in the case of failure of the
applicable Trustee, for 60 days, to act after it has received a written request
to institute proceedings in respect of an event of default from the holders of
not less than 25% in principal amount of the outstanding Debt Securities of such
series, as well as an offer of indemnity reasonably satisfactory to it. This
provision will not prevent, however, any holder of Debt Securities from
instituting suit for the enforcement of payment of the principal of (and
premium, if any) and interest on such Debt Securities at the respective due
dates thereof.
The Indentures provide that, subject to provisions in each Indenture
relating to its duties in case of default, a Trustee will be under no obligation
to exercise any of its rights or powers under an Indenture at the request or
direction of any holders of any series of Debt Securities then outstanding under
such Indenture, unless such holders shall have offered to the Trustee thereunder
reasonable security or indemnity. The holders of not less than a majority in
principal amount of the outstanding Debt Securities of any series (or of all
Debt Securities then outstanding under an Indenture, as the case may be) shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the applicable Trustee, or of exercising any trust
or power conferred upon such Trustee. However,
12
<PAGE> 14
a Trustee may refuse to follow any direction which is in conflict with any law
or the applicable Indenture, which may involve such Trustee in personal
liability or which may be unduly prejudicial to the holders of Debt Securities
of such series not joining therein.
Within 120 days after the close of each fiscal year, the Operating
Partnership will be required to deliver to each Trustee a certificate, signed by
one of several specified officers of GGPI, as general partner of the Operating
Partnership, stating whether or not such officer has knowledge of any default
under the applicable Indenture and, if so, specifying each such default and the
nature and status thereof.
MODIFICATION OF THE INDENTURES
Modifications and amendments of an Indenture will be permitted to be
made only with the consent of the holders of not less than a majority in
principal amount of all outstanding Debt Securities issued under such Indenture
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the holder of each such
Debt Security affected thereby, (i) change the stated maturity of the principal
of, or any installment of interest (or premium, if any) on, any such Debt
Security; (ii) reduce the principal amount of, or the rate or amount of interest
on, or any premium payable on redemption of, any such Debt Security, or reduce
the amount of principal of an Original Issue Discount Security that would be due
and payable upon declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of repayment of the holder
of any such Debt Security; (iii) change the place of payment, or the coin or
currency, for payment of principal of, premium, if any, or interest on any such
Debt Security; (iv) impair the right to institute suit for the enforcement of
any payment on or with respect to any such Debt Security; (v) reduce the
above-stated percentage of any outstanding Debt Securities necessary to modify
or amend the applicable Indenture with respect to such Debt Securities, to waive
compliance with certain provisions thereof or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in the
applicable Indenture; or (vi) modify any of the foregoing provisions or any of
the provisions relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect such action or
to provide that certain other provisions may not be modified or waived without
the consent of the holder of such Debt Security.
The holders of a majority in aggregate principal amount of the
outstanding Debt Securities of each series may, on behalf of all holders of Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Operating Partnership with certain restrictive covenants of
the applicable Indenture.
Modifications and amendments of an Indenture will be permitted to be
made by the Operating Partnership and the respective Trustee thereunder without
the consent of any holder of Debt Securities for any of the following purposes:
(i) to evidence the succession of another person to the Operating Partnership as
obligor under such Indenture; (ii) to add to the covenants of the Operating
Partnership for the benefit of the holders of all or any series of Debt
Securities or to surrender any right or power conferred upon the Operating
Partnership in such Indenture; (iii) to add events of default for the benefit of
the holders of all or any series of Debt Securities; (iv) to add or change any
provisions of an Indenture to facilitate the issuance of, or to liberalize
certain terms of, Debt Securities in bearer form, or to permit or facilitate the
issuance of Debt Securities in uncertificated form, provided that such action
shall not adversely affect the interests of the holders of the Debt Securities
of any series in any material respect; (v) to change or eliminate any provisions
of an Indenture, provided that any such change or elimination shall become
effective only when there are no Debt Securities outstanding of any series
created prior thereto which are entitled to the benefit of such provision; (vi)
to secure the Debt Securities; (vii) to establish the form or terms of Debt
Securities of any series, (viii) to provide for the acceptance of appointment by
a successor Trustee or facilitate the administration of the trusts under an
Indenture by more than one Trustee; (ix) to cure any ambiguity, defect or
inconsistency in an Indenture, provided that such action shall not adversely
affect the interests of holders of Debt Securities of any series issued under
such Indenture; or (x) to supplement any of the provisions of an Indenture to
the extent necessary to permit or facilitate defeasance and discharge of any
series of such Debt Securities, provided that such action shall not adversely
affect the interests of the holders of the outstanding Debt Securities of any
series.
The Indentures provide that in determining whether the holders of the
requisite principal amount of outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof; (ii) the principal amount
of any Debt Security denominated in a foreign currency that shall be deemed
outstanding shall
13
<PAGE> 15
be the U.S. dollar equivalent, determined on the issue date for such Debt
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the issue date of such Debt Security of
the amount determined as provided in (i) above); (iii) the principal amount of
an indexed security that shall be deemed outstanding shall be the principal face
amount of such indexed security at original issuance, unless otherwise provided
with respect to such indexed security pursuant to such Indenture; and (iv) Debt
Securities owned by the Operating Partnership or any other obligor upon the Debt
Securities or any affiliate of the Operating Partnership or of such other
obligor shall be disregarded.
The Indentures contain provisions for convening meetings of the holders
of Debt Securities of a series. A meeting will be permitted to be called at any
time by the applicable Trustee, and also, upon request, by the Operating
Partnership or the holders of at least 10% in principal amount of the
outstanding Debt Securities of such series, in any such case upon notice given
as provided in such Indenture. Except for any consent that must be given by the
holder of each Debt Security affected by certain modifications and amendments of
an Indenture, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the affirmative vote
of the holders of a majority in principal amount of the outstanding Debt
Securities of that series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage, which is less than a majority, in principal
amount of the outstanding Debt Securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Debt Securities of any series duly
held in accordance with an Indenture will be binding on all holders of Debt
Securities of that series. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the outstanding Debt Securities
of a series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by the holders of
not less than a specified percentage in principal amount of the outstanding Debt
Securities of a series, the persons holding or representing such specified
percentage in principal amount of the outstanding Debt Securities of such series
will constitute a quorum.
Notwithstanding the foregoing provisions, the Indentures provide that if
any action is to be taken at a meeting of holders of Debt Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver and other action that such Indenture expressly provides may be
made, given or taken by the holders of a specified percentage in principal
amount of all outstanding Debt Securities affected thereby, or of the holders of
such series and one or more additional series: (i) there shall be no minimum
quorum requirement for such meeting; and (ii) the principal amount of the
outstanding Debt Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made,
given or taken under such Indenture.
SUBORDINATION
Unless otherwise provided in the applicable Prospectus Supplement,
Subordinated Securities will be subject to the following subordination
provisions.
Upon any distribution to creditors of the Operating Partnership in a
liquidation, dissolution or reorganization, the payment of the principal of and
interest on any Subordinated Securities will be subordinated to the extent
provided in the applicable Indenture in right of payment to the prior payment in
full of all Senior Debt (as defined below), but the obligation of the Operating
Partnership to make payments of the principal of and interest on such
Subordinated Securities will not otherwise be affected. No payment of principal
or interest will be permitted to be made on Subordinated Securities at any time
if a default on Senior Debt exists that permits the holders of such Senior Debt
to accelerate its maturity and the default is the subject of judicial
proceedings or the Operating Partnership receives notice of the default. After
all Senior Debt is paid in full and until the Subordinated Securities are paid
in full, holders will be subrogated to the rights of holders of Senior Debt to
the extent that distributions otherwise payable to holders have been applied to
the payment of Senior Debt. The Subordinated Indenture will not restrict the
amount of Senior Debt or other indebtedness of the Operating Partnership and its
subsidiaries. As a result of these subordination provisions, in the event of a
distribution of assets upon insolvency, holders of Subordinated Securities may
recover less, ratably, than general creditors of the Operating Partnership.
14
<PAGE> 16
Senior Debt will be defined in the applicable Indenture as the principal
of and interest on, or substantially similar payments to be made by the
Operating Partnership in respect of, the following, whether outstanding at the
date of execution of the applicable Indenture or thereafter incurred, created or
assumed: (i) indebtedness of the Operating Partnership for money borrowed or
represented by purchase-money obligations; (ii) indebtedness of the Operating
Partnership evidenced by notes, debentures, bonds, or other securities issued
under the provisions of an indenture, fiscal agency agreement or other
agreement; (iii) obligations of the Operating Partnership as lessee under leases
of property either made as part of any sale and leaseback transaction to which
the Operating Partnership is a party or otherwise; (iv) indebtedness,
obligations and liabilities of others in respect of which the Operating
Partnership is liable contingently or otherwise to pay or advance money or
property or as guarantor, endorser or otherwise or which the Operating
Partnership has agreed to purchase or otherwise acquire; and (v) any binding
commitment of the Operating Partnership to fund any real estate investment or to
fund any investment in any entity making such real estate investment, in each
case other than (A) any such indebtedness, obligation or liability referred to
in clauses (i) through (iv) above as to which, in the instrument creating or
evidencing the same pursuant to which the same is outstanding, it is provided
that such indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Securities or ranks pari passu with the Subordinated
Securities; (B) any such indebtedness, obligation or liability which is
subordinated to indebtedness of the Operating Partnership to substantially the
same extent as or to a greater extent than the Subordinated Securities are
subordinated; and (C) the Subordinated Securities. There will not be any
restrictions in any Indenture relating to Subordinated Securities upon the
creation of additional Senior Debt.
If this Prospectus is being delivered in connection with a series of
Subordinated Securities, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Debt outstanding as of the end of the Operating Partnership's
most recent fiscal quarter.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement, the
Operating Partnership will be permitted, at its option, to discharge certain
obligations to holders of any series of Debt Securities issued under any
Indenture that have not already been delivered to the applicable Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the applicable Trustee, in trust, funds in such
currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the stated maturity or redemption
date, as the case may be.
The Indentures provide that, unless otherwise indicated in the
applicable Prospectus Supplement, the Operating Partnership may elect either (i)
to defease and be discharged from any and all obligations with respect to such
Debt Securities (except for the obligation to pay additional amounts, if any,
upon the occurrence of certain events of tax, assessment or governmental charge
with respect to payments on such Debt Securities and the obligations to register
the transfer or exchange of such Debt Securities, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities, to maintain an office or
agency in respect of such Debt Securities, to hold moneys for payment in trust)
("defeasance"), or (ii) to be released from its obligations with respect to such
Debt Securities under the applicable Indenture (being the restrictions described
under "--Certain Covenants") or, if provided in the applicable Prospectus
Supplement, its obligations with respect to any other covenant, and any omission
to comply with such obligations shall not constitute an event of default with
respect to such Debt Securities ("covenant defeasance"), in either case upon the
irrevocable deposit by the Operating Partnership with the applicable Trustee, in
trust, of an amount, in such currency or currencies, currency unit or units or
composite currency or currencies in which such Debt Securities are payable at
stated maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities, which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any) and interest on
such Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership has delivered to the applicable Trustee an
opinion of counsel (as specified in the applicable Indenture) to the effect that
the holders of such Debt Securities will not recognize income, gain or loss for
U.S. Federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to U.S. Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and such opinion of counsel,
in the case of defeasance, will be required to refer to and be based upon a
ruling received from or published by the Internal Revenue Service (the "IRS") or
a change in applicable United States Federal
15
<PAGE> 17
income tax law occurring after the date of the Indenture. In the event of such
defeasance, the holders of such Debt Securities would thereafter be able to look
only to such trust fund for payment of principal (and premium, if any) and
interest.
"Government Obligations" means securities that are (i) direct
obligations of the United States of America or the government which issued the
foreign currency in which the Debt Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged; or (ii)
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided,
however that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Operating Partnership has deposited funds and/or Government
Obligations to effect defeasance or covenant defeasance with respect to Debt
Securities of any series, (i) the holder of a Debt Security of such series is
entitled to, and does, elect pursuant to the applicable Indenture or the terms
of such Debt Security to receive payment in a currency, currency unit or
composite currency other than that in which such deposit has been made in
respect of such Debt Security; or (ii) a Conversion Event (as defined below)
occurs in respect of the currency, currency unit or composite currency in which
such deposit has been made, the indebtedness represented by such Debt Security
will be deemed to have been, and will be, fully discharged and satisfied through
the payment of the principal of (and premium, if any) and interest on such Debt
Security as they become due out of the proceeds yielded by converting the amount
so deposited in respect of such Debt Security into the currency, currency unit
or composite currency in which such Debt Security becomes payable as a result of
such election or such cessation of usage based on the applicable market exchange
rate. "Conversion Event" means the cessation of use of (i) a currency, currency
unit or composite currency both by the government of the country which issued
such currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community; (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities; or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium, if
any) and interest on any Debt Security that is payable in a foreign currency
that ceases to be used by its government of issuance shall be made in U.S.
dollars.
In the event the Operating Partnership effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are declared due and
payable because of the occurrence of any event of default other than the event
of default described in clause (iv) under "--Events of Default, Notice and
Waiver" with respect to specified sections of an Indenture (which sections would
no longer be applicable to such Debt Securities) or described in clause (vii)
under "--Events of Default, Notice and Waiver" with respect to any other
covenant as to which there has been covenant defeasance, the amount in such
currency, currency unit or composite currency in which such Debt Securities are
payable, and Government Obligations on deposit with the applicable Trustee, will
be sufficient to pay amounts due on such Debt Securities at the time of their
stated maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the acceleration resulting from such event of default.
However, the Operating Partnership would remain liable to make payment of such
amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance, including
any modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
NO CONVERSION RIGHTS
The Debt Securities will not be convertible into or exchangeable for any
shares of beneficial interest of the Company or any equity interest in the
Operating Partnership.
16
<PAGE> 18
PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium, if any) and interest on any series of Debt
Securities will be payable at the corporate trust office of the Trustee, the
address of which will be stated in the applicable Prospectus Supplement;
provided that, at the option of the Operating Partnership, payment of interest
may be made by check mailed to the address of the person entitled thereto as it
appears in the applicable register for such Debt Securities or by wire transfer
of funds to such person at an account maintained within the United States.
All moneys paid by the Operating Partnership to a paying agent or a
Trustee for the payment of the principal of or any premium or interest on any
Debt Security which remain unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be repaid to the
Operating Partnership, and the holder of such Debt Security thereafter may look
only to the Operating Partnership for payment thereof.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary identified in the applicable
Prospectus Supplement relating to such series. Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the applicable Prospectus Supplement
relating to such series.
DESCRIPTION OF PREFERRED SHARES
The description of the Company's Preferred Shares set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's Amended and Restated Declaration of Trust (the "Declaration of Trust")
and Second Amended and Restated Bylaws (the "Bylaws"), as in effect.
GENERAL
Under the Declaration of Trust, the Company has authority to issue up to
161,000,000 shares of beneficial interest, consisting of 100,000,000 Common
Shares, par value $.01 per share, 51,000,000 excess shares of beneficial
interest, par value $.01 per share ("Excess Shares"), and 10,000,000 Preferred
Shares, par value $.01 per share. At July 24, 1997, the Company had
outstanding 4,600,000 shares of 8.30% Series A Cumulative Redeemable Preferred
Shares. No other Preferred Shares were outstanding as of the date of this
Prospectus. Preferred Shares may be issued from time to time, in one or more
series, as authorized by the Board of Trustees of the Company. Prior to
issuance of shares of each series, the Board of Trustees is required by the
Maryland General Corporation Law ("MGCL") and the Company's Declaration of
Trust to fix for each series, subject to the provisions of the Company's
Declaration of Trust regarding Excess Shares, the terms, preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications and terms or conditions of
redemption, as are permitted by Maryland law. The Preferred Shares will, when
issued, be fully paid and nonassessable and will have no preemptive rights. The
Board of Trustees could authorize the issuance of Preferred Shares with terms
and conditions that could have the effect of discouraging a takeover or other
transaction that holders of Common Shares might believe to be in their best
interests or in which holders of some, or a majority, of the Common Shares
might receive a premium for their shares over the then market price of such
Common Shares.
TERMS
The following description of the Preferred Shares sets forth the material
terms and provisions of the Preferred Shares to which any Prospectus Supplement
may relate. The statements below describing the Preferred Shares are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Company's Declaration of Trust and Bylaws and any
applicable amendment to the Declaration of Trust designating terms of a series
of Preferred Shares (a "Designating Amendment").
Reference is made to the Prospectus Supplement relating to the Preferred
Shares offered thereby for specific terms, including:
(1) The title and stated value of such Preferred Shares;
17
<PAGE> 19
(2) The number of Preferred Shares offered, the liquidation
preference per share and the offering price of such Preferred
Shares;
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred
Shares;
(4) The date from which dividends on such Preferred Shares shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for
such Preferred Shares;
(6) The provision for a sinking fund, if any, for such Preferred
Shares;
(7) The provision for redemption, if applicable, of such Preferred
Shares;
(8) Any listing of such Preferred Shares on any securities
exchange;
(9) The terms and conditions, if applicable, upon which such
Preferred Shares will be convertible into Common Shares,
including the conversion price or rate (or manner of
calculation thereof);
(10) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Shares;
(11) A discussion of Federal income tax considerations applicable
to such Preferred Shares;
(12) The relative ranking and preference of such Preferred Shares
as to dividend rights and rights upon liquidation, dissolution
or winding up of the affairs of the Company;
(13) Any limitations on issuance of any series of Preferred Shares
ranking senior to or on a parity with such series of Preferred
Shares as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company; and
(14) Any limitations on direct or beneficial ownership and
restrictions on transfer, in each case as may be appropriate
to preserve the status of the Company as a REIT.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Shares will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to all classes or
series of Common Shares of the Company, and to all equity securities ranking
junior to such Preferred Shares with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company; (ii) on a parity with all
equity securities issued by the Company, the terms of which specifically provide
that such equity securities rank on a parity with the Preferred Shares with
respect to dividend rights or rights upon liquidation, dissolution or winding up
of the Company; and (iii) junior to all equity securities issued by the Company,
the terms of which specifically provide that such equity securities rank senior
to the Preferred Shares with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company. The term "equity
securities" does not include convertible debt securities.
DIVIDENDS
Holders of the Preferred Shares of each series will be entitled to
receive, when, as and if declared by the Board of Trustees of the Company, out
of assets of the Company legally available for payment, cash dividends at such
rates and on such dates as will be set forth in the applicable Prospectus
Supplement. Each such dividend shall be payable to holders of record as they
appear on the share transfer books of the Company on such record dates as shall
be fixed by the Board of Trustees of the Company.
Dividends on any series of the Preferred Shares may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Trustees of the Company fails
to declare a dividend payable on a dividend payment date on any series of the
Preferred Shares for which dividends are non-cumulative, then the holders of
such series of the Preferred Shares will have no right to receive a dividend in
respect of the dividend period ending
18
<PAGE> 20
on such dividend payment date, and the Company will have no obligation to pay
the dividend accrued for such period, whether or not dividends on such series
are declared payable on any future dividend payment date.
If Preferred Shares of any series are outstanding, no dividends will be
declared or paid or set apart for payment on any shares of beneficial interest
of the Company of any other series ranking, as to dividends, on a parity with or
junior to the Preferred Shares of such series for any period unless (i) if such
series of Preferred Shares has a cumulative dividend, full cumulative dividends
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment on the
Preferred Shares of such series for all past dividend periods and the then
current dividend period; or (ii) if such series of Preferred Shares does not
have a cumulative dividend, full dividends for the then current dividend period
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment on the
Preferred Shares of such series. When dividends are not paid in full (or a sum
sufficient for such full payment is not so set apart) upon Preferred Shares of
any series and the shares of any other series of Preferred Shares ranking on a
parity as to dividends with the Preferred Shares of such series, all dividends
declared upon Preferred Shares of such series and any other series of Preferred
Shares ranking on a parity as to dividends with such Preferred Shares shall be
declared pro rata so that the amount of dividends declared per share of
Preferred Shares of such series and such other series of Preferred Shares shall
in all cases bear to each other the same ratio that accrued dividends per share
on the Preferred Shares of such series (which shall not include any accumulation
in respect of unpaid dividends for prior dividend periods if such Preferred
Shares does not have a cumulative dividend) and such other series of Preferred
Shares bear to each other. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on Preferred
Shares of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Shares has a cumulative dividend, full cumulative
dividends on the Preferred Shares of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
is set apart for payment for all past dividend periods and the then current
dividend period; and (ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends on the Preferred Shares of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof is set apart for payment for the then current dividend
period, no dividends (other than in Common Shares or other shares of beneficial
interest ranking junior to the Preferred Shares of such series as to dividends
and upon liquidation) shall be declared or paid or set aside for payment nor
shall any other distribution be declared or made upon the Common Shares, or any
other shares of beneficial interest of the Company ranking junior to or on a
parity with the Preferred Shares of such series as to dividends or upon
liquidation, nor shall any Common Shares, or any other shares of beneficial
interest of the Company ranking junior to or on a parity with the Preferred
Shares of such series as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such shares) by the
Company (except by conversion into or exchange for other shares of beneficial
interest of the Company ranking junior to the Preferred Shares of such series as
to dividends and upon liquidation).
Any dividend payment made on a series of Preferred Shares shall first be
credited against the earliest accrued but unpaid dividend due with respect to
shares of such series which remain payable.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred
Shares will be subject to mandatory redemption or redemption at the option of
the Company, as a whole or in part, in each case upon the terms, at the times
and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Shares that
is subject to mandatory redemption will specify the number of such Preferred
Shares that shall be redeemed by the Company in each year commencing after a
date to be specified, at a redemption price per share to be specified, together
with an amount equal to all accrued and unpaid dividends thereon (which shall
not, if such Preferred Shares do not have a cumulative dividend, include any
accumulation in respect of unpaid dividends for prior dividend periods) to the
date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Shares of any series is payable only from the net
proceeds of the issuance of shares of beneficial interest of the Company, the
terms of such Preferred Shares may provide that, if no such shares of beneficial
interest shall have been issued or to the extent the net proceeds from any
issuance are insufficient to pay in full the aggregate redemption price then
due, such Preferred Shares shall automatically and mandatorily be converted into
the applicable shares of beneficial interest of the Company pursuant to
conversion provisions specified in the applicable Prospectus Supplement.
19
<PAGE> 21
Notwithstanding the foregoing, unless (i) if a series of Preferred
Shares has a cumulative dividend, full cumulative dividends on all Preferred
Shares of such series shall have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for payment
for all past dividend periods and the then current dividend period; and (ii) if
a series of Preferred Shares does not have a cumulative dividend, full dividends
on all of the Preferred Shares of such series have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for the then current dividend period, no Preferred Shares of
such series shall be redeemed unless all outstanding Preferred Shares of such
series are simultaneously redeemed; provided, however, that the foregoing shall
not prevent the purchase or acquisition of Preferred Shares of such series to
preserve the REIT status of the Company or pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding Preferred Shares of
such series. In addition, unless (i) if such series of Preferred Shares has a
cumulative dividend, full cumulative dividends on all outstanding shares of such
series of Preferred Shares have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for payment
for all past dividend periods and the then current dividend period; and (ii) if
such series of Preferred Shares does not have a cumulative dividend, full
dividends on the Preferred Shares of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for the then current dividend period, the Company shall
not purchase or otherwise acquire directly or indirectly any Preferred Shares of
such series (except by conversion into or exchange for shares of beneficial
interest of the Company ranking junior to the Preferred Shares of such series as
to dividends and upon liquidation); provided, however, that the foregoing shall
not prevent the purchase or acquisition of Preferred Shares of such series to
preserve the REIT status of the Company or pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding Preferred Shares of
such series.
If fewer than all of the outstanding Preferred Shares of any series are
to be redeemed, the number of shares to be redeemed will be determined by the
Company and such shares may be redeemed pro rata from the holders of record of
such shares in proportion to the number of such shares held or for which
redemption is requested by such holder (with adjustments to avoid redemption of
fractional shares) or by any other equitable manner determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of record of Preferred Shares
of any series to be redeemed at the address shown on the stock transfer books of
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of shares and series of the Preferred Shares to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such Preferred
Shares are to be surrendered for payment of the redemption price; (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date; and (vi) the date upon which the holder's conversion rights, if any, as to
such shares shall terminate. If fewer than all the Preferred Shares of any
series are to be redeemed, the notice mailed to each such holder thereof shall
also specify the number of Preferred Shares to be redeemed from each such
holder. If notice of redemption of any Preferred Shares has been given and if
the funds necessary for such redemption have been set aside by the Company in
trust for the benefit of the holders of any Preferred Shares so called for
redemption, then from and after the redemption date dividends will cease to
accrue on such Preferred Shares, and all rights of the holders of such shares
will terminate, except the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any Common Shares or any other class or series of shares
of beneficial interest of the Company ranking junior to the Preferred Shares in
the distribution of assets upon any liquidation, dissolution or winding up of
the Company, the holders of each series of Preferred Shares shall be entitled to
receive out of assets of the Company legally available for distribution to
shareholders liquidating distributions in the amount of the liquidation
preference per share, if any, set forth in the applicable Prospectus Supplement,
plus an amount equal to all dividends accrued and unpaid thereon (which shall
not include any accumulation in respect of unpaid noncumulative dividends for
prior dividend periods). After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Preferred Shares will
have no right or claim to any of the remaining assets of the Company. In the
event that, upon any such voluntary or involuntary liquidation, dissolution or
winding up, the available assets of the Company are insufficient to pay the
amount of the liquidating distributions on all outstanding Preferred Shares and
the corresponding amounts payable on all other classes or series of shares of
beneficial interest of the Company ranking on a parity with the Preferred Shares
in the distribution of assets, then the holders of the Preferred Shares and all
other such classes or series of shares of beneficial interest shall share
ratably in any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled.
20
<PAGE> 22
If liquidating distributions shall have been made in full to all holders
of Preferred Shares, the remaining assets of the Company shall be distributed
among the holders of any other classes or series of shares of beneficial
interest ranking junior to the Preferred Shares upon liquidation, dissolution or
winding up, according to their respective rights and preferences and in each
case according to their respective number of shares. For such purposes, the
consolidation or merger of the Company with or into any other corporation, trust
or entity, or the sale, lease or conveyance of all or substantially all of the
property or business of the Company, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
VOTING RIGHTS
Holders of the Preferred Shares will not have any voting rights, except
as set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Unless provided otherwise for any series of Preferred Shares, so long as
any Preferred Shares of a series remain outstanding, the Company will not,
without the affirmative vote or consent of the holders of at least two-thirds of
the Preferred Shares of such series outstanding at the time, given in person or
by proxy, either in writing or at a meeting (such series voting separately as a
class), (i) authorize or create, or increase the authorized or issued amount of,
any class or series of shares of beneficial interest ranking prior to such
series of Preferred Shares with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up or reclassify
any authorized shares of beneficial interest of the Company into such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares; or (ii) amend, alter or repeal
the provisions of the Company's Declaration of Trust or the Designating
Amendment for such series of Preferred Shares, whether by merger, consolidation
or otherwise (an "Event"), so as to materially and adversely affect any right,
preference, privilege or voting power of such series of Preferred Shares or the
holders thereof; provided, however, with respect to the occurrence of any of the
Events set forth in (ii) above, so long as the Preferred Shares remain
outstanding with the terms thereof materially unchanged, taking into account
that upon the occurrence of an Event the Company may not be the surviving
entity, the occurrence of any such Event shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting power of holders
of Preferred Shares, and provided further that (A) any increase in the amount of
the authorized Preferred Shares or the creation or issuance of any other series
of Preferred Shares, or (B) any increase in the amount of authorized shares of
such series or any other series of Preferred Shares, in each case ranking on a
parity with or junior to the Preferred Shares of such series with respect to
payment of dividends or the distribution of assets upon liquidation, dissolution
or winding up, shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of such series of Preferred Shares
shall have been redeemed or called for redemption and sufficient funds shall
have been deposited in trust to effect such redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred
Shares is convertible into Common Shares will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
Common Shares into which the Preferred Shares are convertible, the conversion
price or rate (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of the
Preferred Shares or the Company, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such series of Preferred Shares.
RESTRICTIONS ON OWNERSHIP
For the Company to qualify as a REIT under the Internal Revenue Code of
1986, as amended (the "Code"), not more than 50% in value of its outstanding
shares of beneficial interest may be owned, directly or indirectly, by five or
fewer individuals (as defined in the Code to include certain entities) during
the last half of a taxable year. To assist the Company in meeting this
requirement, the Company may take certain actions to limit the beneficial
ownership, directly or indirectly, by a single person of the Company's
outstanding equity securities, including any Preferred Shares of the Company.
Therefore, the Designating Amendment for each series of Preferred Shares may
contain provisions restricting the ownership and transfer of the Preferred
Shares. The applicable Prospectus Supplement will specify any additional
ownership limitation relating to a series of Preferred Shares. See "Limits on
Ownership of Shares of Beneficial Interest."
21
<PAGE> 23
TRANSFER AGENT
The transfer agent and registrar for the Preferred Shares will be set
forth in the applicable Prospectus Supplement.
DESCRIPTION OF COMMON SHARES
The description of the Company's Common Shares set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's Declaration of Trust and Bylaws, as in effect.
GENERAL
Under the Declaration of Trust, the Company has authority to issue
100,000,000 Common Shares, par value $.01 per share. At July 24, 1997, the
Company had outstanding 19,433,076 Common Shares. In addition, on such date
3,528,232 Units were outstanding (other than those held directly or indirectly
by the Company) and may be exchanged for Common Shares on a one-for-one basis.
All Common Shares offered hereby will, when issued, be duly authorized, fully
paid and nonassessable.
TERMS
The following description of the Company's Common Shares sets forth the
material terms and provisions of the Common Shares to which any Prospectus
Supplement may relate. Subject to the preferential rights of any other shares or
series of shares of beneficial interest and to the provisions of the Company's
Declaration of Trust regarding Excess Shares, holders of Common Shares will be
entitled to receive distributions on Common Shares if, as and when authorized
and declared by the Board of Trustees of the Company out of assets legally
available therefor and to share ratably in the assets of the Company legally
available for distribution to its shareholders in the event of its liquidation,
dissolution or winding-up after payment of, or adequate provision for, all known
debts and liabilities of the Company.
Subject to the provisions of the Company's Declaration of Trust
regarding Excess Shares, each outstanding Common Share entitles the holder to
one vote on all matters submitted to a vote of shareholders, including the
election of trustees, and, except as otherwise required by law or except as
provided with respect to any other class or series of shares of beneficial
interest, the holders of Common Shares will possess exclusive voting power.
There is no cumulative voting in the election of trustees, which means that the
holders of a majority of the outstanding Common Shares can elect all of the
trustees then standing for election, and the holders of the remaining Common
Shares will not be able to elect any trustee.
Holders of Common Shares have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any securities of the Company.
Subject to the provisions of the Company's Declaration of Trust
regarding Excess Shares, all Common Shares will have equal dividend,
distribution, liquidation and other rights, and will have no preference,
appraisal or exchange rights.
The Company's Declaration of Trust provides that the Company cannot
merge with or sell all or substantially all of the assets of the Company, except
pursuant to a resolution approved by shareholders holding a majority of the
shares entitled to vote on the resolution. In addition, the partnership
agreement of the Operating Partnership requires that any merger or sale of all
or substantially all of the assets of the Operating Partnership be approved by
partners holding 75% of the Units.
RESTRICTIONS ON OWNERSHIP
For the Company to qualify as a REIT under the Code, not more than 50%
in value of its outstanding shares of beneficial interest may be owned, directly
or indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of a taxable year. To assist the Company
in meeting this requirement, the Company may take certain actions to limit the
beneficial ownership, directly or indirectly, by a single person of the
Company's outstanding equity securities. See "Limits on Ownership of Shares of
Beneficial Interest."
22
<PAGE> 24
TRANSFER AGENT
The transfer agent and registrar for the Common Shares is BankBoston,
N.A., Boston, Massachusetts.
DESCRIPTION OF WARRANTS
The Company has no Warrants or other share purchase rights outstanding
(other than options issued under the Company's Second Amended and Restated 1994
Share Option and Incentive Plan, as amended). The Company may issue Warrants for
the purchase of Preferred Shares or Common Shares. Warrants may be issued
independently, together with any other Securities offered by any Prospectus
Supplement or through a dividend or other distribution to the Company's
shareholders and may be attached to or separate from such Securities. Warrants
may be issued under a warrant agreement (each, a "Warrant Agreement") to be
entered into between the Company and a warrant agent specified in the applicable
Prospectus Supplement (the "Warrant Agent"). The Warrant Agent will act solely
as an agent of the Company in connection with the Warrants of a particular
series and will not assume any obligation or relationship of agency or trust for
or with any holders or beneficial owners of Warrants. The following sets forth
certain general terms and provisions of the Warrants offered hereby. Further
terms of the Warrants and the applicable Warrant Agreement will be set forth in
the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of the
Warrants in respect of which this Prospectus is being delivered, including,
where applicable, the following: (1) the title of such Warrants; (2) the
aggregate number of such Warrants; (3) the price or prices at which such
Warrants will be issued; (4) the designation, number and terms of the Preferred
Shares or Common Shares purchasable upon exercise of such Warrants; (5) the
designation and terms of the other Securities, if any, with which such Warrants
are issued and the number of such Warrants issued with each such Security: (6)
the date, if any, on and after which such Warrants and the related Preferred
Shares or Common Shares, if any, will be separately transferable; (7) the price
at which each Preferred Share or Common Share purchasable upon exercise of such
Warrants may be purchased; (8) the date on which the right to exercise such
Warrants shall commence and the date on which such right shall expire; (9) the
minimum or maximum amount of such Warrants which may be exercised at any one
time; (10) information with respect to book-entry procedures, if any; (11) a
discussion of certain Federal income tax considerations; and (12) any other
terms of such Warrants, including terms, procedures and limitations relating to
the transferability, exchange and exercise of such Warrants.
LIMITS ON OWNERSHIP OF SHARES OF BENEFICIAL INTEREST
For the Company to qualify as a REIT under the Code, among other things,
not more than 50% in value of its outstanding shares of beneficial interest may
be owned, directly or indirectly, by five or fewer individuals (defined in the
Code to include certain entities) during the last half of a taxable year (other
than the first year), and such shares of beneficial interest must be
beneficially owned by 100 or more persons during at least 335 days of a taxable
year of 12 months (other than the first year) or during a proportionate part of
a shorter taxable year. In order to protect the Company against the risk of
losing its status as a REIT due to a concentration of ownership among its
shareholders, the Declaration of Trust provides that no holder (other than
persons approved by the trustees at their option and in their discretion) may
own, or be deemed to own by virtue of the attribution provisions of the Code,
more than 9.8% (the "Ownership Limit") of the Company's shares of beneficial
interest. The Board of Trustees does not expect that it would waive the
Ownership Limit in the absence of the ruling from the IRS or an opinion of
counsel satisfactory to it that the changes in ownership will not then or in the
future jeopardize the Company's status as a REIT. Any transfer of shares of
beneficial interest (including warrants) or any security convertible into shares
of beneficial interest that would create a direct or indirect ownership of
shares of beneficial interest in excess of the Ownership Limit or that would
result in the disqualification of the Company as a REIT, including any transfer
that results in the shares of beneficial interest being owned by fewer than 100
persons or that results in the Company being "closely held" within the meaning
of Section 856(h) of the Code, shall be null and void, and the intended
transferee will acquire no rights to the shares of beneficial interest. The
foregoing restrictions on transferability and ownership will not apply if the
Board of Trustees determines that it is no longer in the best interests of the
Company to attempt to qualify, or to continue to qualify, as a REIT. In
addition, the foregoing restrictions do not apply with respect to an offeror in
the event of an all cash tender offer by it which has been accepted by at least
two-thirds of the Company's outstanding shares.
Shares of beneficial interest owned, or deemed to be owned, or
transferred to a shareholder in excess of the Ownership Limit will automatically
be exchanged for Excess Shares that will be transferred, by operation of law, to
the Company as trustee of a trust for the exclusive benefit of the transferees
to whom such shares of beneficial interest may
23
<PAGE> 25
be ultimately transferred without violating the Ownership Limit. While the
Excess Shares are held in trust, they will not be entitled to vote, they will
not be considered for purposes of any shareholder vote or the determination of a
quorum for such vote, and, except upon liquidation, they will not be entitled to
participate in dividends or other distributions. Any dividend or distribution
paid to a proposed transferee of Excess Shares prior to the discovery by the
Company that shares of beneficial interest have been transferred in violation of
the provisions of the Company's Declaration of Trust shall be repaid to the
Company upon demand. The Excess Shares are not treasury shares, but rather
constitute a separate class of issued and outstanding shares of beneficial
interest of the Company. The original transferee-shareholder may, at any time
the Excess Shares are held by the Company in trust, transfer the interest in the
trust representing the Excess Shares to any individual whose ownership of the
shares of beneficial interest exchanged into such Excess Shares would be
permitted under the Ownership Limit, at a price not in excess of the price paid
by the original transferee-shareholder for the shares of beneficial interest
that were exchanged for Excess Shares. Immediately upon the transfer to the
permitted transferee, the Excess Shares will automatically be exchanged for
shares of beneficial interest of the class from which they were converted. If
the foregoing transfer restrictions are determined to be void or invalid by
virtue of any legal decision, statute, rule or regulation, then the intended
transferee of any Excess Shares may be deemed, at the option of the Company, to
have acted as an agent on behalf of the Company in acquiring the Excess Shares
and to hold the Excess Shares on behalf of the Company.
In addition to the foregoing transfer restrictions, the Company will
have the right, for a period of 90 days during the time any Excess Shares are
held by the Company in trust, to purchase all or any portion of the Excess
Shares from the original transferee-shareholder for the lesser of the price paid
for the shares of beneficial interest by the original transferee-shareholder or
the market price (as determined in the manner set forth in the Declaration of
Trust) of the shares of beneficial interest on the date the Company exercises
its option to purchase. The 90-day period begins on the date of the violative
transfer if the original transferee-shareholder gives notice to the Company of
the transfer or, if no such notice is given, the date the Board of Trustees
determines that a violative transfer has been made.
Every owner of more than 5% (or such lower percentage as required by the
Code or regulations thereunder) of the issued and outstanding Common Shares must
file a written notice with the Company containing the information specified in
the Declaration of Trust no later than January 30 of each year. Each shareholder
shall upon demand be required to disclose to the Company in writing any
information with respect to the direct, indirect and constructive ownership of
beneficial interests as the Board of Trustees deems necessary to comply with the
provisions of the Code applicable to REITs, to comply with the requirements of
any taxing authority or governmental agency or to determine any such compliance.
This ownership limitation may have the effect of precluding acquisition
of control of the Company unless the Board of Trustees determines that
maintenance of REIT status is no longer in the best interests of the Company.
CERTAIN PROVISIONS OF MARYLAND LAW AND OF
THE COMPANY'S DECLARATION OF TRUST AND BYLAWS
The following summary of certain provisions of Maryland law and the
Company's Declaration of Trust and Bylaws does not purport to be complete and is
qualified by reference to Maryland law and the Company's Declaration of Trust
and Bylaws.
MARYLAND BUSINESS COMBINATION STATUTE
The MGCL establishes special requirements with respect to "business
combinations" between Maryland corporations and "interested shareholders" unless
exemptions are applicable. Among other things, the law prohibits for a period of
five years a merger and other specified or similar transactions between a
company and an interested shareholder and requires a supermajority vote for such
transactions after the end of the five-year period.
"Interested shareholders" are all persons owning beneficially, directly
or indirectly, more than 10% of the outstanding voting stock of the Maryland
corporation. "Business combinations" include any merger or similar transaction
subject to a statutory vote and additional transactions involving transfers of
assets or securities in specified amounts to interested shareholders or their
affiliates. Unless an exemption is available, transactions of these types may
not be consummated between a Maryland corporation and an interested shareholder
or its affiliates for a period of five years after the date on which the
shareholder first became an interested shareholder. Thereafter, the transaction
may not be consummated unless recommended by the Board of Trustees and approved
by the affirmative vote of at least 80%
24
<PAGE> 26
of the votes entitled to be cast by all holders of outstanding voting shares and
66 2/3% of the votes entitled to be cast by all holders of outstanding voting
shares other than the interested shareholder. A business combination with an
interested shareholder that is approved by the Board of Trustees of a Maryland
corporation at any time before an interested shareholder first becomes an
interested shareholder is not subject to the special voting requirements. An
amendment to a Maryland corporation's charter electing not to be subject to the
foregoing requirements must be approved by the affirmative vote of at least 80%
of the votes entitled to be cast by all holders of outstanding voting shares and
66 2/3% of the votes entitled to be cast by holders of outstanding voting shares
who are not interested shareholders. Any such amendment is not effective until
18 months after the vote of shareholders and does not apply to any business
combination of a corporation with a shareholder who was an interested
shareholder on the date of the shareholder vote.
MARYLAND CONTROL SHARE ACQUISITION STATUTE
The MGCL provides that "control shares" of a Maryland REIT acquired in a
"control share acquisition" have no voting rights except to the extent approved
by a vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares of beneficial interest owned by the acquiror or by officers of
trustees who are employees of the trust. "Control shares" are voting shares of
beneficial interest which, if aggregated with all other such shares of
beneficial interest previously acquired by the acquiror or in respect of which
the acquiror is able to exercise or direct the exercise of voting power (except
solely by revocable proxy), would entitle the acquiror to exercise voting power
in electing trustees within one of the following ranges of voting power: (i)
one-fifth or more but less than one-third, (ii) one-third or more but less than
a majority, or (iii) a majority of all voting power. Control shares do not
include shares of beneficial interest the acquiring person is then entitled to
vote as a result of having previously obtained shareholder approval. A "control
share acquisition" means the acquisition of control shares, subject to certain
exceptions.
A person who has made or proposes to make a control share acquisition,
upon satisfaction of certain conditions (including an undertaking to pay
expenses), may compel the board of trustees to call a special meeting of
shareholders to be held within 50 days of demand to consider voting rights for
the shares. If no request for a meeting is made, the trust may itself present
the question at any shareholders meeting.
If voting rights are not approved at the meeting or if the acquiring
person does not deliver an acquiring person statement as required by the
statute, then, subject to certain conditions and limitations, the trust may
redeem any or all of the control shares (except those for which voting rights
have previously been approved) for fair value determined, without regard to the
absence of voting rights for the control shares, as of the date of the last
control share acquisition by the acquiror or of any meeting of shareholders at
which the voting rights of such shares are considered and not approved. If
voting rights for control shares are approved at a shareholders meeting and the
acquiror becomes entitled to vote a majority of the shares of beneficial
interest entitled to vote, all other shareholders may exercise appraisal rights.
The fair value of the shares of beneficial interest as determined for purposes
of such appraisal rights may not be less than the highest price per share paid
by the acquiror in the control share acquisition.
The control share acquisition statute does not apply to shares acquired
in a merger, consolidation or share exchange if the trust is a party to the
transaction, or to acquisitions approved or exempted by the declaration of trust
or bylaws of the trust.
The business combination statute and the control share acquisition
statute could have the effect of discouraging offers to acquire the Company and
of increasing the difficulty of consummating any such offer.
LIMITATION OF SHAREHOLDER'S LIABILITY
Under Maryland law, shareholders generally are not responsible for the
corporation's debts or obligations, and the Company's Declaration of Trust
specifically provides that no shareholder of the Company will be personally
liable for any obligations of the Company. The Company's Bylaws further provide
that the Company shall indemnify each shareholder against any claim or liability
to which the shareholder may become subject by reason of his or her being or
having been a shareholder, and that the Company shall reimburse each shareholder
for all legal and other expenses reasonably incurred by him or her in connection
with any such claim or liability. However, with respect to tort claims,
contractual claims where shareholder liability is not so negated, claims for
taxes and certain statutory liability, the shareholder may, in some
jurisdictions, including Texas, be personally liable to the extent that such
claims are not satisfied by the Company. Inasmuch as the Company will carry
public liability insurance which it considers adequate,
25
<PAGE> 27
any risk of personal liability to shareholders is limited to situations in which
the Company's assets plus its insurance coverage would be insufficient to
satisfy the claims against the Company and its shareholders.
LIMITATION OF TRUSTEES' AND OFFICERS' LIABILITY
Under Maryland law a REIT formed in Maryland is permitted to limit, by
provision in its declaration of trust, the liability of trustees and officers so
that no trustee or officer of the Company shall be liable to the Company or to
any shareholder for money damages except to the extent that (i) the trustee or
officer actually received an improper benefit in money, property, or services,
for the amount of the benefit or profit in money, property, or services actually
received, or (ii) a judgment or other final adjudication adverse to the trustee
or officer is entered in a proceeding based on a finding in a proceeding that
the trustee's or officer's action was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding. The Company's Declaration of Trust has incorporated the provisions
of such law limiting the liability of trustees and officers. GGPI's Articles of
Incorporation contain similar provisions that are consistent with Texas law.
The Company's Bylaws require it to indemnify, to the full extent of
Maryland law, any present or former trustee or officer (and such person's spouse
and children) (an "Indemnitee") who is or was a party or threatened to be made a
party to any proceeding by reason of his or her service in that capacity,
against all expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or her in connection with the proceeding,
provided that the Company shall have received a written affirmation by the
Indemnitee that he or she has met the standard of conduct necessary for
indemnification by the Company as authorized by the Bylaws. The Company shall
not be required to indemnify an Indemnitee if (a) it is established that (i) the
Indemnitee's act or omission was committed in bad faith or was the result of
active or deliberate dishonesty, (ii) the Indemnitee actually received an
improper personal benefit in money, property or services or (iii) in the case of
a criminal proceeding, the Indemnitee had reasonable cause to believe that the
Indemnitee's act or omission was unlawful, (b) the proceeding was initiated by
the Indemnitee, (c) the Indemnitee received payment for such expenses pursuant
to insurance or otherwise or (d) the proceeding arises under Section 16 of the
Securities Exchange Act of 1934, as amended. Pursuant to the Bylaws, the
Indemnitee is required to repay the amount paid or reimbursed by the Company if
it shall ultimately be determined that the standard of conduct was not met. The
Company's Bylaws also permit the Company to provide such other and further
indemnification or payment or reimbursement of expenses as may be permitted by
the MGCL or to which the Indemnitee may be entitled. GGPI's bylaws contain
similar provisions that are consistent with Texas law.
INDEMNIFICATION AGREEMENTS
Each of the Company's officers and trustees (the "Indemnitees") has
entered into an indemnification agreement with the Company, the Operating
Partnership and GGPI (the "Indemnitors"). The indemnification agreements
require, among other things, that the Indemnitors indemnify the Indemnitees to
the fullest extent permitted by law and advance to the Indemnitees all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. Under these agreements, the Indemnitors also
must indemnify and advance all expenses incurred by Indemnitees seeking to
enforce their rights under the indemnification agreements, and cover the
Indemnitees under the Company's trustees' and officers' liability insurance.
Although the form of indemnification agreement offers substantially the same
scope of coverage afforded by provisions in the Declaration of Trust and the
Bylaws, it provides greater assurance to trustees and officers that
indemnification will be available because, as a contract, it cannot be modified
unilaterally in the future by the Board of Trustees or by the Company's
shareholders to eliminate the rights it provides.
FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of the material federal income tax
considerations associated with an investment in the Securities. The following
discussion is not exhaustive of all possible tax considerations and is not tax
advice. Moreover, this summary does not deal with all tax aspects that might be
relevant to a particular prospective shareholder in light of his/her personal
circumstances; nor does it deal with particular types of shareholders that are
subject to special treatment under the Code, such as insurance companies,
financial institutions and broker-dealers. The Code provisions governing the
Federal income tax treatment of REITs are highly technical and complex, and this
summary is qualified in its entirety by the applicable Code provisions, rules
and regulations promulgated thereunder, and administrative and judicial
interpretations thereof. The following discussion is based on current law and on
certain representations from the Company concerning its compliance with the
requirements for qualification as a REIT.
26
<PAGE> 28
EACH PROSPECTIVE INVESTOR IS URGED TO CONSULT HIS OR HER OWN TAX
ADVISOR, WITH RESPECT TO SUCH INVESTOR'S SPECIFIC FEDERAL, STATE, LOCAL, FOREIGN
AND OTHER TAX CONSEQUENCES OF THE PURCHASE, HOLDING AND SALE OF THE SECURITIES
IN THE COMPANY.
FEDERAL INCOME TAXATION OF THE COMPANY
In the opinion of Goodwin, Procter & Hoar LLP, tax counsel to the
Company, commencing with the Company's first taxable year ended December 31,
1994, the Company has been organized in conformity with the requirements for
qualification as a "real estate investment trust" under the Code, and its method
of operation will enable it to continue to meet the requirements for
qualification and taxation as a "real estate investment trust" under the Code,
provided that the Company operated and continues to operate in accordance with
various assumptions and factual representations made by the Company concerning
its business, properties and operations. No assurance can be given, however,
that such requirements have been or will continue to be met. Such qualification
depends upon the Company's having met and continuing to meet the various
requirements imposed under the Code through actual operating results, as
discussed below. Goodwin, Procter & Hoar LLP has relied on the Company's
representations regarding its operations and has not and will not review these
operating results. Accordingly, no assurance can be given that actual operating
results will meet these requirements.
If the Company has qualified and continues to qualify for taxation as a
REIT, it generally will not be subject to federal corporate income taxes on that
portion of its ordinary income or capital gain that is currently distributed to
shareholders. The REIT provisions of the Code generally allow a REIT to deduct
dividends paid to its shareholders. This deduction for dividends paid to
shareholders substantially eliminates the federal "double taxation" on earnings
(once at the corporate level when earned and once again at the shareholder level
when distributed) that usually results from investments in a corporation.
Even if the Company qualifies for taxation as a REIT, however, the
Company will be subject to Federal income tax, as follows: First, the Company
will be taxed at regular corporate rates on its undistributed REIT taxable
income, including undistributed net capital gains. Second, under certain
circumstances, the Company may be subject to the "alternative minimum tax."
Third, if the Company has net income from the sale or other disposition of
"foreclosure property" that is held primarily for sale to customers in the
ordinary course of business or other non-qualifying income from foreclosure
property, it will be subject to tax at the highest corporate rate on such
income. Fourth, if the Company has net income from prohibited transactions
(which are, in general, certain sales or other dispositions of property other
than foreclosure property held primarily for sale to customers in the ordinary
course of business), such income will be subject to a 100% tax. Fifth, if the
Company should fail to satisfy either the 75% or 95% gross income test
(discussed below) but has nonetheless maintained its qualification as a REIT
because certain other requirements have been met, it will be subject to a 100%
tax on the net income attributable to the greater of the amount by which the
Company fails the 75% or 95% test, multiplied by a fraction intended to reflect
the Company's profitability. Sixth, if the Company fails to distribute during
each year at least the sum of (i) 85% of its ordinary income for such year, (ii)
95% of its capital gain net income for such year and (iii) any undistributed
taxable income from prior periods, the Company will be subject to a 4% excise
tax on the excess of such required distribution over the amounts actually
distributed. Seventh, if the Company should acquire any asset from a C
corporation (i.e., a corporation generally subject to full corporate-level tax)
in a carryover-basis transaction and the Company subsequently recognizes gain on
the disposition of such asset during the ten-year period (the "Recognition
Period") beginning on the date on which the asset was acquired by the Company,
then, to the extent of the excess of (a) the fair market value of the asset as
of the beginning of the applicable Recognition Period over (b) the Company's
adjusted basis in such asset as of the beginning of such Recognition Period (the
"Built-In Gain"), such gain will be subject to tax at the highest regular
corporate rate, pursuant to guidelines issued by the IRS (the "Built-in Gain
Rules").
REQUIREMENTS FOR QUALIFICATION
The Company elected to be taxable as a REIT for its taxable year ended
December 31, 1994, and in order to have so qualified, it must have met and
continued to meet the requirements discussed below, relating to the Company's
organization, sources of income, nature of assets and distributions of income to
shareholders.
Organizational Requirements. The Code defines a REIT as a corporation,
trust or association: (i) that is managed by one or more trustees or directors,
(ii) the beneficial ownership of which is evidenced by transferable shares or by
transferable certificates of beneficial interest, (iii) that would be taxable as
a domestic corporation but for the REIT requirements, (iv) that is neither a
financial institution nor an insurance company subject to certain provisions of
the
27
<PAGE> 29
Code, (v) the beneficial ownership of which is held by 100 or more persons, and
(vi) during the last half of each taxable year not more than 50% in value of the
outstanding stock of which is owned, directly or indirectly through the
application of certain attribution rules, by five or fewer individuals (as
defined in the Code to include certain entities). In addition, certain other
tests, described below, regarding the nature of its income and assets also must
be satisfied. The Code provides that conditions (i) through (iv), inclusive,
must be met during the entire taxable year and that condition (v) must be met
during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months. Conditions (v) and
(vi) (the "100 shareholder" and "five or fewer" requirements) will not apply
until after the first taxable year for which an election is made to be taxed as
a REIT. For purposes of conditions (v) and (vi), pension funds and certain other
tax-exempt entities are treated as individuals, subject to a "look-through"
exception in the case of condition (vi).
The Company's Declaration of Trust currently includes certain
restrictions regarding transfers of Common Shares and Preferred Shares, which
restrictions are intended (among other things) to assist the Company in
continuing to satisfy conditions (v) and (vi) above. In rendering its opinion
that the Company is organized and operated in a manner that has allowed the
Company to qualify as a REIT, Goodwin, Procter & Hoar LLP is relying on
representations of the Company that the ownership of its Common Shares and
Preferred Shares will satisfy the "five or fewer" requirement. There can be no
assurance, however, that the restrictions in the Declaration of Trust will, as a
matter of law, preclude the Company from failing to satisfy these conditions or
that a transfer in violation of these restrictions would not cause the Company
to fail these conditions.
In addition, a corporation may not elect to become a REIT unless its
taxable year is the calendar year. The Company has a calendar year taxable year.
If a REIT owns a "qualified REIT subsidiary," the Code provides that the
qualified REIT subsidiary is disregarded for Federal income tax purposes, and
all assets, liabilities, and items of income, deduction and credit of the
qualified REIT subsidiary are treated as assets, liabilities and such items of
the REIT itself. A "qualified REIT subsidiary" is a corporation all of the
shares of beneficial interest of which have been owned by the REIT from the
commencement of such corporation's existence. GGPI, the general partner of the
Operating Partnership and certain other entities organized to serve as the
general partner of special purpose limited partnerships are "qualified REIT
subsidiaries". Thus, all of the assets, liabilities, and items of income,
deduction and credit of GGPI and the other "qualified REIT subsidiaries" will be
treated as assets and liabilities and items of income, deduction and credit of
the Company. Unless the context requires otherwise, all references to the
"Company" in this "Federal Income Tax Considerations" section refer to Gables
Residential Trust and its qualified REIT subsidiaries, GGPI, Candlewood Gen
Par, Inc. and GRT Villas Gen Par, Inc., the successor to Candle Creek, Inc.
In the case of a REIT that is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of the assets of the partnership (as determined based on the REIT's capital
interest in the partnership) and will be deemed to be entitled to the income of
the partnership attributable to such share. In addition, the character of the
assets and gross income of the partnership shall retain the same character in
the hands of the REIT for purposes of Section 856 of the Code, including
satisfying the gross income tests and asset tests. Thus, the Company's
proportionate share of the assets, liabilities and items of income of the
Operating Partnership (including the Operating Partnership's share of the assets
and liabilities and items of income with respect to any partnership in which it
holds an interest, and any other entity taxable as a partnership for federal
income tax purposes in which it holds an interest) will be treated as assets,
liabilities and items of income of the Company for purposes of applying the
requirements described herein.
Income Tests. To maintain qualification as a REIT, three gross income
requirements must be satisfied annually.
- First, at least 75% of the Company's gross income, excluding
gross income from certain dispositions of property held primarily
for sale to customers in the ordinary course of a trade or
business ("prohibited transactions"), for each taxable year must
be derived directly or indirectly from investments relating to
real property or mortgages on real property (including "rents
from real property" and, in certain circumstances, interest) or
from certain types of temporary investments.
- Second, at least 95% of the Company's gross income (excluding
gross income from prohibited transactions) for each taxable year
must be derived from such real property investments and from
dividends, interest and gain from the sale or disposition of
stock or securities or from any combination of the foregoing.
28
<PAGE> 30
- Third, short-term gain from the sale or other disposition of
stock or securities, gain from prohibited transactions and gain
from the sale or other disposition of real property held for less
than four years (apart from involuntary conversions and sales of
foreclosure property) must represent less than 30% of the
Company's gross income (including gross income from prohibited
transactions) for each taxable year.
Rents received or deemed to be received by the Company will qualify as
"rents from real property" in satisfying the gross income requirements for a
REIT described above only if several conditions are met.
- First, the amount of rent generally must not be based in whole
or in part on the income or profits of any person.
- Second, the Code provides that rents received from a tenant will
not qualify as "rents from real property" in satisfying the gross
income tests if the REIT, or an owner of 10% or more of the REIT,
directly or constructively owns 10% or more of such tenant (a
"Related Party Tenant").
- Third, if rent attributable to personal property, leased in
connection with a lease of real property, is greater than 15% of
the total rent received under the lease, then the portion of rent
attributable to the personal property will not qualify as "rents
from real property."
- Finally, for rents to qualify as "rents from real property" the
REIT must not operate or manage the property or furnish or render
services to tenants, other than through an "independent
contractor who is adequately compensated and from whom the REIT
does not derive any income; provided, however, that a REIT may
provide services with respect to its properties and the income
will qualify as "rents from real property" if the services are
"usually or customarily rendered" in connection with the rental
of room or other space for occupancy only and are not otherwise
considered "rendered to the occupant."
The Company has not charged, and does not anticipate charging rent that
is based in whole or in part on the income or profits of any person. The Company
has not derived, and does not anticipate deriving, rent attributable to personal
property leased in connection with real property that exceeds 15% of the total
rents.
The Company has provided and will provide certain services with respect
to the Communities. The Company believes that the services with respect to the
Communities that have been and will be provided by it are usually or customarily
rendered in connection with the rental of space for occupancy only and are not
otherwise rendered to particular tenants and therefore that the provision of
such services has not and will not cause rents received with respect to the
Communities to fail to qualify as rents from real property. The Company believes
that services with respect to the Communities that the Company believes may not
be provided by the Company directly without jeopardizing the qualification of
rent as "rents from real property" have been and will be performed by
independent contractors (which do not include the Management Companies, as
defined below).
Generally the Management Company receives fees in consideration of the
performance of property management services with respect to properties owned by
third parties. Any such fee income is taxable to the Management Company.
The Operating Partnership has received and may continue to receive
certain types of income with respect to the properties it owns that will not
qualify for the 30%, 75% or 95% gross income tests, including rent with respect
to certain apartment units leased to certain of the Management Companies (as
defined below), which constitutes non-qualifying rent from Related Party
Tenants and which does not qualify for the 75% and 95% gross income tests. In
addition, interest payments on the certain notes of the Management Companies
held by the Operating Partnership and dividends on the Operating Partnership's
stock in the Management Companies will not qualify under the 75% gross income
test. The Company believes, however, that the aggregate amount of such fees and
other non-qualifying income in any taxable year will not cause the Company to
exceed the limits on non-qualifying income under the REIT gross income tests.
If the Company fails to satisfy one or both of the 75% or 95% gross
income test for any taxable year, it may nevertheless qualify as a REIT for that
year if it is eligible for relief under certain provisions of the Code. These
relief provisions will be generally available if (i) the Company's failure to
meet these tests was due to reasonable cause and not due to willful neglect,
(ii) the Company attaches a schedule of the sources of its income to its Federal
income tax
29
<PAGE> 31
return and (iii) any incorrect information on the schedule is not due to fraud
with intent to evade tax. It is not possible, however, to state whether, in all
circumstances, the Company would be entitled to the benefit of these relief
provisions. For example, if the Company fails to satisfy the gross income tests
because nonqualifying income that the Company intentionally incurs exceeds the
limits on such income, the IRS could conclude that the Company's failure to
satisfy the tests was not due to reasonable cause. As discussed above in
"Federal Income Tax Considerations--Federal Income Taxation of the Company,"
even if these relief provisions apply, a tax would be imposed with respect to
the excess net income. No similar mitigation provision provides relief if the
Company fails the 30% income test, and in such case, the Company will cease to
qualify as a REIT.
Asset Tests. At the close of each quarter of its taxable year, the
Company also must satisfy three tests relating to the nature and diversification
of its assets.
- First, at least 75% of the value of the Company's total assets
must be represented by real estate assets, cash, cash items and
government securities.
- Second, no more than 25% of the Company's total assets may be
represented by securities other than those in the 75% asset
class.
- Third, of the investments included in the 25% asset class, the
value of any one issuer's securities owned by the Company may not
exceed 5% of the value of the Company's total assets (the "5%
test"), and the Company may not own more than 10% of any one
issuer's outstanding voting securities.
The Operating Partnership owns 100% of the nonvoting stock and 1% of the
voting stock of certain corporations (the "Management Companies") which do not
qualify as "qualified REIT subsidiaries." By virtue of its ownership of limited
partnership units of the Operating Partnership ("Units"), the Company will be
considered to own its pro rata share of such stock. Neither the Company nor the
Operating Partnership, however, owns more than 1% of the voting securities of
any Management Company. In addition, the Company and its senior management do
not believe that the Company's pro rata share of the value of the securities of
any of the Management Companies exceeds 5% of the total value of the Company's
assets. The Company's belief is based in part upon its analysis of the estimated
value of the securities of the Management Companies owned by the Operating
Partnership relative to the estimated value of the other assets owned by the
Operating Partnership. No independent appraisals have been obtained to support
this conclusion. There can be no assurance that the IRS might not contend that
the value of such securities of a Management Company held by the Company
(through the Operating Partnership) exceeds the 5% value limitation.
The 5% test referred to above generally must be met for any quarter in
which the Company acquires securities of an issuer. Thus, the 5% value
requirement must be satisfied not only on the date the Company acquires equity
and debt securities of the Management Companies, but also each time the Company
increases its ownership of such securities of the Management Companies
(including as a result of increasing its interest in the Operating Partnership
as limited partners exercise their redemption rights). Although the Company
plans to take steps to ensure that it satisfies the 5% value test for any
quarter with respect to which retesting is to occur, there can be no assurance
that such steps will always be successful or will not require a reduction in the
Company's overall interest in a Management Company.
After initially meeting the asset tests at the close of any quarter, the
Company will not lose its status as a REIT for failure to satisfy the asset
tests at the end of a later quarter solely by reason of changes in asset values.
If the failure to satisfy the asset tests results from an acquisition of
securities or other property during a quarter, the failure can be cured by
disposition of sufficient nonqualifying assets within 30 days after the close of
that quarter. The Company intends to maintain and believes that it has
maintained adequate records of the value of its assets to ensure compliance with
the asset tests and to take such other actions within 30 days after the close of
any quarter as may be required to cure any noncompliance.
Annual Distribution Requirements. In order to be taxed as a REIT, the
Company is required to distribute dividends (other than capital gain dividends)
to its shareholders in an amount at least equal to (a) the sum of (i) 95% of the
Company's "REIT taxable income" (computed without regard to the dividends-paid
deduction and the Company's capital gain) and (ii) 95% of the net income, if
any, from foreclosure property in excess of the special tax on income from
foreclosure property, minus (b) the sum of certain items of non-cash income.
Such distribution must be paid in the taxable year to which they relate, or in
the following taxable year if declared before the Company timely files its
Federal income tax return for such year and if paid on or before the first
regular dividend payment after such declaration. Even if the Company satisfies
the foregoing distribution requirements, to the extent that the Company does
30
<PAGE> 32
not distribute all of its net capital gain or "REIT taxable income" as adjusted,
it will be subject to tax thereon at regular capital gains or ordinary corporate
tax rates. Furthermore, if the Company should fail to distribute during each
calendar year at least the sum of (a) 85% of its ordinary income for that year,
(b) 95% of its capital gain net income for that year and (c) any undistributed
taxable income from prior periods, the Company would be subject to a 4% excise
tax on the excess of such required distribution over the amounts actually
distributed. In addition, during its Recognition Period, if the Company disposes
of any asset subject to the Built-In Gain Rules, the Company will be required,
pursuant to guidance issued by the IRS, to distribute at least 95% of the
Built-In Gain (after tax), if any, recognized on the disposition of the asset.
The Company believes it has made and intends to continue to make timely
distributions sufficient to satisfy the annual distribution requirements. In
this regard, the Operating Partnership's partnership agreement authorizes GGPI,
as general partner, to take such steps as may be necessary to cause the
Operating Partnership to distribute to its partners an amount sufficient to
permit the Company to meet these distribution requirements.
It is expected that the Company's REIT taxable income has been and will
be less than its cash flow due to the allowance of depreciation and other
non-cash charges in computing REIT taxable income. Accordingly, the Company
anticipates that it will generally have sufficient cash or liquid assets to
enable it to satisfy the 95% distribution requirement. It is possible, however,
that the Company, from time to time, may not have sufficient cash or other
liquid assets to meet the 95% distribution requirement or to distribute such
greater amount as may be necessary to avoid income and excise taxation, due to
timing differences between (i) the actual receipt of income and the actual
payment of deductible expenses and (ii) the inclusion of such income and the
deduction of such expenses in arriving at taxable income of the Company, or as a
result of nondeductible expenses such as principal amortization or capital
expenditures in excess of noncash deductions. In the event that such timing
differences occur, the Company may find it necessary to arrange for borrowings
or, if possible, pay taxable stock dividends in order to meet the dividend
requirement.
Under certain circumstances, the Company may be able to rectify a
failure to meet the distribution requirement for a year by paying "deficiency
dividends" to shareholders in a later year, which may be included in the
Company's deduction for dividends paid for the earlier year. Thus, the Company
may be able to avoid being taxed on amounts distributed as deficiency dividends.
The Company will, however, be required to pay interest based upon the amount of
any deduction taken for deficiency dividends.
Earnings and Profits. Under recent final Treasury Regulations, the
existence of undistributed earnings and profits of a non-REIT predecessor
corporation at the close of the taxable year generally will preclude a successor
corporation from qualifying to be taxed as a REIT. In connection with the
Initial Offering, the Company acquired the assets of Wood Properties, Inc.
("Wood Properties"). The Company believes that as of the time of the acquisition
of the assets of Wood Properties by the Company, Wood Properties had no earnings
and profits for Federal income tax purposes. The Company's belief is based upon
a review of Wood Properties' tax returns, as well as a review of the minute
books of Wood Properties for such periods. Nothing came to the Company's
attention during the course of such reviews that would cause the Company to
believe that Wood Properties had undistributed C corporation earnings and
profits. If, as a result of an examination of Wood Properties' returns by the
IRS, it were determined that Wood Properties had undistributed earnings and
profits at the time of the Company's acquisition of its assets, the Company
believes that distributions to shareholders in 1994 in excess of current
earnings and profits likely would have been sufficient to distribute any such
accumulated earnings and profits that carried over from Wood Properties. In the
event that 1994 distributions were insufficient to distribute any such earnings
and profits, and the Company were unable to utilize the certain "deficiency
dividend" procedures in the Treasury Regulations, the Company would fail to
qualify as a REIT.
FAILURE TO QUALIFY
If the Company fails to qualify for taxation as a REIT in any taxable
year and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to shareholders in any year in which the
Company fails to qualify will not be deductible by the Company nor will they be
required to be made. In such event, to the extent of current or accumulated
earnings and profits, all distributions to shareholders will be dividends,
taxable as ordinary income, and subject to certain limitations of the Code,
corporate distributees may be eligible for the dividends-received deduction.
Unless the Company is entitled to relief under specific statutory provisions,
the Company also will be disqualified from taxation as a REIT for the four
taxable years following the year during which qualification was lost. It is not
possible to state whether in all circumstances the Company would be entitled to
such statutory relief. For example, if the Company fails
31
<PAGE> 33
to satisfy the gross income tests because nonqualifying income that the Company
intentionally incurs exceeds the limit on such income, the IRS could conclude
that the Company's failure to satisfy the tests was not due to reasonable cause.
TAXATION OF U.S. SHAREHOLDERS
As used herein, the term "U.S. Shareholder" means a holder of Common
Shares and Preferred Shares that (for United States Federal income tax purposes)
(a) is a citizen or resident of the United States, (b) is a corporation,
partnership or other entity created or organized in or under the laws of the
United States or of any political subdivision thereof or (c) is an estate or
trust, the income of which is subject to United States Federal income taxation
regardless of its source. For any taxable year for which the Company qualifies
for taxation as a REIT, amounts distributed to taxable U.S. Shareholders will be
taxed as follows.
Distributions Generally. Distributions to U.S. Shareholders (other than
capital gain dividends) will be taxable as dividends to the extent of the
Company's current or accumulated earnings and profits as determined for federal
income tax purposes. For purposes of determining whether distributions are out
of current or accummulated earnings and profits, the earnings and profits of the
Company will be allocated first to any of the Company's outstanding Preferred
Stock and then to the Company's Common Stock. Such dividends will be taxable to
the holders as ordinary income and will not be eligible for the
dividends-received deduction for corporations. To the extent that the Company
makes a distribution to a U.S. Shareholder in excess of current or accumulated
earnings and profits, the distribution will be treated first as a tax-free
return of capital with respect to the shares, reducing the U.S. Shareholder's
tax basis in the shares, and the distribution in excess of a U.S. Shareholder's
tax basis in the shares will be taxable as gain realized from the sale of the
shares. Dividends declared by the Company in October, November or December of
any year payable to a shareholder of record on a specified date in any such
month shall be treated as both paid by the Company and received by the
shareholder on December 31 of the year, provided that the dividend is actually
paid by the Company during January of the following calendar year. Shareholders
may not include on their own Federal income tax returns any tax losses of the
Company.
The Company will be treated as having sufficient earnings and profits to
treat as a dividend any distribution by the Company up to the amount required to
be distributed in order to avoid imposition of the 4% excise tax discussed in
"Federal Income Tax Considerations--Federal Income Taxation of the Company"
above. Moreover, any "deficiency dividend" will be treated as an ordinary or
capital gain dividend, as the case may be, regardless of the Company's earnings
and profits. As a result, shareholders may be required to treat certain
distributions that would otherwise result in a tax-free return of capital as
taxable dividends.
Capital Gain Dividends. Dividends to U.S. Shareholders that are properly
designated by the Company as capital gain dividends will be treated as long-term
capital gains (to the extent they do not exceed the Company's actual net capital
gain) for the taxable year without regard to the period for which the
shareholder has held his stock. However, corporate shareholders may be required
to treat up to 20% of certain capital gain dividends as ordinary income. Capital
gain dividends are not eligible for the dividends-received deduction for
corporations.
Passive Activity Loss and Investment Interest Limitations. Distributions
from the Company and gain from the disposition of the Securities will not be
treated as passive activity income, and therefore shareholders may not be able
to apply any "passive losses" against such income. Dividends from the Company
(to the extent they do not constitute a return of capital) will generally be
treated as investment income for purposes of the investment income limitation on
the deductibility of investment interest; provided, however, that net capital
gain from the disposition of the Securities or capital gain dividends generally
will be excluded from investment income.
Sale of the Securities. Upon the sale or exchange of the Securities, the
holder will generally recognize gain or loss equal to the difference between the
amount realized on such sale and the tax basis of such Securities. Assuming such
Securities are held as a capital asset, such gain or loss will be a long-term
capital gain or loss if the Securities have been held for more than one year.
However, any loss recognized by a holder on the sale of Common Shares or
Preferred Shares held for not more than six months and with respect to which a
capital gain dividend was received will be treated as a long-term capital loss
to the extent of the amount of distributions from the Company required to be
treated by such holder as long-term capital gain.
Treatment of Tax-Exempt Securityholders. Distributions from the Company
to a tax-exempt employee pension trust or other domestic tax-exempt shareholder
generally will not constitute "unrelated business taxable income"("UBTI") unless
the shareholder has borrowed to acquire or carry its Common Shares or Preferred
Shares.
32
<PAGE> 34
However, qualified trusts that hold more than 10% (by value) of the shares of
certain REITs may be required to treat a certain percentage of such a REIT's
distributions as UBTI. This requirement will apply only if (i) the REIT would
not qualify as such for Federal income tax purposes but for the application of a
"look-through" exception to the "five or fewer" requirement applicable to shares
held by qualified trusts and (ii) the REIT is "predominantly held" by qualified
trusts. A REIT is predominantly held by qualified trusts if either (i) a single
qualified trust holds more than 25% by value of the REIT interests or (ii) one
or more qualified trusts, each owning more than 10% by value of the REIT
interests, hold in the aggregate more than 50% of the REIT interests. The
percentage of any REIT dividend treated as UBTI is equal to the ratio of (a) the
UBTI earned by the REIT (treating the REIT as if it were a qualified trust and
therefore subject to tax on UBTI) to (b) the total gross income (less certain
associated expenses) of the REIT. A de minimis exception applies where the ratio
set forth in the preceding sentence is less than 5% for any year. For these
purposes, a qualified trust is any trust described in section 401(a) of the Code
and exempt from tax under section 501(a) of the Code. The provisions requiring
qualified trusts to treat a portion of REIT distributions as UBTI will not apply
if the REIT is able to satisfy the "five or fewer" requirement without relying
upon the "look-through" exception. Distributions by the Operating Partnership to
a tax exempt holder of Debt Securities will generally not constitute UBTI unless
the acquisition of such Debt Securities is debt financed within the meaning of
Section 514(c) of the Code.
TAXATION OF HOLDERS OF DEBT SECURITIES
Stated Interest and Market Discount
Holders of Debt Securities will be required to include stated interest
on the Debt Securities in gross income for federal income tax purposes in
accordance with their methods of accounting for tax purposes. Purchasers of Debt
Securities should be aware that the holding and disposition of Debt Securities
may be affected by the market discount provisions of the Internal Revenue Code
of 1986, as amended (the "Code"). These rules generally provide that, subject to
a statutorily-defined de minimis exception, if a holder of a debt instrument
purchases it at a market discount and thereafter recognizes gain on a
disposition of the debt instrument (including a gift or payment on maturity),
the lesser of such gain (or appreciation, in the case of a gift) or the portion
of the market discount that accrued while the debt instrument was held by such
holder will be treated as ordinary interest income at the time of the
disposition. For this purpose, a purchase at a market discount includes a
purchase after original issuance at a price below the debt instrument's stated
principal amount. The market discount rules also provide that a holder who
acquires a debt instrument at a market discount (and who does not elect, as
described below, to include such market discount in income on a current basis)
may be required to defer a portion of any interest expense that may otherwise be
deductible on any indebtedness incurred or maintained to purchase or carry such
debt instrument until the holder disposes of the debt instrument in a taxable
transaction.
A Holder of a debt instrument acquired at a market discount may elect to
include the market discount in income as the discount thereon accrues, either on
a straight line basis or, if elected, on a constant interest rate basis. The
current inclusion election, once made, applies to all market discount
obligations acquired by such holder on or after the first day of the first
taxable year to which the election applies, and may not be revoked without the
consent of the Internal Revenue Service ("IRS"). If a holder of a Note elects to
include market discount in income in accordance with the preceding sentence, the
foregoing rules with respect to the recognition of ordinary income on a sale or
certain other dispositions of such Note and the deferral of interest deductions
on indebtedness related to such Note would not apply.
Amortizable Bond Premium
Generally, if the tax basis of an obligation held as a capital asset
exceeds the amount payable at maturity of the obligation, such excess may
constitute amortizable bond premium that the holder may elect to amortize under
the constant interest rate method and deduct over the period from his
acquisition date to the obligation's maturity date. A holder who elects to
amortize bond premium must reduce his tax basis in the related obligation by the
amount of the aggregate deductions allowable for amortizable bond premium.
The amortizable bond premium deduction is treated as an offset to
interest income on the related security for federal income tax purposes. Each
prospective purchaser is urged to consult his tax advisor as to the consequences
of the treatment of such premium as an offset to interest income for federal
income tax purposes.
33
<PAGE> 35
Disposition
In general, a holder of a Note will recognize gain or loss upon the
sale, exchange, redemption, payment upon maturity or other taxable disposition
of the Note measured by the difference between (i) the amount of cash and the
fair market value of property received (except to the extent that such cash or
other property is attributable to the payment of accrued interest not previously
included in income, which amount will be taxable as ordinary income) and (ii)
the holder's tax basis in the Note (as increased by any market discount
previously included in income by the holder and decreased by any amortizable
bond premium deducted over the term of the Note). Subject to the market discount
and amortizable bond premium rules above, any such gain or loss will generally
be long-term capital gain or loss, provided the Note was a capital asset in the
hands of the holder and had been held for more than one year.
BACKUP WITHHOLDING ON SECURITIES
Under the backup withholding rules, a domestic holder of Securities may
be subject to backup withholding at the rate of 31% with respect to interest or
dividends paid on, and gross proceeds from the sale of, the Securities unless
such holder (a) is a corporation or comes within certain other exempt categories
and, when required, demonstrates this fact or (b) provides a correct taxpayer
identification number, certifies as to no loss of exemption from backup
withholding and otherwise complies with applicable requirements of the backup
withholding rules. A holder of Securities who does not provide the Company with
his current taxpayer identification number may be subject to penalties imposed
by the Internal Revenue Service. Any amount paid as backup withholding will be
creditable against the holder's income tax liability.
The Company will report to Holders of Securities and the IRS the amount
of any "reportable payments" (including any interest or dividends paid) and any
amount withheld with respect to the Securities during the calendar year.
The backup withholding and information reporting rules are under review
by the United States Treasury, and their applications to the Securities could be
changed prospectively by future Treasury regulations.
OTHER TAX CONSIDERATIONS
Effect of Tax Status of Operating Partnership on REIT Qualification.
Substantially all of the Company's investments are through the Operating
Partnership. The Operating Partnership may involve special tax considerations.
Such considerations include (i) the allocations of income and expense items of
the Operating Partnership, which could affect the computation of taxable income
of the Company, (ii) the status of the Operating Partnership as a partnership
(as opposed to an association taxable as a corporation) for income tax purposes,
and (iii) the taking of actions by the Operating Partnership that could
adversely affect the Company's qualifications as a REIT. In addition, the
Operating Partnership owns certain properties through subsidiary partnerships.
These partnerships have been structured in a manner that is intended to qualify
them for taxation as "partnerships" for Federal income tax purposes. If the
Operating Partnership or any other partnership in which the Operating
Partnership has an interest were treated as an association taxable as a
corporation, the Company would fail to qualify as a REIT for a number of
reasons.
Tax Allocations with Respect to the Properties. When property is
contributed to a partnership in exchange for an interest in the partnership, the
partnership generally takes a carryover basis in that property for tax purposes
equal to the adjusted basis of the contributing partner in the property, rather
than a basis equal to the fair market value of the property at the time of
contribution. Pursuant to section 704(c) of the Code, income, gain, loss and
deduction attributable to such contributed property must be allocated in a
manner such that the contributing partner is charged with, or benefits from,
respectively, the unrealized gain or unrealized loss associated with the
property at the time of the contribution. The amount of such unrealized gain or
unrealized loss is generally equal to the difference between the fair market
value of the contributed property at the time of contribution and the adjusted
tax basis of such property at the time of contribution (a "Book-Tax
Difference"). Such allocations are solely for Federal income tax purposes and do
not affect the book capital accounts or other economic or legal arrangements
among the partners. The Operating Partnership was formed by way of contributions
of appreciated property (including certain of the Communities or interests
therein). Consequently, the Operating Partnership's partnership agreement
requires tax allocations to be made in a manner consistent with section 704(c)
of the Code. The Regulations under Section 704(c) of the Code provide
partnerships with a choice of several methods of accounting for Book-Tax
Differences for property contributed on or after December 21, 1993, including
the retention of the "traditional method" that was available under prior law or
the election of certain alternative methods. The Operating Partnership has
elected the "traditional method" of Section 704(c)
34
<PAGE> 36
allocations. Under the traditional method, which is the least favorable method
from the Company's perspective, the carryover basis of contributed interests in
the Communities in the hands of the Operating Partnership could cause the
Company (i) to be allocated lower amounts of depreciation deductions for tax
purposes than would be allocated to the Company if all Communities were to have
a tax basis equal to their fair market value at the time of the contribution and
(ii) to be allocated taxable gain in the event of a sale of such contributed
interests in the Communities in excess of the economic or book income allocated
to the Company as a result of such sale, with a corresponding benefit to the
other partners in the Operating Partnership. These allocations possibly could
cause the Company to recognize taxable income in excess of cash proceeds, which
might adversely affect the Company's ability to comply with REIT distribution
requirements, although the Company does not anticipate that this will occur.
Interests in the Communities purchased by the Operating Partnership
(other than in exchange for interests in the Operating Partnership)
simultaneously with or subsequent to the admission of the Company to the
Operating Partnership acquired an initial tax basis equal to their fair market
value. Thus, Section 704(c) of the Code will not apply to such interests.
Management Companies. A portion of the amounts to be used to fund
distributions to shareholders is expected to come from the Management Companies,
through dividends on stock of the Management Companies held by the Operating
Partnership and interest on the Contribution Notes held by the Operating
Partnership. In general, the Management Companies conduct activities, such as
property management for third parties, that generate nonqualifying income for
purposes of the REIT income tests described above. The Management Companies
will not qualify as REITs and will pay Federal, state and local income taxes on
their taxable incomes at normal corporate rates. The Company anticipates that,
initially, deductions for interest and amortization will largely offset the
otherwise taxable income of the Management Companies, but there can be no
assurance that this will be the case or that the IRS will not challenge such
deductions. Moreover, such deductions may not be available for any additional
Management Companies, if any, established by the Company. Any federal, state or
local income taxes that the Management Companies are required to pay will
reduce the cash available for distribution by the Company to its shareholders.
As described above, the value of the equity and debt securities of a
Management Company held by the Company (or to be held by the Company in the case
of any additional Management Companies) cannot exceed 5% of the value of the
Company's assets at a time when a holder of Units in the Operating Partnership
exercises his redemption right (or the Company otherwise is considered to
acquire additional securities of a Management Company). See "Federal Income Tax
Considerations--Requirements for Qualification." This limitation may restrict
the ability of a Management Company to increase the size of its respective
business unless the value of the assets of the Company is increasing at a
commensurate rate.
SPECIAL TAX CONSIDERATIONS OF NON-U.S. STOCKHOLDERS
The rules governing U.S. federal income taxation of nonresident alien
individuals, foreign corporations, foreign partnerships, and other foreign
shareholders (collectively, "Non-U.S. Shareholders") are complex and no attempt
will be made herein to provide more than a summary of such rules. PROSPECTIVE
NON-U.S. SHAREHOLDERS SHOULD CONSULT WITH THEIR OWN TAX ADVISORS TO DETERMINE
THE IMPACT OF FEDERAL, STATE, AND LOCAL INCOME TAX LAWS WITH REGARD TO AN
INVESTMENT IN THE SECURITIES, INCLUDING ANY REPORTING REQUIREMENTS.
Distributions to Non-U.S. Shareholders that are not attributable to gain
from sales or exchanges by the Company of U.S. real property interests and are
not designated by the Company as capital gains dividends will be treated as
dividends of ordinary income to the extent that they are made out of current or
accumulated earnings and profits of the Company. Such distributions ordinarily
will be subject to a withholding tax equal to 30% of the gross amount of the
distribution unless an applicable tax treaty reduces or eliminates that tax.
However, if income from the investment in the Common Shares or Preferred Shares
is treated as effectively connected with the Non-U.S. Shareholder's conduct of a
U.S. trade or business, the Non-U.S. Shareholder generally will be subject to
federal income tax at graduated rates, in the same manner as U.S. shareholders
are taxed with respect to such distributions (and also may be subject to the 30%
branch profits tax in the case of a Non-U.S. Shareholder that is a non-U.S.
corporation). The Company expects to withhold U.S. income tax at the rate of 30%
on the gross amount of any such distributions made to a Non-U.S. Shareholder
unless (i) a lower treaty rate applies and any required form evidencing
eligibility for that reduced rate is filed with the Company or (ii) the Non-U.S.
Shareholder files an IRS Form 4224 with the Company claiming that the
distribution is effectively connected income. Distributions in excess of current
and accumulated earnings and profits of the Company will not be taxable to a
shareholder to the extent that such distributions do not exceed the adjusted
basis
35
<PAGE> 37
of the shareholder's Common Shares or Preferred Shares, but rather will reduce
the adjusted basis of such shares. To the extent that such distributions in
excess of current and accumulated earnings and profits exceed the adjusted basis
of a Non-U.S. Shareholder's shares of Common Shares or Preferred Shares, such
distributions will give rise to tax liability if the Non-U.S. Shareholder would
otherwise be subject to tax on any gain from the sale or disposition of his
Common Shares or Preferred Shares, as described below. Because it generally
cannot be determined at the time a distribution is made whether or not such
distribution will be in excess of current and accumulated earnings and profits,
the entire amount of any distribution normally will be subject to withholding at
the same rate as a dividend. However, a Non-U.S. Shareholder can file a claim
for refund with the U.S. Internal Revenue Service for the overwithheld amount to
the extent it is determined subsequently that a distribution was, in fact, in
excess of current and accumulated earnings and profits of the Company.
For any year in which the Company qualifies as a REIT, distributions
that are attributable to gain from sales or exchanges by the Company of U.S.
real property interests will be taxed to a Non-U.S. Shareholder under the
provisions of the Foreign Investment in Real Property Tax Act of 1980
("FIRPTA"). Under FIRPTA, distributions attributable to gain from sales of U.S.
real property interests are taxed to a Non-U.S. Shareholder as if such gain were
effectively connected with U.S. business. Non-U.S. Shareholders thus would be
taxed at the normal capital gain rates applicable to U.S. shareholders (subject
to applicable alternative minimum tax and a special alternative minimum tax in
the case of nonresident alien individuals). Distributions subject to FIRPTA also
may be subject to a 30% branch profits tax in the hands of a non-U.S. corporate
shareholder not entitled to treaty relief or exemption. The Company is required
to withhold 35% of any distribution that is designated by the Company as a
capital gains dividend. The amount withheld is creditable against the Non-U.S.
Shareholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of his Common
Shares or Preferred Shares generally will not be taxed under FIRPTA if the
Company is a "domestically controlled REIT," defined generally as a REIT in
which at all times during a specified testing period less than 50% in value of
the stock was held directly or indirectly by non-U.S. persons. It is currently
anticipated that the Company will be a "domestically controlled REIT," and,
therefore, sales of Common Shares or Preferred Shares will not be subject to
taxation under FIRPTA. However, because the Common Shares or Preferred Shares
will be traded publicly, no assurance can be given that the Company will
continue to be a "domestically controlled REIT." Furthermore, gain not subject
to FIRPTA will be taxable to a Non-U.S. Shareholder if (i) investment in the
Common Shares or Preferred Shares is effectively connected with the Non-U.S.
Shareholder's U.S. trade or business, in which case the Non-U.S. Shareholder
will be subject to the same treatment as U.S. shareholders with respect to such
gain, or (ii) the Non-U.S. Shareholder is a nonresident alien individual who was
present in the United States for 183 days or more during the taxable year and
certain other conditions apply, in which case the nonresident alien individual
will be subject to a 30% tax on the individual's capital gains. If the gain on
the sale of Common Shares or Preferred Shares were to be subject to taxation
under FIRPTA, the Non-U.S. Shareholder will be subject to the same treatment as
U.S. shareholders with respect to such gain (subject to applicable alternative
minimum tax, a special alternative minimum tax in the case of nonresident alien
individuals, and the possible application of the 30% branch profits tax in the
case of non-U.S. corporations). IN ADDITION, NON-U.S. SHAREHOLDERS SHOULD BE
AWARE THAT, IN THE PAST, LEGISLATIVE PROPOSALS HAVE BEEN MADE THAT WOULD HAVE
SUBJECTED NON-U.S. PERSONS TO U.S. TAX IN CERTAIN CIRCUMSTANCES ON THEIR GAINS
FROM THE SALE OF STOCK IN U.S. CORPORATIONS. THERE CAN BE NO ASSURANCE THAT A
SIMILAR PROPOSAL WILL NOT BE ENACTED INTO LAW IN A FORM DETRIMENTAL TO FOREIGN
HOLDERS OF THE COMMON SHARES OR PREFERRED SHARES.
STATE AND LOCAL TAX
The Company and its shareholders may be subject to state and local tax
in various states and localities, including those in which it or they transact
business, own property, or reside. The tax treatment of the Company and the
shareholders in such jurisdictions may differ from the Federal income tax
treatment described above. Consequently, prospective investors should consult
their own tax advisors regarding the effect of state and local tax laws on an
investment in the Securities of the Company.
36
<PAGE> 38
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings to
fixed charges of the Company, the Operating Partnership and the predecessor to
the Company and the Operating Partnership for the periods shown:
<TABLE>
<CAPTION>
Years Ended December 31, Years Ended December 31,
------------------------ ------------------------
Three Months Ended January 26- January 1-
March 31, 1997 1996 1995 December 31, 1994 January 25, 1994(1)(2) 1993(1) 1992(1)
---- ---- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratios. . . . . 1.81x 1.83x 1.40x 1.83x .89x 1.22x 1.17x
- ------------------------------
</TABLE>
(1) Ratios for the period January 1 - January 25, 1994 and the years ended
December 31, 1993 and 1992 reflect periods prior to the recapitalization and
initial public offering of the Company on January 26, 1994.
(2) The earnings for this period were inadequate to cover fixed charges by
$146,000.
The ratios of earnings to fixed charges were computed by dividing earnings by
fixed charges. For this purpose, earnings consist of net income (loss) before
minority interest, gain on sale of real estate assets and extraordinary items,
plus fixed charges. Fixed charges consist of interest expense, capitalized
interest, credit enhancement fees and loan cost amortization. To date, the
Company has not issued any Preferred Shares; therefore, the ratios of earnings
to combined fixed charges and Preferred Shares dividend requirements are the
same as the ratios of earnings to fixed charges presented above.
PLAN OF DISTRIBUTION
The Company may sell Preferred Shares, Common Shares and Warrants and
the Operating Partnership may sell Debt Securities to or through one or more
underwriters or dealers for public offering and sale by or through them,
directly to one or more individual, institutional or other purchasers, through
agents or through a combination of any such methods of sale. Direct sales to
investors may also be accomplished through subscription rights distributed to
the Company's shareholders on a pro rata basis, which may or may not be
transferrable. In connection with any distribution of subscription rights to
shareholders, if all of the underlying Securities are not subscribed for, the
Company may sell the unsubscribed Securities directly to third parties or may
engage the services of one or more underwriters, dealers or agents, including
standby underwriters, to sell the unsubscribed Securities to third parties.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices (any of which may represent a
discount from the prevailing market prices).
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or the Operating Partnership or from
purchasers of Securities, for whom they may act as agents, in the form of
discounts, concessions or commissions. Underwriters may sell Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Underwriters, dealers, and
agents that participate in the distribution of Securities may be deemed to be
underwriters under the Securities Act, and any discounts or commissions they
receive from the Company or the Operating Partnership and any profit on the
resale of Securities they realize may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company or the Operating
Partnership will be described, in the applicable Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Shares which are listed on the NYSE. Any Common Shares
sold pursuant to a Prospectus Supplement will be listed on the NYSE, subject to
official notice of issuance. The Operating Partnership or the Company may elect
to list any series of Debt Securities or Preferred Shares, respectively, on an
exchange, but are not obligated to do so. It is possible that one or more
underwriters may make a market in a series of Securities, but will not be
obligated to do so and may discontinue any market making at any time without
37
<PAGE> 39
notice. Therefore, no assurance can be given as to the liquidity of, or the
trading market for, any series of Debt Securities, Preferred Shares or Warrants.
Until the distribution of the Securities is completed, rules of the
Commission may limit the ability of any underwriters and selling group members
to bid for and purchase the Securities. As an exception to these rules,
underwriters are permitted to engage in certain transactions that stabilize the
price of the Securities. Such transactions consist of bids or purchases for the
purpose of pegging, fixing or maintaining the price of the Securities.
If any underwriters create a short position in the Securities in
connection with an offering, i.e., if they sell more Securities than are set
forth on the cover page of the applicable Prospectus Supplement, the
underwriters may reduce that short position by purchasing Securities in the open
market.
The lead underwriters may also impose a penalty bid on certain other
underwriters and selling group members participating in an offering. This means
that if the lead underwriters purchase Securities in the open market to reduce
the underwriters' short position or to stabilize the price of the Securities,
they may reclaim the amount of any selling concession from the underwriters and
selling group members who sold those Securities as part of the offering.
In general, purchases of a security for the purpose of stabilization or
to reduce a short position could cause the price of the security to be higher
than it might be in the absence of such purchases. The imposition of a penalty
bid might also have an effect on the price of a security to the extent that it
were to discourage resales of the security before the distribution is completed.
Neither the Company nor the Operating Partnership makes any
representation or prediction as to the direction or magnitude of any effect that
the transactions described above might have on the price of the Securities. In
addition, neither the Company nor the Operating Partnership makes any
representation that underwriters will engage in such transactions or that such
transactions, once commenced, will not be discontinued without notice.
Under agreements into which the Company or the Operating Partnership
may enter, underwriters, dealers and agents who participate in the distribution
of Securities may be entitled to indemnification by the Company or the Operating
Partnership against certain liabilities, including liabilities under the
Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be tenants of, the Company or the Operating Partnership
in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
at the public offering price set forth in such Prospectus Supplement pursuant to
delayed delivery contracts ("Company Contracts") providing the payment and
delivery on the date or dates stated in such Prospectus Supplement. Institutions
with which such contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contracts will be subject to the condition that the purchase of
the Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
If so indicated in the applicable Prospectus Supplement, the Operating
Partnership will authorize underwriters or other persons acting as the Operating
Partnership's agents to solicit offers by certain institutions to purchase Debt
Securities from the Operating Partnership at the public offering price set forth
in such Prospectus Supplement pursuant to delayed delivery contracts ("Operating
Partnership Contracts") providing for payment and delivery on the date or dates
stated in such Prospectus Supplement. Each Operating Partnership Contract will
be for an amount no less than, and the aggregate principal amounts of Debt
Securities sold pursuant to Operating Partnership Contracts shall be not less
nor more than, the respective amounts stated in the applicable Prospectus
Supplement. Institutions with which such contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but
will in all cases be subject to the approval of the Operating Partnership. The
obligations of any purchaser under any such contract will be subject to the
conditions that (i) the purchase of the Debt Securities shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such purchaser is subject, and (ii) if the Debt Securities are being
sold to underwriters, the Operating Partnership shall have sold to such
underwriters the total principal amount of the Debt
38
<PAGE> 40
Securities less the principal amount thereof covered by the Operating
Partnership Contracts. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
In order to comply with the securities laws of certain states, if
applicable, the Securities offered hereby will be sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
states Securities may not be sold unless they have been registered or qualified
for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
LEGAL MATTERS
Certain legal matters, including the legality of the Securities, will
be passed upon for the Company and the Operating Partnership by Goodwin, Procter
& Hoar LLP, Boston, Massachusetts.
EXPERTS
The financial statements and schedules incorporated by reference in
this Prospectus and elsewhere in the Registration Statement of which this
Prospectus is a part to the extent and for the periods indicated in their
reports have been audited by Arthur Andersen LLP, independent public
accountants, and are included herein in reliance upon the authority of said firm
as experts in giving said reports.
39
<PAGE> 41
================================================================================
No person has been authorized in connection with the offering made hereby to
give any information or to make any representation not contained in this
Prospectus and, if given or made, such information or representation must not be
relied upon as having been authorized by the Company, the Operating Partnership
or any other person. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the Securities offered hereby to any
person or by anyone in any jurisdiction in which it is unlawful to make such
offer or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information contained herein is correct as of any date subsequent to the date
hereof.
---------------------------
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C>
Available Information ...................................................... 2
Incorporation of Certain Documents by Reference ............................ 2
Risk Factors ............................................................... 3
The Company and the Operating Partnership .................................. 6
Use of Proceeds ............................................................ 7
Description of Debt Securities ............................................. 7
Description of Preferred Shares ............................................17
Description of Common Shares ...............................................22
Description of Warrants ....................................................23
Limits on Ownership of Shares of Beneficial Interest .......................23
Certain Provisions of Maryland Law and of the Company's
Declaration of Trust and Bylaws ..........................................24
Federal Income Tax Considerations ..........................................26
Ratios of Earnings to Fixed Charges ........................................37
Plan of Distribution .......................................................37
Legal Matters ..............................................................39
Experts ....................................................................39
</TABLE>
================================================================================
$300,000,000
Gables Residential Trust
Preferred Shares
Common Shares
Warrants
$200,000,000
Gables Realty Limited
Partnership
Debt Securities
---------------------------
PROSPECTUS
---------------------------
August 7, 1997
================================================================================
<PAGE> 42
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated fees and expenses payable
by the Company and the Operating Partnership in connection with the issuance and
distribution of the Securities registered hereby (all amounts except the
registration fee are estimated):
<TABLE>
<S> <C>
Registration fee...................................................................... $ 95,454
Printing and duplicating expenses..................................................... 10,000
Legal fees and expenses............................................................... 25,000
Accounting fees and expenses.......................................................... 5,000
Blue sky fees and expenses............................................................ 5,000
Trustee Fees.......................................................................... 5,000
Miscellaneous......................................................................... 10,000
Total................................................................................. $155,454
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
The Company's Declaration of Trust provides certain limitations on the
liability of the Company's trustees and officers for monetary damages to the
Company. The Declaration of Trust and the Bylaws obligate the Company to
indemnify its trustees and officers, and permit the Company to indemnify its
employees and other agents, against certain liabilities incurred in connection
with their service in such capacities. These provisions could reduce the legal
remedies available to the Company and the shareholders against these
individuals.
The Company's Bylaws require it to indemnify, to the full extent of
Maryland law, any present or former trustee or officer (and such person's spouse
and children) (an "Indemnitee") who is or was a party or threatened to be made a
party to any proceeding by reason of his or her service in that capacity,
against all expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or her in connection with the proceeding,
provided that the Company shall have received a written affirmation by the
Indemnitee that he or she has met the standard of conduct necessary for
indemnification by the Company as authorized by the Bylaws. The Company shall
not be required to indemnify an Indemnitee if (a) it is established that (i) the
Indemnitee's act or omission was committed in bad faith or was the result of
active or deliberate dishonesty, (ii) the Indemnitee actually received an
improper personal benefit in money, property or services or (iii) in the case of
a criminal proceeding, the Indemnitee had reasonable cause to believe that the
Indemnitee's act or omission was unlawful, (b) the proceeding was initiated by
the Indemnitee, (c) the Indemnitee received payment for such expenses pursuant
to insurance or otherwise or (d) the proceeding arises under Section 16 of the
Exchange Act. Pursuant to the Bylaws, the Indemnitee is required to repay the
amount paid or reimbursed by the Company if it shall ultimately be determined
that the standard of conduct was not met. The Company's Bylaws permit the
Company to provide such other and further indemnification or payment or
reimbursement of expenses as may be permitted by the MGCL or to which the
Indemnitee may be entitled. The Bylaws of GGPI, a Texas corporation and
wholly-owned subsidiary of the Company and the general partner of the Operating
Partnership, contain similar provisions that are consistent with Texas law.
Each of the Company's officers and trustees (the "Indemnitees") has
entered into an indemnification agreement with the Company, the Operating
Partnership and GGPI (the "Indemnitors"). The indemnification agreements
require, among other matters, that the Indemnitors indemnify the Indemnitees to
the fullest extent permitted by law and advance to the Indemnitees all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also indemnify and advance
all expenses incurred by Indemnitees seeking to enforce their rights under the
indemnification agreements and cover the Indemnitees under the Company's
trustees' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides assurance to trustees and officers that
indemnification will be available because such contracts cannot be modified
unilaterally in the future by the Board of Trustees or the shareholders to
eliminate the rights they provide.
II-1
<PAGE> 43
ITEM 16. EXHIBITS.
4.1 Amended and Restated Declaration of Trust of the Company
(incorporated herein by reference to the Company's Registration
Statement on Form S-11 (File No. 33-70570), as amended).
4.2 Second Amended and Restated Bylaws of the Company (incorporated
herein by reference to Exhibit 3.1 to the Company's Registration
Statement on Form 8-A/A-2 (File No. 1-12590)).
4.3 Second Amended and Restated Agreement of Limited Partnership of
the Operating Partnership (incorporated herein by reference to
Exhibit 3.1 to the Operating Partnership's Registration Statement
on Form 10/A-1 (File No. 000-22683)).
4.4 Articles Supplementary to the Company's Amended and Restated
Declaration of Trust creating a series of preferred shares of
beneficial interest, par value $.01 per share, called the 8.30%
Series A Cumulative Redeemable Preferred Shares (incorporated
herein by reference to Exhibit 4.1 to the Company's Current
Report on Form 8-K dated July 24, 1997 (File No. 1-12590)).
4.5 Indenture for Senior Debt Securities.*
4.6 Form of Senior Debt Security (included in Exhibit No. 4.5).*
4.7 Indenture for Subordinated Debt Securities.*
4.8 Form of Subordinated Debt Security (included in Exhibit No.
4.7).*
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Securities being registered.*
8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax
matters.*
12.1 Calculation of Ratios of Earnings to Fixed Charges.*
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Goodwin, Procter & Hoar LLP (included as part of
Exhibits 5.1 and 8.1 hereto).*
24.1 Powers of Attorney.*
25.1 Statement of Eligibility and Qualification of Senior Trustee.*
25.2 Statement of Eligibility and Qualification of Subordinate
Trustee.*
- ----------------------------------
*Previously filed as an exhibit to this Registration Statement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any acts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated offering
range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the
maximum aggregate offering price set forth in
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
II-2
<PAGE> 44
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the undersigned registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the respective registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrants pursuant to the
provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the respective registrant of expenses incurred or paid by a
director, officer, or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection
with the securities being registered, such registrant will,
unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
(d) The undersigned registrant Gables Realty Limited Partnership,
hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
(e) The undersigned registrants hereby undertake to supplement the
prospectus, after the expiration of the subscription period, to
set forth the results of the subscription offer, the transactions
by the underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by the underwriters, and
the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing
from those set forth on the cover page of the prospectus, a
post-effective amendment will be filed to set forth the terms of
such offering.
II-3
<PAGE> 45
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrants certify that they have reasonable grounds to believe that they meet
all of the requirements for filing on Form S-3 and have duly caused this
amendment to the Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia on this 7th day of August, 1997.
GABLES RESIDENTIAL TRUST
By: /s/ Marvin R. Banks, Jr.
-----------------------------------
Marvin R. Banks, Jr.
Chief Financial Officer
GABLES REALTY LIMITED PARTNERSHIP
Gables GP, Inc., as General Partner
By: /s/ Marvin R. Banks, Jr.
----------------------------
Marvin R. Banks, Jr.
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the Registration Statement has been signed below by the following
persons in the capacities and on the date indicated. Each person has signed
this Registration Statement (i) in their capacity as an officer or trustee of
Gables Residential Trust (the "Company") and (ii) as an officer and director of
Gables GP, Inc., ("GGPI"), in its capacity as the general partner of Gables
Realty Limited Partnership.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
* Chairman of the Board of Trustees of the Company, August 7, 1997
- -------------------------------------
Marcus E. Bromley Chairman of the Board of Directors of
GGPI, Chief Executive Officer of the
Company and President of GGPI
(Principal Executive Officer)
/s/ Marvin R. Banks, Jr. Chief Financial Officer of the Company and August 7, 1997
- ------------------------------------
Marvin R. Banks, Jr. GGPI (Principal Financial Officer
and Principal Accounting Officer)
* President and Chief Operating Officer August 7, 1997
- -------------------------------------
John T. Rippel of the Company, Vice President of GGPI,
Trustee of the Company and Director
of GGPI
* Trustee of the Company and Director August 7, 1997
- -------------------------------------
David M. Holland of GGPI
* Trustee of the Company and Director August 7, 1997
- -------------------------------------
Peter D. Linneman of GGPI
* Trustee of the Company and Director August 7, 1997
- -------------------------------------
Lauralee E. Martin of GGPI
* Trustee of the Company and Director August 7, 1997
- -------------------------------------
John W. McIntyre of GGPI
* By: /s/ Marvin R. Banks, Jr.
-------------------------
Marvin R. Banks, Jr.
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 46
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Amended and Restated Declaration of Trust of the Company
(incorporated herein by reference to the Company's Registration
Statement on Form S-11 (File No. 33-70570), as amended).
4.2 Second Amended and Restated Bylaws of the Company (incorporated
herein by reference to Exhibit 3.1 to the Company's Registration
Statement on Form 8-A/A-2 (File No. 1-12590)).
4.3 Second Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (incorporated herein by reference to Exhibit
3.1 to the Operating Partnership's Registration Statement on Form
10/A-1 (File No. 000-22683)).
4.4 Articles Supplementary to the Company's Amended and Restated
Declaration of Trust creating a series of preferred shares of
beneficial interest, par value $.01 per share, called the 8.30%
Series A Cumulative Redeemable Preferred Shares (incorporated
herein by reference to Exhibit 4.1 to the Company's Current
Report on Form 8-K dated July 24, 1997 (File No. 1-12590)).
4.5 Indenture for Senior Debt Securities.*
4.6 Form of Senior Debt Security (included in Exhibit No. 4.5).*
4.7 Indenture for Subordinated Debt Securities.*
4.8 Form of Subordinated Debt Security (included in Exhibit No. 4.7).*
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Securities being registered.*
8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.*
12.1 Calculation of Ratios of Earnings to Fixed Charges.*
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Goodwin, Procter & Hoar LLP (included as part of Exhibits
5.1 and 8.1 hereto).*
24.1 Powers of Attorney.*
25.1 Statement of Eligibility and Qualification of Senior Trustee.*
25.2 Statement of Eligibility and Qualification of Subordinate Trustee.*
- ----------------------------------
* Previously filed as an exhibit to this Registration Statement.
II-5
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 28, 1997
included in Gables Residential Trust's Form 10-K for the year ended December 31,
1996 and Gables Realty Limited Partnership's Form 10/A-1 as filed with the
Securities and Exchange Commission on August 5, 1997, and to all references to
our Firm included in this registration statement.
/s/ Arthur Andersen LLP
-----------------------
ARTHUR ANDERSEN LLP
August 6, 1997
Atlanta, Georgia
