As filed with the Securities and Exchange Commission on March 20, 1997
Registration Statement No. 333-21769
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1 to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BEACON PROPERTIES CORPORATION
AND BEACON PROPERTIES, L.P.
(Exact name of registrant as specified in its charter)
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<CAPTION>
<S> <C>
Beacon Properties Corporation--Maryland Beacon Properties Corporation -- 04-322425
Beacon Properties L.P.--Delaware Beacon Properties, L.P.--04-3224259
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
50 Rowes Wharf
Boston, Massachusetts 02110
(617) 330-1400
(Address and Telephone Number of Principal Executive Offices)
Alan M. Leventhal
President and Chief Executive Officer
and
William A. Bonn, Esq.
General Counsel
50 Rowes Wharf
Boston, Massachusetts 02110
(617) 330-1400
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
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copies to:
Gilbert G. Menna, P.C.
Kathryn I. Murtagh, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place, Boston, MA 02109
(617) 570-1000
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Approximate date of commencement of proposed sale to public: As soon as
practicable 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 filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The Prospectus contained in this Registration Statement relates to and
constitutes a Post-Effective Amendment to the Registration Statement on Form
S-3 (No. 333-17237) 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 registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the registrants
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>
SUBJECT TO COMPLETION, DATED MARCH 20, 1997
PROSPECTUS
$600,000,000
Beacon Properties Corporation
PREFERRED STOCK
COMMON STOCK
$400,000,000
BEACON PROPERTIES, L.P.
DEBT SECURITIES
--------------------------
[RED HERRING]
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.
[/RED HERRING]
Beacon Properties Corporation (together with its subsidiaries, the
"Company") may offer from time to time in one or more series (i) shares of its
preferred stock, $.01 par value per share ("Preferred Stock") and (ii) shares of
its common stock, $.01 par value per share ("Common Stock"). Beacon Properties,
L.P. (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 Stock and the
Common Stock shall be up to $600,000,000 (or its equivalent in another currency
based on the exchange rate at the time of sale) and the aggregate public
offering price of the Debt Securities (collectively with the Preferred Stock and
the Common Stock, the "Securities") shall be up to $400,000,000 (or its
equivalent in another currency based on the exchange rate at the time of sale).
The Securities will be issued in amounts, at prices and on terms to be
determined at the time of offering. 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 Stock, 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 Stock, any initial public offering
price; and (iii) 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 Articles of Incorporation, 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 Capital Stock."
The applicable Prospectus Supplement will also contain information, where
appropriate, about specific material United States federal income tax
considerations relating to, and any listing on a securities exchange of, the
Securities covered by such Prospectus Supplement.
The Securities may be offered by the Company or the Operating Partnership
directly to one or more purchasers, through agents designated from time to
time by the Company or the Operating Partnership, 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.
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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.
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The date of this Prospectus is , 1997.
<PAGE>
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 offered
hereby. 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 West 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. The Commission also maintains a Web site
at http://www.sec.gov containing reports, proxy and information statements
and other information regarding registrants, including the Company, that file
electronically with the Commission. 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 is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and 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 Stock is 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:
1. The Company's Annual Report on Form 10-K for the year ended December
31,1995, filed with the Commission pursuant to the Exchange Act.
2. The Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, 1996, June 30, 1996 and September 30, 1996 filed with the
Commission pursuant to the Exchange Act.
3. The Company's Current Reports on Form 8-K, dated January 5, 1996,
February 20, 1996, July 23, 1996, October 18, 1996, December 18, 1996, and
December 20, 1996 filed with the Commission pursuant to the Exchange Act,
including all amendments thereto.
4. The description of the Company's Common Stock 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.
5. The Operating Partnership's Registration Statement on Form 10 filed
with the Commission pursuant to the Exchange Act, including all amendments
and reports updating such description.
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 person receiving a copy of this
Prospectus may obtain, without charge, upon request, a copy of any of the
documents incorporated by reference herein (except for the exhibits to such
documents, unless such exhibits are specifically incorporated by reference
into such documents). Written requests for such copies should be mailed to
Kathleen M. McCarthy, Beacon Properties Corporation, 50 Rowes Wharf, Boston,
Massachusetts 02110. Telephone requests may be directed to Ms. McCarthy at
(617) 330-1400.
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Any statement contained in a document incorporated or deemed to be
incorporated by reference 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.
THE COMPANY AND THE OPERATING PARTNERSHIP
Beacon Properties Corporation is a self-administered and self-managed real
estate investment trust ("REIT") which owns a portfolio of Class A office
properties and other commercial properties (collectively, the "Properties")
located in major metropolitan areas, including Boston, Atlanta, Chicago, Los
Angeles, San Francisco and Washington, D.C., as well as commercial real
estate development, acquisition, leasing, design and management businesses.
The Company is a Maryland corporation and its Common Stock is listed on the
New York Stock Exchange under the symbol "BCN."
The Company's business is conducted principally through subsidiaries which
consist of the Operating Partnership, two subsidiary corporations and two
subsidiary limited partnerships. The Operating Partnership is a Delaware
limited partnership, of which the Company is the sole general partner. The
Company conducts third-party management operations through Beacon Property
Management Corporation, a Delaware corporation (the "Management Company"),
and conducts third-party tenant space design services through Beacon Design
Corporation, a Massachusetts corporation (the "Design Company"). The Company
conducts management operations for wholly-owned properties through Beacon
Property Management, L.P., a Delaware limited partnership (the "Management
Partnership"), and conducts tenant space design services for wholly-owned
properties through Beacon Design, L.P., a Delaware limited partnership (the
"Design Partnership").
Currently, the Company's and the Operating Partnership's total consolidated
outstanding debt were approximately $604.9 million and $604.9 million,
respectively, and their total consolidated debt plus their proportionate share
of total unconsolidated debt (other than the Rowes Wharf Property debt) were
approximately $697.7 million and $696.9 million, respectively.
The Company's executive offices are located at 50 Rowes Wharf in Boston,
Massachusetts 02110 and its telephone number at that location is
617-330-1400.
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 Stock
or Preferred Stock in the Operating Partnership in exchange for additional
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
general corporate purposes, including repayment of indebtedness, investment
in new properties and new developments and maintenance of currently owned
properties.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings to
fixed charges for the Company and the Operating Partnership for the years
ended December 31, 1996 and 1995 and for the period May 26, 1994 to December
31, 1994, and for The Beacon Group, the predecessor to the Company and the
Operating Partnership (the "Predecessor"), for the period January 1, 1994 to
May 25, 1994 and for the years ended December 31, 1993 and 1992.
<TABLE>
<CAPTION>
For the Period For the Period
Year Ended Year Ended May 26, 1994 to January 1, 1994 to Year Ended Year Ended
December 31, 1996 December 31, 1995 December 31, 1994 May 25, 1994 December 31, 1993 December 31, 1992
------------------ ------------------ ------------------ ------------------ ------------------ ------------------
<S> <C> <C> <C> <C> <C>
2.03 2.02 1.66 1.08 0.74 0.85
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges. For this purpose, earnings consist of pre-tax income from
continuing operations plus fixed charges. Fixed charges consist of interest
expense, rent expense, and the amortization of debt issuance costs. To date,
the Company has not issued any Preferred Stock; therefore, the ratios of
earnings to combined fixed charges and preferred stock dividend requirements
are the same as the ratios of earnings to fixed charges presented above.
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DESCRIPTION OF DEBT SECURITIES
General
The Company conducts substantially all of its business, and indirectly
holds substantially all of its interests in the Properties, 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 a trustee (a "Trustee"), which may be the same
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 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 anticipated 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.
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 will provide 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 certain general 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;
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<PAGE>
(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 conversion or 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;
(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
Company 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
5
<PAGE>
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; and
(18) 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, any special U.S. federal income tax, accounting
and other considerations applicable to Original Issue Discount Securities
will be described in the applicable Prospectus Supplement.
Except as described under "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. Restrictions on ownership and transfers of the Common Stock
and Preferred Stock are designed to preserve the Company's status as a REIT
and, therefore, may act to prevent or hinder a change of control. See
"Description of Common Stock" and "Restrictions on Transfers of Capital
Stock." 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 for 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
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<PAGE>
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 will 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, 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, shall expressly assume (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 will 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 will 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 will 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 will 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.
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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 will provide that the following events are "Events of Default" with
respect to any series of Debt Securities issued thereunder: (i) default for
30 days in the payment of any installment of interest on any Debt Security of
such series; (ii) default in the payment of principal of (or premium, if any,
on) any Debt Security of such series at its maturity; (iii) default in making
any sinking fund payment as required for any Debt Security of such series;
(iv) default in the performance or breach of any other covenant or warranty
of the 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 or other evidence of indebtedness for money
borrowed (except mortgage indebtedness) by the Operating Partnership or any
of its subsidiaries in an aggregate principal amount in excess of $25,000,000
or under any indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed
(except mortgage indebtedness) by the Operating Partnership or any of its
subsidiaries in an aggregate principal amount in excess of $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 or such obligations being
accelerated, without such acceleration having been rescinded or annulled;
(vi) certain events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of the 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 will 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 will 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.
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The Indentures will 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 will 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, 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 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
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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 will 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 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 will 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 will 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.
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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 Indebtedness may recover less, ratably,
than general creditors of the Operating Partnership.
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, or 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 without preference to 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 will 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
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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 or a change in applicable United States federal 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 European Currency
Unit ("ECU") both within the European Monetary System and for the settlement
of transactions by public institutions of or within the European Communities;
or (iii) any currency unit or composite currency other than the ECU for
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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 Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because
of the occurrence of any event of default other than the event of default
described in clause (iv) under "--Events of Default, Notice and Waiver" with
respect to 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
capital stock of the Company or any equity interest in the Operating
Partnership.
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, however, 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 STOCK
The description of the Company's Preferred Stock set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's Articles of Incorporation (the "Articles of Incorporation") and
Bylaws (the "Bylaws"), as in effect.
General
Under the Articles of Incorporation, the Company has authority to issue 25
million shares of Preferred Stock, none of which was outstanding as of the
date of this Prospectus. Shares of Preferred Stock may be issued from time to
time, in one or more series, as authorized by the Board of Directors of the
Company. Prior to issuance of shares of each series, the Board of Directors
is required by the Maryland General Corporation Law ("MGCL") and the
Company's Articles of Incorporation to fix for each series, subject to the
provisions of the Company's Articles of Incorporation regarding excess stock,
$.01 par value per share ("Excess Stock"), the terms, preferences,
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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 Stock will, when
issued, be fully paid and nonassessable and will have no preemptive rights.
The Board of Directors could authorize the issuance of shares of Preferred
Stock with terms and conditions that could have the effect of discouraging a
takeover or other transaction that holders of Common Stock might believe to
be in their best interests or in which holders of some, or a majority, of the
shares of Common Stock might receive a premium for their shares over the then
market price of such shares of Common Stock.
Terms
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. The statements below describing the Preferred Stock
are in all respects subject to and qualified in their entirety by reference
to the applicable provisions of the Company's Articles of Incorporation and
Bylaws and any applicable amendment to the Articles of Incorporation
designating terms of a series of Preferred Stock (a "Designating Amendment").
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for specific terms, including:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the liquidation
preference per share and the offering price of such Preferred Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Stock;
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) The provision for a sinking fund, if any, for such Preferred Stock;
(7) The provision for redemption, if applicable, of such Preferred Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
(9) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock, including the conversion
price or rate (or manner of calculation thereof);
(10) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
(11) A discussion of federal income tax considerations applicable to such
Preferred Stock;
(12) The relative ranking and preference of such Preferred Stock 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 Stock ranking
senior to or on a parity with such series of Preferred Stock 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
Stock 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 Stock of the Company, and to all equity securities ranking
junior to such Preferred Stock 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 Stock
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
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provide that such equity securities rank senior to the Preferred Stock 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 Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of
assets of the Company legally available for payment, cash dividends at such
rates and on such dates as will be set forth in the applicable Prospectus
Supplement. Each such dividend shall be payable to holders of record as they
appear on the share transfer books of the Company on such record dates as
shall be fixed by the Board of Directors of the Company.
Dividends on any series of the Preferred Stock 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 Directors of
the Company fails to declare a dividend payable on a dividend payment date on
any series of the Preferred Stock for which dividends are non-cumulative,
then the holders of such series of the Preferred Stock will have no right to
receive a dividend in respect of the dividend period ending on such dividend
payment date, and the Company will have no 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 Stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of the Company
of any other series ranking, as to dividends, on a parity with or junior to
the Preferred Stock of such series for any period unless (i) if such series
of Preferred Stock has a cumulative dividend, full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment on the
Preferred Stock of such series for all past dividend periods and the then
current dividend period; or (ii) if such series of Preferred Stock does not
have a cumulative dividend, full dividends for the then current dividend
period have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof is set apart for such payment on the
Preferred Stock 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 Stock of
any series and the shares of any other series of Preferred Stock ranking on a
parity as to dividends with the Preferred Stock of such series, all dividends
declared upon Preferred Stock of such series and any other series of
Preferred Stock ranking on a parity as to dividends with such Preferred Stock
shall be declared pro rata so that the amount of dividends declared per share
of Preferred Stock of such series and such other series of Preferred Stock
shall in all cases bear to each other the same ratio that accrued dividends
per share on the Preferred Stock of such series (which shall not include any
accumulation in respect of unpaid dividends for prior dividend periods if
such Preferred Stock does not have a cumulative dividend) and such other
series of Preferred Stock bear to each other. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment or
payments on Preferred Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock 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
Stock does not have a cumulative dividend, full dividends on the Preferred
Stock 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
shares of Common Stock or other shares of capital stock ranking junior to the
Preferred Stock 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 Stock, or any other capital stock of the
Company ranking junior to or on a parity with the Preferred Stock of such
series as to dividends or upon liquidation, nor shall any shares of Common
Stock, or any other shares of capital stock of the Company ranking junior to
or on a parity with the Preferred Stock 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 capital stock of the Company ranking junior to the
Preferred Stock of such series as to dividends and upon liquidation).
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Any dividend payment made on shares of a series of Preferred Stock 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
Stock will be subject to mandatory redemption or redemption at the option of
the Company, as a whole or in part, in each case upon the terms, at the times
and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be
specified, together with an amount equal to all accrued and unpaid dividends
thereon (which shall not, if such Preferred Stock does not have a cumulative
dividend, include any accumulation in respect of unpaid dividends for prior
dividend periods) to the date of redemption. The redemption price may be
payable in cash or other property, as specified in the applicable Prospectus
Supplement. If the redemption price for Preferred Stock of any series is
payable only from the net proceeds of the issuance of shares of capital stock
of the Company, the terms of such Preferred Stock may provide that, if no
such shares of capital stock shall have been issued or to the extent the net
proceeds from any issuance are insufficient to pay in full the aggregate
redemption price then due, such Preferred Stock shall automatically and
mandatorily be converted into the applicable shares of capital stock of the
Company pursuant to conversion provisions specified in the applicable
Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if a series of Preferred Stock
has a cumulative dividend, full cumulative dividends on all shares of such
series of Preferred Stock shall have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set apart
for payment for all past dividend periods and the then current dividend
period; and (ii) if a series of Preferred Stock does not have a cumulative
dividend, full dividends on all shares of the Preferred Stock 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 shares of such series of Preferred Stock shall be
redeemed unless all outstanding shares of Preferred Stock of such series are
simultaneously redeemed; provided, however, that the foregoing shall not
prevent the purchase or acquisition of Preferred Stock 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 shares of
Preferred Stock of such series. In addition, unless (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends on all
outstanding shares of such series of Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for all past dividend periods and
the then current dividend period; and (ii) if such series of Preferred Stock
does not have a cumulative dividend, full dividends on the Preferred Stock 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 shares of Preferred Stock of such series
(except by conversion into or exchange for capital shares of the Company
ranking junior to the Preferred Stock of such series as to dividends and upon
liquidation); provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Preferred Stock 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 shares of
Preferred Stock of such series.
If fewer than all of the outstanding shares of Preferred Stock 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 Stock
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 Stock to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such
Preferred Stock are to be surrendered for payment of the redemption price;
(v) that dividends on the shares to be redeemed will cease to accrue on such
redemption date; and (vi) the date upon which the holder's conversion rights,
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if any, as to such shares shall terminate. If fewer than all the shares of
Preferred Stock of any series are to be redeemed, the notice mailed to each
such holder thereof shall also specify the number of shares of Preferred
Stock to be redeemed from each such holder. If notice of redemption of any
Preferred Stock 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 Stock so called for redemption, then from and after the
redemption date dividends will cease to accrue on such Preferred Stock, 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 Stock or any other class or series of
capital stock of the Company ranking junior to the Preferred Stock in the
distribution of assets upon any liquidation, dissolution or winding up of the
Company, the holders of each series of Preferred Stock shall be entitled to
receive out of assets of the Company legally available for distribution to
stockholders 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 Stock 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 shares of Preferred Stock and the corresponding amounts payable
on all shares of other classes or series of capital stock of the Company
ranking on a parity with the Preferred Stock in the distribution of assets,
then the holders of the Preferred Stock and all other such classes or series
of capital stock shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would
otherwise be respectively entitled.
If liquidating distributions shall have been made in full to all holders
of Preferred Stock, the remaining assets of the Company shall be distributed
among the holders of any other classes or series of capital stock ranking
junior to the Preferred Stock 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 Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Unless provided otherwise for any series of Preferred Stock, so long as
any shares of Preferred Stock 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 shares of such series of Preferred Stock outstanding at the
time, given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class), (i) authorize or create, or increase
the authorized or issued amount of, any class or series of capital stock
ranking prior to such series of Preferred Stock with respect to payment of
dividends or the distribution of assets upon liquidation, dissolution or
winding up or reclassify any authorized capital stock 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 Articles of
Incorporation or the Designating Amendment for such series of Preferred
Stock, 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 Stock 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 Stock remains 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
Stock, and provided further that (A) any increase in the amount of the
authorized Preferred Stock or the creation or issuance of any other series of
Preferred Stock, or (B) any increase in the amount of authorized shares of
such series or any other
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series of Preferred Stock, in each case ranking on a parity with or junior to
the Preferred Stock 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 Stock
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 Stock
is convertible into Common Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
shares of Common Stock into which the shares of Preferred Stock 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 Stock or the Company, the events
requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such series of Preferred Stock.
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
capital stock 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 Stock of the Company.
Therefore, the Designating Amendment for each series of Preferred Stock may
contain provisions restricting the ownership and transfer of the Preferred
Stock. The applicable Prospectus Supplement will specify any additional
ownership limitation relating to a series of Preferred Stock. See
"Restrictions on Transfers of Capital Stock."
Transfer Agent
The transfer agent and registrar for the Preferred Stock will be set forth
in the applicable Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The description of the Company's Common Stock set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's Articles of incorporation and Bylaws, as in effect.
General
Under the Articles of Incorporation, the Company has authority to issue
100 million shares of Common Stock, par value $.01 per share. Under Maryland
law, stockholders generally are not responsible for the corporation's debts
or obligations. At February 11, 1997, the Company had outstanding 48,128,281
shares of Common Stock.
Terms
All shares of Common Stock offered hereby have been duly authorized, and
are fully paid and non-assessable. Subject to the preferential rights of any
other shares or series of stock and to the provisions of the Company's
Articles of Incorporation regarding excess stock, $.01 par value per share
("Excess Stock"), holders of shares of Common Stock will be entitled to
receive dividends on shares of Common Stock if, as and when authorized and
declared by the Board of Directors 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 stockholders 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 Articles of Incorporation
regarding Excess Stock, each outstanding share of Common Stock entitles the
holder to one vote on all matters submitted to a vote of stockholders,
including the election of Directors and, except as otherwise required by law
or except as provided with respect to any other class or series of stock, the
holders of Common Stock will possess the exclusive voting power. There is no
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cumulative voting in the election of Directors, which means that the holders
of a majority of the outstanding shares of Common Stock can elect all of the
Directors then standing for election, and the holders of the remaining shares
of Common Stock will not be able to elect any Directors.
Holders of Common Stock have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any securities of the Company.
The Company intends to furnish its stockholders with annual reports
containing audited consolidated financial statements and an opinion thereon
expressed by an independent public accounting firm and quarterly reports for
the first three quarters of each fiscal year containing unaudited financial
information.
Subject to the provisions of the Company's Articles of Incorporation
regarding Excess Stock, all shares of Common Stock will have equal dividend,
distribution, liquidation and other rights, and will have no preference,
appraisal or exchange rights.
Pursuant to the Maryland General Corporation Law (the "MGCL"), a
corporation generally cannot dissolve, amend its Articles of Incorporation,
merge, sell all or substantially all of its assets, engage in a share
exchange or engage in similar transactions outside the ordinary course of
business unless approved by the affirmative vote of stockholders holding at
least two-thirds of the shares entitled to vote on the matter unless a lesser
percentage (but not less than a majority of all of the votes to be cast on
the matter) is set forth in the corporation's Articles of Incorporation. The
Company's Articles of Incorporation do not provide for a lesser percentage in
such situations.
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
capital stock 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 "Restrictions on Transfers of Capital
Stock."
Transfer Agent
The transfer agent and registrar for the Common Stock is Boston EquiServe.
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK
Restrictions on Transfers
In order for the Company to qualify as a REIT under the Code, among other
things, not more than 50% in value of its outstanding capital stock 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) (the "Five or Fewer Requirement"), and such
shares of capital stock 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. See "Federal
Income Tax Considerations." In order to protect the Company against the risk
of losing its status as a REIT on account of a concentration of ownership
among its stockholders, the Articles of Incorporation, subject to certain
exceptions, provide that no single holder may own, or be deemed to own by
virtue of the attribution provisions of the Code, more than 6.0% (the
"Ownership Limit") of the aggregate value of the Company's shares of Common
Stock. Pursuant to the Code, Common Stock held by certain types of entities,
such as pension trusts qualifying under Section 401(a) of the Code, United
States investment companies registered under the Investment Company Act,
partnerships, trusts and corporations, will be attributed to the beneficial
owners of such entities for purposes of the Five or Fewer Requirement (i.e.,
the beneficial owners of such entities will be counted as holders). The
Company's Articles of Incorporation limits such entities to holding no more
than 9.9% of the aggregate value of the Company's shares of capital stock
(the "Look-Through Ownership Limit"). Any transfer of shares of capital stock
or of any security convertible into shares of capital stock that would create
a direct or indirect ownership of shares of capital stock in excess of the
Ownership Limit or the Look-Through Ownership Limit or that would result in
the disqualification of the Company as a REIT, including any transfer that
results in the shares of capital stock being owned by fewer than 100 persons
or 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 capital stock. The foregoing restrictions
on transferability and ownership will not apply if the Board of Directors
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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. The Board of
Directors may, in its sole discretion, waive the Ownership Limit and the
Look-Through Ownership Limit if evidence satisfactory to the Board of
Directors and the Company's tax counsel is presented that the changes in
ownership will not then or in the future jeopardize the Company's REIT status
and the Board of Directors otherwise decides that such action is in the best
interest of the Company.
Shares of capital stock owned, or deemed to be owned, or transferred to a
stockholder in excess of the Ownership Limit or the Look-Through Ownership
Limit will automatically be converted into shares of Excess Stock 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 capital stock
may be ultimately transferred without violating the Ownership Limit or the
Look-Through Ownership Limit. While the Excess Stock is held in trust, it
will not be entitled to vote, it will not be considered for purposes of any
stockholder vote or the determination of a quorum for such vote, and, except
upon liquidation, it will not be entitled to participate in dividends or
other distributions. Any distribution paid to a proposed transferee of Excess
Stock prior to the discovery by the Company that capital stock has been
transferred in violation of the provisions of the Company's Articles of
Incorporation shall be repaid to the Company upon demand. The Excess Stock is
not treasury stock, but rather constitutes a separate class of issued and
outstanding stock of the Company. The original transferee stockholder may, at
any time the Excess Stock is held by the Company in trust, transfer the
interest in the trust representing the Excess Stock to any person whose
ownership of the shares of capital stock exchanged for such Excess Stock
would be permitted under the Ownership Limit or the Look- Through Ownership
Limit, at a price not in excess of (i) the price paid by the original
transferee-stockholder for the shares of capital stock that were exchanged
into Excess Stock, or (ii) if the original transferee-stockholder did not
give value for such shares (e.g., the stock was received through a gift,
devise or other transaction), the average closing price for the class of
shares from which such shares of Excess Stock were converted for the ten days
immediately preceding such sale or gift. Immediately upon the transfer to the
permitted transferee, the Excess Stock will automatically be converted back
into shares of capital stock of the class from which it was 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 shares of Excess Stock may be deemed, at the option of the
Company, to have acted as an agent on behalf of the Company in acquiring the
Excess Stock and to hold the Excess Stock on behalf of the Company.
In addition, the Company will have the right, for a period of 90 days
during the time any shares of Excess Stock are held by the Company in trust,
to purchase all or any portion of the Excess Stock from the original
transferee-stockholder at the lesser of (i) the price initially paid for such
shares by the original transferee stockholder, or if the original
transferee-stockholder did not give value for such shares (e.g., the shares
were received through a gift, devise or other transaction), the average
closing price for the class of stock from which such shares of Excess Stock
were converted for the ten days immediately preceding such sale or gift, and
(ii) the average closing price for the class of shares from which such shares
of Excess Stock were converted for the ten trading days immediately preceding
the date the Company elects to purchase such shares. The 90-day period begins
on the date notice is received of the violative transfer if the original
transferee-stockholder gives notice to the Company of the transfer or, if no
such notice is given, the date the Board of Directors determines that a
violative transfer has been made.
These restrictions will not preclude settlement of transactions through
the NYSE.
Each stockholder shall upon demand be required to disclose to the Company
in writing any information with respect to the direct, indirect and
constructive ownership of capital stock as the Board of Directors 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.
The Ownership Limit may have the effect of precluding acquisition of
control of the Company unless the Board of Directors determines that
maintenance of REIT status is no longer in the best interests of the Company.
FEDERAL INCOME TAX CONSIDERATIONS
The Company believes it has operated, and the Company intends to continue
to operate, in such a manner as to qualify as a REIT under the Code, but no
assurance can be given that it will at all times so qualify.
The provisions of the Code pertaining to REITs are highly technical and
complex. The following is a brief and general summary of specific material
provisions that currently govern the federal income tax treatment of the
Company and its
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stockholders. Goodwin, Procter & Hoar llp has acted as counsel to the Company
and has reviewed this summary and is of the opinion that to the extent that
it constitutes matters of law, summaries of legal matters, or legal
conclusions, this summary is accurate in all material respects. For the
particular provisions that govern the federal income tax treatment of the
Company and its stockholders, reference is made to Sections 856 through 860
of the Code and the regulations thereunder. The following summary is
qualified in its entirety by such reference.
Under the Code, if certain requirements are met in a taxable year, a REIT
generally will not be subject to federal income tax with respect to income
that it distributes to its stockholders. However, the Company may be subject
to federal income tax under certain circumstances including taxes at regular
corporate rates on any undistributed REIT taxable income, the "alternative
minimum tax" on its items of tax preference, and taxes imposed on income and
gain generated by certain extraordinary transactions. If the Company fails to
qualify during any taxable year as a REIT, unless certain relief provisions
are available, it will be subject to tax (including any applicable
alternative minimum tax) on its taxable income at regular corporate rates,
which could have a material adverse effect upon its stockholders.
In any year in which the Company qualifies to be taxed as a REIT,
distributions made to its stockholders out of current or accumulated earnings
and profits will be taxed to stockholders as ordinary income except that
distributions of net capital gains designated by the Company as capital gain
dividends will be taxed as long-term capital gain income to the stockholders.
To the extent that distributions exceed current or accumulated earnings and
profits, they will constitute a return of capital, rather than dividend or
capital gain income, and will reduce the basis for the stockholder's
Securities with respect to which the distribution is paid or, to the extent
that they exceed such basis, will be taxed in the same manner as gain from
the sale of those Securities.
In the opinion of Goodwin, Procter & Hoar llp, commencing with the taxable
year ending December 31, 1994, the Company has been organized and operated in
conformity with the requirements for qualification and taxation as a REIT
under the Code, and the Company's proposed method of operation will enable it
to continue to meet the requirements for qualification and taxation as a REIT
under the Code. Investors should be aware, however, that opinions of counsel
are not binding upon the Internal Revenue Service or any court. It must be
emphasized that Goodwin, Procter & Hoar llp's opinion is based on various
assumptions and is conditioned upon certain representations made by the
Company as to factual matters, including representations regarding the nature
of the Company's properties, and the future conduct of the Company's
business. Moreover, such qualification and taxation as a REIT depends upon
the Company's ability to meet on a continuing basis, through actual annual
operating results, the distribution levels, stock ownership, and other
various qualification tests imposed under the Code. Goodwin, Procter & Hoar
llp will not review the Company's compliance with those tests on a continuing
basis. Accordingly, no assurance can be given that the actual results of the
Company's operation for any particular taxable year will satisfy such
requirements.
Investors are urged to consult their own tax advisors with respect to the
appropriateness of an investment in the Securities offered hereby and with
respect to the tax consequences arising under federal law and the laws of any
state, municipality or other taxing jurisdiction, including tax consequences
resulting from such investor's own tax characteristics. In particular,
foreign investors should consult their own tax advisors concerning the tax
consequences of an investment in the Company, including the possibility of
United States income tax withholding on Company distributions.
PLAN OF DISTRIBUTION
The Company and the Operating Partnership may sell Securities through
underwriters or dealers, directly to one or more purchasers, through agents
or through a combination of any such methods of sale.
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.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company, from 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
21
<PAGE>
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 Stock which is listed on the NYSE. Any shares of Common
Stock 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 Stock on
an exchange, but is not obligated to do so. It is possible that one or more
underwriters may make a market in a series of Securities, but will not be
obligated to do so and may discontinue any market making at any time without
notice. Therefore, no assurance can be given as to the liquidity of, or the
trading market for, the Securities.
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. In the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
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 or
the Operating Partnership will authorize underwriters or other persons acting
as the Company's or the Operating Partnership's agents to solicit offers by
certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must
be approved by the Company or the Operating Partnership, as the case may be.
The obligations of any purchaser under any such contract will be subject to
the condition that the purchase of the Debt 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 ("Contracts") providing for payment and delivery on the
date or dates stated in such Prospectus Supplement. Each Contract will be for
an amount not less than, and the aggregate principal amount of Debt
Securities sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in the applicable Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions
but will in all cases be subject to the approval of the Operating
Partnership. Contracts will not be subject to any conditions except (i) the
purchase by an institution of the Debt Securities covered by its Contracts
shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and
(ii) if the Debt Securities are being sold to underwriters, the Operating
Partnership shall have sold to such underwriters the total principal amount
of the Debt Securities less the principal amount thereof covered by
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.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the Securities offered hereby may not
simultaneously engage in market making activities with respect to the
Securities for a period of two business days prior to the commencement of
such distribution.
22
<PAGE>
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Goodwin,
Procter & Hoar LLP, Boston, Massachusetts, a limited liability partnership
including professional corporations, as corporate, securities and tax counsel
to the Company. Gilbert G. Menna, whose professional corporation is a partner
of Goodwin, Procter & Hoar LLP, is an assistant secretary of the Company and
owns 1,000 shares of the Company's Common Stock.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1995 and
1994 and the related consolidated statements of operations, stockholders' equity
and cash flows for the year ended December 31, 1995 and for the period from May
26, 1994 to December 31, 1994, and the combined statements of operations,
owners' equity (deficit) and cash flows for the period January 1, 1994 to May
25, 1994 and the year ended December 31, 1993 of The Beacon Group, predecessor
to the Company, and the related financial statement schedules of the Company as
of December 31, 1995, incorporated by reference herein from the Company's Annual
Report on Form 10-K for the year ended December 31, 1995 have been so
incorporated in reliance on the report of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of that firm as experts in accounting and
auditing. The statement of excess of revenues over specific operating expenses
for Perimeter Center, Atlanta, Georgia for the year ended December 31, 1995,
incorporated by reference herein from the Company's current report on Form 8-K
dated February 20, 1996, has been so incorporated in reliance on the report of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
said firm as experts in accounting and auditing. The statements of excess of
revenues over specific operating expenses for each of the Fairfax County
Portfolio in Tysons Corner and Herndon, Virginia, AT&T Plaza in Oak Brook,
Illinois, Tri-State International in Lincolnshire, Illinois and 1333 H Street in
Washington, D.C. for the year ended December 31, 1995, incorporated by reference
herein from the Company's report on Form 8-K dated July 23, 1996, have been so
incorporated in reliance on the reports of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of said firm as experts in accounting and
auditing. The statements of excess of revenues over specific operating expenses
for each of the Rosslyn Acquisitions in Rosslyn, Virginia, the New England
Executive Park in Burlington, Massachusetts and 10960 Wilshire Boulevard in
Westwood, California for the year ended December 31, 1995, incorporated by
reference herein from the Company's current report on Form 8-K dated October 18,
1996, have been so incorporated in reliance on the reports of Coopers & Lybrand
L.L.P., independent accountants, given on the authority of said firm as experts
in accounting and auditing. The statement of excess of revenues over specific
operating expenses for each of Shoreline Technology Park in Mountain View,
California, Lake Marriott Business Park in Santa Clara, California and
President's Plaza in Chicago, Illinois for the year ended December 31, 1996,
incorporated by reference herein from the Company's report on Form 8-K dated
December 20, 1996, have been so incorporated in reliance on the reports of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
said firm as experts in accounting and auditing. The consolidated balance sheets
of the Operating Partnership as of December 31, 1996 and 1995 and the related
consolidated statements of operations, partners' capital and cash flows for the
years ended December 31, 1996 and 1995 and the period May 26, 1994 to December
31, 1994 and on the combined results of operations and cash flows of The Beacon
Group for the period January 1, 1994 to May 25, 1994, incorporated by reference
herein from the Operating Partnership's Form 10, have been so incorporated in
reliance on the report of Coopers & Lybrand L.L.P., independent accountants,
given on the authority of said firm as experts in accounting and auditing.
23
<PAGE>
=========================================================
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 OF CONTENTS
<TABLE>
<CAPTION>
Page
---------
<S> <C>
Available Information 2
Incorporation of Certain Documents by Reference 2
The Company and the Operating Partnership 3
Use of Proceeds 3
Ratios of Earnings to Fixed Charges 3
Description of Debt Securities 4
Description of Preferred Stock 13
Description of Common Stock 18
Restrictions on Transfers of Capital Stock 19
Federal Income Tax Considerations 20
Plan of Distribution 21
Legal Matters 23
Experts 23
</TABLE>
$600,000,000
BEACON PROPERTIES
CORPORATION
Preferred Stock
Common Stock
$400,000,000
BEACON PROPERTIES, L.P.
Debt Securities
-------------
PROSPECTUS
-------------
, 1997
=========================================================
<PAGE>
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>
<CAPTION>
<S> <C>
Registration fee 303,031
Printing and duplicating expenses 10,000
Legal fees and expenses 50,000
Accounting fees and expenses 30,000
Miscellaneous 5,000
----------
Total $398,031
==========
</TABLE>
Item 15. Indemnification of Directors and Officers.
The Company's Articles of Incorporation, as amended, and Bylaws, as
amended, provide certain limitations on the liability of the Company's
Directors and officers for monetary damages to the Company. The Articles of
Incorporation, as amended, and the Bylaws, as amended, obligate the Company
to indemnify its Directors 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 stockholders
against these individuals.
The Company's Bylaws, as amended, require it to indemnify its officers,
Directors and certain other parties to the fullest extent permitted from time
to time by Maryland law. Maryland General Corporation Law ("MGCL") permits a
corporation to indemnify (a) any present or former Director or officer who
has been successful, on the merits or otherwise, in the defense of a
proceeding to which he was made a party by reason of his service in that
capacity, against reasonable expenses incurred by him in connection with the
proceeding and (b) any present or former director or officer against any
claim or liability unless it is established that (i) his act or omission was
committed in bad faith or was the result of active or deliberate dishonesty,
(ii) he actually received an improper personal benefit in money, property or
services or (iii) in the case of a criminal proceeding, he had reasonable
cause to believe that his act or omission was unlawful. The MGCL also permits
the Company to provide indemnification and advance expenses to a present or
former director or officer who served a predecessor of the Company in such
capacity, and to any employer or agent of the Company or a predecessor of the
Company.
The Company has entered into indemnification agreements with each of its
executive officers and Directors. The indemnification agreements require,
among other matters, that the Company indemnify its officers and directors to
the fullest extent permitted by law and advance to the officers and Directors
all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. Under these agreements, the
Company must also indemnify and advance all expenses incurred by officers and
Directors seeking to enforce their rights under the indemnification
agreements and may cover officers and Directors under the Company's
Directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides additional assurance to Directors and officers
that indemnification will be available because, as a contract, it cannot be
modified unilaterally in the future by the Board of Directors or the
Stockholders to eliminate the rights it provides. It is the position of the
SEC that indemnification of directors and officers for liabilities under the
Securities Act of 1933, as amended (the "Securities Act") is against public
policy and unenforceable pursuant to Section 14 of the Securities Act.
The Company provides coverage for its directors and officers under a
directors' and officers' liability insurance policy.
Item 16. Exhibits.
4.1 Articles of Incorporation (1).
4.2 Bylaws (2).
II-1
<PAGE>
4.3 Indenture for Senior Debt Securities (3).
4.4 Form of Senior Debt Security (included in Exhibit No. 4.3) (3)
4.5 Indenture for Subordinated Debt Securities (3).
4.6 Form of Subordinated Debt Security (included in Exhibit No. 4.5) (3).
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Securities being registered (3).
8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters (3).
12.1 Calculation of Ratios of Earnings to Fixed Charges
23.1 Consent of Coopers & Lybrand L.L.P., independent accountants.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto) (3).
24.1 Powers of Attorney (included on the signature page hereof)(3).
- -------------
(1) Previously filed as an exhibit to the Company's Current Report on Form
10-Q for the three months ended June 30, 1996.
(2) Previously filed as an exhibit to the Company's Registration Statement on
Form S-3 (File No. 333-17237).
(3) Previously filed as an exhibit to this Registration Statement.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement; 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;
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, 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 registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 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 registrant pursuant to the provisions described under Item
15 above, or otherwise, the registrant has been advised that in the
opinion of the Securities and
II-2
<PAGE>
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 registrant of expenses
incurred or paid by a director, officer, or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
(d) The undersigned registrant 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.
II-3
<PAGE>
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 Boston, Commonwealth
of Massachusetts on this 20th day of March, 1997.
BEACON PROPERTIES CORPORATION
By: /s/ Alan M. Leventhal
------------------------------
Alan M. Leventhal
President and Chief Executive
Officer
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation
Its: General Partner
By: /s/ Alan M. Leventhal
------------------------------
Alan M. Leventhal
President and Chief Executive
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 listed below has
signed this amendment to the registration statement in their capacity as an
officer or director of Beacon Properties Corporation ("BCN"), on behalf of
BCN, and in BCN's capacity as general partner of Beacon Properties, L.P.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Capacity Date
-------------------------- --------------------------- ------------------
/s/ Alan M. Leventhal President, Chief Executive March 20, 1997
------------------------- Officer and Director
Alan M. Leventhal (Principal Executive
Officer)
* Chairman of the Board March 20, 1997
------------------------- of Directors
Edwin N. Sidman
/s/ Lionel P. Fortin Executive Vice President;
------------------------- Chief Operating Officer and
Lionel P. Fortin Director
* Senior Vice President and March 20, 1997
------------------------- Chief Financial Officer
Robert J. Perriello (Principal Financial Officer
and Accounting Officer)
* Director March 20, 1997
-------------------------
Norman B. Leventhal
* Director March 20, 1997
-------------------------
Dale F. Frey
Director
-------------------------
Graham O. Harrison
* Director March 20, 1997
-------------------------
William F. McCall, Jr.
II-4
<PAGE>
* Director March 20, 1997
-------------------------
Steven Shulman
* Director March 20, 1997
-------------------------
Scott M. Sperling
*By: Lionel P. Fortin
---------------------
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
---------------- -----------------------------------------------------------------------------------------
<S> <C>
4.1 Articles of Incorporation (1).
4.2 Bylaws (2).
4.3 Indenture for Senior Debt Securities (3).
4.4 Form of Senior Debt Security (included in Exhibit No. 4.3) (3).
4.5 Indenture for Subordinated Debt Securities (3).
4.6 Form of Subordinated Debt Security (included in Exhibit No. 4.5) (3).
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the Securities being
registered (3).
8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters (3).
12.1 Calculation of Ratios of Earnings to Fixed Charges
23.1 Consent of Coopers & Lybrand L.L.P., independent accountants
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto) (3).
24.1 Powers of Attorney (included on the signature page hereto) (3).
</TABLE>
- -------------
(1) Previously filed as an exhibit to the Company's Current Report of Form
10-Q for the three months ended June 30, 1994.
(2) Previously filed as an exhibit to the Company's Registration Statement on
Form S-3 (333-17237).
(3) Previously filed as an exhibit to this Registration Statement.
II-6
Exhibit 12.1
------------
Beacon Properties, L.P.
Computation of Ratio of Earnings to Fixed Charges
(Dollar amounts in thousands)
<TABLE>
<CAPTION>
For the Year For the Year For the Period For the Period For the Year For the Year
Ended Ended May 26, 1994 to January 1, 1994 Ended Ended
December 31, December 31, December 31, to May 25, December 31, December 31,
1996 1995 1994 1994 1993 1992
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Income from continuing operations $48,546 $22,191 $6,849 $ 505 $(5,751) $(3,389)
Add
Portion of rents representative
of the interest factor 746 223 179 -- -- --
Mortgage interest expense 36,902 19,210 9,511 6,593 19,477 21,251
Interest - amortization of
financing costs 2,982 2,223 1,413 598 1,239 336
-------------------------------------------------------------------------------------------------
Income before minority interest,
as adjusted $89,176 $43,847 $17,952 $7,696 $14,965 $18,198
=================================================================================================
Fixed charges
Mortgage interest expense
Consolidated entities 30,300 15,220 4,970 2,798 7,650 7,203
Unconsolidated entities 6,602 3,990 4,541 3,795 11,827 14,048
-------------------------------------------------------------------------------------------------
36,902 19,210 9,511 6,593 19,477 21,251
-------------------------------------------------------------------------------------------------
Interest - amortization of
financing costs
Consolidated entities 2,084 1,370 617 373 192 138
Unconsolidated entities 898 853 796 225 1,047 198
-------------------------------------------------------------------------------------------------
2,982 2,223 1,413 598 1,239 336
-------------------------------------------------------------------------------------------------
Rents
Consolidated entities 517 110 56 -- -- --
Unconsolidated entities 229 113 123 -- -- --
-------------------------------------------------------------------------------------------------
746 223 179 -- -- --
-------------------------------------------------------------------------------------------------
Fixed charges $40,630 $21,656 $11,103 $7,191 $20,715 $21,587
=================================================================================================
Ratio of earnings to fixed
charges 2.19 2.02 1.62 1.07 0.72 0.84
=================================================================================================
</TABLE>
Exhibit 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement,
relating to the registration of an indeterminate number of shares of preferred
stock and common stock of Beacon Properties Corporation (the "Company") with an
aggregate offering price of up to $600,000,000 and debt securities of Beacon
Properties, L.P. (the "Operating Partnership") with an aggregate public offering
price of up to $400,000,000, on Form S-3 of our report dated January 17, 1996
(except for Note 19 for which the date is February 15, 1996), appearing in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995 on our
audits of the consolidated financial position of the Company as of December 31,
1995 and 1994 and the consolidated results of its operations and its cash flows
for the year ended December 31, 1995 and for the period May 26, 1994 to December
31, 1994, the combined results of operations and cash flows of The Beacon Group,
predecessor to the Company, for the period January 1, 1994 to May 25, 1994 and
for the year ended December 31, 1993, and the related financial statement
schedules of the Company as of December 31, 1995.
We also consent to the incorporation by reference of our report dated February
14, 1996 on our audit of the statement of excess of revenues over specified
operating expenses for Perimeter Center, Atlanta, Georgia for the year ended
December 31, 1995, which report was filed with the Securities and Exchange
Commission on the Form 8-K of the Company dated February 20, 1996.
We also consent to the incorporation by reference of our report dated April 19,
1996 on our audit of the statement of excess of revenues over specific operating
expenses of Fairfax County Portfolio in Tysons Corner and Herndon, Virginia for
the year ended December 31, 1995, of our report dated July 3, 1996 on our audit
of the statement of excess of revenues over specific operating expenses of 1333
H Street in Washington, DC for the year ended December 31, 1995, of our report
dated July 8, 1996 on our audit of the statement of excess of revenues over
specific operating expenses of AT&T Plaza in Oak Brook, Illinois for the year
ended December 10, 1995, and of our report dated July 8, 1996 on our audit of
the statement of excess of revenues over specific operating expenses of
Tri-State International in Lincolnshire, Illinois for the year ended December
31, 1995, which reports were filed with the Securities and Exchange Commission
on the Form 8-K of the Company dated July 23, 1996.
We also consent to the incorporation by reference of our audit report dated
September 27, 1996 on our audit of the statement of excess of revenues over
specific operating expenses of the Rosslyn Acquisitions in Rosslyn, Virginia for
the year ended December 31, 1995, of our report dated March 15, 1996 on our
audit of the statement of excess of revenues over specific operating expenses of
the New England Executive Park in Burlington, Massachusetts for the year ended
December 31, 1995, and of our report dated October 29, 1996 on our audit of the
statement of excess of revenues over specific operating expenses of 10960
Wilshire Boulevard in Westwood, California for the year ended December 31, 1995,
which reports were filed with the Securities and Exchange Commission on the Form
8-K of the Company dated October 18, 1996.
We also consent to the incorporation by reference of our report dated February
6, 1997 on our audit of the statement of excess of revenues over specific
operating expenses of Shoreline Technology Park in Mountain View, California for
the year ended December 31, 1995, of our report dated December 20, 1996 on our
audit of statement of excess of revenues over specific operating expenses of
Lake Marriott Business Park in Santa Clara, California for the year ended
December 31, 1995, and of our report dated December 20, 1996 on our audit of
statement of excess of revenues over specific operating expenses of President's
Plaza in Chicago, Illinois for the year ended December 31, 1995, which reports
were filed with the Securities and Exchange Commission on the Form 8-K of the
Company dated December 20, 1996.
We also consent to the incorporation by reference of our report dated January
21, 1997 on our audits of the consolidated balance sheets of the Operating
Partnership as of December 31, 1996 and 1995 and the related consolidated
statements of operations, partners' capital and cash flows for the years ended
December 31, 1996 and 1995 and the period May 26, 1994 to December 31, 1994, and
on the combined results of operations and cash flows of The Beacon Group for the
period January 1, 1994 to May 25, 1994, which report was filed with the
Securities and Exchange Commission on Form 10 of the Operating Partnership.
We also consent to the reference to our Firm under the caption "Experts".
Boston, Massachusetts /s/ COOPERS & LYBRAND L.L.P.
March 20, 1997
