As filed with the Securities and Exchange Commission on December 31, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LEXINGTON CORPORATE PROPERTIES TRUST
(Exact Name of Registrant as Specified in Its Charter)
Maryland 13-3717318
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
355 Lexington Avenue
New York, NY 10017
(212) 692-7260
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
T. Wilson Eglin With copies to:
President and Chief Operating Officer Barry A. Brooks, Esq.
Lexington Corporate Properties Trust Mark Schonberger, Esq.
355 Lexington Avenue Paul, Hastings, Janofsky & Walker LLP
New York, NY 10017 75 East 55th Street
(212) 692-7260 New York, New York 10022
(Name, Address, Including Zip Code, (212) 318-6000
and Telephone Number, Including Area Code,
of Agent For Service)
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
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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 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. |_|
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of each class of securities Amount to Be Offering Price Aggregate Amount of
to be registered Registered Per Unit (1) Offering Price (1) Registration Fee (1)
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Common shares of beneficial interest, par value $.0001
per share................... 17,901 shares $15.97 $285,878.97 $26.30
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933, as amended, based upon
the average of the high and low reported sales prices for the registrant's
common shares of beneficial interest, as reported on the New York Stock
Exchange on December 27, 2002, which was within five business days prior
to the filing of this registration statement.
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The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant will file a
further amendment which specifically states that this Registration Statement
will thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement will become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 31, 2002
Prospectus
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17,901 Shares
LEXINGTON CORPORATE PROPERTIES TRUST
Common Shares Of Beneficial Interest
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We are Lexington Corporate Properties Trust, a self-managed and
self-administered real estate investment trust that acquires, owns and manages a
geographically diversified portfolio of net leased office, industrial and retail
properties. Our executive offices are located at 355 Lexington Avenue, New York,
New York 10017, and our telephone number is (212) 692-7260.
This prospectus relates to the possible offer up to 17,901 common shares,
which we may issue in exchange for the redemption of an equal number of units of
limited partnership, or OP units, issued by our controlled operating partnership
subsidiary, Lepercq Corporate Income Fund, L.P. The OP units were issued on
August 1, 1995 and October 14, 1999, and are redeemable on and after January 1,
2003, as more fully described in this prospectus. We will not receive proceeds
from any issuance of common shares in exchange for OP units. We are not being
assisted by any underwriter in connection with any issuance of common shares in
exchange for OP units.
We are registering the common shares being offered by this prospectus in
order to permit the recipient thereof to sell such shares without restriction,
in the open market or otherwise. However, the registration of such common shares
does not necessarily mean that any of the OP units will be submitted for
redemption or that any of the common shares to be issued upon such redemption
will be offered or sold by the recipient thereof.
Our common shares trade on the New York Stock Exchange under the symbol
"LXP." On December 27, 2002, the last reported sale price of our common shares,
as reported on the New York Stock Exchange, was $15.95 per share.
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YOU SHOULD BE AWARE THAT AN INVESTMENT IN OUR COMMON SHARES INVOLVES VARIOUS
RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 1 OF THIS PROSPECTUS.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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The date of this prospectus is __________________.
Table of Contents
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Page
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About This Prospectus.......................................................ii
Where You Can Find More Information.........................................ii
Cautionary Statements Concerning Forward-Looking Information...............iii
Risk Factors.................................................................1
Use of Proceeds..............................................................7
Plan of Distribution.........................................................7
Description of Common Shares.................................................7
Restrictions On Transfers Of Capital Stock And Anti-Takeover Provisions......8
Description of OP Units.....................................................11
Redemption of OP Units......................................................14
Registration Rights.........................................................16
Comparison of Ownership of OP Units and Common Shares.......................16
Federal Income Tax Considerations...........................................23
Experts.....................................................................31
Legal Matters...............................................................31
-i-
ABOUT THIS PROSPECTUS
All references to "the Company," "we," "our" and "us" in this prospectus
mean Lexington Corporate Properties Trust and all entities owned or controlled
by us except where it is made clear that the term means only the parent company.
All references to "the Operating Partnership" in this prospectus mean our
controlled subsidiary, Lepercq Corporate Income Fund, L.P. The term "you" refers
to a prospective investor.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any materials that we have filed with the SEC at the SEC's Public Reference Room
at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on
the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
We file information electronically with the SEC. The SEC maintains an Internet
site that contains reports, proxy and information statements and other
information regarding issuers that file electronically with the SEC. The address
of the SEC's Internet site is http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, which is commonly referred to as
the Exchange Act:
1. The Company's Annual Report on Form 10-K (Commission File No. 1-12386)
for the year ended December 31, 2001, filed on February 21, 2002.
2. The Company's 2002 Proxy Statement on Schedule 14-A (Commission File
No. 1-12386), filed on April 15, 2002.
3. The Company's Quarterly Report on Form 10-Q (Commission File No.
1-12386) for the quarter ended March 31, 2002, filed on May 14, 2002.
4. The Company's Quarterly Report on Form 10-Q (Commission File No.
1-12386) for the quarter ended June 30, 2002, filed on August 14, 2002.
5. The Company's Current Report on Form 8-K (Commission File No. 1-12386),
filed on September 16, 2002.
6. The Company's Quarterly Report on Form 10-Q (Commission File No.
1-12386) for the quarter ended September 30, 2002, filed on November 13, 2002.
7. The Company's Current Report on Form 8-K (Commission File No. 1-12386),
filed on December 24, 2002.
You may request a copy of these filings, at no cost, by writing
or telephoning us at the following address:
ii
Patrick Carroll, Chief Financial Officer
Lexington Corporate Properties Trust
355 Lexington Avenue
New York, New York 10017
(212) 692-7260
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information or representations provided in this
prospectus. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on the front of
those documents.
CAUTIONARY STATEMENTS CONCERNING FORWARD-LOOKING INFORMATION
Certain information both included and incorporated by reference in this
prospectus may contain forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended (which is commonly referred to as
the Securities Act), or Section 21E of the Exchange Act, and as such may involve
known and unknown risks, uncertainties and other factors which may cause our
actual results, performance or achievements to be materially different from
future results, performance or achievements expressed or implied by these
forward-looking statements. Forward-looking statements, which are based on
certain assumptions and describe our future plans, strategies and expectations,
are generally identifiable by use of the words "may," "will," "should,"
"expect," "anticipate," "estimate," "believe," "intend," "project," or the
negative of these words or other similar words or terms. Factors which could
have a material adverse effect on our operations and future prospects include,
but are not limited to, changes in economic conditions generally and the real
estate market specifically, legislative/regulatory changes including changes to
laws governing the taxation of REITs, availability of debt and equity capital,
interest rates, competition, supply and demand for properties in our current and
proposed market areas, policies and guidelines applicable to REITs, and the
other factors described in the section entitled "RISK FACTORS" beginning on page
1 of this prospectus. These risks and uncertainties should be considered in
evaluating any forward-looking statements contained or incorporated by reference
in this prospectus.
We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. In light of these risks, uncertainties, and assumptions,
the forward-looking events discussed in or incorporated by reference in this
prospectus may not occur and our actual results could differ materially from
those anticipated or implied in the forward-looking statements.
-iii-
RISK FACTORS
In evaluating an investment in our common shares, you should carefully
consider the following factors, in addition to other information set forth or
incorporated by reference in this prospectus. See the section entitled "WHERE
YOU CAN FIND MORE INFORMATION" on page ii of this prospectus.
Risks Involved in Single Tenant Leases. We focus our acquisition
activities on real properties that are net leased to single tenants. Therefore,
the financial failure of, or other default by, a single tenant resulting in the
termination of a lease may cause a significant reduction in the operating cash
flow generated by the property leased to that tenant and might decrease the
value of that property.
Dependence on Major Tenants. Revenues from several of our tenants and/or
their guarantors constitute a significant percentage of our rental revenues. As
of September 30, 2002, our fifteen largest tenants/guarantors, which occupy
thirty-one properties, represented 52.5% of our rental revenue (including
proportionate share of non-consolidated investees) for the preceding nine
months, with two tenants representing 16.0% of our rental revenue. The default,
financial distress or bankruptcy of any of the tenants of these properties could
cause interruptions in the receipt of lease revenues from these tenants and/or
result in vacancies, which would reduce our revenues and increase operating
costs until the affected property is re-let, and could decrease the ultimate
sale value of that property. Upon the expiration of the leases that are
currently in place with respect to these properties, we may not be able to
re-lease the vacant property at a comparable lease rate or without incurring
additional expenditures in connection with the re-leasing.
Kmart Corporation, our largest tenant based upon rental revenues, filed
for Chapter 11 bankruptcy protection on January 22, 2002. Kmart leases a 1.7
million square foot distribution facility in Warren, Ohio. We have no retail
properties leased to Kmart. The Kmart lease expires on September 30, 2007. As of
the date of this prospectus, current annual net cash rents are $9.4 million and
annual net rents on a straight-line basis are $8.9 million, which represented
approximately 8.1% of our rental revenue for the nine months ended September 30,
2002, including our proportionate share of rental revenue from non-consolidated
entities. Rent is payable in arrears on April 1 and October 1. At September 30,
2002, we had $8.9 million in accounts receivable from Kmart, including $2.6
million in pre-bankruptcy petition rent for the period from October 1, 2001
through January 21, 2002, plus $2.1 million in straight line rents receivable.
On October 1, 2002, Kmart made its required $4.2 million semi-annual rental
payment. Under applicable bankruptcy law, Kmart may elect to reject the lease,
in which event the lease would be deemed to have been breached as of the
petition date. We would then have an unsecured claim for any unpaid
pre-bankruptcy petition rent and an unsecured claim for any damages resulting
from the breach of the lease, including rent for the period from the rejection
date through the remainder of the lease term, subject to a cap under applicable
bankruptcy law. We may not be able to collect all or any portion of these
unsecured claims. In addition, we may not be able to collect all or any portion
of Kmart's rental and other obligations to us, including rent for the period
from the bankruptcy filing date through the rejection date if Kmart becomes
insolvent prior to the satisfaction of any such obligations. Kmart also could
elect to assume the lease, at which time all accrued but unpaid pre-bankruptcy
petition rent would be payable to us and the accrued straight-lined rent would
be realized over the remaining lease term. Alternatively, Kmart may seek to
renegotiate the lease terms, including a reduction in the amount of
pre-bankruptcy petition rent payable, the amount of future rent and the term of
the lease. The bankruptcy court has granted Kmart's motion to extend the date
for Kmart's determination as to whether it will assume or reject the lease until
July 31, 2003. Until a determination is made as to the assumption or rejection
of the lease, it is unlikely that we will receive unpaid pre-bankruptcy petition
rent.
The Kmart facility is subject to non-recourse mortgage debt with an
outstanding balance of $25.6 million as of the date of this prospectus, which
fully amortizes by maturity on October 1, 2007. The property is also subject to
an interest-only second mortgage loan, which is a recourse obligation to us,
with a variable interest rate of 90-day LIBOR plus 3.75% and an outstanding
principal balance of $12.5 million as of the date of this prospectus. Annual
debt service on the non-recourse first mortgage note is $6.2 million, and the
next debt service payment is due April 1, 2003. There can be no assurance that
Kmart will assume the lease at the current rate for the remainder of the
existing term. If Kmart rejects the lease in bankruptcy, it would result in a
significant decrease in our rental revenue, funds from operations and funds
available for distribution to shareholders, and we cannot predict if or when we
would be able to re-lease the property or negotiate the terms of any new lease.
If we are unable to re-lease
1
promptly or if any new rental rates are significantly lower than Kmart's current
rent, our revenue, funds from operations and funds available for distribution to
shareholders would decrease significantly. We would also risk loss of the
property to lender foreclosure in the event we do not continue to make all
required debt service payments with respect to the mortgage debt on the
property. In addition, a default by us on the first mortgage would also be
considered a default of the second mortgage whereby the entire $12.5 million
second mortgage plus a 4% prepayment penalty would be immediately payable to the
lender. The prepayment penalty decreases by 1% each March 8th until March 8,
2007, after which no prepayment penalty would be due.
Leverage. We have incurred, and expect to continue to incur, indebtedness
(secured and unsecured) in furtherance of our activities. Neither our
Declaration of Trust nor any policy statement formally adopted by our Board of
Trustees limits either the total amount of indebtedness or the specified
percentage of indebtedness that we may incur. Accordingly, we could become more
highly leveraged, resulting in increased risk of default on our obligations and
in an increase in debt service requirements which could adversely affect our
financial condition and results of operations and our ability to pay
distributions.
Risks Relating to Interest Rate Increases. We have exposure to market
risks relating to increases in interest rates due to our variable rate debt.
Specifically, we currently maintain an unsecured credit facility, a secured
second mortgage on a property, and four mortgage notes encumbering four
properties for which interest accrues at variable rates. An increase in interest
rates may increase our costs of borrowing on existing variable rate indebtedness
leading to a reduction in our net income.
As of September 30, 2002, our variable rate indebtedness represented 10.2%
of consolidated mortgages payable and notes payable and had a weighted average
interest rate of 4.7%. The level of our variable rate indebtedness, along with
the interest rate associated with such variable rate indebtedness, may change in
the future and may materially affect our interest costs and net income. In
addition, the interest costs which we incur in connection with our fixed rate
indebtedness may increase if we are required to refinance our fixed rate
indebtedness at higher interest rates.
Risks Associated with Refinancing. A significant number of our properties
are subject to mortgages with balloon payments due at maturity. As of September
30, 2002, the scheduled balloon payments for the remainder of 2002 and the next
four calendar years are as follows:
o 2002- $0;
o 2003- $0;
o 2004- $17.1 million;
o 2005- $80.9 million; and
o 2006- $0.
Our ability to make the remaining balloon payments will depend upon our
ability either to refinance the related mortgage or to sell the related
property. Our ability to accomplish these goals will be affected by various
factors existing at the relevant time, such as the state of the national and
regional economies, local real estate conditions, available mortgage rates, our
equity in the mortgaged properties, our financial condition, the operating
history of the mortgaged properties and tax laws.
Uncertainties Relating to Lease Renewals and Re-letting of Space. Upon
expiration of current leases for space located in our properties, we may not be
able to re-let all or a portion of that space, or the terms of re-letting,
including the cost of concessions to tenants, may be less favorable to us than
current lease terms. If we are unable to re-let promptly all or a substantial
portion of the space located in our properties or if the rental rates we receive
upon re-letting are significantly lower than current rates, our net income and
ability to make expected distributions to our shareholders will be adversely
affected. There can be no assurance that we will be able to retain tenants in
any of our properties upon the expiration of their leases. As of September 30,
2002, our scheduled lease maturities for the remainder of 2002 and the next four
years are as follows:
-2-
Number of Annual Rent
Leases ($000)
--------------- ---------------
2002............................. -- $ --
2003............................. 1 1,900
2004............................. 1 337
2005............................. 7 8,073
2006............................. 14 14,077
----- --------- --------------
Total...................... 23 $ 24,387
========= ==============
Defaults on Cross-Collateralized Properties. As of September 30, 2002,
seventeen of our properties are part of a segregated pool of assets with respect
to which commercial mortgage pass-through certificates were issued, and two
mortgages on two properties in Canton, OH and Spartansburg, SC are
cross-collateralized. To the extent that any of our properties is
cross-collateralized, any default by us under the mortgage relating to one
property will result in a default under the financing arrangements relating to
any other property that also provides security for that mortgage note.
Possible Liability Relating to Environmental Matters. Under various
federal, state and local environmental laws, statutes, ordinances, rules and
regulations, as an owner of real property, we may be liable for the costs of
removal or remediation of hazardous or toxic substances at, on, in or under our
property, as well as other potential costs relating to hazardous or toxic
substances, including government fines and penalties and damages for injuries to
persons and adjacent property. These laws may impose liability without regard to
whether we knew of, or were responsible for, the presence or disposal of those
substances. This liability may be imposed on us in connection with the
activities of an operator of, or tenant at, the property. The cost of any
required remediation, removal, fines or personal or property damages and our
liability therefor could exceed the value of the property and/or our aggregate
assets. In addition, the presence of those substances, or the failure to
properly dispose of or remove those substances, may adversely affect our ability
to sell or rent that property or to borrow using that property as collateral,
which, in turn, would reduce our revenues and ability to make distributions.
A property can also be adversely affected either through physical
contamination or by virtue of an adverse effect upon value attributable to the
migration of hazardous or toxic substances, or other contaminants that have or
may have emanated from other properties. Although our tenants are primarily
responsible for any environmental damages and claims related to the leased
premises, in the event of the bankruptcy or inability of a tenant to satisfy any
obligations with respect to the property leased to that tenant, we may be
required to satisfy such obligations. In addition, we may be held directly
liable for any such damages or claims irrespective of the provisions of any
lease.
From time to time, in connection with the conduct of our business, and
prior to the acquisition of any property from a third party or as required by
our financing sources, we authorize the preparation of Phase I environmental
reports and, when necessary, Phase II environmental reports, with respect to our
properties. Based upon these environmental reports and our ongoing review of our
properties, as of the date of this prospectus, we are not aware of any
environmental condition with respect to any of our properties that we believe
would be reasonably likely to have a material adverse effect on us. There can be
no assurance, however, that the environmental reports will reveal all
environmental conditions at our properties or that the following will not expose
us to material liability in the future:
o the discovery of previously unknown environmental conditions;
o changes in law;
o activities of tenants; or
o activities relating to properties in the vicinity of our properties.
Changes in laws increasing the potential liability for environmental
conditions existing on properties or increasing the restrictions on discharges
or other conditions may result in significant unanticipated expenditures or may
otherwise adversely affect the operations of our tenants, which could adversely
affect our financial condition or results of operations.
-3-
Uninsured Loss. We carry comprehensive liability, fire, extended coverage
and rent loss insurance on most of our properties, with policy specifications
and insured limits customarily carried for similar properties. However, with
respect to those properties where the leases do not provide for abatement of
rent under any circumstances, we generally do not maintain rent loss insurance.
In addition, there are certain types of losses, such as losses resulting from
wars or acts of God, that generally are not insured because they are either
uninsurable or not economically insurable. Should an uninsured loss or a loss in
excess of insured limits occur, we could lose capital invested in a property, as
well as the anticipated future revenues from a property, while remaining
obligated for any mortgage indebtedness or other financial obligations related
to the property. Any loss of these types would adversely affect our financial
condition.
Competition. There are numerous commercial developers, real estate
companies, financial institutions and other investors whose financial resources
are greater than ours, which compete with us in seeking properties for
acquisition and tenants who will lease space in our properties. Due to our focus
on net lease properties located throughout the United States, and because most
competitors are locally and/or regionally focused, we do not encounter the same
competitors in each region of the United States. Our competitors include other
REITs, financial institutions, insurance companies, pension funds, private
companies and individuals. This competition may result in a higher cost for
properties that we wish to purchase.
Failure to Qualify as a REIT. We believe that we have met the requirements
for qualification as a REIT for federal income tax purposes beginning with our
taxable year ended December 31, 1993, and we intend to continue to meet these
requirements in the future. However, qualification as a REIT involves the
application of highly technical and complex provisions of the Internal Revenue
Code of 1986, as amended, which is generally referred to as the Code, for which
there are only limited judicial or administrative interpretations. No assurance
can be given that we have qualified or will remain qualified as a REIT. The Code
provisions and income tax regulations applicable to REITs are more complex than
those applicable to corporations. The determination of various factual matters
and circumstances not entirely within our control may affect our ability to
continue to qualify as a REIT. In addition, no assurance can be given that
legislation, regulations, administrative interpretations or court decisions will
not significantly change the requirements for qualification as a REIT or the
federal income tax consequences of such qualification. If we do not qualify as a
REIT, we would not be allowed a deduction for distributions to shareholders in
computing our income. In addition, our income would be subject to tax at the
regular corporate rates. We also could be disqualified from treatment as a REIT
for the four taxable years following the year during which qualification was
lost. Cash available for distribution to our shareholders would be significantly
reduced for each year in which we do not qualify as a REIT. In that event, we
would not be required to continue to make distributions. Although we currently
intend to continue to qualify as a REIT, it is possible that future economic,
market, legal, tax or other considerations may cause us, without the consent of
the shareholders, to revoke the REIT election or to otherwise take action that
would result in disqualification.
Distribution Requirements Imposed by Law Limit Our Flexibility. To
maintain our status as a REIT for federal income tax purposes, we are generally
required to distribute to our shareholders at least 90% of our taxable income
for that calendar year. Our taxable income is determined without regard to any
dividends paid deduction and by excluding net capital gains. We intend to
continue to make distributions to our shareholders to comply with the
distribution requirements of the Code and to reduce exposure to federal income
and nondeductible excise taxes. Differences in timing between the receipt of
income and the payment of expenses in determining our income and the effect of
required debt amortization payments could require us to borrow funds on a
short-term basis in order to meet the distribution requirements that are
necessary to achieve the tax benefits associated with qualifying as a REIT.
Interest Rate Fluctuations. It is likely that the public valuation of our
common shares will be based primarily on the earnings that we derive from rental
income with respect to our properties and not from the underlying appraised
value of the properties themselves. As a result, interest rate fluctuations and
capital market conditions can affect the market value of our common shares. For
instance, if interest rates rise, it is likely that the market price of our
common shares will decrease because potential investors may require a higher
dividend yield on our common shares as market rates on interest-bearing
securities, such as bonds, rise.
Inability to Carry Out Growth Strategy. Our growth strategy is based on
the acquisition and development of additional properties, including acquisitions
through co-investment programs. In the context of our business plan,
-4-
"development" generally means an expansion or renovation of an existing property
or the acquisition of a newly constructed property. We typically provide a
developer with a commitment to acquire a property upon completion of
construction. Our plan to grow through the acquisition and development of new
properties could be adversely affected by trends in the real estate and
financing businesses. The consummation of any future acquisitions will be
subject to satisfactory completion of our extensive valuation analysis and due
diligence review, and negotiation of definitive documentation. We cannot be sure
that we will be able to implement our strategy because we may have difficulty
finding new properties, negotiating with new or existing tenants or securing
acceptable financing. If we are unable to carry out our strategy, our financial
condition and results of operations could be adversely affected.
Acquisitions of additional properties entail the risk that investments
will fail to perform in accordance with expectations, including operating and
leasing expectations. Redevelopment and new project development are subject to
numerous risks, including risks of construction delays, cost overruns or force
majeure that may increase project costs, new project commencement risks such as
the receipt of zoning, occupancy and other required governmental approvals and
permits, and the incurrence of development costs in connection with projects
that are not pursued to completion.
We anticipate that some of our acquisitions and developments will be
financed using the proceeds of periodic equity or debt offerings, lines of
credit or other forms of secured or unsecured financing that will result in a
risk that permanent financing for newly acquired projects might not be available
or would be available only on disadvantageous terms. If permanent debt or equity
financing is not available on acceptable terms to refinance acquisitions
undertaken without permanent financing, further acquisitions may be curtailed or
cash available for distribution may be adversely affected.
Dilution of Common Shares. Our future growth will depend in part on our
ability to raise additional capital. If we raise additional capital through the
issuance of equity securities, the interests of holders of our common shares,
including the common shares being offered by this prospectus, could be diluted.
Likewise, our Board of Trustees is authorized to cause us to issue preferred
shares in one or more series, the holders of which would be entitled to the
dividends and voting and other rights that our Board of Trustees determines, and
which could be senior to our common shares. Accordingly, our Board of Trustees
may authorize the issuance of preferred shares with dividends and voting and
other rights that could be dilutive to or otherwise adversely affect the
interests of holders of our common shares.
Ownership Limitations. For us to qualify as a REIT under the Code, among
other things, not more than 50% in value of the outstanding shares of our
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, and such shares of our capital stock must be beneficially owned by
100 or more persons during at least 335 days of a taxable year of 12 months or
during a proportionate part of a shorter taxable year (in each case, other than
the first such year). Our Declaration of Trust includes certain restrictions
regarding transfers of shares of our capital stock and Ownership Limits that are
intended to assist us in satisfying these limitations. These restrictions and
limits may not be adequate in all cases, however, to prevent the transfer of
shares of our capital stock in violation of the Ownership Limitations. The
Ownership Limit discussed above may have the effect of delaying, deferring or
preventing someone from taking control of our company, even though a change of
control could involve a premium price for our common shares or otherwise be in
your best interest.
Restrictions on a Potential Change of Control. Our Board of Trustees is
authorized by our Declaration of Trust to establish and issue one or more series
of preferred shares without shareholder approval. As of the date of this
prospectus, we have established one series of preferred shares, but no shares of
this series are currently outstanding. The establishment of this series or a
future series of preferred shares could make more difficult a change of control
of our company that could be in your best interest.
In addition, we have entered into employment agreements with six of our
executive officers which provide that, upon the occurrence of a change in
control of our company (including a change in ownership of more than fifty
percent of the total combined voting power of our outstanding securities, the
sale of all or substantially all of our assets, dissolution of our company, the
acquisition, except from us, of 20% or more of our voting shares or a change in
a majority of our Board of Trustees), those executive officers would be entitled
to severance benefits based on
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their current annual base salaries and recent annual bonuses, as defined in the
employment agreements. The provisions of these agreements could deter a change
of control of our company that could be in your best interest.
Concentration Of Ownership By Certain Investor. As of November 30, 2002,
E. Robert Roskind, the Chairman of our Board of Trustees and our Co-Chief
Executive Officer, owned or controlled, including through trusts with respect to
which he disclaims beneficial ownership, 482,555 common shares, 1,536,848 OP
units which are convertible into common shares, and total options to purchase
129,419 common shares representing, in the aggregate, 6.8% of our total
outstanding voting securities on a diluted basis on such date. A significant
concentration of ownership may allow an investor to exert a greater influence
over our management and affairs, and may have the effect of delaying, deferring
or preventing a change of control, may discourage bids for our common shares at
a premium over the market price, and may adversely affect the market price of
our common shares.
Limited Control over Joint Venture Investments. Our joint venture
investments may involve risks not otherwise present for investments made solely
by us, including the possibility that our co-venturer might become bankrupt,
that our co-venturer might at any time have different interests or goals than we
do, and that our co-venturer may take action contrary to our instructions,
requests, policies or objectives, including our policy with respect to
maintaining our qualification as a REIT. Other risks of joint venture
investments include impasse on decisions, such as a sale, because neither we nor
our co-venturer would have full control over the joint venture. Also, there is
no limitation under our organizational documents as to the amount of funds that
may be invested in joint ventures. Our credit facility restricts the amount of
capital that we can invest in joint ventures.
Under the terms of our joint venture with the Comptroller of the State of
New York, as Trustee of the Common Retirement Fund (CRF), we are required to
first offer to the joint venture all of our opportunities to acquire office and
industrial properties requiring a minimum investment of $10 million which are
net leased primarily to investment grade tenants for a minimum term of ten
years, are available for immediate delivery and satisfy other specified
investment criteria. Only if CRF elects not to approve the joint venture's
pursuit of an acquisition opportunity may we pursue the opportunity directly. As
a result, we may not be able to make attractive acquisitions directly and may
only receive a minority interest in such acquisitions through our minority
interest in this venture.
Conflicts of Interest with Respect to Sales and Refinancings. Two of our
trustees and officers own OP units and, as a result, may face different and more
adverse tax consequences than you will if we sell, or reduce our mortgage
indebtedness on, any of our properties. Those individuals may, therefore, have
different objectives than you regarding the appropriate pricing and timing of
any sale of our properties or reduction of mortgage debt. Accordingly, there may
be instances in which we may not sell a property or pay down the debt on a
property even though doing so would be advantageous to you.
Limitations on Sale of Certain Properties. We have agreed with the sellers
of five of our properties not to sell those properties for a period of time in a
taxable transaction, subject to certain exceptions. We may enter into similar
agreements in connection with future property acquisitions. These agreements
generally provide that we may dispose of these properties in transactions that
qualify as tax-free exchanges under Section 1031 of the Code. Therefore, we may
be precluded from selling these properties other than in transactions that would
qualify as tax-free exchanges for federal income tax purposes, even if it would
be in your best interest to do so. These restrictions expire on January 1, 2003
for four properties with an aggregate net book value of $49.5 million at
September 30, 2002 and for one property on January 1, 2004 with a net book value
of $4.9 million at September 30, 2002.
Our Ability To Change Our Portfolio Is Limited Because Real Estate
Investments Are Illiquid. Equity investments in real estate are relatively
illiquid and, therefore, our ability to change our portfolio promptly in
response to changed conditions will be limited. Our Board of Trustees may
establish investment criteria or limitations as it deems appropriate, but
currently does not limit the number of properties in which we may seek to invest
or on the concentration of investments in any one geographic region. We could
change our investment, disposition and financing policies without a vote of our
shareholders.
Our Board of Trustees May Change Our Investment Policy Without
Shareholders' Approval. Subject to our fundamental investment policy to maintain
our qualification as a REIT, our Board of Trustees will determine our investment
and financing policies, our growth strategy and our debt, capitalization,
distribution, acquisition,
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disposition and operating policies. Although our Board of Trustees has no
present intention to revise or amend these strategies and policies, it may do so
at any time without a vote by our shareholders. Accordingly, our shareholders'
control over changes in our strategies and policies is limited to the election
of trustees, and changes made by our Board of Trustees may not serve the
interests of our shareholders and could adversely affect our financial condition
or results of operations, including our ability to distribute cash to
shareholders or to qualify as a REIT.
Limits on Ownership of Our Common Shares. Actual or constructive ownership
of our common shares in excess of the share Ownership Limits contained in our
Declaration of Trust would cause the violative transfer or ownership to be void
or cause the shares to be transferred to a charitable trust and then sold to a
person or entity who can own the shares without violating these limits. As a
result, if a violative transfer were made, the recipient of the shares would not
acquire any economic or voting rights attributable to the transferred shares.
Additionally, the constructive ownership rules for these limits are complex and
groups of related individuals or entities may be deemed a single owner and
consequently in violation of the share Ownership Limits. We recommend that you
read "RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK AND ANTI-TAKEOVER PROVISIONS"
on page 8 of this prospectus for a detailed description of the share Ownership
Limits.
USE OF PROCEEDS
We will not receive any proceeds from the issuance of the common shares
covered by this prospectus.
PLAN OF DISTRIBUTION
This prospectus relates to our offering of up to 17,901 common shares if,
and to the extent that, the holders of an equal number of OP units submit such
OP units for redemption. We will not receive proceeds from any issuance of
common shares in exchange for OP units (but we will acquire the OP units
submitted for redemption).
We are registering the common shares covered by this prospectus in order
to permit the recipient thereof to sell such shares without restriction, in the
open market or otherwise. However, the registration of such common shares does
not necessarily mean that any of the OP units will be submitted for redemption
or that any of such common shares to be issued upon such redemption will be
offered or sold by the recipient thereof.
The recipient of the common shares covered by this prospectus, and any
agents or broker-dealers that participate with them in the distribution of such
common shares, may be deemed "underwriters" within the meaning of the Securities
Act and any commissions received by them on the resale of such common shares may
be deemed to be underwriting commissions or discounts under the Securities Act.
DESCRIPTION OF COMMON SHARES
The following summary of the material terms and provisions of our common
shares does not purport to be complete and is subject to the detailed provisions
of our Declaration of Trust and our By-Laws, each of which is incorporated by
reference into this prospectus. You should carefully read each of these
documents in order to fully understand the terms and provisions of our common
shares. For information on incorporation by reference, and how to obtain copies
of these documents, see the section entitled "WHERE YOU CAN FIND MORE
INFORMATION" on page ii of this prospectus.
General
Under our Declaration of Trust, our Board of Trustees has authority to
issue 80,000,000 common shares. Under Maryland law, our shareholders generally
are not responsible for our debts or obligations as a result of their status as
shareholders.
Terms
Subject to the preferential rights of any other shares or series of equity
securities and to the provisions of our Declaration of Trust regarding excess
shares, holders of our common shares are entitled to receive dividends on
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our common shares if, as and when authorized and declared by our Board of
Trustees out of assets legally available therefor and to share ratably in those
of our assets legally available for distribution to our shareholders in the
event that we liquidate, dissolve or wind up, after payment of, or adequate
provision for, all of our known debts and liabilities and the amount to which
holders of any class of shares classified or reclassified or having a preference
on distributions in liquidation, dissolution or winding up have a right.
Subject to the provisions of our Declaration of Trust regarding excess
shares, each outstanding common share entitles the holder to one vote on all
matters submitted to a vote of shareholders, including the election of trustees
and, except as otherwise required by law or except as otherwise provided in our
Declaration of Trust with respect to any other class or series of shares, the
holders of our common shares will possess exclusive voting power. There is no
cumulative voting in the election of trustees, which means that the holders of a
majority of our outstanding common shares can elect all of the trustees then
standing for election, and the holders of the remaining common shares will not
be able to elect any trustees.
Holders of our common shares have no conversion, sinking fund or
redemption rights, or preemptive rights to subscribe for any of our securities.
We furnish our shareholders with annual reports containing audited
consolidated financial statements and an opinion thereon expressed by an
independent public accounting firm.
Subject to the provisions of our Declaration of Trust regarding excess
shares, all of our common shares will have equal dividend, distribution,
liquidation and other rights and will have no preference, appraisal or exchange
rights.
Pursuant to the Maryland REIT Law, a real estate investment trust
generally cannot amend its declaration of trust or merge unless approved by the
affirmative vote of shareholders 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 our
Declaration of Trust. Our Declaration of Trust provides that those actions, with
the exception of certain amendments to our Declaration of Trust for which a
higher vote requirement has been set, will be valid and effective if authorized
by holders of a majority of the total number of shares of all classes
outstanding and entitled to vote thereon.
Transfer Agent
The transfer agent and registrar for our common shares is Mellon Investor
Services, LLC.
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK AND ANTI-TAKEOVER PROVISIONS
Restrictions Relating To REIT Status
For us to qualify as a REIT under the Code, among other things, not more
than 50% in value of the outstanding shares of our 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, and such
shares of our capital stock must be beneficially owned by 100 or more persons
during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year (in each case, other than the first
such year). To assist us in continuing to remain a qualified REIT, our
Declaration of Trust, subject to certain exceptions, provides that no holder may
own, or be deemed to own by virtue of the attribution provisions of the Code,
more than 9.8% of our equity shares, defined as common shares or preferred
shares. We refer to this restriction as the Ownership Limit. Our Board of
Trustees may waive the Ownership Limit if evidence satisfactory to our Board of
Trustees and our tax counsel is presented that the changes in ownership will not
then or in the future jeopardize our status as a REIT. Any transfer of equity
shares or any security convertible into equity shares that would create a direct
or indirect ownership of equity shares in excess of the Ownership Limit or that
would result in our disqualification as a REIT, including any transfer that
results in the equity shares being owned by fewer than 100 persons or results in
us being "closely held" within the meaning of Section 856(h) of the Code, will
be null and void, and the intended transferee will acquire no rights to such
equity shares. The foregoing restrictions on transferability and ownership will
not apply if our Board
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of Trustees determines that it is no longer in our best interests to attempt to
qualify, or to continue to qualify, as a REIT.
Equity shares owned, or deemed to be owned, or transferred to a
shareholder in excess of the Ownership Limit, will automatically be exchanged
for excess shares that will be transferred, by operation of law, to us as
trustee of a trust for the exclusive benefit of the transferees to whom such
shares of our capital stock may be ultimately transferred without violating the
Ownership Limit. While the excess shares are held in trust, they will not be
entitled to vote, they will not be considered for purposes of any shareholder
vote or the determination of a quorum for such vote and, except upon
liquidation, they will not be entitled to participate in dividends or other
distributions. Any dividend or distribution paid to a proposed transferee of
excess shares prior to our discovery that equity shares have been transferred in
violation of the provisions of our Declaration of Trust will be repaid to us
upon demand. The excess shares are not treasury shares, but rather constitute a
separate class of our issued and outstanding shares. The original
transferee-shareholder may, at any time the excess shares are held by us in
trust, transfer the interest in the trust representing the excess shares to any
individual whose ownership of the equity shares exchanged into such excess
shares would be permitted under our Declaration of Trust, at a price not in
excess of the price paid by the original transferee-shareholder for the equity
shares that were exchanged into excess shares, or, if the transferee-shareholder
did not give value for such shares, a price not in excess of the market price
(as determined in the manner set forth in our Declaration of Trust) on the date
of the purported transfer. Immediately upon the transfer to the permitted
transferee, the excess shares will automatically be exchanged for equity shares
of the class from which they were converted. If the foregoing transfer
restrictions are determined to be void or invalid by virtue of any legal
decision, statute, rule or regulation, then the intended transferee of any
excess shares may be deemed, at our option, to have acted as an agent on our
behalf in acquiring the excess shares and to hold the excess shares on our
behalf.
In addition to the foregoing transfer restrictions, we will have the
right, for a period of 90 days during the time any excess shares are held by us
in trust, to purchase all or any portion of the excess shares from the original
transferee-shareholder for the lesser of the price paid for the equity shares by
the original transferee-shareholder or the market price (as determined in the
manner set forth in our Declaration of Trust) of the equity shares on the date
we exercise our option to purchase. The 90-day period begins on the date on
which we receive written notice of the transfer or other event resulting in the
exchange of equity shares for excess shares.
Each shareholder will be required, upon demand, to disclose to us in
writing any information with respect to the direct, indirect and constructive
ownership of beneficial interests as our Board of Trustees deems necessary to
comply with the provisions of the Code applicable to REITs, to comply with the
requirements of any taxing authority or governmental agency or to determine any
such compliance.
This Ownership Limitation may have the effect of precluding an acquisition
of control unless our Board of Trustees determines that maintenance of REIT
status is no longer in our best interests.
Authorized Capital
Our authorized capital stock consists of an aggregate of (i) 80,000,000
common shares, (ii) 40,000,000 excess shares, 2,000,000 of which have been
designated Excess Class A Preferred Stock, par value $.0001 per share and (iii)
10,000,000 preferred shares, 2,000,000 of which have been designated Class A
Senior Cumulative Convertible Preferred Stock, $.0001 par value per share. The
holder of all of the shares of Class A Preferred Stock converted all of such
shares into common shares in accordance with the terms thereof on April 8, 2002,
and as of the date of this prospectus, we have no preferred shares outstanding.
We may issue such shares (other than reserved shares) from time to time in the
discretion of our Board of Trustees to raise additional capital, acquire assets,
including additional real properties, redeem or retire debt or for any other
business purpose. In addition, the undesignated preferred shares may be issued
in one or more additional classes with such designations, preferences and
relative, participating, optional or other special rights including, without
limitation, preferential dividend or voting rights, and rights upon liquidation,
as will be fixed by our Board of Trustees. Our Board of Trustees is authorized
to classify and reclassify any unissued shares of our capital stock by setting
or changing, in any one or more respects, the preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends, qualifications
or terms or conditions of redemption of such shares. This authority includes,
without limitation, subject to the provisions of our Declaration of Trust,
authority to classify or reclassify any unissued shares into a class or classes
of preferred shares, preference shares, special shares or other shares, and to
divide and reclassify
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shares of any class into one or more series of that class. In some
circumstances, the issuance of preferred shares, or the exercise by our Board of
Trustees of its right to classify or reclassify shares, could have the effect of
deterring individuals or entities from making tender offers for our common
shares or seeking to change incumbent management.
Maryland Law
Maryland law includes certain other provisions which may also discourage a
change in control of management. Maryland law provides that, unless an exemption
applies, we may not engage in any "business combination" with an "interested
stockholder" or any affiliate of an interested stockholder for a period of five
years after the interested stockholder became an interested stockholder, and
thereafter may not engage in a business combination with such interested
stockholder unless the combination is recommended by our Board of Trustees and
approved by the affirmative vote of at least (i) 80% of the votes entitled to be
cast by the holders of all of our outstanding voting shares, and (ii) 66 2/3% of
the votes entitled to be cast by all holders of outstanding shares of voting
shares other than voting shares held by the interested stockholder. An
"interested stockholder" is defined, in essence, as any person owning
beneficially, directly or indirectly, 10% or more of the outstanding voting
shares of a Maryland real estate investment trust. The voting requirements do
not apply at any time to business combinations with an interested stockholder or
its affiliates if approved by our Board of Trustees prior to the time the
interested stockholder first became an interested stockholder. Additionally, if
the business combination involves the receipt of consideration by our
shareholders that satisfy certain "fair price" conditions, such supermajority
voting requirements do not apply.
Maryland law provides that "control shares" of a Maryland real estate
investment trust acquired in a "control share acquisition" have no voting rights
except to the extent approved by a vote of two-thirds of the votes entitled to
be cast on the matter, excluding shares owned by the acquiror or by officers or
trustees who are employees of the trust. "Control shares" are voting shares
that, if aggregated with all other shares previously acquired by that person,
would entitle the acquiror to exercise voting power in electing directors within
one of the following ranges of voting power:
o one-tenth or more but less than one-third;
o one-third or more but less than a majority; or
o a majority or more of all voting power.
Control shares do not include shares the acquiring person is then entitled
to vote as a result of having previously obtained shareholder approval.
A "control share acquisition" means the acquisition of ownership of or the
power to direct the exercise of voting power of issued and outstanding control
shares, subject to certain exceptions. A person who has made or proposes to make
a control share acquisition, upon satisfaction of certain conditions (including
an undertaking to pay expenses), may compel the trust's board of trustees to
call a special meeting of shareholders, to be held within 50 days of demand, to
consider the voting rights of the shares. If no request for a meeting is made,
the trust may itself present the question at any shareholders meeting.
If voting rights are not approved at the meeting or if the acquiring
person does not deliver an "acquiring person statement" as required by the
statute, then, subject to certain conditions and limitations, the trust may
redeem any or all of the control shares (except those for which voting rights
have previously been approved) for fair value, determined without regard to the
absence of voting rights, as of the date of the last control share acquisition
or of any meeting of shareholders at which the voting rights of such shares were
considered and not approved. If voting rights for control shares are approved at
a shareholders' meeting and the acquiror becomes entitled to vote a majority of
the shares entitled to vote, all other shareholders may exercise appraisal
rights. The fair value of the shares as determined for purposes of the appraisal
rights may not be less than the highest price per share paid in the control
share acquisition, and certain limitations and restrictions otherwise applicable
to the exercise of dissenters' rights do not apply in the context of a control
share acquisition.
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The control share acquisition statute does not apply to shares acquired in
a merger, consolidation or share exchange if we are a party to the transaction,
or to acquisitions approved or exempted by our Declaration of Trust or By-Laws
prior to the control share acquisition. No such exemption appears in our
Declaration of Trust or By-Laws. The control share acquisition statute could
have the effect of discouraging offers to acquire us and of increasing the
difficulty of consummating any such offer.
Additionally, Maryland law may make it more difficult for someone to
acquire us. Maryland law provides, among other things, that the board of
trustees has broad discretion in adopting shareholders' rights plans and has the
sole power to fix the record date, time and place for special meetings of the
shareholders. In addition, Maryland law provides that trusts that have three
trustees who are not employees of the entity or related to an acquiring person
and are subject to the reporting requirements of the Securities Exchange Act of
1934 may elect in their declaration of trust or bylaws or by resolution of the
board of trustees to be subject to all or part of a special subtitle which
provides, among other things, that: (1) the trust will have a staggered board of
trustees; (2) the number of trustees may only be set by the board of trustees,
even if the procedure is contrary to the declaration of trust or bylaws; (3)
vacancies may only be filled by the remaining trustees, even if the procedure is
contrary to the declaration of trust or bylaws; and (4) the secretary of the
trust may call a special meeting of shareholders at the request of shareholders
only on the written request of the shareholders entitled to cast at least a
majority of all the votes entitled to be cast at least a majority of all the
votes entitled to be cast at the meeting, even if the procedure is contrary to
the declaration of trust or bylaws.
DESCRIPTION OF OP UNITS
The material terms of the OP units, including a summary of certain
provisions of the Agreement of Limited Partnership of the Operating Partnership,
which we refer to as the Partnership Agreement, as in effect as of the date of
this prospectus, are set forth below. The following description does not purport
to be complete and is subject to and qualified in its entirety by reference to
applicable provisions of Delaware law and the Partnership Agreement. For a
comparison of the voting and other rights of holders of OP units, whom we refer
to as unitholders or limited partners, and our shareholders, see "COMPARISON OF
OWNERSHIP OF OP UNITS AND COMMON SHARES" beginning on page 16 of this
prospectus.
General
We are the sole unitholder of Lex GP-1 Trust (Lex GP-1), a Maryland
business trust which is the general partner of the Operating Partnership and
holds, as of the date of this prospectus, a 1% interest in the Operating
Partnership. We are also the sole unitholder of Lex LP-1 Trust (Lex LP-1), a
Maryland business trust which holds, as of the date of this prospectus, an
approximately 78% limited partnership interest in the Operating Partnership. We
indirectly hold OP units through these entities.
Issuance of OP Units
Our operating partnership structure enables us to acquire property by
issuing OP units to a seller as a form of consideration. All of the OP units
which have been issued as of the date of this prospectus are redeemable, at the
option of the holders thereof, on a one-for-one basis (subject to certain
anti-dilution adjustments) for common shares at various times, and certain OP
units require us to pay distributions to the holders thereof (although certain
OP units currently outstanding do not require the payment of distributions). As
a result, our cash available for distribution to shareholders is reduced by the
amount of the distributions required by the terms of such OP units, and the
number of common shares that will be outstanding in the future is expected to
increase, from time to time, as such OP units are redeemed for common shares.
The general partner of the Operating Partnership has the right to redeem the OP
units held by all, but not less than all, of the unitholders (other than those
unitholders identified as the "Special Limited Partners" in the Partnership
Agreement) under certain circumstances, including but not limited to a merger,
sale of assets or other transaction by the Company or the Operating Partnership
which would result in a change of beneficial ownership in the Company or the
Operating Partnership by 50% or more.
Unitholders hold limited partnership interests in the Operating
Partnership, and all unitholders are entitled to share in the profits and losses
of the Operating Partnership.
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Unitholders have the rights to which limited partners are entitled under
the Partnership Agreement and the Delaware Revised Uniform Limited Partnership
Act, which we refer to as the Delaware Act. The OP units have not been
registered pursuant to the federal or state securities laws and are not listed
on any exchange or quoted on any national market system.
As of the date of this prospectus, we have 5,258,778 OP units outstanding,
of which in addition to the 17,901 OP units to which this prospectus relates,
4,868,732 are also currently redeemable for common shares. The average
annualized distribution per OP unit is $1.17. Of the total OP units, 1,623,550
OP units are owned by our affiliates, including two members of our Board of
Trustees.
Purposes, Business And Management
The purpose of the Operating Partnership includes the conduct of any
business that may be conducted lawfully by a limited partnership formed under
the Delaware Act, except that the Partnership Agreement requires the business of
the Operating Partnership to be conducted in such a manner that will permit us
to continue to be classified as a REIT under Sections 856 through 860 of the
Code, unless we cease to qualify as a REIT for reasons other than the conduct of
the business of the Operating Partnership. Subject to the foregoing limitation,
the Operating Partnership may enter into partnerships, joint ventures or similar
arrangements and may own interests in any other entity.
We, as sole unitholder of the general partner of the Operating
Partnership, have exclusive power and authority to conduct the business of the
Operating Partnership, subject to the consent of the limited partners in certain
limited circumstances discussed below. No limited partner may take part in the
operation, management or control of the business of the Operating Partnership by
virtue of being a unitholder.
Ability To Engage In Other Businesses; Conflicts Of Interest
The general partner may acquire assets directly and engage in activities
outside of the Operating Partnership, including activities in direct or indirect
competition with the Operating Partnership. Other persons (including officers,
trustees, employees, agents and other affiliates of the Company) are not
prohibited under the Partnership Agreement from engaging in other business
activities and will not be required to present any business opportunities to the
Operating Partnership.
Distributions; Allocations Of Income And Loss
Generally, unitholders are allocated and distributed amounts with respect
to their OP units which approximate the amount of distributions made with
respect to the same number of our common shares, as determined in the manner
provided in the Partnership Agreement and subject to certain restrictions and
exceptions for certain limited partners. Remaining amounts available for
distribution are generally allocated to the general partner.
Borrowing By The Partnership
The general partner has full power and authority to cause the Operating
Partnership to borrow money and to issue and guarantee debt.
Reimbursement Of Expenses; Transactions With The General Partner And Its
Affiliates
Neither Lex GP-1 nor the Company receives any compensation for Lex GP-1's
services as general partner of the Operating Partnership. Lex GP-1 and Lex LP-1,
however, as partners in the Operating Partnership, have the same right to
allocations and distributions as other partners of the Operating Partnership. In
addition, the Operating Partnership will reimburse Lex GP-1 and the Company for
all expenses incurred by them related to the ownership and operation of, or for
the benefit of, the Operating Partnership. In the event that certain expenses
are incurred for the benefit of the Operating Partnership and other entities
(including us), such expenses are allocated by us, as sole unitholder of the
general partner of the Operating Partnership, to the Operating Partnership and
such other entities in a manner as we, as sole unitholder of the general partner
of the Operating Partnership, in our sole and absolute discretion deem fair and
reasonable. We have guaranteed the obligations of the Operating Partnership in
connection with the redemption of OP units pursuant to the Partnership
Agreement.
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We and our affiliates may engage in any transactions with the Operating
Partnership subject to the fiduciary duties established under applicable law.
Liability Of General Partner And Limited Partners
Lex GP-1, as the general partner of the Operating Partnership, is
ultimately liable for all general recourse obligations of the Operating
Partnership to the extent not paid by the Operating Partnership. Lex GP-1 is not
liable for the nonrecourse obligations of the Operating Partnership. The limited
partners of the Operating Partnership are not required to make additional
contributions to the Operating Partnership. Assuming that a limited partner does
not take part in the control of the business of the Operating Partnership and
otherwise acts in conformity with the provisions of the Partnership Agreement,
the liability of the limited partner for obligations of the Operating
Partnership under the Partnership Agreement and the Delaware Act is generally
limited, subject to certain limited exceptions, to the loss of the limited
partner's investment in the Operating Partnership represented by his or her OP
units. The Operating Partnership will operate in a manner the general partner
deems reasonable, necessary and appropriate to preserve the limited liability of
the limited partners.
Exculpation And Indemnification Of The General Partner
Generally, Lex GP-1, as general partner of the Operating Partnership (and
the Company as the sole unitholder of the general partner of the Operating
Partnership) will incur no liability to the Operating Partnership or any limited
partner for losses sustained or liabilities incurred as a result of errors in
judgment or of any act or omission if we carried out our duties in good faith.
In addition, Lex GP-1 and the Company are not responsible for any misconduct or
negligence on the part of their agents, provided Lex GP-1 and the Company
appointed such agents in good faith. Lex GP-1 and the Company may consult with
legal counsel, accountants, appraisers, management consultants, investment
bankers and other consultants and advisors, and any action it takes or omits to
take in reliance upon the opinion of such persons, as to matters that Lex GP-1
and the Company reasonably believe to be within their professional or expert
competence, shall be conclusively presumed to have been done or omitted in good
faith and in accordance with such opinion.
The Partnership Agreement also provides that the Operating Partnership
will indemnify Lex GP-1 and the Company, the directors, trustees and officers of
Lex GP-1 and the Company, and such other persons as Lex GP-1 and the Company may
from time to time designate to the fullest extent permitted under the Delaware
Act.
Sales Of Assets
Under the Partnership Agreement, Lex GP-1 generally has the exclusive
authority to determine whether, when and on what terms the assets of the
Operating Partnership will be sold. The Operating Partnership, however, is
prohibited under the Partnership Agreement and certain contractual agreements
from selling certain assets, except in certain limited circumstances. Lex GP-1
may not consent to a sale of all or substantially all of the assets of the
Operating Partnership, or a merger of the Operating Partnership with another
entity, without the consent of a majority in interest of the Special Limited
Partners.
Removal Of The General Partner; Restrictions on Transfer By The General Partner
Or The Company
The Partnership Agreement provides that the limited partners may not
remove Lex GP-1 as general partner of the Operating Partnership. Lex GP-1 may
not transfer any of its interests as the general partner of the Operating
Partnership, and Lex LP-1 may not transfer any of its interests as a limited
partner in the Operating Partnership, except to each other or to the Company. We
also may not sell all or substantially all of our assets, or enter into a
merger, unless the sale or merger includes the sale of all or substantially all
of the assets, or the merger, of the Operating Partnership in pursuant to which
unitholders receive substantially the same consideration as shareholders.
Restrictions On Transfer Of OP Units By Unitholders
Unitholders now may transfer, subject to certain limitations, the economic
rights associated with their OP units without the consent of the general
partner, thereby eliminating the ability of the general partner to block, except
in very limited circumstances, such assignments. However, a transferee will not
be admitted to the Operating Partnership as a substituted limited partner
without the consent of the general partner. In addition, unitholders may
-13-
dispose of their OP units by exercising their rights to have their OP units
redeemed for common shares. See "REDEMPTION OF OP UNITS" below.
Issuance Of Additional Limited Partnership Interests
Lex GP-1 is authorized, in its sole and absolute discretion and without
the consent of the limited partners, to cause the Operating Partnership to issue
additional OP units to any limited partners or any other persons for such
consideration and on such terms and conditions as Lex GP-1 deems appropriate. In
addition, Lex GP-1 may cause the Operating Partnership to issue additional
partnership interests in different series or classes, which may be senior to the
OP units. Subject to certain exceptions, no additional OP units may be issued to
the Company, Lex GP-1 or Lex LP-1.
Meetings; Voting
The Partnership Agreement provides that limited partners shall not take
part in the operation, management or control of the Operating Partnership's
business. The Partnership Agreement does not provide for annual meetings of the
limited partners, and the Operating Partnership does not anticipate calling such
meetings.
Amendment Of The Partnership Agreement
The Partnership Agreement may be amended with the consent of Lex GP-1, Lex
LP-1 and a majority in interest of the Special Limited Partners. Notwithstanding
the foregoing, Lex GP-1 has the power, without the consent of limited partners,
to amend the Partnership Agreement in certain limited circumstances.
Dissolution, Winding Up And Termination
The Operating Partnership will continue until December 31, 2093, unless
sooner dissolved and terminated. The Operating Partnership will be dissolved,
and its affairs wound up upon the occurrence of the earliest of: (1) the
expiration of the term; (2) the withdrawal of Lex GP-1 as general partner
(except in certain limited circumstances); (3) the sale of all or substantially
all of the Operating Partnership's assets and properties; or (4) the entry of a
decree of judicial dissolution of the Operating Partnership pursuant to the
provisions of the Delaware Act. Upon dissolution, Lex GP-1, as general partner,
or any person elected as liquidator by a majority in interest of the limited
partners, will proceed to liquidate the assets of the Operating Partnership and
apply the proceeds therefrom in the order of priority set forth in the
Partnership Agreement.
REDEMPTION OF OP UNITS
General
Each unitholder may, subject to certain limitations, require that the
Operating Partnership redeem its OP units, by delivering a notice to the
Operating Partnership. We have guaranteed the Operating Partnership's obligation
to redeem OP units covered by any such notice. Upon redemption, such unitholder
will receive one common share (subject to certain anti-dilution adjustments) in
exchange for each OP unit held by such unitholder.
The Operating Partnership and the Company will satisfy any redemption
right exercised by a unitholder through our issuance of common shares, whether
pursuant to this prospectus or otherwise, whereupon we will acquire, and become
the owner of, the OP units being redeemed. Such an acquisition of OP units by us
will be treated as a sale of the OP units by the redeeming unitholders to us for
federal income tax purposes. See "-- Tax Treatment of Redemption of OP Units"
below. Upon redemption, such unitholder's right to receive distributions from
the Operating Partnership with respect to the OP units redeemed will cease. The
unitholder will have rights to dividend distributions as a shareholder of the
Company from the time of its acquisition of common shares in exchange for the
redemption of its OP units.
A unitholder must notify Lex GP-1 and us of its desire to require the
Operating Partnership to redeem OP units by sending a notice in the form
attached as an exhibit to the Partnership Agreement, a copy of which is
available from us. A unitholder must request the redemption of at least 1,000 OP
units, or, if the unitholder holds fewer than 1,000 OP units, all OP units held
by such holder. No redemption can occur if the delivery of common
-14-
shares would be prohibited under the provisions of the Declaration of Trust
designed to protect our qualification as a REIT.
Tax Treatment Of Redemption Of OP Units
The following discussion summarizes certain federal income tax
considerations that may be relevant to a unitholder that exercises its right to
redeem OP units.
The Partnership Agreement provides that the redemption of OP units will be
treated by us, the Operating Partnership and the redeeming unitholder as a sale
of OP units by such unitholder to us at the time of the redemption. Such sale
will be fully taxable to the redeeming unitholder.
The determination of gain or loss from the sale or other disposition will
be based on the difference between the unitholder's amount realized for tax
purposes and his tax basis in such OP units. The amount realized will be
measured by the fair market value of property received (e.g., the common shares)
plus the portion of the Operating Partnership's liabilities allocable to the OP
units sold. In general, a unitholder's tax basis is based on the cost of the OP
units, adjusted for the unitholder's allocable share of Operating Partnership's
income, loss and distributions, and can be determined by reference to the
Operating Partnership's Schedule K-1's. To the extent that the amount realized
exceeds the unitholder's basis for the OP units disposed of, such unitholder
will recognize gain. It is possible that the amount of gain recognized or even
the tax liability resulting from such gain could exceed the fair market value of
the common shares received upon such disposition. EACH UNITHOLDER SHOULD CONSULT
WITH ITS OWN TAX ADVISOR FOR THE SPECIFIC TAX CONSEQUENCES RESULTING FROM A
REDEMPTION OF ITS OP UNITS.
Generally, any gain recognized upon a sale or other disposition of OP
units will be treated as gain attributable to the sale or disposition of a
capital asset. To the extent, however, that the amount realized upon the sale of
OP units attributable to a unitholder's share of "unrealized receivables" of the
Operating Partnerships (as defined in Section 751 of the Code) exceeds the basis
attributable to those assets, such excess will be treated as ordinary income.
Unrealized receivables include, to the extent not previously included in
Operating Partnership's income, any rights to payment for services rendered or
to be rendered. Unrealized receivables also include amounts that would be
subject to recapture as ordinary income if the Operating Partnership had sold
its assets at their fair market value at the time of the transfer of OP units.
For individuals, trusts and estates, the maximum rate of tax on the net
capital gain from a sale or exchange of a long-term capital asset (i.e., a
capital asset held for more than 12 months) is 20%. The maximum rate for net
capital gains attributable to the sale of depreciable real property held for
more than 12 months is 25% to the extent of the prior depreciation deductions
for "unrecaptured Section 1250 gain" (that is, depreciation deductions not
otherwise recaptured as ordinary income under the existing depreciation
recapture rules). Treasury Regulations provide that individuals, trusts and
estates are subject to a 25% tax to the extent of their allocable share of
unrecaptured Section 1250 gain immediately prior to their sale or disposition of
the OP units (the "25% Amount"). Provided that the OP units are held as a
long-term capital asset, such unitholders would be subject to a maximum rate of
tax of 20% of the difference, if any, between any gain on the sale or
disposition of the OP units and the 25% Amount.
There is a risk that a redemption by the Operating Partnership of OP units
issued in exchange for a contribution of property to the Operating Partnership
may cause the original transfer of property to the Operating Partnership in
exchange for OP units to be treated as a "disguised sale" of property. Section
707 of the Code and the Treasury Regulations thereunder (the "Disguised Sale
Regulations") generally provide that, unless one of the prescribed exceptions is
applicable, a partner's contribution of property to a partnership and a
simultaneous or subsequent transfer of money or other consideration (which may
include the assumption of or taking subject to a liability) from the partnership
to the partner will be presumed to be a sale, in whole or in part, of such
property by the partner to the partnership. Further, the Disguised Sale
Regulations provide generally that, in the absence of an applicable exception,
if money or other consideration is transferred by a partnership to a partner
within two years of the partner's contribution of property, the transactions are
presumed to be a sale of the contributed property unless the facts and
circumstances clearly establish that the transfers do not constitute a sale. The
Disguised Sale Regulations also provide that if two years have passed between
the transfer of money or other consideration and the
-15-
contribution of property, the transactions will be presumed not to be a sale
unless the facts and circumstances clearly establish that the transfers
constitute a sale. EACH UNITHOLDER SHOULD CONSULT WITH ITS OWN TAX ADVISOR TO
DETERMINE WHETHER A REDEMPTION OF OP UNITS COULD BE SUBJECT TO THE DISGUISED
SALE REGULATIONS.
REGISTRATION RIGHTS
We have filed the registration statement of which this prospectus is a
part pursuant to our obligations in conjunction with certain agreements entered
into in connection with the acquisition of certain properties. Under these
agreements, executed in conjunction with the parties listed therein, we are
obligated to use our reasonable efforts to keep the registration statement
continuously effective for a period expiring on the date on which all of the
units covered by these agreements have been redeemed pursuant to the
registration statement. Any shares that have been sold pursuant to such
agreements, or have been otherwise transferred and new certificates for them
have been issued without legal restriction on further transfer of such shares,
will no longer be entitled to the benefits of those agreements.
We have no obligation under these agreements to retain any underwriter to
effect the sale of the shares covered thereby and the registration statement
shall not be available for use for an underwritten public offering of such
shares.
Pursuant to these agreements, we agreed to pay all expenses of effecting
the registration of the common shares covered by this prospectus (other than
underwriting discounts and commissions, fees and disbursements of counsel, and
transfer taxes, if any) pursuant to the registration statement.
COMPARISON OF OWNERSHIP OF OP UNITS AND COMMON SHARES
The information below highlights a number of the significant differences
between the Operating Partnership and the Company relating to, among other
things, form of organization, permitted investments, policies and restrictions,
management structure, compensation and fees, investor rights and federal income
taxation, and compares certain legal rights associated with the ownership of OP
units and common shares, respectively. These comparisons are intended to assist
unitholders in understanding how their investment will be changed if their OP
units are redeemed for common shares. This discussion is summary in nature and
does not constitute a complete discussion of these matters, and unitholders
should carefully review the balance of this prospectus and the registration
statement of which this prospectus is a part for additional important
information about the Company.
THE OPERATING PARTNERSHIP THE COMPANY
FORM OF ORGANIZATION AND ASSETS OWNED
-------------------------------------
The Operating Partnership is organized We are a Maryland statutory real
as a Delaware limited partnership. The estate investment trust. We believe
Operating Partnership owns interests that we have operated so as to qualify
(directly and indirectly through as a REIT under the Code, commencing
subsidiaries) in properties. with our taxable year ended December
31, 1993, and intend to continue to so
operate. Our indirect interest in the
Operating Partnership gives us an
indirect investment in the properties
owned by the Operating Partnership. In
addition, we own (either directly or
indirectly through interests in
subsidiaries other than the Operating
Partnership) interests in other
properties.
LENGTH OF INVESTMENT
--------------------
The Operating Partnership has a stated We have a perpetual term and intend to
termination date of December 31, 2093. continue our operations for an
indefinite time period.
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PURPOSE AND PERMITTED INVESTMENTS
---------------------------------
The Operating Partnership's purpose is Our purposes are to engage in the real
to conduct any business that may be estate business and lawful activities
lawfully conducted by a limited incidental thereto, and to engage in
partnership organized pursuant to the any lawful activity permitted under
Delaware Act, provided that such the applicable laws of the State of
business is to be conducted in a Maryland. We are permitted by the
manner that permits us to be qualified Partnership Agreement to engage in
as a REIT unless we cease to qualify activities not related to the business
as REIT for reason other than the of the Operating Partnership,
conduct of the Operating Partnership's including activities in direct or
business. The Operating Partnership indirect competition with the
may not take, or refrain from taking, Operating Partnership, and may own
any action which, in the judgment of assets other than our interest in the
the general partner (which is Operating Partnership and such other
wholly-owned by us) (i) could assets necessary to carry out our
adversely affect our ability to responsibilities under the Partnership
continue to qualify as a REIT, (ii) Agreement and our Declaration of
could subject the general partner to Trust. In addition, we have no
any additional taxes under Section 857 obligation to present opportunities to
or Section 4981 of the Code, or any the Operating Partnership and the
other Section of the Code, or (iii) unitholders have no rights by virtue
could violate any law or regulation of of the Partnership Agreement in any of
any governmental body (unless such our outside business ventures.
action, or inaction, is specifically
consented to by the general partner).
ADDITIONAL EQUITY
-----------------
The Operating Partnership is The Board of Trustees may issue, in
authorized to issue OP units and other its discretion, additional equity
partnership interests (including securities consisting of common shares
partnership interests of different or preferred shares. However, the
series or classes that may be senior total number of shares issued may not
to OP units) as determined by the exceed the authorized number of shares
general partner, in its sole of capital stock set forth in our
discretion. Declaration of Trust. The proceeds of
equity capital raised by the Company
are not required to be contributed to
the Operating Partnership.
BORROWING POLICIES
------------------
The Operating Partnership has no Neither our Declaration of Trust nor
restrictions on borrowings, and the our By-Laws impose any restrictions on
general partner has full power and our ability to borrow money. We are
authority to borrow money on behalf of not required to incur our indebtedness
the Operating Partnership. through the Operating Partnership.
OTHER INVESTMENT RESTRICTIONS
-----------------------------
Other than restrictions precluding Neither our Declaration of Trust nor
investments by the Operating our By-Laws impose any restrictions
Partnership that would adversely upon the types of investments made by
affect our qualification as a REIT, us.
there are no restrictions upon the
Operating Partnership's authority to
enter into certain transactions,
including among others, making
investments, lending Operating
Partnership funds, or reinvesting the
Operating Partnership's cash flow and
net sale or refinancing proceeds.
-17-
MANAGEMENT CONTROL
------------------
All management powers over the The Board of Trustees has exclusive
business and affairs of the Operating control over our business and affairs
Partnership are vested in the general subject only to the restrictions in
partner of the Operating Partnership, our Declaration of Trust and By-Laws.
and no limited partner of the The Board of Trustees consists of
Operating Partnership has any right to seven trustees, which number may be
participate in or exercise control or increased or decreased by vote of at
management power over the business and least a majority of the entire Board
affairs of the Operating Partnership of Trustees pursuant to our By-Laws,
except that (1) the general partner of but may never be fewer than the
the Operating Partnership may not minimum permitted by the Maryland REIT
consent to the participation of the Law. At each annual meeting of our
Operating Partnership in any merger, shareholders, the successors of the
consolidation or other combination class of trustees whose terms expire
with or into another person or entity, at that meeting will be elected. The
or a sale of all or substantially all policies adopted by the Board of
of the Operating Partnership's assets Trustees may be altered or eliminated
without the consent of a majority in without a vote of the shareholders.
interest of the Special Limited Accordingly, except for their vote in
Partners, and (2) there are certain the elections of trustees,
limitations on the ability of the shareholders have no control over our
general partner of the Operating ordinary business policies.
Partnership to cause or permit the
Operating Partnership to dissolve. See
"--VOTING RIGHTS--VOTE REQUIRED TO
DISSOLVE THE OPERATING PARTNERSHIP OR
THE COMPANY" below. The general
partner may not be removed by the
limited partners of the Operating
Partnership with or without cause.
FIDUCIARY DUTIES
----------------
Under Delaware law, the general Under Maryland law, the trustees must
partner of the Operating Partnership perform their duties in good faith, in
is accountable to the Operating a manner that they reasonably believe
Partnership as a fiduciary and, to be in the best interests of the
consequently, is required to exercise Company and with the care that an
good faith and integrity in all of its ordinarily prudent person in a like
dealings with respect to partnership position would use under similar
affairs. However, under the circumstances. Trustees of the Company
Partnership Agreement, the general who act in such a manner generally
partner may, but is under no will not be liable to the Company for
obligation to, take into account the monetary damages arising from their
tax consequences to any partner of any activities.
action taken by it, and the general
partner is not liable for monetary
damages for losses sustained or
liabilities incurred by partners as a
result of errors of judgment or of any
act or omission, provided that the
general partner has acted in good
faith.
-18-
MANAGEMENT LIABILITY AND INDEMNIFICATION
----------------------------------------
Under Delaware law, the general Under our Declaration of Trust, the
partner has liability for the payment liability of the Company's trustees
of the obligations and debts of the and officers to the Company and its
Operating Partnership unless shareholders for money damages is
limitations upon such liability are limited to the fullest extent
stated in the document or instrument permitted under Maryland law. Under
evidencing the obligation. Under the our Declaration of Trust we have
Partnership Agreement, the Operating agreed to indemnify trustees and
Partnership has agreed to indemnify officers, to the fullest extent
the general partner and the Company, permitted under Maryland law and to
and any director or officer of the indemnify our other employees and
general partner or the Company to the agent s to such extent as authorized
fullest extent permitted under the by our Board of Trustees or our
Delaware Act. The reasonable expenses By-Laws, but only to the extent
incurred by an indemnitee may be permitted under applicable law.
reimbursed by the Operating
Partnership in advance of the final
disposition of the proceeding upon
receipt by the Operating Partnership
of a written affirmation by such
indemnitee of his, her or its good
faith belief that the standard of
conduct necessary for indemnification
has been met and a written undertaking
by such indemnitee to repay the amount
if it is ultimately determined that
such standard was not met.
ANTI-TAKEOVER PROVISIONS
------------------------
Except in limited circumstances (see Our Declaration of Trust and By-Laws
"--VOTING RIGHTS" below), the general contain a number of provisions that
partner of the Operating Partnership may have the effect of delaying or
has exclusive management power over discouraging an unsolicited proposal
the business and affairs of the for the acquisition of the Company or
Operating Partnership. The general the removal of incumbent management.
partner may not be removed by the These provisions include, among
limited partners with or without others: (1) authorized capital shares
cause. Under the Partnership that may be issued as Preferred Shares
Agreement, a limited partner may in the discretion of the Board of
transfer his or her interest as a Trustees, with superior voting rights
limited partner (subject to certain to the common shares; (2) a
limited exceptions set forth in the requirement that trustees may be
Partnership Agreement), without removed only for cause and only by the
obtaining the approval of the general affirmative vote of the holders of at
partner except that the general least 80% of the combined voting power
partner may, in its sole discretion, of all classes of shares of beneficial
prevent the admission of transferees interest entitled to vote in the
to the Operating Partnership as election of trustees; and
substituted limited partners. (3) provisions designed to avoid
concentration of share ownership in a
manner that would jeopardize our
status as a REIT under the Code.
VOTING RIGHTS
-------------
All decisions relating to the The Company is managed and controlled
operation and management of the by a Board of Trustees presently
Operating Partnership are made by the consisting of seven members. Each
general partner. See "DESCRIPTION OF trustee is to be elected by the
OP UNITS" beginning on page 11 of this shareholders at annual meetings of the
prospectus. As of the date of this Company. Maryland law requires that
prospectus, we held, through various certain major corporate transactions,
subsidiaries, approximately 79% of the including most amendments to the
outstanding OP units. As OP units are Declaration of Trust, may not be
redeemed by unitholders, the Company's consummated without the approval of
percentage ownership of the Operating shareholders as set forth below. All
Partnership will increase. common shares have one vote, and the
Declaration of Trust permits the Board
of Trustees to classify and issue
preferred shares in one or more series
having voting power which may differ
from that of the common shares. See
"DESCRIPTION OF COMMON SHARES"
beginning on page 7 of this
prospectus.
-19-
The following is a comparison of the voting rights of the limited partners
of the Operating Partnership and the shareholders of the Company as they relate
to certain major transactions:
A. AMENDMENT OF THE PARTNERSHIP AGREEMENT OR THE DECLARATION OF TRUST.
The Partnership Agreement may be Amendments to our Declaration of Trust
amended with the consent of Lex GP-1, must be approved by the Board of
Lex LP-1 and a majority in interest of Trustees and generally by at least a
the Special Limited Partners. Certain majority of the votes entitled to be
amendments that affect the fundamental cast on that matter at a meeting of
rights of a limited partner must be shareholders.
approved by each affected limited
partner. In addition, the general
partner may, without the consent of
the limited partners, amend the
Partnership Agreement as to certain
ministerial matters.
B. VOTE REQUIRED TO DISSOLVE OR TERMINATE THE OPERATING PARTNERSHIP OR THE
COMPANY.
The Operating Partnership may be The Company may be terminated only
dissolved upon the occurrence of upon the affirmative vote of the
certain events, none of which require holders of two-thirds of the
the consent of the limited partners. outstanding common shares.
C. VOTE REQUIRED TO SELL ASSETS OR MERGE.
Under the Partnership Agreement, the Under Maryland law, the sale of all or
sale, exchange, transfer or other substantially all of our assets, or a
disposition of all or substantially merger or consolidation of the
all of the Operating Partnership's Company, requires the approval of the
assets, or a merger or consolidation Board of Trustees and the holders of a
of the Operating Partnership, require majority of the outstanding common
the consent of a majority in interest shares. No approval of the
of the Special Limited Partners. The shareholders is required for the sale
general partner of the Operating of less than all or substantially all
Partnership has the exclusive of our assets.
authority the sell individual assets
of the Operating Partnership.
COMPENSATION, FEES AND DISTRIBUTIONS
------------------------------------
The general partner does not receive Our non-employee trustees and our
any compensation for its services as officers receive compensation for
general partner of the Operating their services.
Partnership. As a partner in the
Operating Partnership, however, the
general partner has the same right to
allocations and distributions as other
partners of the Operating Partnership.
In addition, the Operating Partnership
will reimburse the general partner
(and the Company) for all expenses
incurred relating to the ownership and
operation of the Operating Partnership
and any other offering of additional
partnership interests in the Operating
Partnership.
LIABILITY OF INVESTORS
----------------------
Under the Partnership Agreement and Under Maryland law, shareholders are
applicable state law, the liability of not personally liable for the debts or
the limited partners for the Operating obligations of the Company.
Partnership's debts and obligations is
generally limited to the amount of
their investment in the Operating
Partnership.
-20-
NATURE OF INVESTMENT
--------------------
The OP units constitute equity Common shares constitute equity
interests in the Operating interests in the Company. We are
Partnership. Generally, unitholders entitled to receive our pro rata share
are allocated and distributed amounts of distributions made by the Operating
with respect to their OP units which Partnership with respect to OP units
approximate the amount of held by us, and by our other direct
distributions made with respect to the subsidiaries. Each shareholder will be
same number of our common shares, as entitled to his pro rata share of any
determined in the manner provided in dividends or distributions paid with
the Partnership Agreement and subject respect to the common shares. The
to certain restrictions and exceptions dividends payable to the shareholders
for certain limited partners. The are not fixed in amount and are only
Operating Partnership generally paid if, when and as declared by the
intends to retain and reinvest Board of Trustees. In order to
proceeds of the sale of property or continue to qualify as a REIT, we
excess refinancing proceeds in its generally must distribute at least 90%
business. of our net taxable income (excluding
capital gains), and any taxable income
(including capital gains) not
distributed will be subject to
corporate income tax.
POTENTIAL DILUTION OF RIGHTS
----------------------------
The general partner of the Operating The Board of Trustees may issue, in
Partnership is authorized, in its sole its discretion, additional shares, and
discretion and without limited partner has the authority to issue from
approval, to cause the Operating authorized capital a variety of other
Partnership to issue additional equity securities of the Company with
limited partnership interests and such powers, preferences and rights as
other equity securities for any the Board of Trustees may designate at
partnership purpose at any time to the the time. The issuance of either
limited partners or to other persons additional common shares or other
(including the general partner under similar equity securities may result
certain circumstances set forth in the in the dilution of the interests of
Partnership Agreement). the shareholders.
LIQUIDITY
---------
Limited partners may generally The common shares covered by this
transfer their OP units without the prospectus will be freely transferable
general partner's consent, except that as registered securities under the
the general partner may, in its sole Securities Act. Our common shares are
discretion, prevent the admission of listed on the NYSE. The breadth and
transferees to the Operating strength of this secondary market will
Partnership as substituted limited depend, among other things, upon the
partners. Certain limited partners number of shares outstanding, our
have the right to tender their OP financial results and prospects, the
units for redemption by the Operating general interest in the Company's and
Partnership at certain times, as other real estate investments, and our
specified in the Partnership dividend yield compared to that of
Agreement. See "REDEMPTION OF OP other debt and equity securities.
UNITS" beginning on page 14 of this
prospectus.
-21-
FEDERAL INCOME TAXATION
-----------------------
The Operating Partnership is not We have elected to be taxed as a REIT.
subject to federal income taxes. So long as we qualify as a REIT, we
Instead, each unitholder includes its will be permitted to deduct
allocable share of the Operating distributions paid to our
Partnership's taxable income or loss shareholders, which effectively will
in determining its individual federal reduce the "double taxation" that
income tax liability. The maximum typically results when a corporation
federal income tax rate for earns income and distributes that
individuals under current law is income to its shareholders in the form
38.6%. of dividends. A qualified REIT,
however, is subject to federal income
A unitholder's share of income and tax on income that is not distributed
loss generated by the Operating and also may be subject to federal
Partnership generally is subject to income and excise taxes in certain
the "passive activity" limitations. circumstances. The maximum federal
Under the "passive activity" rules, income tax rate for corporations under
income and loss from the Operating current law is 35%.
Partnership that are considered
"passive income" generally can be Dividends paid by us will be treated
offset against income and loss from as "portfolio" income and cannot be
other investments that constitute offset with losses from "passive
"passive activities." Cash activities." The maximum federal
distributions from the Operating income tax rate for individuals under
Partnership are not taxable to a current law is 38.6%. Distributions
unitholder except to the extent such made by us to our taxable domestic
distributions exceed such unitholder's shareholders out of current or
basis in its interest in the Operating accumulated earnings and profits will
Partnership (which will include such be taken into account by them as
holder's allocable share of the ordinary income. Distributions that
Operating Partnership's taxable income are designated as capital gain
and nonrecourse debt). dividends generally will be taxed as
long-term capital gain, subject to
Each year, unitholders will receive a certain limitations. Distributions in
Schedule K-1 containing detailed tax excess of current or accumulated
information for inclusion in preparing earnings and profits will be treated
their federal income tax returns. as a non-taxable return of basis to
the extent of a shareholder's adjusted
Unitholders are required, in some basis in its common shares, with the
cases, to file state income tax excess taxed as capital gain.
returns and/or pay state income taxes
in the states in which the Operating Each year, shareholders will receive
Partnership owns property, even if an IRS Form 1099 used by corporations
they are not residents of those to report dividends paid to their
states. shareholders.
Shareholders who are individuals
generally will not be required to file
state income tax returns and/or pay
state income taxes outside of their
state of residence with respect to our
operations and distributions. We may
be required to pay state income taxes
in certain states.
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Federal Income Tax Considerations
The following discussion summarizes the material federal income tax
considerations to you as a prospective holder of our common shares. For a
discussion of certain federal income tax considerations that may be relevant to
a unitholder that exercises its right to redeem OP units, see "REDEMPTION OF OP
UNITS - Tax Treatment of Redemption of OP Units" beginning on page 15 of this
prospectus. The following discussion is for general information purposes only,
is not exhaustive of all possible tax considerations and is not intended to be
and should not be construed as tax advice. For example, this summary does not
give a detailed discussion of any state, local or foreign tax considerations. In
addition, this discussion is intended to address only those federal income tax
considerations that are generally applicable to all of our security holders. It
does not discuss all of the aspects of federal income taxation that may be
relevant to you in light of your particular circumstances or to certain types of
security holders who are subject to special treatment under the federal income
tax laws including, without limitation, insurance companies, tax-exempt
entities, financial institutions or broker-dealers, foreign corporations and
persons who are not citizens or residents of the United States.
The information in this section is based on the Internal Revenue Code of
1986, as amended, which is generally referred to as the Code, existing,
temporary and proposed regulations under the Code, the legislative history of
the Code, current administrative rulings and practices of the IRS and court
decisions, all as of the date hereof. No assurance can be given that future
legislation, regulations, administrative interpretations and court decisions
will not significantly change current law or adversely affect existing
interpretations of current law. Any such change could apply retroactively to
transactions preceding the date of the change. In addition, we have not
received, and do not plan to request, any rulings from the IRS concerning our
tax treatment. Thus no assurance can be provided that the statements set forth
herein (which do not bind the IRS or the courts) will not be challenged by the
IRS or that such statements will be sustained by a court if so challenged.
EACH PROSPECTIVE PURCHASER OF COMMON SHARES IS ADVISED TO CONSULT WITH HIS
OR HER OWN TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OR HER OF
THE PURCHASE, OWNERSHIP AND SALE OF COMMON SHARES OF AN ENTITY ELECTING TO BE
TAXED AS A REIT, INCLUDING THE FEDERAL, STATE, LOCAL AND FOREIGN AND OTHER TAX
CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP, SALE AND ELECTION AND OF POTENTIAL
CHANGES IN APPLICABLE TAX LAWS.
Taxation of the Company
General. We elected to be taxed as a REIT under Sections 856 through 860
of the Code, commencing with our taxable year ended December 31, 1993. We
believe that we have been organized, and have operated, in such a manner so as
to qualify for taxation as a REIT under the Code and intend to conduct our
operations so as to continue to qualify for taxation as a REIT. No assurance,
however, can be given that we have operated in a manner so as to qualify or will
be able to operate in such a manner so as to remain qualified as a REIT.
Qualification and taxation as a REIT depend upon our ability to meet on a
continuing basis, through actual annual operating results, the required
distribution levels, diversity of share ownership and the various qualification
tests imposed under the Code discussed below, the results of which will not be
reviewed by counsel. Given the highly complex nature of the rules governing
REITs, the ongoing importance of factual determinations, and the possibility of
future changes in our circumstances, no assurance can be given that the actual
results of our operations for any one taxable year have satisfied or will
continue to satisfy such requirements.
The following is a general summary of the Code provisions that govern the
federal income tax treatment of a REIT and its shareholders. These provisions of
the Code are highly technical and complex. This summary is qualified in its
entirety by the applicable Code provisions, Treasury Regulations and
administrative and judicial interpretations thereof, all of which are subject to
change prospectively or retroactively.
If we qualify for taxation as a REIT, we generally will not be subject to
federal corporate income taxes on our net income that is currently distributed
to shareholders. This treatment substantially eliminates the "double taxation"
(at the corporate and shareholder levels) that generally results from investment
in a corporation. However, we will be subject to federal income tax as follows:
first, we will be taxed at regular corporate rates on any undistributed REIT
taxable income, including undistributed net capital gains. Second, under certain
circumstances,
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we may be subject to the "alternative minimum tax" on our items of tax
preference. Third, if we have (a) net income from the sale or other disposition
of "foreclosure property", which is, in general, property acquired on
foreclosure or otherwise on default on a loan secured by such real property or a
lease of such property, which is held primarily for sale to customers in the
ordinary course of business or (b) other nonqualifying income from foreclosure
property, we will be subject to tax at the highest corporate rate on such
income. Fourth, if we have net income from prohibited transactions such income
will be subject to a 100% tax. Prohibited transactions are, in general, certain
sales or other dispositions of property held primarily for sale to customers in
the ordinary course of business other than foreclosure property. Fifth, if we
should fail to satisfy the 75% gross income test or the 95% gross income test
(as discussed below), but nonetheless maintain our qualification as a REIT
because certain other requirements have been met, we will be subject to a 100%
tax on an amount equal to (a) the gross income attributable to the greater of
the amount by which we fail the 75% or 95% test multiplied by (b) a fraction
intended to reflect our profitability. Sixth, if we should fail to distribute
during each calendar year at least the sum of (a) 85% of our REIT ordinary
income for such year, (b) 95% of our REIT capital gain net income for such year,
and (c) any undistributed taxable income from prior periods, we would be subject
to a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. Seventh, as provided in temporary regulations, and
assuming we do not elect to instead be taxed at the time of acquisition, if we
acquire any asset from a C corporation (i.e., a corporation generally subject to
full corporate level tax) in a transaction in which the basis of the asset in
our hands is determined by reference to the basis of the asset (or any other
property) in the hands of the C corporation, we would be subject to tax at the
highest corporate rate if we dispose of such asset during the 10-year period
beginning on the date that we acquired that asset, to the extent of such
property's "built-in gain" (the excess of the fair market value of such property
at the time of our acquisition over the adjusted basis of such property at such
time). Eighth, we will incur a 100% excise tax on transactions with a taxable
REIT subsidiary that are not conducted on an arm's-length basis.
Requirements for Qualification. A REIT is a corporation, trust or
association (1) which is managed by one or more trustees or directors, (2) the
beneficial ownership of which is evidenced by transferable shares, or by
transferable certificates of beneficial interest, (3) which would be taxable as
a domestic corporation, but for Sections 856 through 859 of the Code, (4) which
is neither a financial institution nor an insurance company subject to certain
provisions of the Code, (5) that has the calendar year as its taxable year, (6)
the beneficial ownership of which is held by 100 or more persons, (7) during the
last half of each taxable year not more than 50% in value of the outstanding
stock of which is owned, directly or indirectly, by five or fewer individuals
(as defined in the Code to include certain entities), and (8) which meets
certain other tests, described below, regarding the nature of its income and
assets. The Code provides that conditions (1) through (5), inclusive, must be
met during the entire taxable year and that condition (6) must be met during at
least 335 days of a taxable year of 12 months, or during a proportionate part of
a taxable year of less than 12 months. We expect to meet the ownership test
immediately after the transaction contemplated herein.
We may redeem, at our option, a sufficient number of shares or restrict
the transfer thereof to bring or maintain the ownership of the shares in
conformity with the requirements of the Code. In addition, our Declaration of
Trust includes restrictions regarding the transfer of our stock that are
intended to assist us in continuing to satisfy requirements (6) and (7).
Moreover, if we comply with regulatory rules pursuant to which we are required
to send annual letters to our shareholders requesting information regarding the
actual ownership of shares of our capital stock, and we do not know, or
exercising reasonable diligence would not have known, whether we failed to meet
requirement (7) above, we will be treated as having met the requirement. See the
section entitled "DESCRIPTION OF COMMON SHARES" beginning on page 7 of this
prospectus and the section entitled "RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK
AND ANTI-TAKEOVER PROVISIONS" beginning on page 8 of this prospectus.
The Code allows a REIT to own wholly-owned subsidiaries which are
"qualified REIT subsidiaries." The Code provides that a qualified REIT
subsidiary is not treated as a separate corporation, and all of its assets,
liabilities and items of income, deduction and credit are treated as assets,
liabilities and items of income, deduction and credit of the REIT. Thus, in
applying the requirements described herein, our qualified REIT subsidiaries will
be ignored, and all assets, liabilities and items of income, deduction and
credit of such subsidiaries will be treated as our assets, liabilities and items
of income, deduction and credit.
For taxable years beginning on or after January 1, 2001, a REIT may also
hold any direct or indirect interest in a corporation that qualifies as a
"taxable REIT subsidiary", as long as the REIT's aggregate holdings of
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taxable REIT subsidiary securities do not exceed 20% of the value of the REIT's
total assets. A taxable REIT subsidiary is a fully taxable corporation that
generally is permitted to engage in businesses, own assets, and earn income
that, if engaged in, owned, or earned by the REIT, might jeopardize REIT status
or result in the imposition of penalty taxes on the REIT. To qualify as a
taxable REIT subsidiary, the subsidiary and the REIT must make a joint election
to treat the subsidiary as a taxable REIT subsidiary. A taxable REIT subsidiary
also includes any corporation (other than a REIT or a qualified REIT subsidiary)
in which a taxable REIT subsidiary directly or indirectly owns more than 35% of
the total voting power or value. See "Asset Tests" below. A taxable REIT
subsidiary will pay tax at regular corporate income rates on any taxable income
it earns. Moreover, the Code contains rules, including rules requiring the
imposition of taxes on a REIT at the rate of 100% on certain reallocated income
and expenses, to ensure that contractual arrangements between a taxable REIT
subsidiary and its parent REIT are at arm's-length.
In the case of a REIT which is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of each of the assets of the partnership and will be deemed to be entitled to
the income of the partnership attributable to such share. In addition, the
character of the assets and items of gross income of the partnership will retain
the same character in the hands of the REIT for purposes of Section 856 of the
Code, including satisfying the gross income and assets tests (as discussed
below). Thus, our proportionate share of the assets, liabilities, and items of
gross income of the partnerships in which we own an interest are treated as our
assets, liabilities and items of gross income for purposes of applying the
requirements described herein.
Income Tests. In order to maintain qualification as a REIT, we must
satisfy annually certain gross income requirements. First, at least 75% of our
gross income (excluding gross income from prohibited transactions) for each
taxable year must be derived directly or indirectly from investments relating to
real property or mortgages on real property (including "rents from real
property" and, in certain circumstances, interest) or from certain types of
qualified temporary investments. Second, at least 95% of our gross income
(excluding gross income from prohibited transactions) for each taxable year must
be derived from such real property investments, dividends, interest and gain
from the sale or disposition of stock or securities.
Rents received by us will qualify as "rents from real property" in
satisfying the gross income requirements for a REIT described above only if
several conditions are met. First, the amount of rent must not be based in whole
or in part on the income or profits of any person. However, an amount received
or accrued generally will not be excluded from the term "rents from real
property" solely by reason of being based on a fixed percentage or percentages
of receipts or sales. Second, the Code provides that rents received from a
tenant will not qualify as "rents from real property" in satisfying the gross
income tests if we, or an owner of 10% or more of our shares, actually or
constructively own 10% or more of such tenant. Third, if rent attributable to
personal property, leased in connection with a lease of real property, is
greater than 15% of the total rent received under the lease, then the portion of
rent attributable to such personal property will not qualify as "rents from real
property." Finally, in order for rents received to qualify as "rents from real
property," we generally must not operate or manage the property (subject to a de
minimis exception as described below) or furnish or render services to the
tenants of such property, other than through an independent contractor from whom
we derive no revenue or through a taxable REIT subsidiary. We may, however,
directly perform certain services that are "usually or customarily rendered" in
connection with the rental of space for occupancy only and are not otherwise
considered "rendered to the occupant" of the property ("Permissible Services").
For our taxable years commencing on or after January 1, 1998, rents
received generally will qualify as rents from real property notwithstanding the
fact that we provide services that are not Permissible Services so long as the
amount received for such services meets a de minimis standard. The amount
received for "impermissible services" with respect to a property (or, if
services are available only to certain tenants, possibly with respect to such
tenants) cannot exceed one percent of all amounts received, directly or
indirectly, by us with respect to such property (or, if services are available
only to certain tenants, possibly with respect to such tenants). The amount that
we will be deemed to have received for performing "impermissible services" will
be the greater of the actual amounts so received or 150% of the direct cost to
us of providing those services.
We believe that substantially all of our rental income will be qualifying
income under the gross income tests, and that our provision of services will not
cause the rental income to fail to be qualifying income under those tests.
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If we fail to satisfy one or both of the 75% or 95% gross income tests for
any taxable year, we may nevertheless qualify as a REIT for such year if such
failure was due to reasonable cause and not willful neglect, we disclosed the
nature and amounts of our items of gross income in a schedule attached to our
return, and any incorrect information on the schedule was not due to fraud with
intent to evade tax. It is not possible, however, to state whether in all
circumstances we would be entitled to the benefit of this relief provision. Even
if this relief provision applied, a 100% penalty tax would be imposed on the
amount by which we failed the 75% or 95% test (whichever amount is greater),
less an amount which generally reflects expenses attributable to earning the
nonqualified income.
Subject to certain safe harbor exceptions, any gain realized by us on the
sale of any property held as inventory or other property held primarily for sale
to customers in the ordinary course of business will be treated as income from a
prohibited transaction that is subject to a 100% penalty tax. Such prohibited
transaction income may also have an adverse effect upon our ability to satisfy
the income tests for qualification as a REIT. Under existing law, whether
property is held as inventory or primarily for sale to customers in the ordinary
course of a trade or business is a question of fact that depends on all the
facts and circumstances with respect to the particular transaction.
Asset Tests. At the close of each quarter of our taxable year, we must
also satisfy the following tests relating to the nature of our assets. At least
75% of the value of our total assets must be represented by real estate assets,
including (1) our allocable share of real estate assets held by partnerships in
which we own an interest or held by our qualified REIT subsidiaries and (2)
stock or debt instruments held for not more than one year purchased with the
proceeds of an offering of equity securities or a long-term (at least five
years) debt offering by us, cash, cash items and government securities. In
addition, not more than 25% of our total assets may be represented by securities
other than those in the 75% asset class. Not more than 20% of the value of our
total assets may be represented by securities of one or more taxable REIT
subsidiaries (as defined above under "Requirements for Qualification"). Except
for investments included in the 75% asset class, securities in a taxable REIT
subsidiary or qualified REIT subsidiary and certain partnership interests and
debt obligations, (1) not more than 5% of the value of our total assets may be
represented by securities of any one issuer, (2) we may not hold securities that
possess more than 10% of the total voting power of the outstanding securities of
a single issuer and (3) we may not hold securities that have a value of more
than 10% of the total value of the outstanding securities of any one issuer.
We believe that substantially all of our assets consist and, after the
offering, will consist of (1) real properties, (2) stock or debt investments
that earn qualified temporary investment income, (3) other qualified real estate
assets, and (4) cash, cash items and government securities. We may also invest
in securities of other entities, provided that such investments will not prevent
us from satisfying the asset and income tests for REIT qualification set forth
above.
After initially meeting the asset tests at the close of any quarter, we
will not lose our status as a REIT for failure to satisfy the asset tests at the
end of a later quarter solely by reason of changes in asset values. If we
inadvertently fail one or more of the asset tests at the end of a calendar
quarter because we acquire securities or other property during the quarter, we
can cure this failure by disposing of sufficient nonqualifying assets within 30
days after the close of the calendar quarter in which it arose.
Annual Distribution Requirement. With respect to each taxable year, we
must distribute to our shareholders as dividends (other than capital gain
dividends) at least 90% of our taxable income. Specifically, we must distribute
an amount equal to (1) 90% of the sum of our "REIT taxable income" (determined
without regard to the deduction for dividends paid and by excluding any net
capital gain), and any after-tax net income from foreclosure property, minus (2)
the sum of certain items of "excess noncash income" such as income attributable
to leveled stepped rents, cancellation of indebtedness and original issue
discount. REIT taxable income is generally computed in the same manner as
taxable income of ordinary corporations, with several adjustments, such as a
deduction allowed for dividends paid, but not for dividends received.
We will be subject to tax on amounts not distributed at regular United
States federal corporate income tax rates. In addition, a nondeductible 4%
excise tax is imposed on the excess of (1) 85% of our ordinary income for the
year plus 95% of capital gain net income for the year and the undistributed
portion of the required distribution for the prior year over (2) the actual
distribution to shareholders during the year (if any). Net operating losses
generated by us may be carried forward but not carried back and used by us for
15 years (or 20 years in the case of net
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operating losses generated in our tax years commencing on or after January 1,
1998) to reduce REIT taxable income and the amount that we will be required to
distribute in order to remain qualified as a REIT. As a REIT, our net capital
losses may be carried forward for five years (but not carried back) and used to
reduce capital gains.
In general, a distribution must be made during the taxable year to which
it relates to satisfy the distribution test and to be deducted in computing REIT
taxable income. However, we may elect to treat a dividend declared and paid
after the end of the year (a "subsequent declared dividend") as paid during such
year for purposes of complying with the distribution test and computing REIT
taxable income, if the dividend is (1) declared before the regular or extended
due date of our tax return for such year and (2) paid not later than the date of
the first regular dividend payment made after the declaration, but in no case
later than 12 months after the end of the year. For purposes of computing the 4%
excise tax, a subsequent declared dividend is considered paid when actually
distributed. Furthermore, any dividend that is declared by us in October,
November or December of a calendar year, and payable to shareholders of record
as of a specified date in such quarter of such year will be deemed to have been
paid by us (and received by shareholders) on December 31 of such calendar year,
but only if such dividend is actually paid by us in January of the following
calendar year.
For purposes of complying with the distribution test for a taxable year as
a result of an adjustment in certain of our items of income, gain or deduction
by the IRS, we may be permitted to remedy such failure by paying a "deficiency
dividend" in a later year together with interest and a penalty. Such deficiency
dividend may be included in our deduction of dividends paid for the earlier year
for purposes of satisfying the distribution test. For purposes of the 4% excise
tax, the deficiency dividend is taken into account when paid, and any income
giving rise to the deficiency adjustment is treated as arising when the
deficiency dividend is paid.
We believe that we have distributed and intend to continue to distribute
to our shareholders in a timely manner such amounts sufficient to satisfy the
annual distribution requirements. However, it is possible that timing
differences between the accrual of income and its actual collection, and the
need to make nondeductible expenditures (such as capital improvements or
principal payments on debt) may cause us to recognize taxable income in excess
of our net cash receipts, thus increasing the difficulty of compliance with the
distribution requirement. In order to meet the distribution requirement, we
might find it necessary to arrange for short-term, or possibly long-term,
borrowings.
Failure to Qualify. If we fail to qualify as a REIT for any taxable year,
and if certain relief provisions of the Code do not apply, we would be subject
to federal income tax (including applicable alternative minimum tax) on our
taxable income at regular corporate rates. Distributions to shareholders in any
year in which we fail to qualify will not be deductible by us nor will they be
required to be made. As a result, our failure to qualify as a REIT would reduce
the cash available for distribution by us to our shareholders. In addition, if
we fail to qualify as a REIT, all distributions to shareholders will be taxable
as ordinary income, to the extent of our current and accumulated earnings and
profits. Subject to certain limitations of the Code, corporate distributees may
be eligible for the dividends-received deduction.
If our failure to qualify as a REIT is not due to reasonable cause but
results from willful neglect, we would not be permitted to elect REIT status for
the four taxable years after the taxable year for which such disqualification is
effective. In the event we were to fail to qualify as a REIT in one year and
subsequently requalify in a later year, we might be required to recognize
taxable income based on the net appreciation in value of our assets as a
condition to requalification. In the alternative, we may be taxed on the net
appreciation in value of our assets if we sell properties within ten years of
the date we requalify as a REIT under federal income tax laws.
Taxation of Taxable U.S. Shareholders
As used herein, the term "U.S. shareholder" means a holder of our common
shares who (for United States federal income tax purposes) (1) is a citizen or
resident of the United States, (2) is a corporation, partnership, or other
entity treated as a corporation or partnership for federal income tax purposes
created or organized in or under the laws of the United States or of any
political subdivision thereof (unless, in the case of a partnership, Treasury
regulations are adopted that provide otherwise), (3) is an estate the income of
which is subject to United States federal income taxation regardless of its
source or (4) is a trust whose administration is subject to the primary
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supervision of a United States court and which has one or more United States
persons who have the authority to control all substantial decisions of the trust
or a trust that has a valid election to be treated as a U.S. person in effect.
As long as we qualify as a REIT, distributions made to our U.S.
shareholders out of current or accumulated earnings and profits (and not
designated as capital gain dividends) will be taken into account by them as
ordinary income and corporate shareholders will not be eligible for the
dividends-received deduction as to such amounts. For purposes of computing our
earnings and profits, depreciation for depreciable real estate will be computed
on a straight-line basis over a 40-year period. For purposes of determining
whether distributions on the common shares are out of current or accumulated
earnings and profits, our earnings and profits will be allocated first to the
Class A preferred shares, if any, and second to the common shares. There can be
no assurance that we will have sufficient earnings and profits to cover
distributions on any common shares.
Distributions that are properly designated as capital gain dividends will
be taxed as gains from the sale or exchange of a capital asset held for more
than one year (to the extent they do not exceed our actual net capital gain for
the taxable year) without regard to the period for which the shareholder has
held its shares. However, corporate shareholders may be required to treat up to
20% of certain capital gain dividends as ordinary income under the Code.
Distributions in excess of our current and accumulated earnings and
profits will constitute a non-taxable return of capital to a shareholder to the
extent that such distributions do not exceed the adjusted basis of the
shareholder's shares, and will result in a corresponding reduction in the
shareholder's basis in the shares. Any reduction in a shareholder's tax basis
for its shares will increase the amount of taxable gain or decrease the
deductible loss that will be realized upon the eventual disposition of the
shares. We will notify shareholders at the end of each year as to the portions
of the distributions which constitute ordinary income, capital gain or a return
of capital. Any portion of such distributions that exceed the adjusted basis of
a U.S. shareholder's shares will be taxed as capital gain from the disposition
of shares, provided that the shares are held as capital assets in the hands of
the U.S. shareholder.
Aside from the different income tax rates applicable to ordinary income
and capital gain dividends, regular and capital gain dividends from us will be
treated as dividend income for most other federal income tax purposes. In
particular, such dividends will be treated as "portfolio" income for purposes of
the passive activity loss limitation and shareholders generally will not be able
to offset any "passive losses" against such dividends. Dividends will be treated
as investment income for purposes of the investment interest limitation
contained in Section 163(d) of the Code, which limits the deductibility of
interest expense incurred by noncorporate taxpayers with respect to indebtedness
attributable to certain investment assets.
In general, dividends paid by us will be taxable to shareholders in the
year in which they are received, except in the case of dividends declared at the
end of the year, but paid in the following January, as discussed above.
In general, a domestic shareholder will realize capital gain or loss on
the disposition of shares equal to the difference between (1) the amount of cash
and the fair market value of any property received on such disposition and (2)
the shareholder's adjusted basis of such shares. Such gain or loss will
generally be short-term capital gain or loss if the shareholder has not held
such shares for more than one year and will be long-term capital gain or loss if
such shares have been held for more than one year. Loss upon the sale or
exchange of shares by a shareholder who has held such shares for six months or
less (after applying certain holding period rules) will be treated as long-term
capital loss to the extent of distributions from us required to be treated by
such shareholder as long-term capital gain.
We may elect to retain and pay income tax on net long-term capital gains.
If we make such an election, you, as a holder of shares, will (1) include in
your income as long-term capital gains your proportionate share of such
undistributed capital gains and (2) be deemed to have paid your proportionate
share of the tax paid by us on such undistributed capital gains and thereby
receive a credit or refund for such amount. As a holder of shares you will
increase the basis in your shares by the difference between the amount of
capital gain included in your income and the amount of tax you are deemed to
have paid. Our earnings and profits will be adjusted appropriately.
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Backup Withholding
We will report to our domestic shareholders and the IRS the amount of
dividends paid during each calendar year, and the amount of tax withheld, if
any, with respect thereto. Under the backup withholding rules, a shareholder may
be subject to backup withholding currently at the rate of 30%, with respect to
dividends paid unless such holder (a) is a corporation or comes within certain
other exempt categories and, when required, demonstrates this fact, or (b)
provides a taxpayer identification number, certifies as to no loss of exemption
from backup withholding and otherwise complies with the applicable requirements
of the backup withholding rules. Amounts withheld as backup withholding will be
creditable against the shareholder's income tax liability. In addition, we may
be required to withhold a portion of capital gain distributions made to any
shareholders who fail to certify their non-foreign status to us. See "--
Taxation of Non-U.S. Shareholders" below. Additional issues may arise pertaining
to information reporting and backup withholding with respect to Non-U.S.
Shareholders (persons other than U.S. shareholders, also further described
below). Non-U.S. Shareholders should consult their tax advisors with respect to
any such information and backup withholding requirements.
Taxation of Non-U.S. Shareholders
The following discussion is only a summary of the rules governing United
States federal income taxation of Non-U.S. Shareholders such as nonresident
alien individuals, foreign corporations, foreign partnerships or other foreign
estates or trusts. Prospective Non-U.S. Shareholders should consult with their
own tax advisors to determine the impact of federal, state and local income tax
laws with regard to an investment in shares, including any reporting
requirements.
Distributions that are not attributable to gain from sales or exchanges by
us of United States real property interests and not designated by us as capital
gains dividends will be treated as dividends of ordinary income to the extent
that they are made out of our current or accumulated earnings and profits. Such
distributions ordinarily will be subject to a withholding tax equal to 30% of
the gross amount of the distribution unless an applicable tax treaty reduces or
eliminates that tax. Certain tax treaties limit the extent to which dividends
paid by a REIT can qualify for a reduction of the withholding tax on dividends.
Distributions in excess of our current and accumulated earnings and profits will
not be taxable to a Non-U.S. Shareholder to the extent that they do not exceed
the adjusted basis of the shareholder's shares, but rather will reduce the
adjusted basis of such shares. To the extent that such distributions exceed the
adjusted basis of a Non-U.S. Shareholder's shares, they will give rise to tax
liability if the Non-U.S. Shareholder would otherwise be subject to tax on any
gain from the sale or disposition of his shares, as described below.
For withholding tax purposes, we are currently required to treat all
distributions as if made out of our current or accumulated earnings and profits
and thus intend to withhold at the rate of 30% (or a reduced treaty rate if
applicable) on the amount of any distribution (other than distributions
designated as capital gain dividends) made to a Non-U.S. Shareholder. Under the
final regulations, generally effective for distributions on or after December
31, 2000, we would not be required to withhold at the 30% rate on distributions
we reasonably estimate to be in excess of our current and accumulated earnings
and profits. If it cannot be determined at the time a distribution is made
whether such distribution will be in excess of current and accumulated earnings
and profits, the distribution will be subject to withholding at the rate
applicable to ordinary dividends. However, the Non-U.S. Shareholder may seek
from the IRS a refund of such amounts from the IRS if it is subsequently
determined that such distribution was, in fact, in excess of our current or
accumulated earnings and profits, and the amount withheld exceeded the Non-U.S.
Shareholder's United States tax liability, if any, with respect to the
distribution.
For any year in which we qualify as a REIT, distributions that are
attributable to gain from sales or exchanges by us of United States real
property interests will be taxed to a Non-U.S. Shareholder under the provisions
of the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"). Under
FIRPTA, a Non-U.S. Shareholder is taxed as if such gain were effectively
connected with a United States business. Non-U.S. Shareholders would thus be
taxed at the normal capital gain rates applicable to U.S. shareholders (subject
to applicable alternative minimum tax and a special alternative minimum tax in
the case of non-resident alien individuals). Also, distributions subject to
FIRPTA may be subject to a 30% branch profits tax in the hands of a corporate
Non-U.S. Shareholder not entitled to treaty relief or exemption. We are required
by applicable regulations to withhold 35% of any distribution that could be
designated by us as a capital gains dividend regardless of the
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amount actually designated as a capital gain dividend. This amount is creditable
against the Non-U.S. Shareholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of shares generally
will not be taxed under FIRPTA if we are a "domestically controlled REIT,"
defined generally as a REIT in which at all times during a specified testing
period less than 50% in value of the shares was held directly or indirectly by
foreign persons. It is anticipated that we will continue to be a "domestically
controlled REIT" after the offering. Therefore, the sale of shares will not be
subject to taxation under FIRPTA. However, because our common shares are
publicly traded, no assurance can be given that we will continue to qualify as a
"domestically controlled REIT." If the gain on the sale of shares were to be
subject to taxation under FIRPTA, the Non-U.S. Shareholder would be subject to
the same treatment as U.S. Shareholders with respect to such gain (subject to
applicable alternative minimum tax, special alternative minimum tax in the case
of nonresident alien individuals and possible application of the 30% branch
profits tax in the case of foreign corporations) and the purchaser would be
required to withhold and remit to the IRS 10% of the purchase price. Gain not
subject to FIRPTA will be taxable to a Non-U.S. Shareholder if (1) investment in
the shares is effectively connected with the Non-U.S. Shareholder's United
States trade or business, in which case the Non-U.S. Shareholder will be subject
to the same treatment as U.S. Shareholders with respect to such gain, or (2) the
Non-U.S. Shareholder is a nonresident alien individual who was present in the
United States for 183 days or more during the taxable year and such nonresident
alien individual has a "tax home" in the United States, in which case the
nonresident alien individual will be subject to a 30% tax on the individual's
capital gain.
Taxation of Tax-Exempt Shareholders
Tax-exempt entities, including qualified employee pension and profit
sharing trusts and individual retirement accounts ("Exempt Organizations"),
generally are exempt from federal income taxation. However, they are subject to
taxation on their unrelated business taxable income ("UBTI"). While investments
in real estate may generate UBTI, the Service has issued a published ruling to
the effect that dividend distributions by a REIT to an exempt employee pension
trust do not constitute UBTI, provided that the shares of the REIT are not
otherwise used in an unrelated trade or business of the exempt employee pension
trust. Based on that ruling and on our intention to invest our assets in a
manner that will avoid the recognition of UBTI, amounts distributed by us to
Exempt Organizations generally should not constitute UBTI. However, if an Exempt
Organization finances its acquisition of our shares with debt, a portion of its
income from us, if any, will constitute UBTI pursuant to the "debt-financed
property" rules. Furthermore, social clubs, voluntary employee benefit
associations, supplemental unemployment benefit trusts, and qualified group
legal services plans that are exempt from taxation under paragraphs (7), (9),
(17), and (20), respectively, of Code Section 501(c) are subject to different
UBTI rules, which generally will require them to characterize distributions from
us as UBTI.
In addition, a pension trust that owns more than 10% of our shares is
required to treat a percentage of the dividends from us as UBTI (the "UBTI
Percentage") in certain circumstances. The UBTI Percentage is our gross income
derived from an unrelated trade or business (determined as if we were a pension
trust) divided by our total gross income for the year in which the dividends are
paid. The UBTI rule applies only if (i) the UBTI Percentage is at least 5%, (ii)
we qualify as a REIT by reason of the modification of the 5/50 Rule that allows
the beneficiaries of the pension trust to be treated as holding our shares in
proportion to their actuarial interests in the pension trust, and (iii) either
(A) one pension trust owns more than 25% of the value of our shares or (B) a
group of pension trusts individually holding more than 10% of the value of our
shares collectively owns more than 50% of the value of our shares.
While an investment in our shares by an Exempt Organization generally is
not expected to result in UBTI except in the circumstances described in the
preceding paragraph, any gross UBTI that does arise from such an investment will
be combined with all other gross UBTI of the Exempt Organization for a taxable
year and reduced by the sum of all deductions attributable to the UBTI and
$1,000. Any amount then remaining will constitute UBTI on which the Exempt
Organization will be subject to tax. If the gross income taken into account in
computing UBTI exceeds $1,000, the Exempt Organization is obligated to file a
tax return for such year on IRS Form 990-T. We, our Board of Trustees, and any
of our or their affiliates do not intend to undertake the preparation or filing
of IRS Form 990-T for any Exempt Organization in connection with an investment
by such Exempt Organization in our shares. Generally, IRS Form 990-T must be
filed with the Service by April 15 of the year following the year in which it
relates.
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Taxation of Reinvested Dividends
Shareholders who elect to participate in the Dividend Reinvestment Plan
will be deemed to have received the gross amount of dividends distributed on
their behalf by the Plan Agent as agent for the participants in such plan. Such
deemed dividends will be treated as actual dividends to such shareholders by us
and will retain their character and have the tax effects as described above.
Participants that are subject to federal income tax will thus be taxed as if
they received such dividends despite the fact that their distributions have been
reinvested and, as a result, they will not receive any cash with which to pay
the resulting tax liability.
Other Tax Considerations
Entity Classification. A significant number of our investments are held
through partnerships. If any such partnerships were treated as an association,
the entity would be taxable as a corporation and therefore would be subject to
an entity level tax on its income. In such a situation, the character of our
assets and items of gross income would change and might preclude us from
qualifying as a REIT.
We believe that each partnership in which we hold a material interest
(either directly or indirectly) is properly treated as a partnership for tax
purposes (and not as an association taxable as a corporation).
Tax Allocations with Respect to the Properties. When property is
contributed to a partnership in exchange for an interest in the partnership, the
partnership generally takes a carryover basis in that property for tax purposes
equal to the adjusted basis of the contributing partner in the property, rather
than a basis equal to the fair market value of the property at the time of
contribution (this difference is referred to as "Book-Tax Difference"). Special
rules under Section 704(c) of the Code and the regulations thereunder require
special allocations of income, gain, loss and deduction with respect to
contributed property, which tend to eliminate the Book-Tax Difference over the
depreciable lives of such property, but which may not always entirely eliminate
the Book-Tax Difference on an annual basis or with respect to a specific taxable
transaction such as a sale. Thus, the carryover basis of the contributed
properties in the hands of the partnership could cause us (i) to be allocated
lower amounts of depreciation and other deductions for tax purposes than would
be allocated to us if all properties were to have a tax basis equal to their
fair market value at the time the properties were contributed to the
partnership, and (ii) possibly to be allocated taxable gain in the event of a
sale of such contributed properties in excess of the economic or book income
allocated to us as a result of such sale.
EXPERTS
The consolidated financial statements and related financial statement
schedule included in our Annual Report on Form 10-K as of and for the year ended
December 31, 2001 and incorporated by reference into this prospectus have been
incorporated herein by reference in reliance on the report, also incorporated
herein by reference, of KPMG LLP, independent certified public accountants, and
upon the authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters will be passed upon for us by Paul, Hastings,
Janofsky & Walker LLP, New York, New York. Seth M. Zachary, a partner of Paul,
Hastings, Janofsky & Walker LLP, is presently serving on our Board of Trustees
and will continue to do so at least until the 2003 Annual Meeting of
Stockholders. As of November 30, 2002, Mr. Zachary beneficially owns 32,208
common shares and holds options to purchase an additional 40,000 common shares.
Certain legal matters under Maryland law, including the legality of the common
shares covered by this prospectus, will be passed on for us by Piper Rudnick
LLP, Baltimore, Maryland.
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================================================================================
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations other than those contained in or
incorporated by reference in this prospectus in connection with the offer made
by this prospectus, and, if given or made, such information or representations
must not be relied upon as having been authorized by us. This prospectus does
not constitute an offer to sell, or a solicitation of an offer to buy any
security other than the redemption shares offered hereby, nor does it constitute
an offer to sell or a solicitation of any offer to buy any of the redemption
shares offered by anyone in any jurisdiction in which such offer or solicitation
is not authorized, or in which the person making such offer or solicitation is
not qualified to do so, or to any person to whom 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 time subsequent to the date
hereof.
__________________
17,901 Shares
LEXINGTON
CORPORATE
PROPERTIES TRUST
Common Shares
-----------------------------
PROSPECTUS
-----------------------------
The date of this prospectus is _____________.
================================================================================
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee... $ 26.30
Accounting fees and expense........................... 5,000.00
Legal fees and expenses............................... 10,000.00
Miscellaneous......................................... 1,000.00
-----------
TOTAL........................................... $ 16,026.30
============
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Our trustees and officers are and will be indemnified against certain
liabilities under Maryland law, and under our Declaration of Trust. Our
Declaration of Trust requires us to indemnify our trustees and officers to the
fullest extent permitted from time to time by the laws of Maryland. Our
Declaration of Trust also provides that, to the fullest extent permitted under
Maryland law, our trustees and officers will not be liable to us or our
shareholders for money damages.
Section 2-418 of the Maryland General Corporation Law of generally permits
indemnification of any trustee made a party to any proceedings by reason of
service as a trustee unless it is established that (i) the act or omission of
such person was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty; or
(ii) such person actually received an improper personal benefit in money
property or services; or (iii) in the case of any criminal proceeding, such
person had reasonable cause to believe that the act or omission was unlawful.
The indemnity may include judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the trustee in connection with the
proceeding; but, if the proceeding is one by or in the right of the corporation,
indemnification is not permitted with respect to any proceeding in which the
trustee has been adjudged to be liable to the corporation, or if the proceeding
is one charging improper personal benefit to the trustee, whether or not
involving action in the trustee's official capacity, indemnification of the
trustee is not permitted if the trustee was adjudged to be liable on the basis
that personal benefit was improperly received. The termination of any proceeding
by conviction or upon a plea of nolo contendere or its equivalent, or any entry
of an order of probation prior to judgment, creates a rebuttable presumption
that the trustee did not meet the requisite standard of conduct required for
permitted indemnification. The termination of any proceeding by judgment, order
or settlement, however, does not create a presumption that the trustee failed to
meet the requisite standard of conduct for permitted indemnification.
The foregoing reference is necessarily subject to the complete text of our
Declaration of Trust and the statute referred to above and is qualified in its
entirety by reference thereto.
We have also entered into indemnification agreements with certain officers
and trustees for the purpose of indemnifying such persons from certain claims
and action in their capacities as such.
II-1
ITEM 16. EXHIBITS.
EXHIBIT NO. EXHIBIT
3.1 Declaration of Trust of the Company, dated December 31, 1997 (filed
as Exhibit 3.1 to the Company's Current Report on Form 8-K filed
January 16, 1998) *
3.2 By-Laws of the Company (filed as Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 (the "1997
10-K")*
3.3 Articles of Amendment of Declaration of Trust of the Company (filed
as Exhibit 3.3 to the Company's Registration Statement on Form S-4
(File No. 333-70790))*
4.1 Specimen of Common Shares Certificate of the Company (filed as
Exhibit 3.2 to the 1997 10-K)*
5.1 Opinion of Piper Rudnick LLP +
23.1 Consent of Piper Rudnick LLP (included as part of Exhibit 5.1) +
23.2 Consent of KPMG LLP+
24 Power of Attorney (included on signature page hereto) +
________________
* Incorporated by reference
+ Filed herewith
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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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.
(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.
II-2
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement will be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be the initial bona
fide offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than 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 and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on December 31, 2002.
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ T. Wilson Eglin
---------------------------
T. Wilson Eglin
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints T. Wilson Eglin and E. Robert Roskind, jointly
and severally, his attorneys-in-fact, each with power of substitution for him in
any and all capacities, to sign any amendments to this Registration Statement,
to file the same, with the exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
--------------------------------------------------------------------------------
Signature Capacity Date
--------------------------------------------------------------------------------
Chairman of the Board, December 30, 2002
/s/ E. Robert Roskind Co-Chief Executive
---------------------------- Officer and Trustee
E. Robert Roskind (Principal Executive
Officer)
--------------------------------------------------------------------------------
/s/ Richard J. Rouse Vice Chairman of the December 30, 2002
---------------------------- Board, Co-Chief
Richard J. Rouse Executive Officer and
Trustee
--------------------------------------------------------------------------------
/s/ T. Wilson Eglin President, Chief December 30, 2002
---------------------------- Operating Officer and
T. Wilson Eglin Trustee
--------------------------------------------------------------------------------
/s/ Patrick Carroll Chief Financial December 30, 2002
---------------------------- Officer, Treasurer and
Patrick Carroll Vice President
--------------------------------------------------------------------------------
/s/ Paul R. Wood Vice President, Chief December 30, 2002
---------------------------- Accounting Officer and
Paul R. Wood Secretary
--------------------------------------------------------------------------------
/s/ Geoffrey Dohrmann
---------------------------- Trustee December 30, 2002
Geoffrey Dohrmann
--------------------------------------------------------------------------------
/s/ Carl D. Glickman
---------------------------- Trustee December 30, 2002
Carl D. Glickman
--------------------------------------------------------------------------------
/s/ Jack A. Shaffer
---------------------------- Trustee December 30, 2002
Jack A. Shaffer
--------------------------------------------------------------------------------
/s/ Seth M. Zachary
---------------------------- Trustee December 30, 2002
Seth M. Zachary
--------------------------------------------------------------------------------
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
3.1 Declaration of Trust of the Company, dated December 31, 1997 (filed
as Exhibit 3.1 to the Company's Current Report on Form 8-K filed
January 16, 1998) *
3.2 By-Laws of the Company (filed as Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 (the "1997
10-K")*
3.3 Articles of Amendment of Declaration of Trust of the Company (filed
as Exhibit 3.3 to the Company's Registration Statement on Form S-4
(File No. 333-70790))*
4.1 Specimen of Common Shares Certificate of the Company (filed as
Exhibit 3.2 to the 1997 10-K)*
5.1 Opinion of Piper Rudnick LLP +
23.1 Consent of Piper Rudnick LLP (included as part of Exhibit 5.1) +
23.2 Consent of KPMG LLP+
24 Power of Attorney (included on signature page hereto) +
________________
* Incorporated by reference
+ Filed herewith