|
Texas
(State
or other jurisdiction
of
incorporation or organization)
|
74-1464203
(I.R.S.
Employer
Identification
No.)
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|
CALCULATION
OF REGISTRATION FEE
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||||
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Title
of Each Class of Securities
to
be Registered
|
Amount
to be
Registered
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Proposed
Maximum Aggregate Price Per Share (1)
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Proposed
Maximum Aggregate
Offering
Price (1)
|
Amount
of
Registration
Fee
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|
3.95%
Convertible Senior Notes Due 2026
Common
Shares of Beneficial Interest, $.03 par value per share
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$575,000,000
14,645,940
shares (2)
|
100%
(3)
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$575,000,000
(3)
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$61,525
(3)
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|
(1)
|
Estimated
solely for the purposes of calculating the registration fee pursuant
to
Rule 457 under the Securities Act of 1933, as amended (exclusive
of
accrued interest, if any).
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|
(2)
|
This
number reflects the aggregate number of common shares of beneficial
interest issuable upon conversion of the notes at the conversion
rate of
25.4712 of our common shares for each $1,000 principal amount of
notes,
which is the maximum conversion rate that will apply upon a change
of
control in certain circumstances. Pursuant to Rule 416 under the
Securities Act, such number of common shares registered hereby shall
include an additional number of common shares that may be issued
in
connection with a stock split, stock dividend, recapitalization or
other
event.
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|
(3)
|
Pursuant
to Rule 457(i) under the Securities Act, there is no additional
filing fee
with respect to the common shares issuable upon conversion of the
notes
because no additional consideration will be received in connection
with
the exercise of the conversion privilege. The registration fee
has been
previously paid in connection with the initial filing of the Registration
No. 333-138336.
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TABLE
OF CONTENTS
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WHERE
YOU CAN FIND MORE INFORMATION
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iii
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PROSPECTUS
SUMMARY
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1
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RISK
FACTORS
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6
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|
Risks
Related to the Offering
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6
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|
U.S.
Federal Income Tax Risks Related to the Notes
|
10
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THE
COMPANY
|
10
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USE
OF PROCEEDS
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11
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RATIOS
OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED SHARE
DIVIDENDS
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11
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|
DESCRIPTION
OF NOTES
|
12
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|
General
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12
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Interest
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13
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Maturity
|
14
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Our
Redemption Rights
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14
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Repurchase
at Option of Holders on Certain Dates
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14
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Repurchase
at Option of Holders upon a Change in Control
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16
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No
Shareholder Rights for Holders of Notes
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18
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Conversion
Rights
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19
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Conversion
Settlement
|
23
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Conversion
Rate Adjustments
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24
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|
Ownership
Limit
|
29
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|
Calculations
in Respect of the Notes
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29
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Merger,
Consolidation or Sale
|
29
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Events
of Default, Notice and Waiver
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29
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Modification
of the Indenture
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31
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Discharge,
Defeasance and Covenant Defeasance
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33
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Rule
144A Information
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33
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Provision
of Financial Information
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33
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Governing
Law
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34
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Trustee
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34
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Book-Entry
System
|
34
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Registration
Rights; Additional Interest
|
36
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|
DESCRIPTION
OF CAPITAL SHARES
|
39
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Authorized
Shares
|
39
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|
Shareholder
Liability
|
39
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Common
Shares
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40
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|
Preferred
Shares
|
41
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MATERIAL
FEDERAL INCOME TAX CONSIDERATIONS
|
44
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|
U.S.
Holders of the Notes
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45
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|
Non-U.S.
Holders of the Notes
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49
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Information
Reporting and Backup Withholding Tax Applicable to Holders of the
Notes
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51
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Taxation
of the Company as a REIT
|
51
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REIT
Qualification
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52
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Taxation
As a REIT
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56
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Relief
From Certain Failures of the REIT Qualification Provisions
|
58
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Failure
To Qualify As a REIT
|
58
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Taxation
of Taxable U.S. Holders
|
58
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Backup
Withholding
|
60
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Taxation
of Tax-Exempt Entities
|
60
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Taxation
of Non-U.S. Holders
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61
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State
And Local Taxes
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62
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SELLING
SECURITYHOLDERS
|
63
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PLAN
OF DISTRIBUTION
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72
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Electronic
Distribution
|
73
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LEGAL
MATTERS
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74
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EXPERTS
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74
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| · |
Annual
Report on Form 10-K for the year ended December 31,
2005.
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| · |
Quarterly
Report on Form 10-Q for the quarters ended March 31, 2006, June 30,
2006,
and September 30, 2006.
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| · |
Current
Report on Form 8-K filed on June 8, 2006, August 2,
2006, September14, 2006, October 31, 2006, November 2, 2006, and
November 28, 2006.
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| · |
Proxy
Statement on Schedule 14A filed on March 20,
2006.
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| · |
The
description of our common shares of beneficial interest contained
in our
registration statement on Form 8-A filed March 17,
1988.
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| · |
All
documents we file with the SEC pursuant to Sections 13(a), 13(c),
14 or
15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) (other than current reports furnished under Item 2.02 or 9.01
of Form 8-K) after the date of this prospectus and prior to the
termination of this offering.
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Issuer
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Weingarten
Realty Investors.
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|
Notes
Offered
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$575
million aggregate principal amount.
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|
Ranking
of Notes
|
The
notes are our senior unsecured obligations and rank equally with
all of
our other senior unsecured indebtedness. However, the notes are
effectively subordinated to all of our secured indebtedness (to the
extent
of the collateral securing the same) and to all liabilities and preferred
equity of our subsidiaries.
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Interest
|
The
notes bear interest at a rate of 3.95% per year. Interest is payable
semi-annually in arrears on February 1 and August 1 of each year,
beginning February 1, 2007.
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Maturity
|
The
notes will mature on August 1, 2026 unless previously redeemed,
repurchased or converted in accordance with their terms prior to
such
date.
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Redemption
of Notes at Our Option
|
Prior
to August 4, 2011, we may not redeem the notes except to preserve
our
status as a real estate investment trust for U.S. federal income
tax
purposes (a “REIT”). However, on or after August 4, 2011, we may redeem
the notes in whole or in part, upon not less than 30 nor more than
60
days’ prior written notice to holders of the notes, for cash equal to 100%
of the principal amount of the notes to be redeemed plus any unpaid
interest (including additional interest, if any) accrued to the redemption
date.
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Repurchase
of Notes at Each Holder’s
Option
on Certain Dates
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Holders
of notes may require us to repurchase their notes in whole or in
part on
August 1, 2011, August 1, 2016 and August 1, 2021 for cash equal
to 100%
of the principal amount of the notes to be repurchased plus any unpaid
interest (including additional interest, if any) accrued to the repurchase
date.
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Repurchase
of Notes at Each Holder’s Option
Upon
Certain Change in Control Transactions
|
If
we undergo certain change in control transactions on or prior to
August 4,
2011, holders of notes may require us to repurchase their notes in
whole
or in part for cash equal to 100% of the principal amount of the
notes to
be repurchased plus any unpaid interest (including additional interest,
if
any) accrued to the repurchase
date.
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Conversion
Rights
|
Holders
may convert their notes based on the applicable conversion rate (described
below) prior to the close of business on the second business day
prior to
the stated maturity date at any time on or after August 1, 2025 and
also
under any of the following
circumstances:
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| • |
during
any calendar quarter beginning after December 31, 2006 (and only
during
such calendar quarter), if, and only if, the closing sale price of
our
common shares for at least 20 trading days (whether or not consecutive)
in
the period of 30 consecutive trading days ending on the last trading
day
of the preceding calendar quarter is greater than 130% of the conversion
price per common share in effect on the applicable trading
day;
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| • |
during
the five consecutive trading-day period following any five consecutive
trading-day period in which the trading price of the notes was less
than
98% of the product of the closing sale price of our common shares
multiplied by the applicable conversion
rate;
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| • |
if
those notes have been called for redemption, at any time prior to
the
close of business on the third business day prior to the redemption
date;
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| • |
upon
the occurrence of specified transactions described under “Description of
Notes — Conversion Rights” in this prospectus;
or
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| • |
if
our common shares are not listed on a U.S. national or regional securities
exchange or quoted on the Nasdaq National Market for 30 consecutive
trading days.
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Conversion
Rate
|
The
initial conversion rate for each $1,000 principal amount of notes
is
20.3770 of our common shares, payable in cash and, at our election,
common
shares, as described under “Description of Notes — Conversion Settlement”
in this prospectus. This is equivalent to an initial conversion price
of
$49.075 per common share. In addition, if certain change in control
transactions occur on or prior to August 4, 2011 and a holder elects
to
convert notes in connection with any such transaction, we will increase
the conversion rate in connection with such conversion by a number
of
additional common shares based on the date such transaction becomes
effective and the price paid per common share in such transaction
as
described under “Description of Notes — Conversion Rights — Make Whole
Upon Certain Change in Control Transactions” in this prospectus. The
conversion rate may also be adjusted under certain other circumstances,
including the payment of cash dividends in excess of our current
regular
quarterly common share cash dividend of $0.465 per share, but will
not be
adjusted for accrued and unpaid interest on the notes. See “Description of
Notes — Conversion Rate Adjustments” in this
prospectus.
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Conversion
Settlement
|
Upon
the conversion of notes we will deliver cash and, at our election,
common
shares, with an aggregate value, which we refer to as the “conversion
value,” equal to the conversion rate multiplied by the average price of
our common shares as follows: (i) an amount in cash, which we refer
to as
the “principal return,” equal to the lesser of (a) the principal amount of
the converted notes and (b) the conversion value and (ii) if the
conversion value is greater than the principal return, an amount
with a
value equal to the difference between the conversion value and
the
principal return, which we refer
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to
as the “net amount.” The net amount may be paid, at our option, in cash,
common shares or a combination of cash and common shares. We refer
to any
cash delivered upon the conversion of notes as part of the net amount
as
the “net cash amount” and we refer to any common shares delivered upon the
conversion of notes as the “net shares.” Any portion of the net amount
that we elect to issue as net shares will be equal to the sum of
the daily
share amounts (calculated as described under “Description of Notes —
Conversion Settlement” in this prospectus) for each trading day in the 10
consecutive trading-day period referred to below, except that we
will pay
cash in lieu of any fractional common shares issuable, at our option,
as
net shares based on the average price of our common shares.
The
“average price” of our common shares will be equal to the average of the
closing sale prices of common shares over the 10 consecutive trading-day
period commencing on the third trading day following the date the
notes
are tendered for conversion.
We
will pay the principal return and cash for fractional shares, and
deliver
net shares or pay the net cash amount, as applicable, to holders
upon the
conversion of their notes no later than the third business day
following
the last trading day of the 10 consecutive trading-day period referred
to
above.
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Restrictions
on Ownership
|
In
order to assist us in maintaining our qualification as a REIT for
U.S.
federal income tax purposes, no person may own, or be deemed to own
by
virtue of the attribution rules of the Internal Revenue Code of 1986,
as
amended (hereinafter referred to as the “Internal Revenue Code” or the
“Code”), more than 9.8% of the issued and outstanding shares of any class
or series of our shares of beneficial interest, subject to certain
exceptions. Notwithstanding any other provision of the notes, no
holder of
notes will be entitled to convert such notes for our common shares
to the
extent that receipt of such common shares would cause such holder
(together with such holder’s affiliates) to exceed the ownership limit
contained in our declaration of trust. See “Material Federal Income Tax
Considerations — REIT Qualification” in this
prospectus.
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No
Shareholder Rights for Holders of Notes
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Holders
of notes, as such, will not have any rights as our shareholders
(including, without limitation, voting rights and rights to receive
dividends or other distributions on our common
shares).
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Registration
Rights
|
We
have agreed to file with the SEC within 90 calendar days after
the
original issuance of the notes, and to use our reasonable best
efforts to
cause to become effective within 180 calendar days after the original
issuance of the notes, the shelf registration statement, of which
this
prospectus is a part, or otherwise make a shelf registration statement
available, with respect to the resale of the notes and the common
shares
that may be issuable upon conversion of the notes. See
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|
“Description
of Notes — Registration Rights; Additional Interest” in this
prospectus.
To
sell your notes or any common shares issued upon conversion of
the notes
pursuant to the shelf registration statement, you must, among other
things, be named as a selling securityholder in the prospectus.
If
we fail to comply with specified obligations under the registration
rights
agreement, additional interest will be payable on the notes. See
“Description of Notes — Registration Rights; Additional Interest” in this
prospectus.
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Trading
|
The
notes are a new issue of securities, and there is currently no established
trading market for the notes. An active or liquid market may not
develop
for the notes or, if developed, be maintained. The notes originally
issued
in the private placement are eligible for trading on The
PORTAL(SM)
Market. We have not applied, and do not intend to apply, for the
listing
of the notes on any securities exchange or for quotation on any automated
dealer quotation system. Our common shares are listed on the NYSE
under
the symbol “WRI.”
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Book-Entry
Form
|
The
notes were issued in book-entry only form and are represented by
two
global certificates deposited with a custodian for, and registered
in the
name of a nominee of, The Depository Trust Company, commonly known
as DTC,
in New York, New York. Beneficial interests in a global certificate
representing the notes are shown on, and transfers are effected only
through, records maintained by DTC and its direct and indirect
participants and such interests may not be exchanged for certificated
notes, except in limited circumstances described in “Description of Notes
— Book-Entry System.”
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Use
of Proceeds
|
We
will not receive any proceeds from the sale by the selling securityholders
of the securities offered by this
prospectus.
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Tax
|
The
notes and common shares that may be issuable upon conversion of the
notes
are subject to special and complex U.S. federal income tax rules.
Prospective investors are strongly urged to consult their own tax
advisors
with respect to the federal, state, local and foreign tax consequences
of
purchasing, owning and disposing of the notes and common shares into
which
the notes, in certain circumstances, are convertible. See “Material
Federal Income Tax Considerations” in this
prospectus.
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Risk
Factors
|
You
should read carefully the “Risk Factors” beginning on page 6 of this
prospectus, as well as the risk factors relating to our business
that are
incorporated by reference in this prospectus, for certain considerations
relevant to an investment in the notes and common shares into which
the
notes, in certain circumstances, are
convertible.
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| · |
actual
or anticipated changes in operating results or business
prospects;
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| · |
changes
in financial estimates by securities
analysts;
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| · |
an
inability to meet or exceed securities analysts’ estimates or
expectations;
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| · |
conditions
or trends in our industry or
sector;
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| · |
the
performance of other REITs in our sector and related market
valuations;
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| · |
announcements
by us or our competitors of significant acquisitions, strategic
partnerships, divestitures, joint ventures or other strategic
initiatives;
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| · |
hedging
or arbitrage trading activity in our common
shares;
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| · |
changes
in interest rates;
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| · |
capital
commitments;
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| · |
additions
or departures of key personnel; and
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| · |
future
sales of our common shares or securities convertible into, or exchangeable
or exercisable for, our common
shares.
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| · |
result
in holders receiving no shares upon conversion or fewer shares relative
to
the conversion value of the notes;
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| · |
reduce
our liquidity because we will be required to pay the principal return
in
cash and the net amount, if any, may be paid, at our option, in cash
as
well;
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| · |
delay
holders’ receipt of the proceeds upon conversion;
and
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| · |
subject
holders to market risk before receiving any shares upon
conversion.
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Nine
Months
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Ended
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September
30,
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Year
Ended December 31,
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2006
|
2005
|
2004
|
2003
|
2002
|
2001
|
|
|
Ratio
of earnings to combined fixed charges and preferred share
dividends
|
1.97x
|
1.92x
|
1.71x
|
1.77x
|
1.86x
|
1.92x
|
| · |
issue
or register the transfer or exchange of any note during a period
beginning
at the opening of business 15 days before any selection of notes
for
redemption and ending at the close of business on the earliest date
on
which the relevant notice of redemption is deemed to have been given
to
all holders of notes to be so redeemed,
or
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| · |
register
the transfer or exchange of any note so selected for redemption,
in whole
or in part, except the unredeemed portion of any note being redeemed
in
part.
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| · |
the
repurchase price;
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| · |
the
name and address of the trustee and any paying
agent;
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| · |
that
notes with respect to which the holder has delivered a repurchase
notice
may be converted, if otherwise convertible, only if the holder withdraws
the repurchase notice in accordance with the terms of the indenture;
and
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| · |
the
procedures that holders must follow to require us to repurchase their
notes.
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| · |
if
such notes are in certificated form, the certificate number(s) of
the
notes to be repurchased;
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| · |
the
principal amount of notes to be repurchased, in integral multiples
of
$1,000, provided that the remaining principal amount of notes is
in an
authorized denomination; and
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| · |
that
the notes are to be repurchased by us pursuant to the applicable
provisions of the indenture and the
notes.
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| · |
the
name of the holder;
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| · |
the
principal amount of notes in respect of which the repurchase notice
is
being withdrawn, which must be an integral multiple of
$1,000;
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| · |
if
the notes subject to the withdrawal notice are in certificated form,
the
certificate number(s) of all notes subject to the withdrawal notice;
and
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| · |
the
principal amount of notes, if any, that remains subject to the repurchase
notice, which must be an integral multiple of
$1,000.
|
| · |
such
notes will cease to be outstanding;
|
| · |
interest
on such notes will cease to accrue;
and
|
| · |
all
rights of holders of such notes will terminate except the right to
receive
the repurchase price.
|
| · |
if
such notes are in certificated form, the certificate number(s) of
the
notes to be repurchased;
|
| · |
the
portion of the principal amount of notes to be repurchased, in multiples
of $1,000, provided that the remaining principal amount of notes
is in an
authorized denomination; and
|
| · |
that
the notes are to be repurchased by us pursuant to the applicable
provisions of the indenture and the
notes.
|
| · |
the
name of the holder;
|
| · |
the
principal amount of notes in respect of which the repurchase notice
is
being withdrawn, which must be an integral multiple of
$1,000;
|
| · |
if
the notes subject to the withdrawal notice are in certificated form,
the
certificate number(s) of all notes subject to the withdrawal notice;
and
|
| · |
the
principal amount of notes, if any, that remains subject to the repurchase
notice, which must be an integral multiple of
$1,000.
|
| · |
such
notes will cease to be outstanding;
|
| · |
interest
on such notes will cease to accrue;
and
|
| · |
all
rights of holders of such notes will terminate except the right to
receive
the repurchase price.
|
| · |
consummation
of any transaction or event (whether by means of a share exchange
or
tender offer applicable to our common shares, a liquidation,
consolidation, recapitalization, reclassification, combination or
merger
of us or a sale, lease or other transfer of all or substantially
all of
our consolidated assets) or a series of related transactions or events
pursuant to which all of our outstanding common shares are exchanged
for,
converted into or constitute solely the right to receive cash, securities
or other property;
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| · |
any
“person” or “group” (as such terms are used for purposes of Sections 13(d)
and 14(d) of the Exchange Act, whether or not applicable), other
than us
or any majority-owned subsidiary of ours or any employee benefit
plan of
ours or such subsidiary, is or becomes the “beneficial owner,” directly or
indirectly, of more than 50% of the total voting power in the aggregate
of
all classes of our shares of beneficial interest then outstanding
entitled
to vote generally in elections of trustees;
or
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| · |
during
any period of 12 consecutive months after the date of original issuance
of
the notes, persons who at the beginning of such 12 month period
constituted our board of trust managers, together with any new persons
whose election was approved by a vote of a majority of the persons
then
still comprising the board of trust managers who were either members
of
the board of trust managers at the beginning of such period
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|
or
whose election, designation or nomination for election was previously
so
approved, cease for any reason to constitute a majority of our
board of
trust managers.
|
| · |
during
any calendar quarter beginning after December 31, 2006 (and only
during
such calendar quarter) if, and only if, the closing sale price of
our
common shares for at least 20 trading days (whether or not consecutive)
in
the period of 30 consecutive trading days ending on the last trading
day
of the preceding
|
|
calendar
quarter is more than 130% of the conversion price per common share
in
effect on the applicable trading
day;
|
| · |
during
the five consecutive trading-day period following any five consecutive
trading-day period in which the trading price of the notes was
less than
98% of the product of the closing sale price of our common shares
multiplied by the applicable conversion
rate;
|
| · |
if
those notes have been called for redemption, at any time prior to
the
close of business on the third business day prior to the redemption
date;
|
| · |
during
prescribed periods upon the occurrence of specified transactions
discussed
below; or
|
| · |
if
our common shares are not listed on a U.S. national or regional securities
exchange or quoted on the Nasdaq National Market for 30 consecutive
trading days.
|
|
Share
Price
|
||||||||||||
|
Effective
Date
|
$39.26
|
$42.50
|
$45.00
|
$47.50
|
$50.00
|
$55.00
|
$60.00
|
$65.00
|
$70.00
|
$75.00
|
$80.00
|
$85.00
|
|
August
2, 2006
|
5.0942
|
3.8996
|
3.1466
|
2.5348
|
2.0376
|
1.3060
|
0.8240
|
0.5074
|
0.3003
|
0.1659
|
0.0797
|
0.0256
|
|
August
1, 2007
|
5.0942
|
3.8135
|
3.0371
|
2.4108
|
1.9067
|
1.1774
|
0.7106
|
0.4145
|
0.2284
|
0.1131
|
0.0433
|
0.0022
|
|
August
1, 2008
|
5.0942
|
3.6925
|
2.8847
|
2.2400
|
1.7283
|
1.0075
|
0.5671
|
0.3029
|
0.1477
|
0.0586
|
0.0089
|
0.0000
|
|
August
1, 2009
|
5.0942
|
3.5117
|
2.6552
|
1.9830
|
1.4623
|
0.7630
|
0.3718
|
0.1620
|
0.0541
|
0.0008
|
0.0000
|
0.0000
|
|
August
1, 2010
|
5.0942
|
3.2525
|
2.2928
|
1.5603
|
1.0222
|
0.3860
|
0.1147
|
0.0152
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
|
August
4, 2011
|
5.0942
|
3.1686
|
1.8605
|
0.6901
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
| · |
distribute
to all holders of our common shares certain rights entitling them
to
purchase, for a period expiring within 45 days, our common shares
at less
than the closing sale price of our common shares on the trading day
immediately preceding the declaration date of such distribution;
or
|
| · |
distribute
to all holders of our common shares assets, debt securities or certain
rights to purchase our securities, which distribution has a per share
value exceeding 10% of the closing sale price of our common shares
on the
trading day immediately preceding the declaration date of such
distribution,
|
| · |
cash
in an amount (the “principal return”) equal to the lesser of (a) the
principal amount of notes surrendered for conversion and (b) the
conversion value, and
|
| · |
if
the conversion value is greater than the principal return, an amount
(the
“net amount”) in cash or our common shares with an aggregate value equal
to the difference between the conversion value and the principal
return as
described in this prospectus.
|
| · |
zero;
and
|
| · |
a
number of our common shares determined by the following
formula:
|
| · |
the
issuance of any of our common shares pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable
on
our securities and the investment of additional optional amounts
in our
common shares under any plan;
|
| · |
the
issuance of any of our common shares or options or rights to purchase
those shares pursuant to any present or future employee, trustee
or
consultant benefit plan, employee agreement or arrangement or program
of
ours;
|
| · |
the
issuance of any of our common shares pursuant to any option, warrant,
right, or exercisable, exchangeable or convertible security outstanding
as
of the date the notes were first
issued;
|
| · |
a
change in the par value of our common
shares;
|
| · |
accumulated
and unpaid dividends or distributions;
and
|
| · |
as
a result of a tender offer solely to holders of fewer than 100 of
our
common shares.
|
| · |
either
we are the continuing entity, or the successor entity (if other than
us)
formed by or resulting from any consolidation or merger or which
shall
have received the transfer of those assets shall expressly assume
payment
of the principal of and interest (including additional interest,
if any)
on the notes and the due and punctual performance and observance
of all of
the covenants and conditions contained in the
indenture;
|
| · |
if
as a result of such transaction the notes become exchangeable into
common
stock or other securities issued by a third party, such third party
assumes or fully and unconditionally guarantees all obligations under
the
notes and the indenture;
|
| · |
immediately
after giving effect to the transaction and treating any indebtedness
that
becomes our obligation or the obligation of any subsidiary as a result
thereof as having been incurred by us or that subsidiary at the time
of
the transaction, no event of default under the indenture, and no
event
which, after notice or the lapse of time, or both, would become an
event
of default, shall have occurred and be continuing;
and
|
| · |
an
officers' certificate and legal opinion covering those conditions
shall be
delivered to the trustee.
|
| · |
failure
for 30 days to pay interest (including additional interest, if any)
due
and payable on the notes;
|
| · |
failure
to pay principal of any of the notes when the same becomes due and
payable, whether on the stated maturity date or any earlier date
of
redemption or repurchase or
otherwise;
|
| · |
default
in the delivery when due of the conversion value, on the terms set
forth
in the indenture and the notes, upon exercise of a holder’s conversion
right in accordance with the indenture and the continuation of such
default for 10 days;
|
| · |
our
failure to provide notice of the occurrence of a change in control
when
required under the indenture;
|
| · |
failure
to perform any other covenants contained in the indenture (other
than a
covenant expressly made inapplicable to the notes or added to the
indenture solely for the benefit of a another series of debt securities),
which continues for 60 days after written notice as provided in the
indenture;
|
| · |
default
under any of our other debt instruments with an aggregate principal
amount
outstanding of at least $10,000,000;
and
|
| · |
events
of bankruptcy, insolvency or reorganization, or court appointment
of a
receiver, liquidator or trustee.
|
| · |
all
overdue interest (including additional interest, if any) on the
notes;
|
| · |
the
principal of and, if any, on any of the notes which have become due
other
than by such declaration of acceleration, plus interest (including
additional interest, if any) thereon at the rate borne by the
notes;
|
| · |
to
the extent that payment of such interest is lawful, interest upon
overdue
interest at the rate borne by the
notes;
|
| · |
all
sums paid or advanced by the trustee under the indenture and the
reasonable compensation, expenses, disbursements and advances of
the
trustee, its agents and counsel;
and
|
| · |
all
events of default, other than the non-payment of principal of the
notes
which have become due solely by such declaration of acceleration,
have
been cured or waived.
|
| · |
in
the payment of the principal of, or interest (including additional
interest, if any) on, the notes;
|
| · |
our
failure to convert any note in accordance with the provisions of
the
indenture; or
|
| · |
in
respect of a covenant or provision contained in the indenture that
cannot
be modified or amended without the consent of the holder of each
note
affected thereby.
|
| · |
the
holder has given written notice to the trustee of default under the
terms
of the notes;
|
| · |
the
holders of not less than 25% of the aggregate principal amount of
the
notes shall have made a written request to the trustee to bring the
claim
and furnished the trustee reasonable indemnification as it may
require;
|
| · |
the
trustee has not commenced an action within 60 days of receipt of
the
notice, request and offer of indemnity;
and
|
| · |
no
direction inconsistent with a request has been given to the trustee
by the
holders of not less than a majority of the aggregate principal amount
of
the notes.
|
| · |
the
direction does not conflict with any rule of law or the
indenture,
|
| · |
the
trustee may take any action it deems proper and which is consistent
with
the direction of the holders; and
|
| · |
the
trustee is not required to take any action that would unduly prejudice
the
holders of the notes not taking part in the action or would impose
personal liability on the trustee.
|
| · |
to
extend the maturity, or to reduce the principal, redemption premium
or
interest rate;
|
| · |
make
any change that impairs or adversely affects the rights of a holder
to
convert notes in accordance with the
indenture;
|
| · |
impair
the right to institute suit for the enforcement of any payment on
or with
respect to notes or the delivery of the conversion value as required
by
the indenture upon the conversion of
notes;
|
| · |
change
the place of payment, or the coin or currency, for
payment;
|
| · |
limit
the right to sue for payment; or
|
| · |
reduce
the level of consents needed to approve a change to the indenture;
or
modify any of the foregoing provisions or any of the provisions relating
to the waiver of certain past defaults or certain covenants, except
to
increase the required level of consents needed to approve a change
to the
indenture.
|
| · |
evidences
the succession of another person to us and the assumption by any
such
successor of any covenants under the indenture and in the
notes;
|
| · |
adds
to our covenants for the benefit of the holders of the notes or surrenders
any of our rights or powers;
|
| · |
adds
any additional event of default for the benefit of the holders of
all the
notes;
|
| · |
adds
or changes any provisions to the extent necessary to provide that
bearer
securities may be registrable as to principal, to change or eliminate
any
restrictions on the payment of principal of or any premium or interest
on
bearer securities, to permit bearer securities to be issued in exchange
for registered securities or bearer securities of other authorized
denominations, or to permit or facilitate the issuance of securities
in
uncertificated form;
|
| · |
changes
or eliminates any provision affecting only debt securities not yet
issued;
|
| · |
secures
the notes;
|
| · |
establishes
the form or terms of debt securities of any series not yet
issued;
|
| · |
evidences
and provides for successor trustees or adds or changes any provisions
of
the indenture to the extent necessary to permit or facilitate the
appointment of a separate trustee or trustees for specific series
of debt
securities;
|
| · |
to
provide for conversion rights of holders of notes if any reclassification
or change of our common shares or any consolidation, merger or sale
of all
or substantially all of our property or assets occurs;
|
| · |
cures
any ambiguity, corrects or supplements any provisions which may be
defective or inconsistent with any other provision, or makes any
other
provisions with respect to matters or questions arising under the
indenture which shall not be inconsistent with the provisions of
the
indenture; provided, however, that no such modification or amendment
may
adversely affect the interest of holders of the notes;
or
|
| · |
supplements
any provision of the indenture to such extent as shall be necessary
to
permit the facilitation of defeasance and discharge of any of the
notes;
provided, however, that any such action may not adversely affect
the
interest of holders of notes in any material
respect.
|
| · |
there
shall be no minimum quorum requirement for such meeting;
and
|
| · |
the
principal amount of such outstanding notes that vote in favor of
such
request, demand, authorization, direction, notice, consent, waiver
or
other action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent, waiver
or
other action has been made, given or taken under the
indenture.
|
| · |
to
file with the SEC or otherwise have on file with the SEC, by the
90th day
after the date we first issued the notes, a shelf registration statement
to cover resales of registrable securities (as described below) by
the
holders who satisfy certain conditions and provide the information
we
describe below for use with the shelf registration
statement;
|
| · |
to
use our reasonable best efforts to cause the shelf registration statement
to be declared effective under the Securities Act, as promptly as
practicable but in any event by the 180th day after the date we first
issue the notes or otherwise make available for use by selling
securityholders an effective shelf registration statement no later
than
such date; and
|
| · |
to
use our reasonable best efforts to keep the shelf registration statement
continuously effective under the Securities Act, until there are
no
registrable securities outstanding.
|
| · |
the
date the notes and any such common shares have been effectively registered
under the Securities Act and disposed of in accordance with the shelf
registration statement; and
|
| · |
the
date when the notes or any such common shares are eligible for sale
by a
holder that is not an affiliate of ours pursuant to Rule 144(k) under
the
Securities Act or any similar provision then in
effect.
|
| · |
the
shelf registration statement is not filed with the SEC by the 90th
day
after the first issue date of the notes and we do not have on file
with
the SEC an effective shelf registration statement covering resales
of the
registrable securities;
|
| · |
the
shelf registration statement has not been declared effective under
the
Securities Act by the 180th day after the first issue date of the
notes or
an effective shelf registration statement covering resales of the
registrable securities is otherwise not made available for use by
selling
securityholders by such date;
|
| · |
a
holder supplies the questionnaire described below after the effective
date
of the shelf registration statement or the date after which we first
make
available an effective shelf registration statement for use by selling
securityholders, and we fail to supplement or amend the shelf registration
statement, or file a new shelf registration statement, in accordance
with
the terms of the registration rights agreement, in order to add such
holder as a selling securityholder;
|
| · |
the
shelf registration statement is filed and has become effective under
the
Securities Act, but then ceases to be effective (without being succeeded
immediately by an additional shelf registration statement that is
filed
and immediately becomes effective) or usable for the offer and sale
of
registrable securities, other than as a result of a requirement to
file a
post-effective amendment or prospectus supplement to the registration
statement in order to make changes to the information in the prospectus
forming part of the shelf registration statement regarding the selling
securityholders or the plan of distribution, and (1) we do not cure
the
lapse of effectiveness or usability of the registration statement
within
ten business days (or if a suspension period is then in effect, the
tenth
business day following the expiration of such suspension period)
by a
post-effective amendment, prospectus supplement or report filed pursuant
to the Exchange
|
|
Act,
or (2) if suspension periods exceed an aggregate of 30 days in
any
three-month period or an aggregate of 90 days in any 12-month period;
or
|
| · |
we
fail to name as a selling securityholder, in the shelf registration
statement or any amendment to the shelf registration statement, at
the
time it becomes effective under the Securities Act, or in any prospectus
relating to the shelf registration statement, at the time we file
the
prospectus or, if later, the time the related shelf registration
statement
or amendment becomes effective under the Securities Act, any holder
that
is entitled to be so named as a selling securityholder within the
prescribed time periods,
|
| · |
an
additional 0.25% of the principal amount to, and including, the 90th
day
following such registration default;
and
|
| · |
an
additional 0.50% of the principal amount from and after the 91st
day
following such registration
default.
|
| · |
the
election of trust managers (which provides that trust managers remain
on
the board unless and until a nominee for that board seat receives
the
affirmative vote of the holders of two-thirds of our common
shares);
|
| · |
the
amendment of our declaration of trust by shareholders (which requires
the
affirmative vote of two-thirds of all votes entitled to be cast on
the
matter);
|
| · |
our
termination, winding up of affairs and liquidation (which requires
the
affirmative vote of two-thirds of all the votes entitled to be cast
on the
matter); and
|
| · |
our
merger or consolidation with another entity or sale of all or
substantially all of our property (which requires the approval of
the
board of trust managers and an affirmative vote of two-thirds of
all the
votes entitled to be cast on the
matter).
|
| · |
the
designation of such shares and the number of shares that constitute
such
series;
|
| · |
the
dividend rate (or the method of calculation thereof), if any, on
the
shares of such series and the priority as to the payment of dividends
with
respect to other classes or series of our capital
shares;
|
| · |
the
dividend periods (or the method of calculation
thereof);
|
| · |
the
voting rights, if any, of the
shares;
|
| · |
the
terms and amount of a sinking fund, if
any;
|
| · |
the
liquidation preference and the priority as to payment of such liquidation
preference with respect to other classes or series of our capital
shares
and any other rights of the shares of such series upon our liquidation
or
winding-up;
|
| · |
whether
or not and on what terms the shares of such series will be subject
to
redemption or repurchase at our
option;
|
| · |
whether
and on what terms the shares of such series will be convertible into
or
exchangeable for our other debt or equity
securities;
|
| · |
whether
the shares of such series of preferred shares will be listed on a
securities exchange;
|
| · |
any
limitations on direct or beneficial ownership and restrictions on
transfer
in addition to those described in “Material Federal Income Tax
Considerations — REIT Qualification” in each case as may be appropriate to
preserve our status as a real estate investment
trust;
|
| · |
any
special United States federal income tax considerations applicable
to such
series; and
|
| · |
the
other rights and privileges and any qualifications, limitations or
restrictions of such rights or privileges of such series not inconsistent
with our declaration of trust, our bylaws and the Texas Real Estate
Investment Trust Act.
|
| · |
all
outstanding depositary shares have been redeemed;
|
| · |
there
has been a final distribution in respect of the related preferred
shares
in connection with any liquidation, dissolution or winding-up and
such
distribution has been distributed to the holders of depositary receipts
evidencing the depositary shares representing such preferred shares;
or
|
| · |
each
related preferred share shall have been converted into capital shares
that
are not represented by depositary shares.
|
| · |
the
tax consequences to you may vary depending on your particular tax
situation;
|
| · |
special
rules that are not discussed below may apply to you if, for example,
you
are a tax-exempt organization, a broker-dealer, a non-U.S. person,
a
trust, an estate, a regulated investment company, a financial institution,
an insurance company, holding notes or our common shares through
a
partnership or similar pass-through entity, or otherwise subject
to
special tax treatment under the
Code;
|
| · |
this
summary does not address state, local or non-U.S. tax
considerations;
|
| · |
this
summary deals only with notes and our common shares that are held
as
“capital assets,” within the meaning of Section 1221 of the Code;
and
|
| · |
this
discussion is not intended to be, and should not be, construed as
tax
advice
|
| · |
rents
from real property;
|
| · |
interest
on loans secured by real property;
|
| · |
gains
from the sale of real property or loans secured by real property
(excluding gain from the sale of property held primarily for sale
to
customers in the ordinary course of our business, referred to below
as
“dealer property”);
|
| · |
income
from the operation and gain from the sale of property acquired in
connection with the foreclosure of a mortgage securing that property
(“foreclosure property”);
|
| · |
distributions
on, or gain from the sale of, shares of other qualifying
REITs;
|
| · |
abatements
and refunds of real property taxes;
|
| · |
amounts
received as consideration for entering into agreements to make loans
secured by real property or to purchase or lease real property; and
“qualified temporary investment income” (described
below).
|
| · |
we
would be subject to tax on any income or gain from foreclosure property
at
the highest corporate rate (currently 35%);
|
| · |
a
confiscatory tax of 100% applies to any net income from prohibited
transactions;
|
| · |
if
we fail to meet either the 75% or 95% source of income tests described
above, but still qualify for REIT status under the reasonable cause
exception to those tests, a tax would be imposed equal to the amount
obtained by multiplying (a) the greater of the amount, if any, by
which it
failed either the 75% income test or the 95% income test, times (b)
a
fraction intended to reflect our
profitability;
|
| · |
if
we fail the 5% asset test or either of the 10% asset tests (and do
not
qualify for a de
minimis
safe harbor) or fail to satisfy one or more of the other asset tests
for
any quarter of a taxable year, but nonetheless continue to qualify
as a
REIT because we qualify under certain relief provisions, we may be
required to pay a
tax of the greater of $50,000 or a tax computed at the highest corporate
rate on the amount of net income generated by the assets causing
the
failure from the date of failure until the assets are disposed of
or we
otherwise return to compliance with the asset
test;
|
| · |
if
we fail to satisfy one or more of the requirements for REIT qualification
(other than the income tests or the rules providing relief from
asset test
failures, described above), we nevertheless may avoid termination
of our
REIT election in such year if the failure is due to reasonable
cause and
not due to willful neglect and we pay a penalty of $50,000 for
each
failure to satisfy the REIT qualification
requirements;
|
| · |
we
will be subject to the alternative minimum tax on items of tax preference,
excluding items specifically allocable to our
shareholders;
|
| · |
if
we should fail to distribute with respect to each calendar year at
least
the sum of (a) 85% of our REIT ordinary income for that year, (b)
95% of
our REIT capital gain net income for that year, and (c) any undistributed
taxable income from prior years, we would be subject to a 4% excise
tax on
the excess of the required distribution over the amounts actually
distributed;
|
| · |
we
also may be taxed at the highest regular corporate tax rate on any
built-in gain attributable to assets that we acquire in certain tax-free
corporate transactions, to the extent the gain is recognized during
the
first ten years after we acquire those assets. Built-in gain is the
excess
of (a) the fair market value of the asset over (b) our adjusted basis
in
the asset, in each case determined as of the beginning of the ten-year
recognition period; and
|
| · |
we
will be taxed at regular corporate rates on any undistributed REIT
taxable
income, including undistributed net capital
gains.
|
| · |
Redetermined
rents do not include de
minimis
payments received by the REIT with respect to non-customary services
rendered to the tenants of a property owned by the REIT that do not
exceed
1% of all amounts received by the REIT with respect to the
property.
|
| · |
The
redetermined rent provisions do not apply with respect to any services
rendered by a taxable REIT subsidiary to the tenants of the REIT,
as long
as the taxable REIT subsidiary renders a significant amount of
similar services to persons other than the REIT and to tenants
who are
unrelated to the REIT or the taxable REIT subsidiary or the REIT
tenants,
and the charge for these services is substantially comparable to
the
charge for similar services rendered to such unrelated
persons.
|
| · |
The
redetermined rent provisions do not apply to any services rendered
by a
taxable REIT subsidiary to a tenant of a REIT if the rents paid by
tenants
leasing at least 25% of the net leasable space in the REIT’s property who
are not receiving such services are substantially comparable to the
rents
paid by tenants leasing comparable space who are receiving the services
and the charge for the services is separately
stated.
|
| · |
The
redetermined rent provisions do not apply to any services rendered
by a
taxable REIT subsidiary to tenants of a REIT if the gross income
of the
taxable REIT subsidiary from these services is at least 150% of the
taxable REIT subsidiary’s direct cost of rendering the
service.
|
| · |
The
Secretary of the Treasury has the power to waive the tax that would
otherwise be imposed on redetermined rents if the REIT establishes
to the
satisfaction of the Secretary that rents charged to tenants were
established on an arm’s length basis even though a taxable REIT subsidiary
provided services to the tenants.
|
| · |
include
its proportionate share of our undistributed long-term capital gains
in
computing its long-term capital gains in its return for its taxable
year
in which the last day of our taxable year
falls;
|
| · |
be
deemed to have paid the capital gains tax imposed on us on the designated
amounts included in the U.S. shareholder’s long-term capital
gains;
|
| · |
receive
a credit or refund for the amount of tax deemed paid by
it;
|
| · |
increase
the adjusted basis of its common shares by the difference between
the
amount of includable gains and the tax deemed to have been paid by
it;
and, in the case of a U.S. Holder that is a corporation, appropriately
adjust its earnings and profits for the retained capital gains in
accordance with Treasury Regulations to be prescribed by the
IRS.
|
|
Name
|
Principal
Amount of Notes Beneficially Owned That May Be
Sold
|
Percentage
of Notes Outstanding
|
Number
of Common Shares That May Be Sold (1)
|
Percentage
of Common Shares Outstanding (2)
|
|
|
1976
Distribution Trust FBO AR Lauder
|
$6,000
|
*
|
122.26
|
*
|
|
|
2000
Revocable Trust FBO AR - Lauder
|
5,000
|
*
|
101.89
|
*
|
|
|
ADI
Alternative Investments
|
1,000,000
|
*
|
20,317.00
|
*
|
|
|
ADI
Alternative Investments c/o Axis Pan
|
1,000,000
|
*
|
20,317.00
|
*
|
|
|
ADI
Alternative Investments c/o Casam ADI CB Arbitrage
|
2,000,000
|
*
|
40,754.00
|
*
|
|
|
ADI
Alternative Investments c/o Kallista Masterfund Limited
|
4,000,000
|
*
|
81,508.00
|
*
|
|
|
Advent
Convertible Master Fund LP
|
8,539,000
|
1.49%
|
173,999.20
|
*
|
|
|
Altma
Fund Sicav PLC in respect of Trinity Subfund
|
625,000
|
*
|
12,735.63
|
*
|
|
|
AM
International E MAC 63, Ltd.
|
1,385,000
|
*
|
28,222.15
|
*
|
|
|
AM
Master Fund I, LP
|
2,595,000
|
*
|
52,878.32
|
*
|
|
|
Aristeia
Partners LP
|
3,300,000
|
*
|
67,244.10
|
*
|
|
|
Bancroft
IAM Limited+
|
4,000,000
|
*
|
81,508.00
|
*
|
|
|
Bank
of America Pension Plan
|
2,500,000
|
*
|
50,942.50
|
*
|
|
|
Beamtenversicherungskasse
des Kanton Zurich+
|
5,000,000
|
*
|
101,885.00
|
*
|
|
|
Bernische
Lehrerversicherungskasse+
|
1,300,000
|
*
|
26,490.10
|
*
|
|
|
Black
Diamond Convertible Offshore LDC
|
2,500,000
|
*
|
50,942.50
|
*
|
|
|
Black
Diamond Offshore Ltd.
|
1,037,000
|
*
|
21,130.95
|
*
|
|
|
CIBC
World Mkts Corp#
|
2,500,000
|
*
|
50,942.50
|
*
|
|
|
Citigroup
Global Markets Inc.#
|
6,971,000
|
1.21%
|
142,048.07
|
*
|
|
|
CQS
Convertible and Quantitative Strategies Master Fund
Limited
|
28,500,000
|
4.96%
|
580,744.50
|
*
|
|
|
DeepRock
& Co
|
1,000,000
|
*
|
20,377.00
|
*
|
|
|
Double
Black Diamond Offshore LDC
|
6,463,000
|
1.12%
|
131,696.55
|
*
|
|
|
Equity
Overlay Fund, LLC
|
1,000,000
|
*
|
20,377.00
|
*
|
|
|
FFVA
Mutual Insurance Company
|
54,000
|
*
|
1,100.36
|
*
|
|
|
Fore
Convertible Master Fund, Ltd.+ (3)
|
13,807,000
|
2.40%
|
281,345.24
|
*
|
|
|
Fore
ERISA Fund, Ltd. + (4)
|
1,193,000
|
*
|
24,309.76
|
*
|
|
|
Name
|
Principal
Amount of Notes Beneficially Owned That May Be
Sold
|
Percentage
of Notes Outstanding
|
Number
of Common Shares That May Be Sold (1)
|
Percentage
of Common Shares Outstanding (2)
|
|
|
Gemini
Sammelstiftung Zur For Der Ung Der Personalvorsorge+
|
550,000
|
*
|
11,207.35
|
*
|
|
|
Georgia
Municipal Employee Benefit System
|
1,290,000
|
*
|
26,286.33
|
*
|
|
|
Hershey
Foods Corporation Master Retirement Trust (5)
|
132,000
|
*
|
2,689.76
|
*
|
|
|
HFR
Convertible Arbitrage
|
595,000
|
*
|
12,124.32
|
*
|
|
|
Independence
Blue Cross
|
710,000
|
*
|
14,467.67
|
*
|
|
|
Jefferies
Umbrella Fund Global Convertible Bond+
|
5,700,000
|
*
|
116,148.90
|
*
|
|
|
John
Deere Pension Trust
|
1,000,000
|
*
|
20,377.00
|
*
|
|
|
John
Hancock Funds II - Real Estate Equity Fund (6)
|
1,606,000
|
*
|
32,724.46
|
*
|
|
|
John
Hancock Trust - Real Estate Equity Trust (7)
|
1,632,000
|
*
|
33,255.26
|
*
|
|
|
KBC
Convertible MAC 28 Limited+
|
7,000,000
|
1.22%
|
142,639.00
|
*
|
|
|
KBC
Diversified Fund, a Segregated Portfolio of KBC Diversified Fund,
SPC+
|
14,000,000
|
2.43%
|
285,278.00
|
*
|
|
|
KBC
Financial Products USA Inc.#
|
2,600,000
|
*
|
52,980.20
|
*
|
|
|
Lyxor/AM
Investment Fund Ltd.
|
395,000
|
*
|
8,048.92
|
*
|
|
|
Lyxor
Convertible Arbitrage Fund
|
336,000
|
*
|
6,846.67
|
*
|
|
|
Lyxor
Quest Fund Ltd.
|
3,000,000
|
*
|
61,131.00
|
*
|
|
|
Magnetar
Capital Master, Ltd.
|
10,000,000
|
1.74%
|
203,770.00
|
*
|
|
|
Merced
Partners Limited Partnership
|
2,800,000
|
*
|
57,055.60
|
*
|
|
|
Pendragon
(Convertibles) Fund Ltd.
|
28,670,000
|
4.99%
|
584,208.59
|
*
|
|
|
Pensionkasse
Der Antalis AG+
|
80,000
|
*
|
1,630.16
|
*
|
|
|
Pensionkasse
Der Lonza AG+
|
300,000
|
*
|
6,113.10
|
*
|
|
|
Pensionkasse
Der Rockwell Automation AG+
|
160,000
|
*
|
3,260.32
|
*
|
|
|
Pensionkasse
Huntsman+
|
160,000
|
*
|
3,260.32
|
*
|
|
|
Peoples
Benefit Life Insurance Company Teamsters
|
11,500,000
|
2.00%
|
234,335.50
|
*
|
|
|
Police
& Firemen of the City of Detroit
|
520,000
|
*
|
10,596.04
|
*
|
|
|
PV
Promea+
|
350,000
|
*
|
7,131.95
|
*
|
|
|
Quest
Global Convertible Master Fund Ltd.
|
1,000,000
|
*
|
20,377.00
|
*
|
|
|
Radcliffe
SPC, Ltd for and on behalf of the Class A Convertible Crossover
Segregated Portfolio
|
28,500,000
|
4.96%
|
580,744.50
|
*
|
|
|
RBC
Capital Markets#
|
3,000,000
|
*
|
61,131.00
|
*
|
|
|
Redbourn
Partners Ltd.
|
9,000,000
|
1.57%
|
183,393.00
|
*
|
|
|
Retail
Clerks Pension Trust #2
|
1,000,000
|
*
|
20,377.00
|
*
|
|
|
Rhythm
Fund, Ltd.+
|
14,000,000
|
2.43%
|
285,278.00
|
*
|
|
|
Satellite
Convertible Arbitrage Masterfund LLC
|
7,000,000
|
142,639.00
|
*
|
||
|
St.
Albans Partners Ltd.
|
2,000,000
|
*
|
40,754.00
|
*
|
|
|
Suttonbrook
Capital Portfolio LP
|
40,000,000
|
6.96%
|
815,080.00
|
*
|
|
|
Tamarack
International Ltd.
|
1,200,000
|
*
|
24,452.40
|
*
|
|
|
The
Grable Foundation
|
80,000
|
*
|
1,630.16
|
*
|
|
|
T.
Rowe Price Real Estate Fund, Inc. (8)
|
9,330,000
|
1.62%
|
190,117.41
|
*
|
|
|
Trustmark
|
335,000
|
*
|
6,826.30
|
*
|
|
|
UBS
AG London F/B/O HFS+
|
10,000,000
|
1.74%
|
203,770.00
|
*
|
|
|
UBS
Securities LLC# (9)
|
3,859,000
|
*
|
78,634.84
|
*
|
|
|
Universal
Investment Gesellschaft MBH Ref Aventis+
|
5,000,000
|
*
|
101,885.00
|
*
|
|
|
Vicis
Capital Master Fund
|
9,000,000
|
1.57%
|
183,393.00
|
*
|
|
|
Name
|
Principal
Amount of Notes Beneficially Owned That May Be
Sold
|
Percentage
of Notes Outstanding
|
Number
of Common Shares That May Be Sold (1)
|
Percentage
of Common Shares Outstanding (2)
|
|
|
Waterstone
Market Neutral Master Fund, Ltd.
|
9,386,000
|
1.63%
|
191,258.52
|
*
|
|
|
Waterstone
Market Neutral MAC 51, Ltd.
|
5,614,000
|
*
|
114,396.48
|
*
|
|
|
Yield
Strategies Fund I, L.P.
|
4,000,000
|
*
|
81,508.00
|
*
|
|
|
Zurich
Institutional Funds, Wandelanleihen+
|
1,300,000
|
*
|
26,490.10
|
*
|
|
|
Unnamed
holders of notes or future transferee, distributee, pledgee, donee,
or
successor of any such unnamed holder (10)(11)
|
213,030,000
|
37.05%
|
4,340,912.31
|
4.83%
|
|
|
(1)
|
Assumes
conversion of all of the holder’s notes at a conversion rate of 20.3770 of
our common shares for each $1,000 principal amount of notes. However,
this
conversion rate is subject to adjustment as described under “Description
of Notes — Conversion Rate Adjustments.” As a result, the amount of common
shares issuable upon conversion of the notes may increase or decrease
in
the future.
|
|
(2)
|
Calculated
based on Rule 13d-3(d)(i) of the Exchange Act using 85,606,469
common shares outstanding as of November 21, 2006. In calculating
this amount, we treated as outstanding the number of common shares
issuable upon conversion of all of that particular holder’s notes.
However, we did not assume the conversion of any other holder’s
notes.
|
|
(3)
|
As
of August 8, 2006, Fore Convertible Master Fund had a short position
in
our common shares of 105,552.
|
|
(4)
|
As
of August 8, 2006, Fore ERISA Fund, Ltd. had a short position in
our
common shares of 9,121.
|
|
(5)
|
As
of October 18, 2006, Hershey Foods Corporation owned 10,300 of
our common
shares that are not subject to this Registration
Statement.
|
|
(6)
|
As
of October 18, 2006, John Hancock Funds II - Real Estate Equity
Fund owned
98,200 of our common shares that are not subject to this Registration
Statement.
|
|
(7)
|
As
of October 18, 2006, John Hancock Trust - Real Estate Equity Trust
owned
1,632,000 of our common shares that are not subject to this Registration
Statement.
|
|
(8)
|
As
of October 18, 2006, T. Rowe Price Real Estate Fund, Inc. owned
695,000 of
our common shares that are not subject to this Registration
Statement.
|
|
(9)
|
As
of October 16, 2006, UBS Securities LLC owned 8,911 of our common
shares
and 834 of our 6.95% Series E Cumulative Redeemable Preferred
Shares.
|
|
(10)
|
Information
about other selling securityholders will be set forth in amendments
to the
registration statement of which this prospectus forms a part, or
in
prospectus supplements, if
required.
|
|
(11)
|
Assumes
that any other holders of notes, or any future transferees, pledgees,
donees or successors of or from any such other holders of notes,
do not
beneficially own any common shares other than the common shares
issuable
upon conversion of the notes at the initial conversion
rate.
|
|
Selling
Securityholder
|
Natural
person or persons with
voting
or dispositive power
|
|
1976
Distribution Trust FBO AR Lauder
|
Tracy
Maitland
|
|
2000
Revocable Trust FBO AR - Lauder
|
Tracy
Maitland
|
|
ADI
Alternative Investments
|
Patrick
Hobin
|
|
ADI
Alternative Investments c/o Axis Pan
|
Patrick
Hobin
|
|
ADI
Alternative Investments c/o Casam ADI CB Arbitrage
|
Patrick
Hobin
|
|
ADI
Alternative Investments c/o Kallista Masterfund Limited
|
Patrick
Hobin
|
|
Advent
Convertible Master Fund LP
|
Tracy
Maitland
|
|
Altma
Fund Sicav PLC in respect of Trinity Subfund
|
AM
Investment Partners serves as investment advisor. Mark Friedman
and Adam
Stern have voting authority.
|
|
AM
International E MAC 63, Ltd.
|
AM
Investment Partners serves as investment advisor. Mark Friedman
and Adam
Stern have voting authority.
|
|
AM
Master Fund I, LP
|
AM
Investment Partners serves as investment advisor. Mark Friedman
and Adam
Stern have voting authority.
|
|
Aristeia
Partners LP
|
Aristeia
Advisors LLC is the general partner of Aristeia Partners LP.
Aristeia
Advisors LLC is jointly owned by Kevin Toner, Robert H. Lynch
Jr., Anthony
Frascella and William R. Techar.
|
|
Bancroft
IAM Limited
|
Silverback
Asset Management is the asset manager, and Elloitt Bossen is
the Principal
and Chief Investment Officer of Silverback.
|
|
Bank
of America Pension Plan
|
Alex
Lach
|
|
Beamtenversicherungskasse
des Kanton Zurich
|
Avtandil
Gigineishvili
|
|
Bernische
Lehrerversicherungskasse
|
Avtandil
Gigineishvili
|
|
Black
Diamond Convertible Offshore LDC
|
Clint
D. Carlson
|
|
Black
Diamond Offshore Ltd.
|
Clint
D. Carlson
|
|
CIBC
World Mkts Corp
|
Greg
Edell
|
|
Citigroup
Global Markets Inc.
|
Kevin
Russell
|
|
CQS
Convertible and Quantitative Strategies Master Fund Limited
|
Alan
Smith, Blair Gauld, Dennis Hunter, Karla Bodden and Jim
Rogers
|
|
DeepRock
& Co
|
Alex
Lach
|
|
Double
Black Diamond Offshore LDC
|
Clint
D. Carlson
|
|
Equity
Overlay Fund, LLC
|
Alex
Lach
|
|
FFVA
Mutual Insurance Company
|
Tracy
Maitland
|
|
Fore
Convertible Master Fund, Ltd.
|
Harresh
Paranjape
|
|
Fore
ERISA Fund, Ltd.
|
Harresh
Paranjape
|
|
Gemini
Sammelstiftung Zur For Der Ung Der Personalvorsorge
|
Avtandil
Gigineishvili
|
|
Georgia
Municipal Employee Benefit System
|
Tracy
Maitland
|
|
Selling
Securityholder
|
Natural
person or persons with
voting or dispositive power |
|
Hershey
Foods Corporation Master Retirement Trust
|
No
one individual at T. Rowe Price will be responsible for voting
decisions
and investment control over the purchased Weingarten
securities. T. Rowe Price Associates, Inc. is investment adviser
to
the selling securityholder and has been delegated voting
authority over the Price Funds and the three
other portfolios it manages as investment adviser. The T. Rowe Price
Proxy Committee develops positions on all major corporate issues,
creates
guidelines, and oversees the voting process. The Proxy Committee,
composed
of portfolio managers, investment operations managers, and internal
legal
counsel, analyzes proxy policies based on whether they would
adversely
affect shareholders’ interests and make a company less attractive to own.
Once the Proxy Committee establishes its recommendations, they
are
distributed to the firm’s portfolio managers as voting guidelines. For the
registered investment companies sponsored and managed by T.
Rowe Price, the portfolio manager of each fund has ultimate responsibility
for the voting decisions for proxies relating to voting securities
held by
the fund. David M. Lee is the portfolio manager for the T. Rowe
Price Real Estate Fund, Inc. More information on T. Rowe
Price’s proxy voting policies and procedures is available on our website
(http://www.troweprice.com)
and in the Price Funds’ Statement of Additional Information, which is
filed with the SEC.
|
|
HFR
Convertible Arbitrage
|
Tracy
Maitland
|
|
Independence
Blue Cross
|
Tracy
Maitland
|
|
Jefferies
Umbrella Fund Global Convertible Bond
|
Avtandil
Gigineishvili
|
|
John
Deere Pension Trust
|
Alex
Lach
|
|
John
Hancock Funds II - Real Estate Equity Fund
|
No
one individual at T. Rowe Price will be responsible for voting
decisions
and investment control over the purchased Weingarten
securities. T. Rowe Price Associates, Inc. is investment adviser
to
the selling securityholder and has been delegated voting
authority over the Price Funds and the three
other portfolios it manages as investment adviser. The T. Rowe Price
Proxy Committee develops positions on all major corporate issues,
creates
guidelines, and oversees the voting process. The Proxy Committee,
composed
of portfolio managers, investment operations managers, and internal
legal
counsel, analyzes proxy policies based on whether they would
adversely
affect shareholders’ interests and make a company less attractive to own.
Once the Proxy Committee establishes its recommendations, they
are
distributed to the firm’s portfolio managers as
|
Selling
Securityholder
|
Natural
person or persons with
voting or dispositive power |
|
voting
guidelines. For the registered investment companies sponsored
and managed by T. Rowe Price, the portfolio manager of each fund
has
ultimate responsibility for the voting decisions for proxies
relating to
voting securities held by the fund. David M. Lee is the
portfolio manager for the T. Rowe Price Real Estate Fund,
Inc. More information on T. Rowe Price’s proxy voting policies and
procedures is available on our website (http://www.troweprice.com)
and in
the Price Funds’ Statement of Additional Information, which is filed with
the SEC.
|
|
|
John
Hancock Trust - Real Estate Equity Trust
|
No
one individual at T. Rowe Price will be responsible for voting
decisions
and investment control over the purchased Weingarten
securities. T. Rowe Price Associates, Inc. is investment adviser
to
the selling securityholder and has been delegated voting
authority over the Price Funds and the three
other portfolios it manages as investment adviser. The T. Rowe Price
Proxy Committee develops positions on all major corporate issues,
creates
guidelines, and oversees the voting process. The Proxy Committee,
composed
of portfolio managers, investment operations managers, and internal
legal
counsel, analyzes proxy policies based on whether they would
adversely
affect shareholders’ interests and make a company less attractive to own.
Once the Proxy Committee establishes its recommendations, they
are
distributed to the firm’s portfolio managers as voting guidelines. For the
registered investment companies sponsored and managed by T.
Rowe Price, the portfolio manager of each fund has ultimate responsibility
for the voting decisions for proxies relating to voting securities
held by
the fund. David M. Lee is the portfolio manager for the T. Rowe
Price Real Estate Fund, Inc. More information on T. Rowe
Price’s proxy voting policies and procedures is available on our website
(http://www.troweprice.com)
and in the Price Funds’ Statement of Additional Information, which is
filed with the SEC.
|
|
KBC
Convertible MAC 28 Limited
|
Carlo
Georg, Chief Investment Officer of KBC Alternative Investment
Management
Limited
|
|
KBC
Diversified Fund, a Segregated Portfolio of KBC Diversified Fund,
SPC
|
Carlo
Georg, Chief Investment Officer of KBC Alternative Investment
Management
Limited
|
|
KBC
Financial Products USA Inc.
|
The
securities are under the total control of KBC Financial Products
USA
Inc. KBC Financial Products USA Inc, is a direct wholly-owned
subsidiary of KBC Financial Holdings, Inc., which in turn is
a direct
wholly-owned subsidiary of KBC Bank N.V., which in turn is a
direct
wholly-owned
|
|
Selling
Securityholder
|
Natural
person or persons with voting or dispositive power |
|
subsidiary
of KBC Group N.V., a publicly traded entity. Natural persons
with voting
or investment control are Alex Bezjian, Darren Carter, Jason
Cuevas, Damir
Delic, Luke Edwards, Dennis Fitzgerald, John Heffers, Thomas
Korossy,
Liming Kwan, Dan Lerner, Eric Needleman, David Ricciardi, Rupen
Soultanian, Walter Staudenmaier, Mark Sullivan, Tim Vaughan,
Vincenzo
Vigliotti and Brandon Way.
|
|
|
Lyxor/AM
Investment Fund Ltd.
|
AM
Investment Partners serves as investment advisors. Mark Friedman
and Adam
Stern have voting authority.
|
|
Lyxor
Convertible Arbitrage Fund
|
Tracy
Maitland
|
|
Lyxor
Quest Fund Ltd.
|
Frank
Campana
|
|
Magnetar
Capital Master, Ltd.
|
Magnetar
Financial LLC is the investment advisor of Magnetar Capital Master
Fund,
Ltd ("Magnetar Master Fund") and consequently has voting control
and
investment discretion over securities held by Magnetar Master
Fund.
Magnetar Financial LLC disclaims beneficial ownership of the
shares held
by Magnetar Master Fund. Alec Litowitz has voting control over
Supernova
Management LLC, the general partner of Magnetar Capital Partners
LP, the
sole managing member of Magnetar Financial LLC. As a result,
Mr. Litowitz
may be considered the beneficial owner of any shares deemed to
be
beneficially owned by Magnetar Financial LLC. Mr. Litowitz disclaims
beneficial ownership of these shares.
|
|
Merced
Partners Limited Partnership
|
John
D. Brandenborg, Stuart Brown, Jeff Deeb, Diana Denhardt, Erik
W. Dieterle,
David A. Ericson, Benjamin Fisher, Michael J. Frey, Becky Fruechte,
Andrew
Kabala, Robert Kerr, Moya Mulqueen, James Musel, Brian L. Naas,
Kent
Rowett, Lucas J. Schaan, Vince Vertin, Hendrik Vroege and Eric
J.
Werwie
|
|
Pendragon
(Convertibles) Fund Ltd.
|
John
Pennells, with Pendragon Capital LLP acting as investment
manager
|
|
Pensionkasse
Der Antalis AG
|
Avtandil
Gigineishvili
|
|
Pensionkasse
Der Lonza AG
|
Avtandil
Gigineishvili
|
|
Pensionkasse
Der Rockwell Automation AG
|
Avtandil
Gigineishvili
|
|
Pensionkasse
Huntsman
|
Avtandil
Gigineishvili
|
|
Peoples
Benefit Life Insurance Company Teamsters
|
Alex
Lach
|
|
Police
& Firemen of the City of Detroit
|
Tracy
Maitland
|
|
PV
Promea
|
Avtandil
Gigineishvili
|
|
Quest
Global Convertible Master Fund Ltd.
|
Frank
Campana
|
|
Radcliffe
SPC, Ltd for and on behalf of the Class A Convertible Crossover
Segregated
Portfolio
|
Pursuant
to an investment management agreement, RG Capital Management,
L.P. ("RG
Capital") serves as the investment manager of Radcliffe SPC,
Ltd.'s Class
A Convertible Crossover Segregated
|
|
Selling
Securityholder
|
Natural
person or persons with
voting or dispositive power |
|
Portfolio.
RGC Management Company, LLC ("Management") is the general partner
of RG
Capital. Steve Katznelson and Gerald Stahlecker serve as the
managing
members of Management. Each of RG Capital, Management and Messrs.
Katznelson and Stahlecker disclaims beneficial ownership of the
securities
owned by Radcliffe SPC, Ltd. for and on behalf of the Class A
Convertible
Crossover Segregated Portfolio.
|
|
|
RBC
Capital Markets
|
Dan
White
|
|
Redbourn
Partners Ltd.
|
Alex
Lach
|
|
Retail
Clerks Pension Trust #2
|
Alex
Lach
|
|
Rhythm
Fund, Ltd.
|
Carlo
Georg, Chief Investment Officer of KBC Alternative Investment
Management
Limited
|
|
Satellite
Convertible Arbitrage Masterfund LLC
|
The
discretionary investment manager of the selling security holder
is
Satellite Asset Mgmt, LP ("SAM"). The controlling entity of SAM
is
Satellite Fund Management, LLC ("SFM"). The managing members
of SFM are
Lief Rosenblatt, Mark Sonnino and Gabe Nechamkin. SAM, SFM and each
named individual disclaims beneficial ownership of the
securities.
|
|
St.
Albans Partners Ltd.
|
Alex
Lach
|
|
Suttonbrook
Capital Portfolio LP
|
SuttonBrook
Capital Management LP is the investment manager of SuttonBrook
Capital
Portolio LP and John London and Steven M. Weinstein are the natural
persons with control and voting power over SuttonBrook Capital
Management
LP.
|
|
Tamarack
International Ltd.
|
John
D. Brandenborg, Stuart Brown, Jeff Deeb, Diana Denhardt, Erik
W. Dieterle,
David A. Ericson, Benjamin Fisher, Michael J. Frey, Becky Fruechte,
Andrew
Kabala, Robert Kerr, Moya Mulqueen, James Musel, Brian L. Naas,
Kent
Rowett, Lucas J. Schaan, Vince Vertin, Hendrik Vroege and Eric
J.
Werwie
|
|
The
Grable Foundation
|
Tracy
Maitland
|
|
T.
Rowe Price Real Estate Fund, Inc.
|
No
one individual at T. Rowe Price will be responsible for voting
decisions
and investment control over the purchased Weingarten
securities. T. Rowe Price Associates, Inc. is investment adviser
to
the selling securityholder and has been delegated voting
authority over the Price Funds and the three
other portfolios it manages as investment adviser. The T. Rowe Price
Proxy Committee develops positions on all major corporate issues,
creates
guidelines, and oversees the voting process. The Proxy Committee,
composed
of portfolio managers, investment operations managers, and internal
legal
counsel, analyzes proxy policies based on whether they would
adversely
affect
|
Selling
Securityholder
|
Natural
person or persons with
voting or dispositive power |
|
shareholders’
interests and make a company less attractive to own. Once the
Proxy
Committee establishes its recommendations, they are distributed
to the
firm’s portfolio managers as voting guidelines. For the registered
investment companies sponsored and managed by T. Rowe Price,
the portfolio manager of each fund has ultimate responsibility
for the
voting decisions for proxies relating to voting securities held
by the
fund. David M. Lee is the portfolio manager for the T. Rowe
Price Real Estate Fund, Inc. More information on T. Rowe
Price’s proxy voting policies and procedures is available on our website
(http://www.troweprice.com) and in the Price Funds’ Statement of
Additional Information, which is filed with the SEC.
|
|
|
Trustmark
|
Tracy
Maitland
|
|
UBS
AG London F/B/O HFS
|
Pasquale
Riccio
|
|
UBS
Securities LLC
|
Roy
Irwin
|
|
Universal
Investment Gesellschaft MBH Ref Aventis
|
Avtandil
Gigineishvili
|
|
Vicis
Capital Master Fund
|
John
Succo, Sky Lucas and Shad Stastney
|
|
Waterstone
Market Neutral Master Fund, Ltd.
|
Martin
Kalish, Shawn Bergerson
|
|
Waterstone
Market Neutral MAC 51, Ltd.
|
Martin
Kalish, Shawn Bergerson
|
|
Yield
Strategies Fund I, L.P.
|
Alex
Lach
|
|
Zurich
Institutional Funds, Wandelanleihen
|
Avtandil
Gigineishvili
|
| · |
directly
by the selling securityholders; or
alternatively,
|
| · |
through
underwriters, broker-dealers or agents who may receive compensation
in the
form of underwriting discounts or commissions or agent’s commissions from
the selling securityholders or the purchasers of the common
shares.
|
| · |
fixed
prices, which may be changed;
|
| · |
prevailing
market prices at the time of sale;
|
| · |
varying
prices determined at the time of sale;
or
|
| · |
negotiated
prices.
|
| · |
on
any national securities exchange or quotation service on which the
notes
and underlying common shares may be listed or quoted at the time
of the
sale, including the New York Stock Exchange in the case of the common
shares;
|
| · |
in
the over-the-counter market;
|
| · |
in
transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
|
| · |
through
the writing of options.
|
|
SEC
Registration Fee
|
$
|
61,525.00
|
||
|
Accounting
Fees and Expenses
|
25,000.00*
|
|||
|
Legal
Fees and Expenses
|
35,000.00*
|
|||
|
Miscellaneous
|
25,000.00*
|
|||
|
Total
|
$
|
146,525.00*
|
||
|
*Estimated
|
|
3.1
|
Amended
and Restated Declaration of Trust, as amended (filed as Exhibit 3.1
to our
Registration Statement on Form S-3 (No. 33-49206) and incorporated
herein
by reference).
|
|
3.2
|
Amendment
to the Restated Declaration of Trust (filed as Exhibit 3.2 to our
Registration Statement on Form 8-A filed January 19, 1999 and incorporated
herein by reference).
|
|
3.3
|
Second
Amendment to the Restated Declaration of Trust (filed as Exhibit
3.3 to
our Registration Statement on Form 8-A filed January 19, 1999 and
incorporated herein by reference).
|
|
3.4
|
Third
Amendment to the Restated Declaration of Trust (filed as Exhibit
3.4 to
our Registration Statement on Form 8-A filed January 19, 1999 and
incorporated herein by reference).
|
|
3.5
|
Fourth
Amendment of the Restated Declaration of Trust dated April 28, 1999
(filed
as Exhibit 3.5 to our Annual Report on Form 10-K for the year ended
December 31, 2001 and incorporated herein by
reference).
|
|
3.6
|
Fifth
Amendment of the Restated Declaration of Trust dated April 20, 2001
(filed
as Exhibit 3.6 to our Annual Report on Form 10-K for the year ended
December 31, 2001 and incorporated herein by
reference).
|
|
3.7
|
Amended
and Restated Bylaws (filed as Exhibit 3.2 to our Registration Statement
on
Form S-3 (No. 33-49206) and incorporated herein by
reference).
|
|
4.1
|
Form
of common share certificate (filed as Exhibit 4.1 to our Registration
Statement on Form S-3 (No. 333-104559) and incorporated herein by
reference).
|
|
4.2
|
First
Supplemental Indenture, dated as of August 2, 2006, among the Company
and
JPMorgan Chase Bank, National Association (filed as Exhibit 4.1 to
our
Form 8-K filed on August 2, 2006 and incorporated herein by
reference).
|
|
4.3
|
Form
of 3.95% Convertible Senior Note due 2026 (attached as Exhibit A
to the
First Supplemental Indenture (filed as Exhibit 4.2 to our Form 8-K
filed
on August 2, 2006 and incorporated herein by
reference).
|
|
4.4
|
Registration
Rights Agreement, dated as of June 27, 2006, among the Company and
Citigroup Global Markets Inc., as representative of the Initial Purchasers
(filed as Exhibit 4.3 to our Form 8-K filed on August 2, 2006 and
incorporated herein by reference).
|
|
5.1*
|
Opinion
of Locke Liddell & Sapp LLP as to the legality of the securities being
registered.
|
|
8.1*
|
Opinion
of Locke Liddell & Sapp LLP as to certain tax
matters.
|
|
12.1
|
Statements
regarding computations of ratios (filed as Exhibit 12.1 to our Form
8-K
filed on November 28, 2006 and as Exhibit 12.1 to our Form 10-Q filed
on November 9, 2006, and incorporated herein by
reference).
|
|
23.1
|
Consent
of Deloitte & Touche LLP.
|
|
23.2*
|
Consent
of Locke Liddell & Sapp LLP (included in Exhibit 5.1
hereto).
|
|
23.3*
|
Consent
of Locke Liddell & Sapp LLP (included in Exhibit 8.1
hereto).
|
|
24.1*
|
Power
of Attorney (included on signature page).
|
| 25.1* | Statement of Eligibility of Trustee. |
|
(a)
|
The
undersigned registrant hereby
undertakes:
|
|
WEINGARTEN
REALTY INVESTORS
|
|
|
By:
|
/s/ Andrew M. Alexander |
|
Andrew
M. Alexander
|
|
|
Chief
Executive Officer and President
|
|
|
Signature
|
Title
|
Date
|
|
|
By:
|
/s/
Stanford Alexander
|
Chairman
of the Board,
|
November
28, 2006
|
|
Stanford
Alexander
|
Trust
Manager
|
||
|
By:
|
/s/
Andrew M. Alexander
|
President,
Chief Executive Officer,
|
November
28, 2006
|
|
Andrew
M. Alexander
|
and
Trust Manager
|
||
|
By:
|
*
|
Trust
Manager
|
November
28, 2006
|
|
J.
Murry Bowden
|
|||
|
By:
|
*
|
Trust
Manager
|
November
28, 2006
|
|
James
W. Crownover
|
|||
| By: |
*
|
Trust
Manager
|
November
28, 2006
|
|
Robert
J. Cruikshank
|
|||
| By: |
*
|
Trust
Manager
|
November 28,
2006
|
|
Melvin
A. Dow
|
|||
| By: |
*
|
Trust
Manager
|
November
28, 2006
|
|
Stephen
A. Lasher
|
|||
| By: |
/s/
Stephen C. Richter
|
Executive
Vice President and
|
November
28, 2006
|
|
Stephen
C. Richter
|
Chief
Financial Officer
|
||
|
By:
|
*
|
Trust
Manager
|
November
28, 2006
|
|
Douglas
W. Schnitzer
|
|||
| By: |
*
|
Trust
Manager
|
November
28, 2006
|
|
Marc
J. Shapiro
|
|||
| By: |
/s/
Joe D. Shafer
|
Vice
President/Chief Accounting Officer
|
November
28, 2006
|
|
Joe
D. Shafer
|
(Principal
Accounting Officer)
|
||
| *By: |
/s/
Stephen C. Richter
|
||
|
Stephen
C. Richter
|
|||
|
Attorney-in-Fact
|
|
3.1
|
Amended
and Restated Declaration of Trust, as amended (filed as Exhibit 3.1
to our
Registration Statement on Form S-3 (No. 33-49206) and incorporated
herein
by reference).
|
|
3.2
|
Amendment
to the Restated Declaration of Trust (filed as Exhibit 3.2 to our
Registration Statement on Form 8-A filed January 19, 1999 and incorporated
herein by reference).
|
|
3.3
|
Second
Amendment to the Restated Declaration of Trust (filed as Exhibit
3.3 to
our Registration Statement on Form 8-A filed January 19, 1999 and
incorporated herein by reference).
|
|
3.4
|
Third
Amendment to the Restated Declaration of Trust (filed as Exhibit
3.4 to
our Registration Statement on Form 8-A filed January 19, 1999 and
incorporated herein by reference).
|
|
3.5
|
Fourth
Amendment of the Restated Declaration of Trust dated April 28, 1999
(filed
as Exhibit 3.5 to our Annual Report on Form 10-K for the year ended
December 31, 2001 and incorporated herein by
reference).
|
|
3.6
|
Fifth
Amendment of the Restated Declaration of Trust dated April 20, 2001
(filed
as Exhibit 3.6 to our Annual Report on Form 10-K for the year ended
December 31, 2001 and incorporated herein by
reference).
|
|
3.7
|
Amended
and Restated Bylaws (filed as Exhibit 3.2 to our Registration Statement
on
Form S-3 (No. 33-49206) and incorporated herein by
reference).
|
|
4.1
|
Form
of common share certificate (filed as Exhibit 4.1 to our Registration
Statement on Form S-3 (No. 333-104559) and incorporated herein by
reference).
|
|
4.2
|
First
Supplemental Indenture, dated as of August 2, 2006, among the Company
and
JPMorgan Chase Bank, National Association (filed as Exhibit 4.1 to
our
Form 8-K filed on August 2, 2006 and incorporated herein by
reference).
|
|
4.3
|
Form
of 3.95% Convertible Senior Note due 2026 (attached as Exhibit A
to the
First Supplemental Indenture (filed as Exhibit 4.2 to our Form 8-K
filed
on August 2, 2006 and incorporated herein by
reference).
|
|
4.4
|
Registration
Rights Agreement, dated as of June 27, 2006, among the Company and
Citigroup Global Markets Inc., as representative of the Initial Purchasers
(filed as Exhibit 4.3 to our Form 8-K filed on August 2, 2006 and
incorporated herein by reference).
|
|
5.1*
|
Opinion
of Locke Liddell & Sapp LLP as to the legality of the securities being
registered.
|
|
8.1*
|
Opinion
of Locke Liddell & Sapp LLP as to certain tax
matters.
|
|
12.1
|
Statements
regarding computations of ratios (filed as Exhibit 12.1 to our Form
8-K
filed on November 28, 2006 and as Exhibit 12.1 to our Form 10-Q filed
on November 9, 2006, and incorporated herein by
reference).
|
|
23.1
|
Consent
of Deloitte & Touche LLP.
|
|
23.2*
|
Consent
of Locke Liddell & Sapp LLP (included in Exhibit 5.1
hereto).
|
|
23.3*
|
Consent
of Locke Liddell & Sapp LLP (included in Exhibit 8.1
hereto).
|
|
24.1*
|
Power
of Attorney (included on signature page).
|
| 25.1* | Statement of Eligibility of Trustee. |