As filed with the Securities and Exchange Commission
on May 20, 1994
Registration No. 33-53311
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
NEW PLAN REALTY TRUST
(Exact name of registrant as specified in its
declaration of trust)
Massachusetts 13-1995781
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
__________________
William Newman
Chief Executive Officer
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
__________________
Copies to:
Robinson Silverman Pearce
Aronsohn & Berman
1290 Avenue of the Americas
New York, New York 10104
Attention: Alan S. Pearce, Esq.
Steven G. Scheinfeld, Esq.
Brown & Wood
One World Trade Center
New York, New York 10048
Attention: Thomas R. Smith, Jr., Esq.
Douglas A. Sgarro, Esq.
__________________
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement as determined by market conditions.
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
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS, DATED MAY 20, 1994
PROSPECTUS
NEW PLAN REALTY TRUST
$250,000,000
Debt Securities, Preferred Shares,
Depositary Shares, Common Shares and Warrants
New Plan Realty Trust ("New Plan" or the "Trust") may from
time to time offer in one or more series its (i) unsecured debt
securities, which may be either senior debt securities ("Senior
Securities") or subordinated debt securities ("Subordinated
Securities," and together with Senior Securities, the "Debt
Securities"), (ii) preferred shares of beneficial interest, par
value $1.00 per share ("Preferred Shares"), (iii) Preferred
Shares represented by depositary shares ("Depositary Shares"),
(iv) common shares of beneficial interest without par value
("Common Shares"), or (v) warrants to purchase Debt Securities,
Preferred Shares or Common Shares (collectively, "Warrants"),
with an aggregate initial public offering price of up to
$250,000,000 on terms to be determined at the time of offering.
Debt Securities, Preferred Shares, Depositary Shares, Common
Shares and Warrants (collectively, the "Offered Securities") may
be offered, separately or together, in separate series in
amounts, at prices and on terms to be set forth in a supplement
to this Prospectus (a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of
which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement and will include, where
applicable: (i) in the case of Debt Securities, the specific
title, aggregate principal amount, ranking, currency, form (which
may be registered or bearer, or certificated or global),
authorized denominations, maturity, rate (or manner of
calculation thereof) and time of payment of interest, terms for
redemption at the option of the Trust or repayment at the option
of the Holder, terms for sinking fund payments, terms for
conversion into Preferred Shares or Common Shares, and any
initial public offering price; (ii) in the case of Preferred
Shares, the specific title and stated value, any dividend,
liquidation, redemption, conversion, voting and other terms and
conditions, and any initial public offering price; (iii) in the
case of Depositary Shares, the fractional share of a Preferred
Share represented by each such Depositary Share; (iv) in the case
of Common Shares, any initial public offering price; and (v) in
the case of Warrants, the number and terms thereof, the
designation and the number of securities issuable upon their
exercise, the exercise price, the terms of the offering and sale
thereof and, where applicable, the duration and detachability
thereof. In addition, such specific terms may include
limitations on direct or beneficial ownership and restrictions on
transfer of certain types of Offered Securities, in each case as
may be appropriate to preserve the status of the Trust as a real
estate investment trust ("REIT") for federal income tax purposes.
The applicable Prospectus Supplement will also contain
information, where applicable, about certain United States
federal income tax considerations relating to, and any listing on
a securities exchange of, the Offered Securities covered by such
Prospectus Supplement.
The Offered Securities may be offered directly, through
agents designated from time to time by the Trust, or to or
through underwriters or dealers. If any agents or underwriters
are involved in the sale of any of the Offered Securities, their
names, and any applicable purchase price, fee, commission or
discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in the
applicable Prospectus Supplement. See "Plan of Distribution."
No Offered Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms
of the offering of such series of Offered Securities.
__________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
__________________
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED
ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
__________________
The date of this Prospectus is _________ __, 1994.<PAGE>
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AVAILABLE INFORMATION
The Trust is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). The reports, proxy statements and
other information filed by the Trust with the Commission in
accordance with the Exchange Act can be inspected and copied at
the Commission's Public Reference Section, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the following regional
offices of the Commission: Seven World Trade Center, 13th Floor,
New York, New York 10048 and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, the Common Shares are listed on the New York Stock
Exchange and similar information concerning the Trust can be
inspected and copied at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Trust has filed with the Commission a registration
statement (the "Registration Statement") (of which this
Prospectus is a part) under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Offered
Securities. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain
portions of which have been omitted as permitted by the rules and
regulations of the Commission. Statements contained in this
Prospectus as to the contents of any contract or other document
are not necessarily complete, and in each instance reference is
made to the copy of such contract or other document filed as an
exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference and the exhibits and
schedules thereto. For further information regarding the Trust
and the Offered Securities, reference is hereby made to the
Registration Statement and such exhibits and schedules which may
be obtained from the Commission at its principal office in
Washington, D.C. upon payment of the fees prescribed by the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Trust
under the Exchange Act with the Commission and are incorporated
herein by reference:
1. The Trust's Annual Report on Form 10-K for the year
ended July 31, 1993, filed October 15, 1993 pursuant to the
Exchange Act.
2. The Trust's Quarterly Reports on Form 10-Q for the
three-month periods ended October 31, 1993 and January 31,
1994, filed on December 10, 1993 and March 15, 1994,
respectively, pursuant to the Exchange Act.
3. The Trust's Report on Form 8-K dated August 13,
1993, filed August 16, 1993 pursuant to the Exchange Act.
4. The Trust's Amendment on Form 8-K/A dated October
6, 1993, filed October 7, 1993 pursuant to the Exchange Act.
5. The Trust's Report on Form 8-K dated November 17,
1993, filed November 18, 1993 pursuant to the Exchange Act.
6. The Trust's Amendment on Form 8-K/A dated January
13, 1994, filed January 14, 1994 pursuant to the Exchange
Act.
7. The Trust's Report on Form 8-K dated April 7, 1994,
filed April 7, 1994 pursuant to the Exchange Act.
8. The Trust's Amendment No. 2 on Form 8-K/A dated
April 21, 1994, filed April 21, 1994 pursuant to the
Exchange Act.
9. The Trust's Report on Form 8-K dated February 10,
1994, filed February 10, 1994 pursuant to the Exchange Act.
10. The Trust's Report on Form 8-K dated May 20, 1994,
filed May 20, 1994 pursuant to the Exchange Act.
11. Item 1 of the Trust's registration statement on
Form 8-A, as amended, filed May 19, 1986 pursuant to Section
12 of the Exchange Act.
All documents filed by the Trust pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of
the Offered Securities shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the
date of filing such documents.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein (or in the
applicable Prospectus Supplement) or in any other subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
Prospectus.
Copies of all documents which are incorporated herein by
reference (not including the exhibits to such information, unless
such exhibits are specifically incorporated by reference in such
information) will be provided without charge to each person,
including any beneficial owner, to whom this Prospectus is
delivered, upon written or oral request. Requests should be
directed to New Plan Realty Trust, Attention: Ronald Frankel,
1120 Avenue of the Americas, New York, New York 10036; (212) 869-
3000.
THE TRUST
New Plan, one of the largest publicly traded real estate
investment trust in the United States based on the aggregate
market value of its outstanding Common Shares, is a self-
administered and self-managed equity real estate investment trust
which primarily owns shopping centers. The Trust's present
equity investments consist principally of 92 shopping centers,
with approximately 11,735,000 gross rentable square feet, five
factory outlet centers with approximately 1,535,000 gross
rentable square feet (including expansions under construction),
15 rental apartment complexes containing 2,862 apartment units
and one office building containing approximately 51,000 gross
rentable square feet. These properties are located in 18 States.
Since the organization of the corporate predecessor of the Trust
in 1962, the Trust and its predecessor have been directed by
members of the Newman family. The Newman family has been active
in real estate ownership and management since 1926.
The Trust has paid regular and uninterrupted cash
distributions on its Common Shares since it commenced operations
as a real estate investment trust in 1972. These distributions,
which are paid quarterly, have increased from $0.19 per Common
Share in fiscal 1973 to $1.275 per Common Share in fiscal 1993.
Since inception, each distribution has either been equal to or
greater than the distribution preceding it, and the distributions
have been increased in each of the last 59 consecutive quarters.
The Trust intends to continue to declare quarterly distributions
on its Common Shares.
The Trust invests its assets in income-producing real
estate, with a primary emphasis on shopping centers, including
factory outlet centers, and garden apartments. The Trust's
primary investment strategy is to identify and purchase well-
located shopping centers, including factory outlet centers, and
garden apartments usually at a significant discount to
replacement cost. The Trust seeks to achieve income growth
through a program of expansion, renovation, leasing, re-leasing
and improving the tenant mix. The Trust minimizes development
risks by generally purchasing existing income-producing
properties.
The Trust, a Massachusetts business trust, maintains its
executive offices at 1120 Avenue of the Americas, New York, New
York 10036, and its telephone number is (212) 869-3000.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of
earnings to fixed charges of the Trust for the periods indicated:
SIX MONTHS
YEAR ENDED JULY 31, ENDED
1989 1990 1991 1992 1993 JANUARY 31, 1994
________________________________ ________________
13.0 17.1 20.0 30.4 25.3 20.8
To date, the Trust has not issued any preferred shares;
therefore, the ratios of earnings to combined fixed charges and
preferred share dividends are unchanged from the ratios presented
in this section. For purposes of computing these ratios,
earnings have been calculated by adding fixed charges (excluding
capitalized interest) to income (loss) before income taxes and
extraordinary items. Fixed charges consist of interest costs,
whether expensed or capitalized, the interest component of rental
expense, if any, and amortization of debt discounts and issue
costs, whether expensed or capitalized.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus
Supplement, the Trust intends to use the net proceeds from the
sale of the Offered Securities for working capital and general
corporate purposes, which may include the acquisition of shopping
centers, factory outlet centers and garden apartments as suitable
opportunities arise, the expansion and improvement of certain
properties owned or to be owned by the Trust, and the repayment
of certain indebtedness outstanding at such time.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms
and provisions of the Debt Securities to which any Prospectus
Supplement may relate. The particular terms of the Debt
Securities being offered and the extent to which such general
provisions may apply will be described in a Prospectus Supplement
relating to such Debt Securities.
The Senior Securities are to be issued under an Indenture,
as amended or supplemented from time to time (the "Senior
Securities Indenture"), between the Trust and a trustee to be
selected by the Trust (the "Senior Securities Trustee") and the
Subordinated Securities are to be issued under an Indenture, as
amended or supplemented from time to time (the "Subordinated
Securities Indenture"), between the Trust and a trustee to be
selected by the Trust (the "Subordinated Securities Trustee").
The Senior Securities Indenture and the Subordinated Securities
Indenture are referred to herein individually as the "Indenture"
and collectively as the "Indentures," and the Senior Securities
Trustee and the Subordinated Securities Trustee are referred to
herein individually as the "Trustee" and collectively as the
"Trustees." A form of the Senior Securities Indenture has been
filed as an exhibit to the Registration Statement of which this
Prospectus is a part and will be available for inspection at the
corporate trust office of the Senior Securities Trustee or as
described above under "Available Information." A form of the
Subordinated Securities Indenture will be filed as an exhibit to
an amendment to the Registration Statement of which this
Prospectus is a part and will be available for inspection at the
corporate trust office of the Subordinated Securities Trustee or
as described above under "Available Information." The Indentures
will be subject to, and governed by, the Trust Indenture Act of
1939, as amended (the "TIA"). The descriptions of the Indentures
set forth below assume that the Trust has entered into the
Indentures. The Trust will execute the applicable Indenture when
and if the Trust issues Debt Securities. The statements made
hereunder relating to the Indentures and the Debt Securities to
be issued thereunder are summaries of certain provisions thereof
and do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of
the Indentures and such Debt Securities. Unless otherwise
specified, all section references appearing herein are to
sections of the Indentures, and capitalized terms used but not
defined herein shall have the meanings set forth in the
Indentures.
Provisions Applicable to Both Senior Securities and Subordinated
Securities
General
The Debt Securities will be direct, unsecured obligations of
the Trust. Senior Securities will rank pari passu with certain
other senior debt of the Company that may be outstanding from
time to time and will rank senior to all Subordinated Securities
that may be outstanding from time to time. Each Indenture
provides that the Debt Securities may be issued without limit as
to aggregate principal amount, in one or more series, in each
case as established from time to time in or pursuant to authority
granted by a resolution of the Board of Trustees of the Trust or
as established in one or more indentures supplemental to the
Indenture. All Debt Securities of one series need not be issued
at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders of the Debt
Securities of such series, for issuances of additional Debt
Securities of such series (Section 301).
Each Indenture provides that there may be more than one
Trustee thereunder, each with respect to one or more series of
Debt Securities. Any Trustee under either Indenture may resign
or be removed with respect to one or more series of Debt
Securities, and a successor Trustee may be appointed to act with
respect to such series (Section 608). In the event that two or
more persons are acting as Trustee with respect to different
series of Debt Securities, each such Trustee shall be a Trustee
of a trust under the applicable Indenture separate and apart from
the trust administered by any other Trustee (Section 609)
thereunder, and, except as otherwise indicated herein, any action
described herein to be taken by the Trustee may be taken by each
such Trustee with respect to, and only with respect to, the one
or more series of Debt Securities for which it is Trustee under
the applicable Indenture.
Reference is made to the Prospectus Supplement relating to
the series of Debt Securities being offered for the specific
terms thereof, including:
(1) the title of such Debt Securities;
(2) the classification of such Debt Securities as
Senior Securities or Subordinated Securities;
(3) the aggregate principal amount of such Debt
Securities and any limit on such aggregate
principal amount;
(4) the percentage of the principal amount at which
such Debt Securities will be issued and, if other
than the principal amount thereof, the portion of
the principal amount thereof payable upon
declaration of acceleration of the maturity
thereof, or (if applicable) the portion of the
principal amount of such Debt Securities which is
convertible into Common Shares or Preferred
Shares, or the method by which any such portion
shall be determined;
(5) if convertible, in connection with the
preservation of the Trust's status as a REIT, any
applicable limitations on the ownership or
transferability of the Common Shares or Preferred
Shares into which such Debt Securities are
convertible;
(6) the date or dates, or the method for determining
such date or dates, on which the principal of such
Debt Securities will be payable;
(7) the rate or rates (which may be fixed or
variable), or the method by which such rate or
rates shall be determined, at which such Debt
Securities will bear interest, if any;
(8) the date or dates, or the method for determining
such date or dates, from which any such interest
will accrue, the Interest Payment Dates on which
any such interest will be payable, the Regular
Record Dates for such Interest Payment Dates, or
the method by which such dates shall be
determined, the Person to whom such interest shall
be payable, and the basis upon which interest
shall be calculated if other than that of a 360-
day year of twelve 30-day months;
(9) the place or places where the principal of (and
premium, if any) and interest, if any, on such
Debt Securities will be payable, such Debt
Securities may be surrendered for conversion or
registration of transfer or exchange and notices
or demands to or upon the Trust in respect of such
Debt Securities and the applicable Indenture may
be served;
(10) the period or periods within which, the price or
prices at which and the terms and conditions upon
which such Debt Securities may be redeemed, in
whole or in part, at the option of the Trust, if
the Trust is to have such an option;
(11) the obligation, if any, of the Trust to redeem,
repay or purchase such Debt Securities pursuant to
any sinking fund or analogous provision or at the
option of a Holder thereof, and the period or
periods within which, the price or prices at which
and the terms and conditions upon which such Debt
Securities will be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(12) if other than U.S. dollars, the currency or
currencies in which such Debt Securities are
denominated and payable, which may be a foreign
currency or units of two or more foreign
currencies or a composite currency or currencies,
and the terms and conditions relating thereto;
(13) whether the amount of payments of principal of
(and premium, if any) or interest, if any, on such
Debt Securities may be determined with reference
to an index, formula or other method (which index,
formula or other method may, but need not be,
based on a currency, currencies, currency unit or
units or composite currency or currencies) and the
manner in which such amounts shall be determined;
(14) whether such Debt Securities will be issued in the
form of one or more global securities and whether
such global securities are to be issuable in a
temporary global form or permanent global form;
(15) any additions to, modifications of or deletions
from the terms of such Debt Securities with
respect to the Events of Default or covenants set
forth in the applicable Indenture;
(16) whether such Debt Securities will be issued in
certificated or book-entry form;
(17) whether such Debt Securities will be in registered
or bearer form and, if in registered form, the
denominations thereof if other than $1,000 and any
integral multiple thereof and, if in bearer form,
the denominations thereof and the terms and
conditions relating thereto;
(18) the applicability, if any, of the defeasance and
covenant defeasance provisions of Article XIV of
the applicable Indenture;
(19) if such Debt Securities are to be issued upon the
exercise of Warrants, the time, manner and place
for such Debt Securities to be authenticated and
delivered;
(20) the terms, if any, upon which such Debt Securities
may be convertible into Common Shares or Preferred
Shares of the Trust and the terms and conditions
upon which such conversion will be effected,
including, without limitation, the initial
conversion price or rate and the conversion
period;
(21) whether and under what circumstances the Trust
will pay Additional Amounts as contemplated in the
applicable Indenture on such Debt Securities in
respect of any tax, assessment or governmental
charge and, if so, whether the Trust will have the
option to redeem such Debt Securities in lieu of
making such payment;
(22) the name of the applicable Trustee and the address
of its corporate trust office; and
(23) any other terms of such Debt Securities not
inconsistent with the provisions of the applicable
Indenture (Section 301).
The Debt Securities may provide for less than the entire
principal amount thereof to be payable upon declaration of
acceleration of the maturity thereof ("Original Issue Discount
Securities"). Special U.S. federal income tax, accounting and
other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus
Supplement.
Except as set forth below under "Certain Covenants --
Limitations on Incurrence of Debt," neither Indenture contains
any other provisions that would limit the ability of the Trust to
incur indebtedness or that would afford Holders of Debt
Securities protection in the event of a highly leveraged or
similar transaction involving the Trust or in the event of a
change of control. However, restrictions on ownership and
transfers of the Trust's Common Shares and Preferred Shares are
designed to preserve its status as a REIT and, therefore, may act
to prevent or hinder a change of control. See "Description of
Preferred Shares" and "Description of Common Shares." Reference
is made to the applicable Prospectus Supplement for information
with respect to any deletions from, modifications of or additions
to the Events of Default or covenants of the Trust that are
described below, including any addition of a covenant or other
provision providing event risk or similar protection.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable Prospectus
Supplement, the Debt Securities of any series will be issuable in
denominations of $1,000 and integral multiples thereof (Section
302).
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of (and premium, if any) and interest
on any series of Debt Securities will be payable at the corporate
trust office of the applicable Trustee, provided that, at the
option of the Trust, payment of interest may be made by check
mailed to the address of the Person entitled thereto as it
appears in the Security Register or by wire transfer of funds to
such Person at an account maintained within the United States
(Sections 301, 305, 306, 307 and 1002).
Any interest not punctually paid or duly provided for on any
Interest Payment Date with respect to a Debt Security ("Defaulted
Interest") will forthwith cease to be payable to the Holder on
the applicable Regular Record Date and may either be paid to the
person in whose name such Debt Security is registered at the
close of business on a special record date (the "Special Record
Date") for the payment of such Defaulted Interest to be fixed by
the applicable Trustee, notice whereof shall be given to the
Holder of such Debt Security not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other
lawful manner, all as more completely described in the applicable
Indenture (Section 307).
Subject to certain limitations imposed upon Debt Securities
issued in book-entry form, the Debt Securities of any series will
be exchangeable for other Debt Securities of the same series and
of a like aggregate principal amount and tenor of different
authorized denominations upon surrender of such Debt Securities
at the corporate trust office of the applicable Trustee. In
addition, subject to certain limitations imposed upon Debt
Securities issued in book-entry form, the Debt Securities of any
series may be surrendered for conversion or registration of
transfer thereof at the corporate trust office of the applicable
Trustee. Every Debt Security surrendered for conversion,
registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer. No service
charge will be made for any registration of transfer or exchange
of any Debt Securities, but the Trust may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith (Section 305). If the applicable
Prospectus Supplement refers to any transfer agent (in addition
to the Trustee) initially designated by the Trust with respect to
any series of Debt Securities, the Trust may at any time rescind
the designation of any such transfer agent or approve a change in
the location through which any such transfer agent acts, except
that the Trust will be required to maintain a transfer agent in
each Place of Payment for such series. The Trust may at any time
designate additional transfer agents with respect to any series
of Debt Securities (Section 1002).
Neither the Trust nor any Trustee shall be required to (i)
issue, register the transfer of or exchange Debt Securities of
any series during a period beginning at the opening of business
15 days before any selection of Debt Securities of that series to
be redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption; (ii) register the
transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except the unredeemed portion of any Debt
Security being redeemed in part; or (iii) issue, register the
transfer of or exchange any Debt Security which has been
surrendered for repayment at the option of the Holder, except the
portion, if any, of such Debt Security not to be so repaid
(Section 305).
Merger, Consolidation or Sale
The Trust may merge with or into, consolidate with, or sell,
lease or convey all or substantially all of its assets to, any
other trust or corporation, provided that (a) either the Trust
shall be the continuing trust or corporation, or the successor
trust or corporation (if other than the Trust) formed by or
resulting from any such merger or consolidation or which shall
have received the transfer of such assets shall expressly assume
payment of the principal of (and premium, if any) and interest on
all of the Debt Securities and the due and punctual performance
and observance of all of the covenants and conditions contained
in the Indentures; (b) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Trust or any Subsidiary as a result thereof as
having been incurred by the Trust or such Subsidiary at the time
of such transaction, no Event of Default under the Indentures,
and no event which, after notice or the lapse of time, or both,
would become such an Event of Default, shall have occurred and be
continuing; and (c) an officer's certificate and legal opinion
covering such conditions shall be delivered to the Trustees
(Sections 801 and 803).
Certain Covenants
Limitations on Incurrence of Debt. The Trust will not, and
will not permit any Subsidiary to, incur any Debt (as defined
below) if, immediately after giving effect to the incurrence of
such additional Debt and the application of the proceeds thereof,
the aggregate principal amount of all outstanding Debt of the
Trust and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles is
greater than 65% of the sum of (i) the Trust's Total Assets (as
defined below) as of the end of the calendar quarter covered in
the Trust's Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the
Commission (or, if such filing is not permitted under the
Exchange Act, with the Trustee) prior to the incurrence of such
additional Debt, (ii) the purchase price of any real estate
assets or mortgages receivable acquired by the Trust or any
Subsidiary since the end of such calendar quarter, including
those obtained in connection with the incurrence of such
additional Debt, and (iii) the amount of any securities offering
proceeds received by the Trust or any Subsidiary since the end of
such calendar quarter (to the extent that such proceeds were not
used to acquire such real estate assets or mortgages receivable
or used to reduce Debt) (Section 1004).
In addition to the foregoing limitation on the incurrence of
Debt, the Trust will not, and will not permit any Subsidiary to,
incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the
property of the Trust or any Subsidiary if, immediately after
giving effect to the incurrence of such additional Debt and the
application of the proceeds thereof, the aggregate principal
amount of all outstanding Debt of the Trust and its Subsidiaries
on a consolidated basis which is secured by any mortgage, lien,
charge, pledge, encumbrance or security interest on property of
the Trust or any Subsidiary is greater than 40% of the sum of (i)
the Trust's Total Assets as of the end of the calendar quarter
covered in the Trust's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with
the Commission (or, if such filing is not permitted under the
Exchange Act, with the Trustee) prior to the incurrence of such
additional Debt, (ii) the purchase price of any real estate
assets or mortgages receivable acquired by the Trust or any
Subsidiary since the end of such calendar quarter, including
those obtained in connection with the incurrence of such
additional Debt and (iii) the amount of any securities offering
proceeds received by the Trust or any Subsidiary since the end of
such calendar quarter (to the extent that such proceeds were not
used to acquire such real estate assets or mortgages receivable
or used to reduce Debt) (Section 1004).
In addition to the foregoing limitations on the incurrence
of Debt, the Trust will not, and will not permit any Subsidiary
to, incur any Debt if Consolidated Income Available for Debt
Service (as defined below) for any 12 consecutive calendar months
within the 15 calendar months immediately preceding the date on
which such additional Debt is to be incurred shall have been less
than 1.5 times the Maximum Annual Service Charge (as defined
below) on the Debt of the Trust and all Subsidiaries to be
outstanding immediately after the incurring of such additional
Debt (Section 1004).
Existence. Except as permitted under "Merger, Consolidation
or Sale," the Trust will do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Trust shall not be
required to preserve any right or franchise if it determines that
the preservation thereof is no longer desirable in the conduct of
its business and that the loss thereof is not disadvantageous in
any material respect to the Holders of the Debt Securities
(Section 1005).
Maintenance of Properties. The Trust will cause all of its
properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Trust may be necessary so
that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided,
however, that the Trust and its Subsidiaries shall not be
prevented from selling or otherwise disposing for value its
properties in the ordinary course of business (Section 1006).
Insurance. The Trust will, and will cause each of its
Subsidiaries to, keep all of its insurable properties adequately
insured against loss or damage with insurers of recognized
responsibility and having an A.M. Best policy holder's rating of
not less than A-:V (Section 1007).
Payment of Taxes and Other Claims. The Trust will pay or
discharge or cause to be paid or discharged, before the same
shall become delinquent, (i) all future taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary
or upon the income, profits or property of the Trust or any
Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the
property of the Trust or any Subsidiary, unless such lien would
not have a material adverse effect upon such property; provided,
however, that the Trust shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment,
charge or claim (i) whose amount, applicability or validity is
being contested in good faith by appropriate proceedings or (ii)
for which the Trust has set apart and maintains an adequate
reserve (Section 1008).
Provision of Financial Information. Whether or not the
Trust is subject to Section 13 or 15(d) of the Exchange Act, the
Trust will, to the extent permitted under the Exchange Act, file
with the Commission the annual reports, quarterly reports and
other documents which the Trust would have been required to file
with the Commission pursuant to such Section 13 or 15(d) if the
Trust were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Trust would have been required so to
file such documents if the Trust were so subject. The Trust will
also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders of Debt Securities, as their
names and addresses appear in the Security Register, without cost
to such Holders, copies of the annual reports and quarterly
reports which the Trust would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if
the Trust were subject to such Sections and (ii) file with the
Trustees copies of the annual reports, quarterly reports and
other documents which the Trust would have been required to file
with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Trust were subject to such Sections and (y)
if filing such documents by the Trust with the Commission is not
permitted under the Exchange Act, promptly upon written request
and payment of the reasonable cost of duplication and delivery,
supply copies of such documents to any prospective Holder
(Section 1009).
As used herein,
"Consolidated Income Available for Debt Service" for any
period means Consolidated Net Income (as defined below) of the
Trust and its Subsidiaries plus amounts which have been deducted
for (a) interest on Debt of the Trust and its Subsidiaries, (b)
provision for taxes of the Trust and its Subsidiaries based on
income, (c) amortization of debt discount, (d) property
depreciation and amortization and (e) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Trust and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Debt" of the Trust or any Subsidiary means any indebtedness
of the Trust or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured by
any mortgage, pledge, lien, charge, encumbrance or any security
interest existing on property owned by the Trust or any
Subsidiary, (iii) letters of credit or amounts representing the
balance deferred and unpaid of the purchase price of any property
except any such balance that constitutes an accrued expense or
trade payable or (iv) any lease of property by the Trust or any
Subsidiary as lessee which is reflected on the Trust's
Consolidated Balance Sheet as a capitalized lease in accordance
with generally accepted accounting principles, in the case of
items of indebtedness under (i) through (iii) above to the extent
that any such items (other than letters of credit) would appear
as a liability on the Trust's Consolidated Balance Sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Trust or any Subsidiary to be liable for, or to
pay, as obligor, guarantor or otherwise (other than for purposes
of collection in the ordinary course of business), indebtedness
of another person (other than the Trust or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the
Trust or any Subsidiary whenever the Trust or such Subsidiary
shall create, assume, guarantee or otherwise become liable in
respect thereof).
"Maximum Annual Service Charge" as of any date means the
maximum amount which may become payable in any period of 12
consecutive calendar months from such date for interest on, and
required amortization of, Debt. The amount payable for
amortization shall include the amount of any sinking fund or
other analogous fund for the retirement of Debt and the amount
payable on account of principal on any such Debt which matures
serially other than at the final maturity date of such Debt.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Trust and its Subsidiaries determined in accordance with
generally accepted accounting principles (but excluding accounts
receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
amount of real estate assets of the Trust and its Subsidiaries on
such date, before depreciation and amortization determined on a
consolidated basis in accordance with generally accepted
accounting principles.
Events of Default, Notice and Waiver
Each Indenture provides that the following events are
"Events of Default" with respect to any series of Debt Securities
issued thereunder (a) default for 30 days in the payment of any
installment of interest on any Debt Security of such series; (b)
default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its Maturity; (c) default
in making any sinking fund payment as required for any Debt
Security of such series; (d) default in the performance of any
other covenant of the Trust contained in the applicable Indenture
(other than a covenant added to such Indenture solely for the
benefit of a series of Debt Securities issued thereunder other
than such series), continued for 60 days after written notice as
provided in such Indenture; (e) an event of default under any
evidence of indebtedness of the Trust or any mortgage, indenture
or other instrument under which such indebtedness is issued or by
which such indebtedness is secured or evidenced, such default
having resulted in the acceleration of the maturity of an
aggregate principal amount exceeding $10,000,000 of such
indebtedness, but only if such indebtedness is not discharged or
such acceleration is not rescinded or annulled within a specified
period of time; (f) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or
trustee of the Trust, any Significant Subsidiary or the property
of the Trust or any Significant Subsidiary; and (g) any other
Event of Default provided with respect to a particular series of
Debt Securities (Section 501). The term "Significant Subsidiary"
means each significant subsidiary (as defined in Regulation S-X
promulgated under the Securities Act) of the Trust.
If an Event of Default under the Indenture with respect to
Debt Securities of any series at the time Outstanding occurs and
is continuing, then in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Debt
Securities of that series may declare the principal amount (or,
if the Debt Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms thereof) of all of the
Debt Securities of that series to be due and payable immediately
by written notice thereof to the Trust (and to the applicable
Trustee if given by the Holders). However, at any time after
such a declaration of acceleration with respect to Debt
Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be)
has been made, but before a judgment or decree for payment of the
money due has been obtained by the applicable Trustee, the
Holders of not less than a majority in principal amount of
Outstanding Debt Securities of such series (or of all Debt
Securities then Outstanding under the applicable Indenture, as
the case may be) may rescind and annul such declaration and its
consequences if (a) the Trust shall have deposited with the
applicable Trustee all required payments of the principal of (and
premium, if any) and interest on the Debt Securities of such
series (or of all Debt Securities then outstanding under the
applicable Indenture, as the case may be), plus certain fees,
expenses, disbursements and advances of the Trustee and (b) all
Events of Default, other than the non-payment of accelerated
principal (or specified portion thereof), with respect to Debt
Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be)
have been cured or waived as provided in the applicable Indenture
(Section 502). Each Indenture also provides that the Holders of
not less than a majority in principal amount of the Outstanding
Debt Securities of any series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be)
may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of the
principal of (or premium, if any) or interest on any Debt
Security of such series or (y) in respect of a covenant or
provision contained in the applicable Indenture that cannot be
modified or amended without the consent of the Holder of each
Outstanding Debt Security affected thereby (Section 513).
Each Trustee is required to give notice to the Holder of
Debt Securities within 90 days of a default under the applicable
Indenture; provided, however, that the Trustee may withhold
notice to the Holders of any series of Debt Securities of any
default with respect to such series (except a default in the
payment of the principal of (or premium, if any) or interest on
any Debt Security of such series or in the payment of any sinking
fund installment in respect of any Debt Security of such series)
if the Responsible Officers of the Trustee consider such
withholding to be in the interest of such Holders (Section 601).
Each Indenture provides that no Holders of Debt Securities
of any series may institute any proceedings, judicial or
otherwise, with respect to the applicable Indenture or for any
remedy thereunder, except in the case of failure of the Trustee
thereunder for 60 days, to act after it has received a written
request to institute proceedings in respect of an Event of
Default from the Holders of not less than 25% in principal amount
of the Outstanding Debt Securities of such series, as well as an
offer of indemnity reasonably satisfactory to it (Section 507).
This provision will not prevent, however, any Holder of Debt
Securities from instituting suit for the enforcement of payment
of the principal of (and premium, if any) and interest on such
Debt Securities at the respective due dates thereof (Section
508).
Subject to provisions in each Indenture relating to its
duties in case of default, each Trustee is under no obligation to
exercise any of its rights or powers under the applicable
Indenture at the request or direction of any Holders of any
series of Debt Securities then Outstanding under such Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity (Section 602). The Holders of not less
than a majority in principal amount of the applicable Outstanding
Debt Securities of any series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be)
shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or of exercising any trust or power conferred upon the
Trustee. However, the Trustee may refuse to follow any direction
which is in conflict with any law or the applicable Indenture,
which may involve the Trustee in personal liability or which may
be unduly prejudicial to the Holders of Debt Securities of such
series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, the
Trust must deliver to each Trustee a certificate, signed by one
of several specified officers, stating whether or not such
officer has knowledge of any default under the applicable
Indenture and, if so, specifying each such default and the nature
and status thereof (Section 1010).
Modification of the Indentures
Modifications and amendments of each Indenture may be made
only with the consent of the Holders of not less than a majority
in principal amount of all Outstanding Debt Securities issued
under such Indenture which are affected by such modification or
amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such
Debt Security affected thereby, (a) change the Stated Maturity of
the principal of, or any installment of interest (or premium, if
any) on, any such Debt Security; (b) reduce the principal amount
of, or the rate or amount of interest on, or any premium payable
on redemption of, any such Debt Security, or reduce the amount of
principal of an Original Issue Discount Security that would be
due and payable upon declaration of acceleration of the maturity
thereof or would be provable in bankruptcy, or adversely affect
any right of repayment of the Holder of any such Debt Security;
(c) change the Place of Payment, or the coin or currency, for
payment of principal of, premium, if any, or interest on any such
Debt Security; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt
Security; (e) reduce the above-stated percentage of Outstanding
Debt Securities of any series necessary to modify or amend the
applicable Indenture, to waive compliance with certain provisions
thereof or certain defaults and consequences thereunder or to
reduce the quorum or voting requirements set forth in such
Indenture; (f) if Subordinated Securities, modify any of the
provisions of the Subordinated Securities Indenture relating to
the subordination of such Subordinated Securities in a manner
adverse to the Holders thereof; or (g) modify any of the
foregoing provisions or any of the provisions relating to the
waiver of certain past defaults or certain covenants, except to
increase the required percentage to effect such action or to
provide that certain other provisions may not be modified or
waived without the consent of the Holder of such Debt Security
(Section 902).
The Holders of not less than a majority in principal amount
of Outstanding Debt Securities have the right to waive compliance
by the Trust with certain covenants in the applicable Indenture
(Section 1012).
Modifications and amendments of each Indenture may be made
by the Trust and the applicable Trustee without the consent of
any Holder of Debt Securities issued thereunder for any of the
following purposes: (i) to evidence the succession of another
Person to the Trust as obligor under the applicable Indenture;
(ii) to add to the covenants of the Trust for the benefit of the
Holders of all or any series of Debt Securities or to surrender
any right or power conferred upon the Trust in the applicable
Indenture; (iii) to add Events of Default for the benefit of the
Holders of all or any series of Debt Securities; (iv) to add or
change any provisions of the applicable Indenture to facilitate
the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the
issuance of Debt Securities in uncertificated form, provided that
such action shall not adversely affect the interests of the
Holders of the Debt Securities of any series in any material
respect; (v) to change or eliminate any provisions of the
applicable Indenture, provided that any such change or
elimination shall become effective only when there are no Debt
Securities Outstanding of any series created prior thereto which
are entitled to the benefit of such provision; (vi) to secure the
Debt Securities; (vii) to establish the form or terms of Debt
Securities of any series, including the provisions and
procedures, if applicable, for the conversion of such Debt
Securities into Preferred Shares or Common Shares of the Trust;
(viii) to provide for the acceptance of appointment by a
successor Trustee or facilitate the administration of the trusts
under the applicable Indenture by more than one Trustee; (ix) to
cure any ambiguity, defect or inconsistency in the applicable
Indenture, provided that such action shall not adversely affect
the interests of Holders of Debt Securities of any series in any
material respect; or (x) to supplement any of the provisions of
the applicable Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt
Securities, provided that such action shall not adversely affect
the interests of the Holders of the Debt Securities of any series
in any material respect (Section 901).
Each Indenture provides that in determining whether the
Holders of the requisite principal amount of Outstanding Debt
Securities of a series have given any request, demand,
authorization, direction, notice, consent or waiver thereunder or
whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be outstanding shall be
the amount of the principal thereof that would be due and payable
as of the date of such determination upon declaration of
acceleration of the maturity thereof, (ii) the principal amount
of a Debt Security denominated in a Foreign Currency that shall
be deemed outstanding shall be the U.S. dollar equivalent,
determined on the issue date for such Debt Security, of the
principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above),
(iii) the principal amount of an Indexed Security that shall be
deemed outstanding shall be the principal face amount of such
Indexed Security at original issuance, unless otherwise provided
with respect to such Indexed Security pursuant to Section 301 of
the Indenture, and (iv) Debt Securities owned by the Trust or any
other obligor upon the Debt Securities or any Affiliate of the
Trust or of such other obligor shall be disregarded (Section
101).
Each Indenture contains provisions of convening meetings of
the Holders of Debt Securities of a series (Section 1501). A
meeting may be called at any time by the applicable Trustee, and
also, upon request, by the Trust or the Holders of at least 10%
in principal amount of the Outstanding Debt Securities of such
series, in any such case upon notice given as provided in the
applicable Indenture (Section 1502). Except for any consent that
must be given by the Holder of each Debt Security affected by
certain modifications and amendments of the applicable Indenture,
any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount
of the Outstanding Debt Securities of that series; provided,
however, that, except as referred to above, any resolution with
respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that may be made, given or taken
by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Debt Securities
of a series may be adopted at a meeting or adjourned meeting duly
reconvened at which a quorum is present by the affirmative vote
of the Holders of such specified percentage in principal amount
of the Outstanding Debt Securities of that series. Any
resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with the
applicable Indenture will be binding on all Holders of Debt
Securities of that series. The quorum at any meeting called to
adopt a resolution, and at any reconvened meeting, will be
Persons holding or representing a majority in principal amount of
the Outstanding Debt Securities of a series; provided, however,
that if any action is to be taken at such meeting with respect to
a consent or waiver which may be given by the Holders of not less
than a specified percentage in principal amount of the
Outstanding Debt Securities of a series, the Persons holding or
representing such specified percentage in principal amount of the
Outstanding Debt Securities of such series will constitute a
quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is
to be taken at a meeting of Holders of Debt Securities of any
series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that the
applicable Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal
amount of all Outstanding Debt Securities affected thereby, or of
the Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting
and (ii) the principal amount of the Outstanding Debt Securities
of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under the applicable
Indenture (Section 1504).
Discharge, Defeasance and Covenant Defeasance
The Trust may discharge certain obligations to Holders of
any series of Debt Securities that have not already been
delivered to the Trustee for cancellation and that either have
become due and payable or will become due and payable within one
year (or scheduled for redemption within one year) by irrevocably
depositing with the applicable Trustee, in trust, funds in such
currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are payable
in an amount sufficient to pay the entire indebtedness on such
Debt Securities in respect of principal (and premium, if any) and
interest to the date of such deposit (if such Debt Securities
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be (Section 401).
Each Indenture provides that, if the provisions of Article
XIV are made applicable to the Debt Securities of or within any
series pursuant to Section 301 of such Indenture, the Trust may
elect either (a) to defease and be discharged from any and all
obligations with respect to such Debt Securities (except for the
obligation to pay Additional Amounts, if any, upon the occurrence
of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations
to register the transfer or exchange of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of such
Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402) or (b) to be released from its
obligations with respect to such Debt Securities under Sections
1004 to 1009, inclusive, of the applicable Indenture (being the
restrictions described under "Certain Covenants") or, if provided
pursuant to Section 301 of such Indenture, its obligations with
respect to any other covenant, and any omission to comply with
such obligations shall not constitute a default or an Event of
Default with respect to such Debt Securities ("covenant
defeasance") (Section 1403), in either case upon the irrevocable
deposit by the Trust with the applicable Trustee, in trust, of an
amount, in such currency or currencies, currency unit or units or
composite currency or currencies in which such Debt Securities
are payable at Stated Maturity, or Government Obligations (as
defined below), or both, applicable to such Debt Securities which
through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and
interest on such Debt Securities, and any mandatory sinking fund
or analogous payments thereon, on the scheduled due dates
therefor.
Such a trust may only be established if, among other things,
the Trust has delivered to the applicable Trustee an Opinion of
Counsel (as specified in the applicable Indenture) to the effect
that the Holders of such Debt Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a
result of such defeasance or covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such defeasance or covenant defeasance had not occurred (Section
1404).
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the Debt
Securities of a particular series are payable, for the payment of
which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such
government which issued the Foreign Currency in which the Debt
Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States of America or such other government, which,
in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to
any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
payment of interest on or principal of the Government Obligation
evidenced by such depository receipt (Section 101).
Unless otherwise provided in the applicable Prospectus
Supplement, if after the Trust has deposited funds and/or
Government Obligations to effect defeasance or covenant
defeasance with respect to Debt Securities of any series, (a) the
Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of the applicable Indenture
or the terms of such Debt Security to receive payment in a
currency, currency unit or composite currency other than that in
which such deposit has been made in respect of such Debt
Security, or (b) a Conversion Event (as defined below) occurs in
respect of the currency, currency unit or composite currency in
which such deposit has been made, the indebtedness represented by
such Debt Security shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest on such Debt
Security as they become due out of the proceeds yielded by
covering the amount so deposited in respect of such Debt Security
into the currency, currency unit or composite currency in which
such Debt Security becomes payable as a result of such election
or such cessation of usage based on the applicable market
exchange rate (Section 1405). "Conversion Event" means the
cessation of use of (i) a Foreign Currency, both by the
government of the country which issued such currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within
the European Communities or (iii) any currency unit or composite
currency other than the ECU for the purposes for which it was
established (Section 101). Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of
(and premium, if any) and interest on any Debt Security that is
payable in a Foreign Currency that ceases to be used by its
government of issuance shall be made is U.S. dollars.
In the event the Trust effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are
declared due and payable because of the occurrence of any Event
of Default other than the Event of Default described in clause
(d) under "Events of Default, Notice and Waiver" with respect to
Section 1004 to 1009, inclusive, of the applicable Indenture
(which Sections would no longer be applicable to such Debt
Securities) or described in clause (g) under "Events of Default,
Notice and Waiver" with respect to any other covenant as to which
there has been covenant defeasance, the amount in such currency,
currency unit or composite currency in which such Debt Securities
are payable, and Government Obligations on deposit with the
applicable Trustee, will be sufficient to pay amounts due on such
Debt Securities at the time of their Stated Maturity but may not
be sufficient to pay amounts due on such Debt Securities at the
time of the acceleration resulting from such Event of Default.
However, the Trust would remain liable to make payment of such
amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe
the provisions, if any, permitting such defeasance or covenant
defeasance, including any modifications to the provisions
described above, with respect to the Debt Securities of or within
a particular series.
Conversion Rights
The terms and conditions, if any, upon which the Debt
Securities are convertible into Preferred Shares or Common Shares
will be set forth in the applicable Prospectus Supplement
relating thereto. Such terms will include whether such Debt
Securities are convertible into Preferred Shares or Common
Shares, the conversion price (or manner of calculation thereof),
the conversion period, provisions as to whether conversion will
be at the option of the Holders or the Trust, the events
requiring an adjustment of the conversion price and provisions
affecting conversion in the event of the redemption of such Debt
Securities.
Global Securities
The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities (the "Global
Securities") that will be deposited with, or on behalf of, a
depositary (the "Depository") identified in the applicable
Prospectus Supplement relating to such series. Global Securities
are expected to be deposited with The Depository Trust Company,
as Depository. Global Securities may be issued in either
registered or bearer form and in either temporary or permanent
form.
Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security
may not be transferred except as a whole by the Depository for
such Global Security to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee
of such Depository or by the Depository or any nominee of such
Depository to a successor Depository or any nominee of such
successor.
The specific terms of the depository arrangement with
respect to a series of Debt Securities will be described in the
applicable Prospectus Supplement relating to such series. Unless
otherwise indicated in the applicable Prospectus Supplement, the
Trust anticipates that the following provisions will apply to
depository arrangements.
Upon the issuance of a Global Security, the Depository for
such Global Security or its nominee will credit on its book-entry
registration and transfer system the respective principal amounts
of the individual Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such
Depository ("Participants"). Such accounts shall be designated
by the underwriters, dealers or agents with respect to such Debt
Securities or by the Trust if such Debt Securities are offered
and sold directly by the Trust. Ownership of beneficial
interests in a Global Security will be limited to Participants or
persons that may hold interests through Participants. Ownership
of beneficial interests in such Global Security will be shown on,
and the transfer of that ownership will be effected only through,
records maintained by the applicable Depository or its nominee
(with respect to beneficial interests of Participants) and
records of Participants (with respect to beneficial interests of
persons who hold through Participants). The laws of some states
require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and
laws may impair the ability to own, pledge or transfer beneficial
interest in a Global Security.
So long as the Depository for a Global Security or its
nominee is the registered owner of such Global Security, such
Depository or such nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the
applicable Indenture. Except as provided below or in the
applicable Prospectus Supplement, owners of beneficial interest
in a Global Security will not be entitled to have any of the
individual Debt Securities of the series represented by such
Global Security registered in their names, will not receive or be
entitled to receive physical delivery of any such Debt Securities
of such series in definitive form and will not be considered the
owners or holders thereof under the applicable Indenture.
Payments of principal of, any premium and any interest on,
or any Additional Amounts payable with respect to, individual
Debt Securities represented by a Global Security registered in
the name of a Depository or its nominee will be made to the
Depository or its nominee, as the case may be, as the registered
owner of the Global Security representing such Debt Securities.
None of the Trust, the Trustees, any Paying Agent or the Security
Registrar for such Debt Securities will have any responsibility
or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the
Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
The Trust expects that the Depository for a series of Debt
Securities or its nominee, upon receipt of any payment of
principal, premium or interest in respect of a permanent Global
Security representing any of such Debt Securities, immediately
will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of such Global Security for such Debt Securities
as shown on the records of such Depository or its nominee. The
Trust also expects that payments by Participants to owners of
beneficial interests in such Global Security held through such
Participants will be governed by standing instructions and
customary practices, as is the case with securities held for the
account of customers in bearer form or registered in "street
name." Such payments will be the responsibility of such
Participants.
If a Depository for a series of Debt Securities is at any
time unwilling, unable or ineligible to continue as depository
and a successor depository is not appointed by the Trust within
90 days, the Trust will issue individual Debt Securities of such
series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Trust may, at any
time and in its sole discretion, subject to any limitations
described in the applicable Prospectus Supplement relating to
such Debt Securities, determine not to have any Debt Securities
of such series represented by one or more Global Securities and,
in such event, will issue individual Debt Securities of such
series in exchange for the Global Security or Securities
representing such series of Debt Securities. Individual Debt
Securities of such series so issued will be issued in
denominations, unless otherwise specified by the Trust, of $1,000
and integral multiples thereof.
Provisions Applicable Solely to Subordinated Securities
General
Subordinated Securities will be issued under the
Subordinated Indenture and will rank pari passu with certain
other subordinated debt of the Company that may be outstanding
from time to time and will rank junior to all Senior Indebtedness
(as defined below) of the Company (including any Senior
Securities) that may be outstanding from time to time. All
section references appearing below are to sections of the
Subordinated Indenture.
The term "Senior Indebtedness" is defined in the
Subordinated Indenture as indebtedness incurred by the Trust for
money borrowed whether outstanding on the date hereof or incurred
in the future, all deferrals, renewals or extensions of any such
indebtedness and all evidences of indebtedness issued in exchange
for any such indebtedness and guarantees by the Trust of the
foregoing items of indebtedness for money borrowed by persons
other than the Trust, unless, in any such case, such indebtedness
or guarantee provides by its terms that it shall not constitute
Senior Indebtedness.
If Subordinated Securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Indebtedness
outstanding as of a recent date will be set forth in the
Prospectus Supplement. The Subordinated Indenture does not
restrict the amount of Senior Indebtedness that the Trust may
incur.
Subordination
The payment of the principal of (and premium, if any) and
interest on the Subordinated Securities is expressly
subordinated, to the extent and in the manner set forth in the
Subordinated Indenture, in right of payment to the prior payment
in full of all Senior Indebtedness of the Trust.
(a) Upon (i) any acceleration of the principal amount due
on the Subordinated Securities or (ii) any payment or
distribution of assets of the Trust of any kind or character,
whether in cash, property or securities, to creditors upon any
dissolution or winding-up or total or partial liquidation or
reorganization of the Trust, whether voluntary or involuntary, or
in bankruptcy, insolvency, receivership or other proceedings, all
principal and premium, if any, and interest due upon all Senior
Indebtedness shall first be paid in full, or payment thereof
provided for in money or money's worth in accordance with its
terms, before any payment is made on account of the principal of,
premium, if any, or interest on the indebtedness evidenced by the
Subordinated Securities, and upon any such acceleration,
dissolution or winding-up or liquidation or reorganization, any
payment or distribution of assets of the Trust of any kind or
character, whether in cash, property or securities, to which the
holders of the Subordinated Securities would be entitled, except
for the provisions of the Subordinated Indenture, shall (subject
to the power of a court of competent jurisdiction to make other
equitable provision reflecting the rights conferred by the
provisions of the Subordinated Securities upon the Senior
Indebtedness and the holders thereof with respect to the
Subordinated Securities and the holders thereof by a lawful plan
of reorganization under applicable bankruptcy law), be paid by
the Trust or any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or
distribution, or by the holders of the Subordinated Securities if
received by them, directly to the holders of Senior Indebtedness
(pro rata to each such holder on the basis of the respective
amounts of Senior Indebtedness held by such holder) or their
representatives, to the extent necessary to pay all Senior
Indebtedness (including interest thereon) in full, in money or
money's worth, after giving effect to any concurrent payments or
distribution to or for the holders of Senior Indebtedness, before
any payment or distribution is made to the holders of the
indebtedness evidenced by the Subordinated Securities. The
consolidation of the Trust with or the merger of the Trust into
another Person or the liquidation or dissolution of the Trust
following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another Person upon
the terms and conditions provided in the Subordinated Indenture
shall not be deemed a dissolution, winding-up, liquidation or
reorganization for these purposes.
(b) In the event that any payment or distribution of assets
of the Trust of any kind or character not permitted by the
foregoing provisions, whether in cash, property or securities,
shall be received by the holders of Subordinated Securities
before all Senior Indebtedness is paid in full, or provision made
for such payment, in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of, and shall
be paid over or delivered to, the holders of such Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have
been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all such Senior
Indebtedness in full in accordance with its terms, after giving
effect to any concurrent payment or distribution to the holders
of such Senior Indebtedness.
(c) No payment on account of principal of, premium, if any,
sinking funds or interest on the Subordinated Securities shall be
made unless full payment of amounts then due for principal,
premium, if any, sinking funds and interest on any Senior
Indebtedness has been made or duly provided for in money or
money's worth in accordance with the terms of such Senior
Indebtedness. No payment on account of principal, premium, if
any, sinking funds or interest on the Subordinated Securities
shall be made if, at the time of such payment or immediately
after giving effect thereto, (i) there shall exist a default in
the payment of principal, premium, if any, sinking fund or
interest with respect to any Senior Indebtedness, or (ii) there
shall have occurred an event of default (other than a default in
the payment of principal, premium, if any, sinking funds or
interest) with respect to any Senior Indebtedness, as defined
therein or in the instrument under which the same is outstanding,
permitting the holders thereof to accelerate the maturity
thereof, and such event of default shall not have been cured or
waived or shall not have ceased to exist.
Subrogation
From and after the payment in full of all Senior
Indebtedness, the holders of the Subordinated Securities
(together with the holders of any other indebtedness of the Trust
which is subordinate in right of payment to the payment in full
of all Senior Indebtedness, which is not subordinate in right of
payment to the Subordinated Securities and which by its terms
grants such right of subrogation to the holder thereof) shall be
subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of assets or securities of the
Trust applicable to the Senior Indebtedness until the
Subordinated Securities shall be paid in full, and, for the
purposes of such subrogation, no such payments or distributions
to the holders of Senior Indebtedness of assets or securities,
which otherwise would have been payable or distributable to
holders of the Subordinated Securities, shall, as between the
Trust, its creditors other than the holders of Senior
Indebtedness, and the holders of the Subordinated Securities, be
deemed to be a payment by the Trust to or on account of the
Senior Indebtedness, it being understood that these provisions of
the Subordinated Indenture are and are intended solely for the
purpose of defining the relative rights of the holders of the
Subordinated Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand, and nothing contained in
the Subordinated Indenture is intended to or shall impair as
between the Trust, its creditors other than the holders of Senior
Indebtedness, and the holders of the Subordinated Securities, the
obligation of the Trust, which is unconditional and absolute, to
pay to the holders of the Subordinated Securities the principal
of, premium, if any, and interest on the Subordinated Securities
as and when the same shall become due and payable in accordance
with their terms, or to affect the relative rights of the holders
of the Subordinated Securities and creditors of the Trust other
than the holders of the Senior Indebtedness, nor shall anything
therein prevent the Holder of any Subordinated Security from
exercising all remedies otherwise permitted by applicable law
upon default under such Security subject to the rights of the
holders of Senior Indebtedness to receive cash, property or
securities of the Trust otherwise payable or deliverable to the
holders of the Subordinated Securities or to a representative of
such holders, on their behalf.
DESCRIPTION OF PREFERRED SHARES
The Trust is authorized to issue 1,000,000 preferred shares
of beneficial interest, par value $1.00 per share, and no
Preferred Shares were outstanding as of the date of this
Prospectus.
The following description of the Preferred Shares sets forth
certain general terms and provisions of the Preferred Shares to
which any Prospectus Supplement may relate. The particular terms
of the Preferred Shares being offered and the extent to which
such general provisions may or may not apply will be described in
a Prospectus Supplement relating to such Preferred Shares. The
statements below describing the Preferred Shares are in all
respect subject to and qualified in their entirety by reference
to the applicable provisions of the Trust's Declaration of Trust,
as amended.
General
Subject to limitations prescribed by Massachusetts law and
the Declaration of Trust, as amended, the Board of Trustees is
authorized to fix the number of shares constituting each series
of Preferred Shares and the designations and powers, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including
such provisions as may be desired concerning voting, redemption,
dividends, dissolution or the distribution of assets, conversion
or exchange, and such other subjects or matters as may be fixed
by resolution of the Board of Trustees or a duly authorized
committee thereof. The Preferred Shares will, when issued, be
fully paid and nonassessable and will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to
the Preferred Shares offered thereby for specific terms,
including:
(1) The title and stated value of such Preferred Shares;
(2) The number of shares of such Preferred Shares being
offered, the liquidation preference per share and the
offering price of such Preferred Shares;
(3) The dividend rate(s), period(s) and/or payment date(s)
or method(s) of calculation thereof applicable to such
Preferred Shares;
(4) The date from which dividends on such Preferred Shares
shall accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any,
for such Preferred Shares;
(6) The provision for a sinking fund, if any, for such
Preferred Shares;
(7) The provisions for redemption, if applicable, of such
Preferred Shares;
(8) Any listing of such Preferred Shares on any securities
exchange;
(9) The terms and conditions, if applicable, upon which
such Preferred Shares will be convertible into Common
Shares of the Trust, including the conversion price (or
manner of calculation thereof);
\FIS Whether interests in such Preferred Shares will be
represented by Depositary Shares;
(11) A discussion of federal income tax considerations
applicable to such Preferred Shares;
(12) The relative ranking and preferences of such Preferred
Shares as to dividend rights and rights upon
liquidation, dissolution or winding up of the affairs
of the Trust;
(13) Any limitations on issuance of any series of preferred
shares ranking senior to or on a parity with such
series of Preferred Shares as to dividend rights and
rights upon liquidation, dissolution or winding up of
the affairs of the Trust;
(14) Any limitations on direct or beneficial ownership and
restrictions on transfer of such Preferred Shares, in
each case as may be appropriate to preserve the status
of the Trust as a REIT; and
(15) Any other specific terms, preferences, rights,
limitations or restrictions of such Preferred Shares.
Rank
Unless otherwise specified in the applicable Prospectus
Supplement, the Preferred Shares will, with respect to dividend
rights and/or rights upon liquidation, dissolution or winding up
of the Trust, rank (i) senior to all classes or series of Common
Shares of the Trust, and to all equity securities ranking junior
to such Preferred Shares with respect to dividend rights and/or
rights upon liquidation, dissolution or winding up of the Trust,
as the case may be; (ii) on a parity with all equity securities
issued by the Trust the terms of which specifically provide that
such equity securities rank on a parity with the Preferred Shares
with respect to dividend rights and/or rights upon liquidation,
dissolution or winding up of the Trust, as the case may be; and
(iii) junior to all equity securities issued by the Trust the
terms of which specifically provide that such equity securities
rank senior to the Preferred Shares with respect to dividend
rights and/or rights upon liquidation, dissolution or winding up
of the Trust, as the case may be. As used in the Declaration of
Trust, as amended, for these purposes, the term "equity
securities" does not include convertible debt securities.
Dividends
Holders of Preferred Shares shall be entitled to receive,
when, as and if declared by the Board of Trustees of the Trust,
out of assets of the Trust legally available for payment, cash
dividends at such rates (or method of calculation thereof) and on
such dates as will be set forth in the applicable Prospectus
Supplement. Each such dividend shall be payable to holders of
record as they appear on the stock transfer books of the Trust on
such record dates as shall be fixed by the Board of Trustees of
the Trust.
Dividends on any series of the Preferred Shares may be
cumulative or non-cumulative, as provided in the applicable
Prospectus Supplement. Dividends, if cumulative, will be
cumulative from and after the date set forth in the applicable
Prospectus Supplement. If the Board of Trustees of the Trust
fails to declare a dividend payable on a dividend payment date on
any series of the Preferred Shares for which dividends are
noncumulative, then the holders of such series of the Preferred
Shares will have no right to receive a dividend in respect of the
dividend period ending on such dividend payment date, and the
Trust will have no obligation to pay the dividend accrued for
such period, whether or not dividends on such series are declared
payable on any future dividend payment date.
If any Preferred Shares of any series are outstanding, no
full dividends shall be declared or paid or set apart for payment
on the preferred shares of the Trust of any other series ranking,
as to dividends, on a parity with or junior to the Preferred
Shares of such series for any period unless (i) if such series of
Preferred Shares has a cumulative dividend, full cumulative
dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart
for such payment on the Preferred Shares of such series for all
past dividend periods and the then current dividend period or
(ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends for the then current dividend
period have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart
for such payment on the Preferred Shares of such series. When
dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Preferred Shares of any
series and the shares of any other series of preferred shares
ranking on a parity as to dividends with the Preferred Shares of
such series, all dividends declared upon the Preferred Shares of
such series and any other series of preferred shares ranking on a
parity as to dividends with such Preferred Shares shall be
declared pro rata so that the amount of dividends declared per
share on the Preferred Shares of such series and such other
series of preferred shares shall in all cases bear to each other
the same ratio that accrued dividends per share on the Preferred
Shares of such series (which shall not include any accumulation
in respect of unpaid dividends for prior dividend periods if such
Preferred Shares do not have a cumulative dividend) and such
other series of preferred shares bear to each other. No
interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments on Preferred
Shares of such series which may be in arrears.
Except as provided in the immediately preceding paragraph,
unless (i) if such series of Preferred Shares has a cumulative
dividend, full cumulative dividends on the Preferred Shares of
such series have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then
current dividend period and (ii) if such series of Preferred
Shares does not have a cumulative dividend, full dividends on the
Preferred Shares of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for the then current
dividend period, no dividends (other than in common shares or
other capital stock ranking junior to the Preferred Shares of
such series as to dividends and upon liquidation) shall be
declared or paid or set aside for payment or other distribution
upon the Common Shares or any other capital stock of the Trust
ranking junior to or on a parity with the Preferred Shares of
such series as to dividends or upon liquidation, nor shall any
Common Shares or any other capital stock of the Trust ranking
junior to or on a parity with the Preferred Shares of such series
as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid
to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Trust (except by conversion into
or exchange for other capital stock of the Trust ranking junior
to the Preferred Shares of such series as to dividends and upon
liquidation).
Any dividend payment made on a series of Preferred Shares
shall first be credited against the earliest accrued but unpaid
dividend due with respect to shares of such series which remains
payable.
Redemption
If so provided in the applicable Prospectus Supplement, the
Preferred Shares of any series will be subject to mandatory
redemption or redemption at the option of the Trust, as a whole
or in part, in each case upon the terms, at the times and at the
redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred
Shares that is subject to mandatory redemption will specify the
number of such Preferred Shares that shall be redeemed by the
Trust in each year commencing after a date to be specified, at a
redemption price per share to be specified, together with an
amount equal to all accrued and unpaid dividends thereon (which
shall not, if such Preferred Shares does not have a cumulative
dividend, include any accumulation in respect of unpaid dividends
for prior dividend periods) to the date of redemption. The
redemption price may be payable in cash or other property, as
specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Shares of any series is payable
only from the net proceeds of the issuance of capital stock of
the Trust, the terms of such Preferred Shares may provide that,
if no such capital stock shall have been issued or to the extent
the net proceeds from any issuance are insufficient to pay in
full the aggregate redemption price then due, such Preferred
Shares shall automatically and mandatorily be converted into
shares of the applicable capital stock of the Trust pursuant to
conversion provisions specified in the applicable Prospectus
Supplement.
Notwithstanding the foregoing, unless (i) if such series of
Preferred Shares has a cumulative dividend, full cumulative
dividends on all shares of such series have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all
past dividend periods and the then current dividend period and
(ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends on all shares of such series
have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period, no shares of such
series of Preferred Shares shall be redeemed unless all
outstanding Preferred Shares of such series are simultaneously
redeemed; provided, however, that the foregoing shall not prevent
the purchase or acquisition of Preferred Shares of such series
pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding Preferred Shares of such series,
and, unless (i) if such series of Preferred Shares has a
cumulative dividend, full cumulative dividends on all outstanding
shares of such series have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then
current dividend period and (ii) if such series of Preferred
Shares does not have a cumulative dividend, full dividends on all
shares of such series have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof
set apart for payment for the then current dividend period, the
Trust shall not purchase or otherwise acquire directly or
indirectly any Preferred Shares of such series (except by
conversion into or exchange for capital stock of the Trust
ranking junior to the Preferred Shares of such series as to
dividends and upon liquidation).
If fewer than all of the outstanding Preferred Shares of any
series are to be redeemed, the number of shares to be redeemed
will be determined by the Trust and such shares may be redeemed
pro rata from the holders of record of such shares in proportion
to the number of such shares held by such holders (with
adjustments to avoid redemption of fractional shares) or any
other equitable method determined by the Trust.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each holder of
record of Preferred Shares of any series to be redeemed at the
address shown on the stock transfer books of the Trust. Each
notice shall state: (i) the redemption date; (ii) the number of
shares and series of the Preferred Shares to be redeemed; (iii)
the redemption price; (iv) the place or places where certificates
for such Preferred Shares are to be surrendered for payment of
the redemption price; (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date; and (vi)
the date upon which the holder's conversion rights, if any, as to
such shares shall terminate. If fewer than all the Preferred
Shares of any series are to be redeemed, the notice mailed to
each such holder thereof shall also specify the number of
Preferred Shares to be redeemed from each such holder. If notice
of redemption of any Preferred Shares has been properly given and
if the funds necessary for such redemption have been irrevocably
set aside by the Trust in trust for the benefit of the holders of
any Preferred Shares so called for redemption, then from and
after the redemption date dividends will cease to accrue on such
Preferred Shares, such Preferred Shares shall no longer be deemed
outstanding and all rights of the holders of such shares will
terminate, except the right to receive the redemption price. Any
moneys so deposited which remain unclaimed by the holders of such
Preferred Shares at the end of two years after the redemption
date will be returned by the applicable bank or trust company to
the Trust.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Trust, then, before any
distribution or payment shall be made to the holders of any
Common Shares or any other class or series of capital stock of
the Trust ranking junior to any series of Preferred Shares in the
distribution of assets upon any liquidation, dissolution or
winding up of the Trust, the holders of such series of Preferred
Shares shall be entitled to receive, after payment or provision
for payment of the Trust's debts and other liabilities, out of
assets of the Trust legally available for distribution to
shareholders, liquidating distributions in the amount of the
liquidation preference per share (set forth in the applicable
Prospectus Supplement), plus an amount equal to all dividends
accrued and unpaid thereon (which shall not include any
accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Shares do not have a cumulative
dividend). After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of such
series of Preferred Shares will have no right or claim to any of
the remaining assets of the Trust. In the event that, upon any
such voluntary or involuntary liquidation, dissolution or winding
up, the legally available assets of the Trust are insufficient to
pay the amount of the liquidating distributions on all such
outstanding Preferred Shares and the corresponding amounts
payable on all shares of other classes or series of capital stock
of the Trust ranking on a parity with such series of Preferred
Shares in the distribution of assets upon liquidation,
dissolution or winding up, then the holders of such series of
Preferred Shares and all other such classes or series of capital
stock shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they
would otherwise be respectively entitled.
If the liquidating distributions shall have been made in
full to all holders of a series of Preferred Shares, the
remaining assets of the Trust shall be distributed among the
holders of any other classes or series of capital stock ranking
junior to such series of Preferred Shares upon liquidation,
dissolution or winding up, according to their respective rights
and preferences and in each case according to their respective
number of shares. For purposes of this section, a distribution
of assets in any dissolution, winding up or liquidation will not
include (i) any consolidation or merger of the Trust with or into
any other corporation, (ii) any dissolution, liquidation, winding
up, or reorganization of the Trust immediately followed by
incorporation of another corporation to which such assets are
distributed or (iii) a sale or other disposition of all or
substantially all of the Trust's assets to another corporation;
provided that, in each case, effective provision is made in the
charter of the resulting and surviving corporation or otherwise
for the recognition, preservation and protection of the rights of
the holders of Preferred Shares.
Voting Rights
Holders of any series of Preferred Shares will not have any
voting rights, except as set forth below or as otherwise from
time to time required by law or as indicated in the applicable
Prospectus Supplement. If the Trust elects to issue a series of
Preferred Shares, it may also amend the Declaration of Trust, as
amended, to provide for certain additional voting rights to
holders of Preferred Shares.
Unless provided otherwise for any series of Preferred
Shares, so long as any Preferred Shares remain outstanding, the
Trust shall not, without the affirmative vote or consent of the
holders of a majority of the shares of each series of Preferred
Shares outstanding at the time, given in person or by proxy,
either in writing or at a meeting (such series voting separately
as a class), (i) authorize or create, or increase the authorized
or issued amount of, any class or series of capital stock ranking
prior to such series of Preferred Shares with respect to payment
of dividends or the distribution of assets upon liquidation,
dissolution or winding up, or reclassify any authorized capital
stock of the Trust into any such shares, or create, authorize or
issue any obligation or security convertible into or evidencing
the right to purchase any such shares; or (ii) amend, alter or
repeal the provisions of the Trust's Declaration of Trust, as
amended, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any right, preference, privilege
or voting power of such series of Preferred Shares or the holders
thereof; provided, however, that any increase in the amount of
the authorized preferred shares or the creation or issuance of
any other series of preferred shares, or any increase in the
amount of authorized shares of such series or any other series of
Preferred Shares, in each case ranking on a parity with or junior
to the Preferred Shares of such series with respect to payment of
dividends or the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting
powers.
The foregoing voting provisions will not apply if, at or
prior to the time when the act with respect to which such vote
would otherwise be required shall be affected, all outstanding
shares of such series of Preferred Shares shall have been
redeemed or called for redemption upon proper notice and
sufficient funds shall have been irrevocably deposited in trust
to effect such redemption.
Under Massachusetts law, notwithstanding anything to the
contrary set forth above, holders of each series of Preferred
Shares will be entitled to vote as a class upon a proposed
amendment to the Declaration of Trust, as amended, whether or not
entitled to vote thereon by the Declaration of Trust, as amended,
if the amendment would increase the aggregate number of
authorized shares of such series, increase or decrease the par
value of the shares of such series, or alter or change the
powers, preferences or special rights of the shares of such
series so as to affect them adversely.
Conversion Rights
The terms and conditions, if any, upon which any series of
Preferred Shares are convertible into Common Shares will be set
forth in the applicable Prospectus Supplement relating thereto.
Such terms will include the number of Common Shares into which
the Preferred Shares are convertible, the conversion price (or
manner of calculation thereof), the conversion period, provisions
as to whether conversion will be at the option of the holders of
the Preferred Shares or the Trust, the events requiring an
adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such Preferred
Shares.
Restrictions on Ownership
For the Trust to qualify as a REIT under the Code, not more
than 50% in value of its outstanding capital stock may be owned,
directly or constructively, by five or fewer individuals (as
defined in the Code) during the last half of a taxable year, and
the 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).
Therefore, the Declaration of Trust, as amended, imposes certain
restrictions on the ownership and transferability of Preferred
Shares. For a general description of such restrictions, see
"Description of Common Shares -- Restrictions on Ownership." All
certificates representing Preferred Shares will bear a legend
referring to these restrictions.
DESCRIPTION OF DEPOSITARY SHARES
General
The Trust may issue receipts ("Depositary Receipts") for
Depositary Shares, each of which will represent a fractional
interest of a share of a particular series of Preferred Shares,
as specified in the applicable Prospectus Supplement. Preferred
Shares of each series represented by Depositary Shares will be
deposited under a separate Deposit Agreement (each, a "Deposit
Agreement") among the Trust, the depositary named therein (the
"Preferred Shares Depositary") and the holders from time to time
of the Depositary Receipts. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Receipt will be entitled,
in proportion to the fractional interest of a share of a
particular series of Preferred Shares represented by the
Depositary Shares evidenced by such Depositary Receipt, to all
rights and preferences of the Preferred Shares represented by
such Depositary Shares (including dividend, voting, conversion,
redemption and liquidation rights).
The Depositary Shares will be evidenced by Depositary
Receipts issued pursuant to the applicable Deposit Agreement.
Immediately following the issuance and delivery of the Preferred
Shares by the Trust to the Preferred Shares Depositary, the Trust
will cause the Preferred Shares Depositary to issue, on behalf of
the Trust, the Depositary Receipts. Copies of the applicable
form of Deposit Agreement and Depositary Receipt may be obtained
from the Trust upon request, and the following summary of the
form thereof filed as an exhibit to the Registration Statement of
which this Prospectus is a part is qualified in its entirety by
reference thereto.
Dividends and Other Distributions
The Preferred Shares Depositary will distribute all cash
dividends or other cash distributions received in respect of the
Preferred Shares to the record holders of Depositary Receipts
evidencing the related Depositary Shares in proportion to the
number of such Depositary Receipts owned by such holders, subject
to certain obligations of holders to file proofs, certificates
and other information and to pay certain charges and expenses to
the Preferred Shares Depositary.
In the event of a distribution other than in cash, the
Preferred Shares Depositary will distribute property received by
it to the record holders of Depositary Receipts entitled thereto,
subject to certain obligations of holders to file proofs,
certificates and other information and to pay certain charges and
expenses to the Preferred Shares Depositary, unless the Preferred
Shares Depositary determines that it is not feasible to make such
distribution, in which case the Preferred Shares Depositary may,
with the approval of the Trust, sell such property and distribute
the net proceeds from such sale to such holders.
Withdrawal of Shares
Upon surrender of the Depositary Receipts at the corporate
trust office of the Preferred Shares Depositary (unless the
related Depositary Shares have previously been called for
redemption), the holders thereof will be entitled to delivery at
such office, to or upon such holder's order, of the number of
whole or fractional Preferred Shares and any money or other
property represented by the Depositary Shares evidenced by such
Depositary Receipts. Holders of Depositary Receipts will be
entitled to receive whole or fractional shares of the related
Preferred Shares on the basis of the proportion of Preferred
Shares represented by each Depositary Share as specified in the
applicable Prospectus Supplement, but holders of such Preferred
Shares will not thereafter be entitled to receive Depositary
Shares therefor. If the Depositary Receipts delivered by the
holder evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of shares of
Preferred Shares to be withdrawn, the Preferred Shares Depositary
will deliver to such holder at the same time a new Depositary
Receipt evidencing such excess number of Depositary Shares. The
Trust does not expect that there will be any public market for
Preferred Shares that are withdrawn as described in this
paragraph.
Redemption of Depositary Shares
Whenever the Trust redeems Preferred Shares held by the
Preferred Shares Depositary, the Preferred Shares Depositary will
redeem as of the same redemption date the number of Depositary
Shares representing the Preferred Shares so redeemed, provided
the Trust shall have paid in full to the Preferred Shares
Depositary the redemption price of the Preferred Shares to be
redeemed plus an amount equal to any accrued and unpaid dividends
thereon to the date fixed for redemption. The redemption price
per Depositary Share will be equal to the redemption price and
any other amounts per share payable with respect to the Preferred
Shares. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected
pro rata (as nearly as may be practicable without creating
fractional Depositary Shares) or by any other equitable method
determined by the Trust.
From and after the date fixed for redemption, all dividends
in respect of the Preferred Shares so called for redemption will
cease to accrue, the Depositary Shares so called for redemption
will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Receipts evidencing the Depositary
Shares so called for redemption will cease, except the right to
receive any moneys payable upon such redemption and any money or
other property to which the holders of such Depositary Receipts
were entitled upon such redemption upon surrender thereof to the
Preferred Shares Depositary.
Voting of the Preferred Shares
Upon receipt of notice of any meeting at which the holders
of the Preferred Shares are entitled to vote, the Preferred
Shares Depositary will mail the information contained in such
notice of meeting to the record holders of the Depositary
Receipts evidencing the Depositary Shares which represent such
Preferred Shares. Each record holder of Depositary Receipts
evidencing Depositary Shares on the record date (which will be
the same date as the record date for the Preferred Shares) will
be entitled to instruct the Preferred Shares Depositary as to the
exercise of the voting rights pertaining to the amount of
Preferred Shares represented by such holder's Depositary Shares.
The Preferred Shares Depositary will vote the amount of Preferred
Shares represented by such Depositary Shares in accordance with
such instructions, and the Trust will agree to take all
reasonable action which may be deemed necessary by the Preferred
Shares Depositary in order to enable the Preferred Shares
Depositary to do so. The Preferred Shares Depositary will
abstain from voting the amount of Preferred Shares represented by
such Depositary Shares to the extent it does not receive specific
instructions from the holders of Depositary Receipts evidencing
such Depositary Shares. The Preferred Shares Depositary shall
not be responsible for any failure to carry out any instruction
to vote, or for the manner or effect of any such vote made, as
long as any such action or non-action is in good faith and does
not result from negligence or willful misconduct of the Preferred
Shares Depositary.
Liquidation Preference
In the event of the liquidation, dissolution or winding up
of the Trust, whether voluntary or involuntary, the holders of
each Depositary Receipt will be entitled to the fraction of the
liquidation preference accorded each Preferred Share represented
by the Depositary Share evidenced by such Depositary Receipt, as
set forth in the applicable Prospectus Supplement.
Conversion of Preferred Shares
The Depositary Shares, as such, are not convertible into
Common Shares or any other securities or property of the Trust.
Nevertheless, if so specified in the applicable Prospectus
Supplement relating to an offering of the Depositary Shares, the
Depositary Receipts may be surrendered by holders thereof to the
Preferred Shares Depositary with written instructions to the
Preferred Shares Depositary to instruct the Trust to cause
conversion of the Preferred Shares represented by the Depositary
Shares evidenced by such Depositary Receipts into whole shares of
Common Shares, other shares of Preferred Shares of the Trust or
other shares of capital stock, and the Trust has agreed that upon
receipt of such instructions and any amounts payable in respect
thereof, it will cause the conversion thereof utilizing the same
procedures as those provided for delivery of Preferred Shares to
effect such conversion. If the Depositary Shares evidenced by a
Depositary Receipt are to be converted in part only, a new
Depositary Receipt will be issued for any Depositary Shares not
to be converted. No fractional shares of Common Shares will be
issued upon conversion, and if such conversion will result in a
fractional share being issued, an amount will be paid in cash by
the Trust equal to the value of the fractional interest based
upon the closing price of the Common Shares on the last business
day prior to the conversion.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary
Shares which represent the Preferred Shares and any provision of
the Deposit Agreement may at any time be amended by agreement
between the Trust and the Preferred Shares Depositary. However,
any amendment that materially and adversely alters the rights of
the holders of Depositary Receipts or that would be materially
and adversely inconsistent with the rights granted to the holders
of the related Preferred Shares will not be effective unless such
amendment has been approved by the existing holders of at least a
majority of the Depositary Shares evidenced by the Depositary
Receipts then outstanding. No amendment shall impair the right,
subject to certain exceptions in the Deposit Agreement, of any
holder of Depositary Receipts to surrender any Depositary Receipt
with instructions to deliver to the holder the related Preferred
Shares and all money and other property, if any, represented
thereby, except in order to comply with law. Every holder of an
outstanding Depositary Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such
Depositary Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby.
The Deposit Agreement may be terminated by the Trust upon
not less than 30 days' prior written notice to the Preferred
Shares Depositary if (i) such termination is necessary to
preserve the Trust's status as a REIT or (ii) at least two-thirds
of each series of Preferred Shares affected by such termination
consents to such termination, whereupon the Preferred Shares
Depositary shall deliver or make available to each holder of
Depositary Receipts, upon surrender of the Depositary Receipts
held by such holder, such number of whole or fractional shares of
Preferred Shares as are represented by the Depositary Shares
evidenced by such Depositary Receipts together with any other
property held by the Preferred Shares Depositary with respect to
such Depositary Receipt. The Trust has agreed that if the
Deposit Agreement is terminated to preserve the Trust's status as
a REIT, then the Trust will use its best efforts to list the
Preferred Shares issued upon surrender of the related Depositary
Shares on a national securities exchange. In addition, the
Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed or
converted, or (ii) there shall have been a final distribution in
respect of the related Preferred Shares in connection with any
liquidation, dissolution or winding up of the Trust and such
distribution shall have been distributed to the holders of
Depositary Receipts evidencing the Depositary Shares representing
such Preferred Shares.
Charges of Preferred Shares Depositary
The Trust will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
Deposit Agreement. In addition, the Trust will pay the fees and
expenses of the Preferred Shares Depositary in connection with
the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay certain other
transfer and other taxes and governmental charges as well as the
fees and expenses of the Preferred Shares Depositary for any
duties requested by such holders to be performed which are
outside of those expressly provided for in the Deposit Agreement.
Resignation and Removal of Depositary
The Preferred Shares Depositary may resign at any time by
delivering to the Trust notice of its election to do so, and the
Trust may at any time remove the Preferred Shares Depositary, any
such resignation or removal to take effect upon the appointment
of a successor Preferred Shares Depositary. A successor
Preferred Shares Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and must
be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at
least $50,000,000.
Miscellaneous
The Preferred Shares Depositary will forward to holders of
Depositary Receipts any reports and communications from the Trust
which are received by the Preferred Shares Depositary with
respect to the related Preferred Shares.
Neither the Preferred Shares Depositary nor the Trust will
be liable if it is prevented from or delayed in, by law or any
circumstances beyond its control, performing its obligations
under the Deposit Agreement. The obligations of the Trust and
the Preferred Shares Depositary under the Deposit Agreement will
be limited to performing their duties thereunder in good faith
and without negligence or willful misconduct, and the Trust and
the Preferred Shares Depositary will not be obligated to
prosecute or defend any legal proceeding in respect of any
Depositary Receipts, Depositary Shares or Preferred Shares
represented thereby unless satisfactory indemnity is furnished.
The Trust and the Preferred Shares Depositary may rely on written
advice of counsel or accountants, or information provided by
persons presenting Preferred Shares represented thereby for
deposit, holders of Depositary Receipts or other persons believed
in good faith to be competent to give such information, and on
documents believed in good faith to be genuine and signed by a
proper party.
In the event the Preferred Shares Depositary shall receive
conflicting claims, requests or instructions from any holders of
Depositary Receipts, on the one hand, and the Trust, on the other
hand, the Preferred Shares Depositary shall be entitled to act on
such claims, requests or instructions received from the Trust.
DESCRIPTION OF COMMON SHARES
The Trust has the authority to issue an unlimited number of
common shares of beneficial interest without par value. At May
20, 1994, the Trust had outstanding 49,424,090 common shares of
beneficial interest without par value.
The following description of the Common Shares sets forth
certain general terms and provisions of the Common Shares to
which any Prospectus Supplement may relate, including a
Prospectus Supplement providing that Common Shares will be
issuable upon conversion of Debt Securities or Preferred Shares
or upon the exercise of Warrants. The statements below
describing the Common Shares are in all respects subject to and
qualified in their entirety by reference to the applicable
provisions of the Trust's Declaration of Trust, as amended.
Holders of the Trust's Common Shares will be entitled to
receive dividends when, as and if declared by the Board of
Trustees of the Trust, out of funds legally available therefor.
Payment and declaration of dividends on the Common Shares and
purchases of Common Shares by the Trust will be subject to
certain restrictions if the Trust fails to pay dividends on the
Preferred Shares. See "Description of Preferred Shares". Upon
any liquidation, dissolution or winding up of the Trust, holders
of Common Shares will be entitled to share equally and ratably in
any assets available for distribution to them, after payment or
provision for payment of the debts and other liabilities of the
Trust and the preferential amounts owing with respect to any
outstanding Preferred Shares. The Common Shares will possess
ordinary voting rights for the election of trustees and in
respect of other corporate matters, each share entitling the
holder thereof to one vote. Holders of Common Shares will not
have cumulative voting rights in the election of directors, which
means that holders of more than 50% of all of the Trust's Common
Shares voting for the election of trustees can elect all of the
trustees if they choose to do so and the holders of the remaining
shares cannot elect any trustees. Approval of the following
matters requires the affirmative vote of the holders of at least
66 2/3% of all outstanding Common Shares: amendments to the
Trust's Declaration of Trust, as amended, termination of the
Trust, certain mergers, reorganizations or consolidations of the
Trust or the sale, conveyance, exchange or other disposition of
more than 50% of the Trust's property. Holders of Common Shares
will not have preemptive rights, which means they have no right
to acquire any additional Common Shares that may be issued by the
Trust at a subsequent date. The Common Shares will, when issued,
be fully paid and nonassessable.
Restrictions on Ownership
For the Trust to qualify as a REIT under the Code, not more
than 50% in value of its outstanding capital stock may be owned,
directly or indirectly, by five or fewer individuals (as defined
in the Code) during the last half of a taxable year, and its
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). The
Declaration of Trust, as amended, imposes certain restrictions on
the ownership and transferability of Common Shares and Preferred
Shares (collectively, "Shares"). If two-thirds (2/3) of the
Trustees determine that ownership of Shares has become, or that
there is a substantial possibility it may become, concentrated to
an extent which would prevent the Trust from continuing to be
qualified as a REIT, then the Trustees may redeem (by lot or
other manner deemed equitable by the Trustees) a sufficient
number of Shares to bring the ownership of the Shares into
conformity with the requirements of the Code, or prohibit the
transfer of Shares to prevent the ownership of Shares from being
concentrated to an extent which may not allow the Trust to
qualify as a REIT under the Code. The redemption price to be
paid will be (i) the last reported sale price of the applicable
Shares on the last business day prior to the redemption date on
the principal national securities exchange on which such Shares
are listed, or (ii) if the applicable Shares are not so listed,
the average of the highest bid and lowest asked prices on such
last business day as reported by the National Quotation Bureau
Incorporated or a similar organization selected from time to time
by the Trustees for the purpose, or (iii) if not determinable as
aforesaid, as determined in good faith by the Trustees. From and
after the date fixed for redemption by the Trustees, the holder
of any Shares so called for redemption shall cease to be entitled
to any distributions, voting rights and other benefits with
respect to the Shares called for redemption, except the right to
payment of the applicable redemption price. Under certain
circumstances the proceeds of redemption might be taxed as a
dividend to the recipient.
In order to insure that the Trust remains qualified as a
REIT for federal income tax purposes, the Declaration of Trust,
as amended, also provides that any transfer of Shares that would
prevent the Trust from continuing to be so qualified shall be
void ab initio, and the intended transferee of such Shares shall
be deemed never to have had an interest therein. If the
foregoing provision is determined to be void or invalid by virtue
of any legal decision, statute, rule or regulation, then the
transferee of such Shares shall be deemed to have acted as agent
on behalf of the Trustees in acquiring such Shares, and to hold
such Shares on behalf of the Trustees.
All certificates representing Common Shares will bear a
legend referring to these restrictions.
If a shareholder has knowledge that he owns, directly or
indirectly, together with certain related persons, 5,000 or more
Shares (including Shares into which convertible securities,
options and warrants may be converted or purchased pursuant
thereto), within 10 days of becoming aware of such ownership,
whether or not connected with any acquisition of Shares, he must
notify the Trust in writing of such fact and must similarly
notify the Trust of any subsequent acquisition of Shares (or
convertible securities, options or warrants) by himself or
related persons of which he has knowledge within 10 days of
becoming aware of such acquisition. In addition, each
shareholder shall upon demand be required to disclose to the
Trust in writing such information with respect to the direct,
indirect and constructive ownership of Shares as the Board of
Trustees deems necessary to comply with the provisions of the
Code applicable to a REIT or to comply with the requirements of
any taxing authority or governmental agency.
The Registrar and Transfer Agent for the Trust's Common
Shares is The First National Bank of Boston.
DESCRIPTION OF WARRANTS
The Trust may issue Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares or Common Shares.
Warrants may be issued independently or together with any Offered
Securities and may be attached to or separate from such
securities. Each series of Warrants will be issued under a
separate warrant agreement (each, a "Warrant Agreement") to be
entered into between the Trust and a warrant agent ("Warrant
Agent"). The Warrant Agent will act solely as an agent of the
Trust in connection with the Warrants of such series and will not
assume any obligation or relationship of agency or trust for or
with any holders or beneficial owners of Warrants. The following
sets forth certain general terms and provisions of the Warrants
offered hereby. Further terms of the Warrants and the applicable
Warrant Agreement will be set forth in the applicable Prospectus
Supplement.
The applicable Prospectus Supplement will describe the
following terms, where applicable, of the Warrants in respect of
which this Prospectus is being delivered: (1) the title of such
Warrants; (2) the aggregate number of such Warrants; (3) the
price or prices at which such Warrants will be issued; (4) the
currencies in which the price of such Warrants may be payable;
(5) the designation, aggregate principal amount and terms of the
securities purchasable upon exercise of such Warrants; (6) the
designation and terms of the Offered Securities with which such
Warrants are issued and the number of such Warrants issued with
each such security; (7) the currency or currencies, including
composite currencies, in which the principal of or any premium or
interest on the securities purchasable upon exercise of such
Warrants will be payable; (8) if applicable, the date on and
after which such Warrants and the related securities will be
separately transferable; (9) the price at which and currency or
currencies, including composite currencies, in which the
securities purchasable upon exercise of such Warrants may be
purchased; (10) the date on which the right to exercise such
Warrants shall commence and the date on which such right shall
expire; (11) the minimum or maximum amount of such Warrants which
may be exercised at any one time; (12) information with respect
to book-entry procedures, if any; (13) a discussion of certain
Federal income tax considerations; and (14) any other terms of
such Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Warrants.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
TO THE TRUST OF ITS REIT ELECTION
The following summary of certain federal income tax
considerations to the Trust is based on current law, is for
general information only, and is not tax advice. The tax
treatment of a holder of any of the Offered Securities will vary
depending upon the terms of the specific securities acquired by
such holder, as well as his particular situation, and this
discussion does not attempt to address any aspects of federal
income taxation relating to holders of Offered Securities.
Certain federal income tax considerations relevant to holders of
the Offered Securities will be provided in the applicable
Prospectus Supplement relating thereto.
EACH INVESTOR IS ADVISED TO CONSULT THE APPLICABLE
PROSPECTUS SUPPLEMENT, AS WELL AS HIS OWN TAX ADVISOR, REGARDING
THE TAX CONSEQUENCES TO HIM OF THE ACQUISITION, OWNERSHIP AND
SALE OF THE OFFERED SECURITIES, INCLUDING THE FEDERAL, STATE,
LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH ACQUISITION,
OWNERSHIP AND SALE AND OF POTENTIAL CHANGES IN APPLICABLE TAX
LAWS.
Taxation of the Trust as a REIT
General. The Trust has elected to be taxed as a real estate
investment trust under Sections 856 through 860 of the Code,
commencing with its taxable year ended July 31, 1972. The Trust
believes that, commencing with its taxable year ended July 31,
1972, it was organized and has been operating in such a manner as
to qualify for taxation as a REIT under the Code and the Trust
intends to continue to operate in such a manner, but no assurance
can be given that it will operate in a manner so as to qualify or
remain qualified.
These sections of the Code are highly technical and complex.
The following sets forth the material aspects of the sections
that govern the federal income tax treatment of a REIT. This
summary is qualified in its entirety by the applicable Code
provisions, rules and regulations promulgated thereunder, and
administrative and judicial interpretations thereof.
In the opinion of Altheimer & Gray, commencing with the
Trust's taxable year which ended July 31, 1972, the Trust has
been organized in conformity with the requirements for
qualification as a REIT, and its method of operation enabled it
to meet the requirements for qualification and taxation as a REIT
under the Code. It must be emphasized that this opinion is based
on various assumptions and is conditioned upon certain
representations made by the Trust as to factual matters. In
addition, this opinion is based upon the factual representations
of the Trust concerning its business and properties as set forth
in this Prospectus. Moreover, such qualification and taxation as
a REIT depends upon the Trust's ability to meet, through actual
annual operating results, distribution levels, diversity of stock
ownership, and the various qualification tests imposed under the
Code discussed below, the results of which have not been and will
not be reviewed by Altheimer & Gray. Accordingly, no assurance
can be given that the actual results of the Trust's operation in
any particular taxable year will satisfy such requirements. See
"--Failure to Qualify."
If the Trust qualifies for taxation as a REIT, it generally
will not be subject to federal corporate income taxes on its net
income that is currently distributed to shareholders. This
treatment substantially eliminates the "double taxation" (at both
the corporate and shareholder levels) that generally results from
investment in a regular corporation. However, the Trust will be
subject to federal income tax as follows: First, the Trust will
be taxed at regular corporate rates on any undistributed real
estate investment trust taxable income, including undistributed
net capital gains. Second, under certain circumstances, the
Trust may be subject to the "alternative minimum tax" on its
items of tax preference. Third, if the Trust has (i) net income
from the sale or other disposition of "foreclosure property"
which is held primarily for sale to customers in the ordinary
course of business or (ii) other non-qualifying income from
foreclosure property, it will be subject to tax at the highest
corporate rate on such income. Fourth, if the Trust has net
income from prohibited transactions (which 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), such income will be subject to a 100%
tax. Fifth, if the Trust should fail to satisfy the 75% gross
income test or the 95% gross income test (as discussed below),
but has nonetheless maintained its qualification as a REIT
because certain other requirements have been met, it will be
subject to a 100% tax on an amount equal to (a) the gross income
attributable to the greater of the amount by which the Trust
fails the 75% or 95% test, multiplied by (b) a fraction intended
to reflect the Trust's profitability. Sixth, if the Trust should
fail to distribute during each calendar year at least the sum of
(i) 85% of its REIT ordinary income for such year, (ii) 95% of
its REIT capital gain net income for such year, and (iii) any
undistributed taxable income from prior periods, the Trust would
be subject to a 4% excise tax on the excess of such required
distribution over the amounts actually distributed. Seventh, if
the Trust acquires any asset from a C Corporation (i.e.,
generally a corporation subject to full corporate-level tax) in
certain transactions in which the basis of the asset in the hands
of the Trust is determined by reference to the basis of the asset
(or any other property) in the hands of the C corporation, and
the Trust recognizes gain on the disposition of such asset during
the 10-year period (the "Recognition Period") beginning on the
date on which such asset was acquired by the Trust, then, to the
extent of the excess, if any, of the fair market value over the
adjusted basis of any such asset as of the beginning of the
Recognition Period (the "Built-in Gain"), such gain will be
subject to tax at the highest regular corporate rate pursuant to
Internal Revenue Service ("IRS") regulations that have not yet
been promulgated.
Requirements for Qualification. The Code defines a REIT as
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 Section 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)
the beneficial ownership of which is held by 100 or more persons,
(6) during the last half of each taxable year, not more than 50%
in value of the outstanding stock of which is owned, directly or
constructively, by five or fewer individuals (as defined in the
Code) and (7) which meets certain other tests, described below,
regarding the nature of its income and assets. The Code provides
that conditions (1) to (4) must be met during the entire taxable
year and that condition (5) must be met during at least 335 days
of a taxable year of 12 months, or during a proportionate part of
a taxable year of less than 12 months. Conditions (5) and (6)
will not apply until after the first taxable year for which an
election is made to be taxed as a REIT.
The Trust has satisfied condition (5) and believes that it
has issued sufficient shares to allow it to satisfy condition
(6). In addition, the Trust's Declaration of Trust, as amended,
provides for restrictions regarding ownership and transfer of the
Trust's capital stock, which restrictions are intended to assist
the Trust in continuing to satisfy the share ownership
requirements described in (5) and (6) above. The ownership and
transfer restrictions pertaining to a particular series of
Preferred Shares are described in "Description of Preferred
Shares -- Restrictions on Ownership."
The Trust owns and operates a number of properties through
subsidiaries. Code Section 856(i) provides that a corporation
which is a "qualified REIT subsidiary" shall not be treated as a
separate corporation, and all assets, liabilities, and items of
income, deduction, and credit of a "qualified REIT subsidiary"
shall be treated as assets, liabilities and such items (as the
case may be) of the REIT. Thus, in applying the requirements
described herein, the Trust's "qualified REIT subsidiaries" will
be ignored, and all assets, liabilities and items of income,
deduction, and credit of such subsidiaries will be treated as
assets, liabilities and items of the Trust.
Income Tests. In order to maintain qualification as a REIT,
the Trust annually must satisfy three gross income requirements.
First, at least 75% of the Trust's 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 temporary investments. Second, at least
95% of the Trust's 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 (or from any
combination of the foregoing). Third, short-term gain from the
sale or other disposition of stock or securities, gain from
prohibited transactions and gain on the sale or other disposition
of real property held for less than four years (apart from
involuntary conversions and sales of foreclosure property) must
represent less than 30% of the Trust's gross income (including
gross income from prohibited transactions) for each taxable year.
Rents received by the Trust 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 the real estate investment trust, or an owner of 10% or more
of the REIT, directly or constructively owns 10% or more of such
tenant (a "Related Party Tenant"). Third, if rent attributable
to personal property leased in connection with a lease of real
property is greater than 15% of the total rent received under the
lease, then the portion of rent attributable to such personal
property will not qualify as "rents from real property."
Finally, for rents received to qualify as "rents from real
property," the REIT generally must not operate or manage the
property or furnish or render services to the tenants of such
property, other than through an independent contractor from whom
the REIT derives no revenue; provided, however, the Trust may
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. The Trust does not and will not
charge rent for any property that is based in whole or in part on
the income or profits of any person (except by reason of being
based on a percentage of receipts of sales, as described above),
the Trust does not and will not rent any property to a Related
Party Tenant, and the Trust does not and will not derive rental
income attributable to personal property (other than personal
property leased in connection with the lease of real property,
the amount of which is less than 15% of the total rent received
under the lease). The Trust directly performs services under
certain of its leases.
The term "interest" generally does not include any amount
received or accrued (directly or indirectly) if the determination
of such amount depends 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 "interest" solely by
reason of being based on a fixed percentage or percentages of
receipts or sales.
If the Trust fails to satisfy one or both of the 75% or 95%
gross income tests for any taxable year, it may nevertheless
qualify as a REIT for such year if it is entitled to relief under
certain provisions of the Code. These relief provisions will
generally be available if the Trust's failure to meet such tests
was due to reasonable cause and not due to willful neglect, the
Trust attaches a schedule of the sources of its income to its
federal income tax 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 the
Trust would be entitled to the benefit of these relief
provisions. As discussed above under "-- General," even if these
relief provisions apply, a tax would be imposed with respect to
the excess net income.
Asset Tests. The Trust, at the close of each quarter of its
taxable year, must also satisfy three tests relating to the
nature of its assets. First, at least 75% of the value of the
Trust's total assets must be represented by real estate assets
(including (i) assets held by the Trust's qualified REIT
subsidiaries and the Trust's allocable share of real estate
assets held by partnerships in which the Trust owns an interest
and (ii) stock or debt instruments held for not more than one
year purchased with the proceeds of a stock offering or long-term
(at least five years) debt offering of the Trust), cash, cash
items and government securities. Second, not more than 25% of
the Trust's total assets may be represented by securities other
than those in the 75% asset class. Third, of the investments
included in the 25% asset class, the value of any one issuer's
securities owned by the Trust may not exceed 5% of the value of
the Trust's total assets and the Trust may not own more than 10%
of any one issuer's outstanding voting securities.
The Trust currently has numerous wholly-owned subsidiaries.
As set forth above, the ownership of more than 10% of the voting
securities of any one issuer by a REIT is prohibited by the asset
tests. However, if the Trust's subsidiaries are "qualified REIT
subsidiaries" as defined in the Code, such subsidiaries will not
be treated as separate corporations for federal income tax
purposes. Thus, the Trust's ownership of stock of a "qualified
REIT subsidiary" will not cause the Trust to fail the asset
tests.
Annual Distribution Requirements. The Trust, in order to
qualify as a REIT, is required to distribute dividends (other
than capital gain dividends) to its shareholders in an amount at
least equal to (A) the sum of (i) 95% of the Trust's "REIT
taxable income" (computed without regard to the dividends paid
deduction and the Trust's net capital gain) and (ii) 95% of the
net income (after tax), if any, from foreclosure property, minus
(B) the sum of certain items of non-cash income. In addition, if
the Trust disposes of any asset during a Recognition Period, the
Trust will be required, pursuant to IRS regulations which have
not yet been promulgated, to distribute at least 95% of the
Built-in Gain (after tax), if any, recognized on the disposition
of such asset. Such distributions must be paid in the taxable
year to which they relate, or in the following taxable year if
declared before the Trust timely files its tax return for such
year and if paid on or before the first regular dividend payment
after such declaration. To the extent that the Trust does not
distribute all of its net capital gain or distributes at least
95%, but less than 100%, of its "real estate investment trust
taxable income," as adjusted, it will be subject to tax thereon
at regular ordinary and capital gain corporate tax rates.
Furthermore, if the Trust should fail to distribute during each
calendar year at least the sum of (i) 85% of its REIT ordinary
income for such year, (ii) 95% of its REIT capital gain income
for such year, and (iii) any undistributed taxable income from
prior periods, the Trust would be subject to a 4% excise tax on
the excess of such required distribution over the amounts
actually distributed. The Trust intends to make timely
distributions sufficient to satisfy this annual distribution
requirement.
It is possible that the Trust, from time to time, may not
have sufficient cash or other liquid assets to meet the above
distribution requirements due to timing differences between (i)
the actual receipt of income and actual payment of deductible
expenses and (ii) the inclusion of such income and deduction of
such expenses in arriving at taxable income of the Trust. In the
event that such timing differences occur, in order to meet the
95% distribution requirement, the Trust may find it necessary to
arrange for short-term, or possibly long-term borrowings or to
pay dividends in the form of taxable stock dividends.
Under certain circumstances, the Trust may be able to
rectify a failure to meet the distribution requirement for a year
by paying "deficiency dividends" to stockholders in a later year,
which may be included in the Trust's deduction for dividends paid
for the earlier year. Thus, the Trust may be able to avoid being
taxed on amounts distributed as deficiency dividends; however,
the Trust will be required to pay interest based upon the amount
of any deduction taken for deficiency dividends.
Failure to Qualify
If the Trust fails to qualify for taxation as a REIT in any
taxable year, and the relief provisions do not apply, the Trust
will be subject to tax (including any applicable alternative
minimum tax) on its taxable income at regular corporate rates.
Distributions to shareholders in any year in which the Trust
fails to qualify will not be deductible by the Trust nor will
they be required to be made. In such event, to the extent of
current and accumulated earnings and profits, all distributions
to shareholders will be taxable as ordinary income and, subject
to certain limitations of the Code, corporate distributees may be
eligible for the dividends received deduction. Unless entitled
to relief under specific statutory provisions, the Trust will
also be disqualified from taxation as a REIT for the four taxable
years following the year during which qualification was lost. It
is not possible to state whether in all circumstances the Trust
would be entitled to such statutory relief.
PLAN OF DISTRIBUTION
The Trust may sell the Offered Securities to one or more
underwriters for public offering and sale by them or may sell the
Offered Securities to investors directly or through agents. Any
such underwriter or agent involved in the offer and sale of the
Offered Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Offered Securities at a
fixed price or prices, which may be changed, at prices related to
the prevailing market prices at the time of sale or at negotiated
prices. The Trust also may offer and sell the Offered Securities
in exchange for one or more of its then outstanding issues of
debt or convertible debt securities. The Trust also may, from
time to time, authorize underwriters acting as the Trust's agents
to offer and sell the Offered Securities upon the terms and
conditions as are set forth in the applicable Prospectus
Supplement. In connection with the sale of Offered Securities,
underwriters may be deemed to have received compensation from the
Trust in the form of underwriting discounts or commissions and
may also receive commissions from purchasers of Offered
Securities for whom they may act as agent. Underwriters may sell
Offered Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Any underwriting compensation paid by the Trust to
underwriters or agents in connection with the offering of Offered
Securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers, will be set forth in
the applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Offered
Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them
on resale of the Offered Securities may be deemed to be
underwriting discounts and commissions, under the Securities Act.
Underwriters, dealers and agents may be entitled, under
agreements entered into with the Trust, to indemnification
against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in a Prospectus Supplement, the Trust will
authorize agents, underwriters or dealers to solicit offers by
certain institutional investors to purchase Offered Securities of
the series to which such Prospectus Supplement relates providing
for payment and delivery on a future date specified in such
Prospectus Supplement. There may be limitations on the minimum
amount which may be purchased by any such institutional investor
or on the portion of the aggregate principal amount of the
particular Offered Securities which may be sold pursuant to such
arrangements. Institutional investors to which such offers may
be made, when authorized, include commercial and savings banks,
insurance companies, pension funds, investment companies,
educational and charitable institutions and such other
institutions as may be approved by the Trust. The obligations of
any such purchasers pursuant to such delayed delivery and payment
arrangements will not be subject to any conditions except that
(i) the purchase by an institution of the particular Offered
Securities shall not at the time of delivery be prohibited under
the laws of any jurisdiction in the United States to which such
institution is subject, and (ii) if the particular Offered
Securities are being sold to underwriters, the Trust shall have
sold to such underwriters the total principal amount of such
Offered Securities or number of Warrants less the principal
amount or number thereof, as the case may be, covered by such
arrangements. Underwriters will not have any responsibility in
respect of the validity of such arrangements or the performance
of the Trust or such institutional investors thereunder.
Certain of the underwriters and their affiliates may be
customers of, engage in transactions with and perform services
for the Trust and its subsidiaries in the ordinary course of
business.
ERISA MATTERS
The Trust may be considered a "party in interest" within the
meaning of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and a "disqualified person" under
corresponding provisions of the Code with respect to certain
employee benefit plans. Certain transactions between an employee
benefit plan and a party in interest or disqualified person may
result in "prohibited transactions" within the meaning of ERISA
and the Code, unless such transactions are effected pursuant to
an applicable exemption. Any employee benefit plan or other
entity subject to such provisions of ERISA or the Code proposing
to invest in the Offered Securities should consult with its legal
counsel.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon
for the Trust by Robinson Silverman Pearce Aronsohn & Berman, New
York, New York. Robinson Silverman Pearce Aronsohn & Berman will
rely on Fordham & Starrett, P.C., Boston, Massachusetts, as to
matters of Massachusetts law, including the legal authorization
and issuance of the Offered Securities. Certain legal matters in
connection with the Offered Securities will be passed upon for
any underwriters, dealers or agents by Brown & Wood, New York,
New York. Altheimer & Gray, Chicago, Illinois, has acted as
counsel to the Trust on tax and certain other matters. Norman
Gold, a member of Altheimer & Gray, is a Trustee. Mr. Gold
beneficially owns 10,899 Common Shares.
EXPERTS
The consolidated balance sheets as of July 31, 1993 and 1992
and the consolidated statements of income, changes in
shareholders' equity, and cash flows and the consolidated
financial statement schedules of the Trust for each of the three
years in the period ended July 31, 1993, which appear in the
Annual Report on the Form 10-K incorporated by reference in this
Prospectus, have been incorporated herein in reliance on the
report of Coopers & Lybrand, independent accountants, given on
the authority of that firm as experts in accounting and auditing.
The historical summary of revenues and certain operating expenses
of certain properties acquired by the Trust for the year ended
December 31, 1992 appearing in the Trust's Reports on Form 8-K/A
dated October 6, 1993 and January 13, 1994, respectively, and the
historical summary of revenues and certain operating expenses of
certain properties acquired by the Trust for the year ended July
31, 1993 appearing in the Trust's Report on Form 8-K dated
February 10, 1994, have been audited by Eichler, Bergsman,
Belonsky & Co., independent accountants, as set forth in their
reports thereon, included therein and incorporated herein by
reference. Such financial statements are incorporated herein by
reference in reliance upon such reports given the authority of
such firm as experts in accounting and auditing.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the expenses incurred by the
Trust in connection with the offering of the Offered Securities.
All the amounts shown are estimates except the Securities and
Exchange Commission registration fee.
Item Amount
____ ______
Registration Fee -- Securities and
Exchange Commission . . . . . . . . . . . . . $ 86,207
Fees of Rating Agencies . . . . . . . . . . . . 60,000
Legal Fees and Expenses . . . . . . . . . . . . 100,000
Accounting Fees and Expenses. . . . . . . . . . 50,000
Printing and Engraving Expenses . . . . . . . . 30,000
Blue Sky Fee and Expenses . . . . . . . . . . . 25,000
Trustee's Fees (including counsel fees) . . . . 15,000
Miscellaneous Expenses. . . . . . . . . . . . . 48,793
_________
Total. . . . . . . . . . . . . . . . . . . . $415,000
========
________________________
ITEM 16. Exhibits.
Exhibit
Number
______
(1.1) Form of Underwriting Agreement for Debt Securities
and Warrants to Purchase Debt Securities.
(1.2) Form of Underwriting Agreement for Preferred Shares,
Depositary Shares, Common Shares and Warrants.
*(3.1) Declaration of Trust, dated July 31, 1972, filed as
Exhibit 3.1 to Registration Statement No. 2-45633,
together with the following amendments:
*(a) Amendment #1, dated July 31, 1972, filed as
Exhibit 3.1(a) to Registration Statement No.
2-45633.
*(b) Amendment #2, dated August 1, 1972, filed as
Exhibit 3.1(b) to Registration Statement No.
2-45633.
*(c) Amendment #3, dated November 15, 1972, filed
as Exhibit 3.1(c) to Registration Statement
No. 2-45633.
*(d) Amendment #4, dated December 6, 1972, filed
as Exhibit 3.1(d) to Registration Statement
No. 2-45633.
*(e) Amendment #5, dated December 12, 1972, filed
as Exhibit 1 to Registrant's Form 10-K for
the fiscal year ended July 31, 1973.
*(f) Amendment #6, dated December 13, 1979, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 13, 1979.
*(g) Amendment #7, dated July 9, 1981, filed as
Appendix to Proxy Statement relating to
Special Meeting of Shareholders held on
July 9, 1981.
*(h) Amendment #8, dated December 15, 1982, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 15, 1982.
*(i) Amendment #9, dated December 10, 1985, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 10, 1985.
*(j) Amendment #10, dated December 14, 1987, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 14, 1987.
*(4.1) Declaration of Trust (see Exhibit 3.1 above).
***(4.2) Form of Indenture relating to Senior Securities to
be entered into by the Trust and a banking
institution organized under the laws of the United
States of America or a particular State thereof.
**(4.3) Form of Senior Securities.
**(4.4) Form of Indenture relating to Subordinated
Securities to be entered into by the Trust and a
banking institution organized under the laws of the
United States of America or a particular State
thereof.
**(4.5) Form of Subordinated Securities.
**(4.6) Resolutions adopted by the Board of Trustees of the
Trust authorizing the issuance and establishing the
terms of the Preferred Shares.
**(4.7) Form of Preferred Shares Certificate.
**(4.8) Form of Deposit Agreement (including Form of
Depositary Receipt).
**(4.9) Form of Common Shares Certificate.
**(4.10) Form of Warrants Agreement.
(5) Opinion of Robinson Silverman Pearce Aronsohn &
Berman re legality.
(8) Opinion of Altheimer & Gray re tax matters.
***(12) Statements re computation of ratios.
(23.1) Consent of Counsel (contained in Exhibit 5).
(23.2) Consent of Tax Counsel (contained in Exhibit 8).
(23.3) Consent of Coopers & Lybrand.
(23.4) Consent of Eichler, Bergsman, Belonsky & Co.
***(24) Powers of Attorney (included on signature pages).
**(25.1) Statement of Eligibility of Senior Securities
Trustee on Form T-1.
**(25.2) Statement of Eligibility of Subordinated Securities
Trustee on Form T-1.
____________________
* Incorporated herein by reference as above indicated.
** To be filed by amendment or incorporated by reference in
connection with the offering of Offered Securities.
*** Previously filed.
<PAGE>
<PAGE>
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 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 the 20th day of May, 1994.
NEW PLAN REALTY TRUST
By /s/ William Newman
_________________________
William Newman,
Chief Executive Officer
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 Title Date
_________ _____ ____
/s/ William Newman Chief Executive Officer May 20, 1994
_____________________ and Trustee
William Newman
/s/ Michael Brown Chief Financial and May 20, 1994
_____________________ Accounting Officer,
Michael Brown Controller
/s/ Arnold Laubich President, Chief May 20, 1994
_____________________ Operating Officer
Arnold Laubich and Trustee
*/s/ Norman Gold Trustee May 20, 1994
_____________________
Norman Gold
*/s/ Melvin D. Newman Trustee May 20, 1994
_____________________
Melvin D. Newman
*/s/ Raymond H. Bottorf Trustee May 20, 1994
_______________________
Raymond H. Bottorf
*/s/ James M. Steuterman Senior Vice President-- May 20, 1994
________________________ Acquisitions
James M. Steuterman and Trustee
/s/ Dean Bernstein Vice President May 20, 1994
______________________ and Trustee
Dean Bernstein
*By:/s/ Arnold Laubich May 20, 1994
______________________
Arnold Laubich,
Attorney-in-fact
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
___________ ___________ ________
(1.1) Form of Underwriting Agreement for Debt
Securities and Warrants to Purchase Debt Securities.
(1.2) Form of Underwriting Agreement for Preferred
Shares, Depositary Shares, Common Shares
and Warrants.
*(3.1) Declaration of Trust, dated July 31, 1972, filed as
Exhibit 3.1 to Registration Statement No. 2-45633,
together with the following amendments:
*(a) Amendment #1, dated July 31, 1972, filed
as Exhibit 3.1(a) to Registration Statement
No. 2-45633.
*(b) Amendment #2, dated August 1, 1972, filed
as Exhibit 3.1(b) to Registration Statement
No. 2-45633.
*(c) Amendment #3, dated November 15, 1972, filed
as Exhibit 3.1(c) to Registration Statement
No. 2-45633.
*(d) Amendment #4, dated December 6, 1972, filed
as Exhibit 3.1(d) to Registration Statement
No. 2-45633.
*(e) Amendment #5, dated December 12, 1972, filed
as Exhibit 1 to Registrant's Form 10-K for
the
fiscal year ended July 31, 1973.
*(f) Amendment #6, dated December 13, 1979, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 13, 1979.
*(g) Amendment #7, dated July 9, 1981, filed as
Appendix to Proxy Statement relating to
Special
Meeting of Shareholders held on July 9, 1981.
*(h) Amendment #8, dated December 15, 1982, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 15, 1982.
*(i) Amendment #9, dated December 10, 1985, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 10, 1985.
*(j) Amendment #10, dated December 14, 1987, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 14, 1987.
*(4.1) Declaration of Trust (see Exhibit 3.1 above).
***(4.2) Form of Indenture relating to Senior Securities to
be entered
into by the Trust and a banking institution
organized under
the laws of the United States of America or a
particular
State thereof.
**(4.3) Form of Senior Securities.
<PAGE>
<PAGE>
Exhibit No. Description Page No.
___________ ___________ ________
**(4.4) Form of Indenture relating to Subordinated
Securities
to be entered into by the Trust and a banking
institution
organized under the laws of the United States of
America
or a particular State thereof.
**(4.5) Form of Subordinated Securities.
**(4.6) Resolutions adopted by the Board of Trustees of the
Trust
authorizing the issuance and establishing the terms
of the
Preferred Shares.
**(4.7) Form of Preferred Shares Certificate.
**(4.8) Form of Deposit Agreement (including Form of
Depositary Receipt).
**(4.9) Form of Common Shares Certificate.
**(4.10) Form of Warrants Agreement.
(5) Opinion of Robinson Silverman Pearce Aronsohn &
Berman re legality.
(8) Opinion of Altheimer & Gray re tax status.
***(12) Statements re computation of ratios.
(23.1) Consent of Counsel (contained in Exhibit 5).
(23.2) Consent of Tax Counsel (contained in Exhibit 8).
(23.3) Consent of Coopers & Lybrand.
(23.4) Consent of Eichler, Bergsman, Belonsky & Co.
***(24) Powers of Attorney (included on signature pages).
**(25.1) Statement of Eligibility of Senior Securities
Trustee on Form T-1.
**(25.2) State of Eligibility of Subordinated Securities
Trustee on Form T-1.
____________________
* Incorporated herein by reference as above indicated.
** To be filed by amendment or incorporated by reference in
connection with the offering of Offered Securities.
*** Previously filed.
<PAGE>
<PAGE>
EXHIBIT (1.1)
B&W Draft
5/19/94
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT
_____________, 1994
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1326
Dear Sirs:
New Plan Realty Trust, a Massachusetts business trust (the
"Trust") proposes to issue and sell senior debt securities (the
"Senior Securities") or its subordinated debt securities (the
"Subordinated Securities"), or both, and/or warrants to purchase
Senior Securities or Subordinated Securities (the "Warrants"), or
both, from time to time, in one or more offerings on terms to be
determined at the time of sale. The Senior Securities will be
issued under an indenture (the "Senior Indenture") between the
Trust and a banking institution organized under the laws of the
United States of America or a particular State thereof (the
"Senior Trustee"), and the Subordinated Securities will be issued
under an indenture (the "Subordinated Indenture") between the
Trust and a banking institution organized under the laws of the
United States of America or a particular State thereof (the
"Subordinated Trustee"). The term "Trustee" as used herein shall
refer to either the Senior Trustee or the Subordinated Trustee,
as appropriate, for Senior Securities or Subordinated Securities.
The Senior Indenture and the Subordinated Indenture are each
sometimes referred to as the "Indenture". The Warrants will be
issued pursuant to a Warrant Agreement (the "Warrant Agreement")
between the Trust and a warrant agent (the "Warrant Agent").
Each series of Senior Securities, Subordinated Securities or
Warrants may vary, as applicable, as to aggregate principal
amount, maturity date, interest rate or formula and timing of
payments thereof, redemption and/or repayment provisions,
conversion provisions, sinking fund requirements, if any, and any
other variable terms which the Senior Indenture, the Subordinated
Indenture or any Warrant Agreement, as the case may be,
contemplates. The Senior Securities, the Subordinated Securities
or Warrants may be offered either together or separately. As
used herein, "Securities" shall mean Senior Securities,
Subordinated Securities or Warrants or any combination thereof;
and "Warrant Securities" shall mean the Senior Securities or
Subordinated Securities issuable upon exercise of Warrants. As
used herein, "you" and "your", unless the context otherwise
requires, shall mean the parties to whom this Agreement is
addressed together with the other parties, if any, identified in
the applicable Terms Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities
(as hereinafter defined) purchased pursuant thereto.
Whenever the Trust determines to make an offering of
Securities through you or through an underwriting syndicate
managed by you, the Trust will enter into an agreement (the
"Terms Agreement") providing for the sale of such Securities (the
"Underwritten Securities") to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on
their behalf (the "Underwriters", which term shall include you
whether acting alone in the sale of the Underwritten Securities
or as a member of an underwriting syndicate and any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify
the principal amount of Underwritten Securities to be initially
issued, including the number of Warrants, if any (the "Initial
Underwritten Securities"), the names of the Underwriters
participating in such offering (subject to substitution as
provided in Section 10 hereof), the principal amount of Initial
Underwritten Securities, including the number of Warrants, which
each such Underwriter severally agrees to purchase, the names of
such of you or such other Underwriters acting as co-managers, if
any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the
Underwriters from the Trust, the initial public offering price,
the time, date and place of delivery and payment, any delayed
delivery arrangements and any other variable terms of the Initial
Underwritten Securities (including, but not limited to, current
ratings, designations, denominations, interest rates or formulas,
interest payment dates, maturity dates, conversion provisions,
redemption and/or repayment provisions and sinking fund
requirements and the terms of the Warrant Securities and the
terms, prices and dates upon which such Warrant Securities may be
purchased). In addition, each Terms Agreement shall specify
whether the Trust has agreed to grant to the Underwriters an
option to purchase additional Underwritten Securities to cover
over-allotments, if any, and the principal amount of Underwritten
Securities, including the number of Warrants, subject to such
option (the "Option Securities"). As used herein, the term
"Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of the Option Securities agreed
to be purchased by the Underwriters as provided herein, if any.
The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any
standard form of written telecommunication between you and the
Trust. Each offering of Underwritten Securities through you or
through an underwriting syndicate managed by you will be governed
by this Agreement, as supplemented by the applicable Terms
Agreement.
The Trust has filed with the Securities and Exchange Com-
mission (the "Commission") a registration statement on Form S-3
(No. 33-53311) for the registration of the Securities (including
the Underwritten Securities) and Warrant Securities and certain
of the Trust's equity securities and warrants to purchase equity
securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), and
the Trust has filed such amendments thereto as may have been
required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission and
each of the Senior Indenture and the Subordinated Indenture has
been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement (as amended, if
applicable), on the one hand, and the prospectus constituting a
part thereof and each prospectus supplement relating to the
offering of Underwritten Securities provided to the Underwriters
for use (whether or not such prospectus supplement is required to
be filed by the Trust pursuant to Rule 424(b) of the 1933 Act
Regulations) (the "Prospectus Supplement"), on the other hand,
including all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the 1933
Act, the Securities Exchange Act of 1934, as amended (the "1934
Act") or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively; provided, however,
that a Prospectus Supplement shall be deemed to have supplemented
the Prospectus only with respect to the offering of Underwritten
Securities to which it relates. All references in this Agreement
to financial statements and schedules and other information which
is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean
and include, without limitation, the filing of any document under
the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the
case may be.
Section 1. Representations and Warranties.
(a) The Trust represents and warrants to you, as of the
date hereof, and to you and each other Underwriter named in the
applicable Terms Agreement, as of the date thereof (such latter
date being referred to herein as a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective,
complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations and the 1939 Act; the
Registration Statement, at the time the Registration
Statement became effective, did not, and as of the
applicable Representation Date, will not, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, as of
the date hereof does not, and as of the applicable
Representation Date and at Closing Time (as hereinafter
defined) will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the representations and warranties
in this subsection shall not apply to that part of the
Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the
Trust in writing by any Underwriter through you expressly
for use in the Registration Statement or the Prospectus or
to that part of the Registration Statement which shall
constitute the Statement of Eligibility under the 1939 Act
(From T-1) (the "Statement of Eligibility") of the Senior
Trustee and the Subordinated Trustee under the Senior
Indenture and the Subordinated Indenture, respectively.
(ii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were or
hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission
under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus,
at the time the Registration Statement became effective and
as of the applicable Representation Date or Closing Time or
during the period specified in Section 3(f), did not and
will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(iii) The accountants who certified the financial
statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement
and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements and supporting schedules
included in, or incorporated by reference into, the Regis-
tration Statement and the Prospectus present fairly in all
material respects the financial position of the Trust and
its consolidated subsidiaries as of the dates indicated and
the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules
included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material
respects the information required to be stated therein.
(v) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or
otherwise, or in the earnings, business or business
prospects of the Trust and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary
course of business, (B) there have been no transactions or
acquisitions entered into by the Trust or any of its
subsidiaries other than those arising in the ordinary course
of business, which are material with respect to the Trust
and its subsidiaries considered as one enterprise, and (C)
except for regular quarterly dividends on the Trust's
shares of beneficial interest without par value (the "Common
Shares"), or dividends declared, paid or made in accordance
with the terms of any series of the Trust's preferred shares
of beneficial interest, par value $1.00 per share (the
"Preferred Shares"), there has been no dividend or
distribution of any kind declared, paid or made by the Trust
on any class of its Common Shares or Preferred Shares.
(vi) The Trust has been duly established and is validly
existing as a voluntary association (commonly referred to as
a business trust) in good standing under the laws of the
Commonwealth of Massachusetts; the declaration of trust, as
amended (the "Declaration of Trust") pursuant to which the
Trust was established, confers upon the trustees therein
named, and their successors in trust, power and authority to
hold mortgages, to own and lease real property and to
conduct its business as described in the Prospectus; and the
Trust is duly qualified and in good standing in each
jurisdiction in which the ownership of its property or the
conduct of its business requires such qualification, except
where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or
the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise.
(vii) Each subsidiary of the Trust has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to hold
mortgages, to own and lease property and to conduct its
business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so
qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
or business prospects of the Trust and its subsidiaries
considered as one enterprise; and all of the issued and
outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and non-
assessable and is owned by the Trust free and clear of any
security interest, mortgage, pledge, lien, encumbrance,
claim or equity[, except for security interests granted in
respect of indebtedness of the Trust or any of its
subsidiaries and referred to in the Prospectus].
(viii) The Indenture has been duly and validly
authorized, executed and delivered by the Trust and
constitutes the valid and legally binding agreement of the
Trust, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
or other similar laws relating to or affecting enforcement
of creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(ix) The authorized, issued and outstanding Common
Shares and Preferred Shares of the Trust are as set forth in
the Prospectus under "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements or
the exercise of convertible securities referred to in the
Registration Statement including, without limitation,
exercise of share options, granting of share options or
issuance of shares pursuant to the dividend reinvestment
plan); and such Common Shares and Preferred Shares of the
Trust have been duly authorized and validly issued and are
fully paid and non-assessable and are not subject to
preemptive or other similar rights.
(x) The Underwritten Securities (other than the
Warrants) have been duly authorized for issuance and sale
pursuant to this Agreement and when issued, authenticated
and delivered pursuant to the provisions of the Indenture
against payment of the consideration therefor specified in
the applicable Terms Agreement or any Delayed Delivery
Contract (as hereinafter defined), such Underwritten
Securities will constitute valid and legally binding
obligations of the Trust, enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or
affecting enforcement of creditors' rights generally or by
general equity principles (regardless or whether enforcement
is considered in a proceeding in equity or at law); such
Underwritten Securities and the Indenture conform in all
material respects to all statements relating thereto
contained in the Prospectus; and such Underwritten
Securities will be entitled to the benefits provided by the
Indenture.
(xi) The Warrants have been duly authorized and, when
issued and delivered pursuant to this Agreement and
countersigned by the Warrant Agent as provided in the
Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute
valid and legally binding obligations of the Trust entitled
to the benefits provided by the Warrant Agreement under
which they are to be issued, except as enforcement of such
benefits may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights
generally and by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity
or at law); the issuance of the Warrant Securities upon
exercise of the Warrants will not be subject to preemptive
or other similar rights; and the Warrants conform in all
material respects to all statements relating thereto
contained in the Prospectus.
(xii) If applicable, the Common Shares or Preferred
Shares issuable upon conversion of any of the Securities, or
the Warrant Securities, will have been duly and validly
authorized and reserved for issuance upon such conversion or
exercise by all necessary action and such shares, when
issued upon such conversion or exercise, will be duly and
validly issued, fully paid and non-assessable, and the
issuance of such shares upon such conversion or exercise
will not be subject to preemptive or other similar rights;
the Common Shares or Preferred Shares so issuable or the
Warrant Securities conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xiii) The applicable Warrant Agreement, if any, will
have been duly authorized, executed and delivered by the
Trust prior to the issuance of any applicable Underwritten
Securities, and each constitutes a valid and legally binding
agreement of the Trust enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity
principles (regardless of whether enforcement is considered
in a proceeding in equity or at law); and the Warrant
Agreement, if any, conforms in all material respects to all
statements relating thereto contained in the Prospectus.
(xiv) Neither the Trust nor any of its subsidiaries is
in violation of its Declaration of Trust or in default in
the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease (other than as
disclosed in the Prospectus) or other instrument to which
the Trust or any of its subsidiaries is a party or by which
it or any of them may be bound, or to which any of the
property or assets of the Trust or any of its subsidiaries
is subject and in which the violation or default might
result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries
considered as one enterprise; and the execution, delivery
and performance of this Agreement, the applicable Terms
Agreement, the Indenture or the applicable Warrant
Agreement, if any, and the consummation of the transactions
contemplated herein and therein and compliance by the Trust
with its obligations hereunder and thereunder have been duly
authorized by all necessary action on the part of the Trust,
and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Trust or any of its subsidiaries pursuant to any con-
tract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Trust or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any property or assets of the Trust or
any of its subsidiaries is subject, except for any such
default or violation that could not reasonably result in a
material adverse change in the condition, financial or
otherwise, or in the earnings, business or business
prospects of the Trust and its subsidiaries considered as
one enterprise nor will such action result in any violation
of the Declaration of Trust of the Trust or any law,
administrative regulation or administrative or court decree
except for any such default or violation that could not
reasonably result in a material adverse change in the
condition, financial or otherwise, or in the earnings,
business or business prospects of the Trust and its
subsidiaries considered as one enterprise.
(xv) The Trust is qualified as a "real estate
investment trust" under the Internal Revenue Code of 1986,
as amended (the "Code"), and will be so qualified for the
taxable year in which sales of the Underwritten Securities
are to occur.
(xvi) The Trust is not required to be registered under
the Investment Company Act of 1940, as amended (the "1940
Act").
(xvii) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Trust (for
purposes of this Agreement, such knowledge shall mean the
actual knowledge of a Trust officer, trustee or regional
manager), threatened against or affecting the Trust or any
of its subsidiaries which is required to be disclosed in the
Prospectus (other than as disclosed therein) or which might
result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries
considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which
might materially and adversely affect the consummation of
this Agreement, the applicable Terms Agreement, the
Indenture or the applicable Warrant Agreement, if any, or
the transactions contemplated herein and therein; all
pending legal or governmental proceedings to which the Trust
or any of its subsidiaries is a party or of which any of
their respective property is the subject which are not
described in the Prospectus, including ordinary routine
litigation incidental to the business, are, considered in
the aggregate, not material; and there are no contracts or
documents of the Trust or any of its subsidiaries which
would be required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the
Registration Statement.
(xviii) Neither the Trust nor any of its subsidiaries is
required to own or possess any trademarks, service marks,
trade names or copyrights in order to conduct the business
now operated by them.
(xix) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the consummation by the Trust of the transactions
contemplated by this Agreement, the applicable Terms
Agreement, the Indenture or any Warrant Agreement, except
such as may be required under the 1933 Act, the 1933 Act
Regulations or the 1939 Act or state securities laws.
(xx) The Trust and its subsidiaries possess adequate
certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or bodies
necessary to conduct the business now operated by them, and
neither the Trust nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially
and adversely affect the conduct of the business,
operations, financial condition or income of the Trust and
its subsidiaries considered as one enterprise.
(xxi) Each of the Trust and its subsidiaries has good
and indefeasible title in fee simple to all real property
and interests in real property owned by it in each case free
and clear of all liens, encumbrances and defects except such
as are described in the Registration Statement or such as do
not materially adversely affect the value of such property
or interests and do not materially interfere with the use
made and proposed to be made of such property or interests
by the Trust or such subsidiary, as the case may be; and,
except as otherwise described in the Prospectus, any real
property and buildings held under lease by the Trust or any
of its subsidiaries or leased by the Trust or any of its
subsidiaries to a third party are held or leased by the
Trust or its subsidiary, as the case may be, under valid,
binding and enforceable leases conforming to the description
thereof set forth in the Prospectus (to the extent described
therein), enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting the
enforcement of creditors' rights or by general equity
principles, with such exceptions as do not materially
interfere with the use made and proposed to be made of such
property and buildings by the Trust or its subsidiary, as
the case may be, or third party.
(xxii) The Trust has full right, power and authority to
enter into this Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, and this
Agreement has been, and as of the applicable Representation
Date, the applicable Terms Agreement and the Delayed
Delivery Contracts, if any, will have been, duly authorized,
executed and delivered by the Trust.
(xxiii) Neither the Trust nor any of its subsidiaries has
knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of
the properties owned by the Trust or any of its
subsidiaries, or of (b) any unlawful spills, releases,
discharges or disposal of Hazardous Materials that have
occurred or are presently occurring off such properties as a
result of any construction on or operation and use of such
properties which presence or occurrence would have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business or business prospects
of the Trust and its subsidiaries considered as one
enterprise; and in connection with the construction on or
operation and use of the properties owned by the Trust or
any of its subsidiaries, the Trust represents that it has no
knowledge of any material failure to comply with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous
Materials.
(b) Any certificate signed by any officer of the Trust and
delivered to you or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed
a representation and warranty by the Trust to each Underwriter
participating in such offering as to the matters covered thereby
on the date of such certificate and, unless subsequently amended
or supplemented, at the applicable Representation Date subsequent
thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Trust may grant, if so provided
in the applicable Terms Agreement relating to the Initial
Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up
to the aggregate principal amount of Option Securities set forth
therein at the same price per Option Security as is applicable to
the Initial Underwritten Securities. Such option, if granted,
will expire 30 days (or such lesser number of days as may be
specified in the applicable Terms Agreement) after the
Representation Date relating to the Initial Underwritten
Securities, and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by you to the Trust
setting forth the aggregate principal amount of Option Securities
as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such
Option Securities. Any such time, date and place of delivery (a
"Date of Delivery") shall be determined by you, but shall not be
later than seven full business days nor earlier than two full
business days after the exercise of said option, nor in any event
prior to Closing Time, unless otherwise agreed upon by you and
the Trust. If the option is exercised as to all or any portion
of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the
total aggregate principal amount of Option Securities then being
purchased which the aggregate principal amount of Initial
Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in the applicable Terms Agreement
bears to the total aggregate principal amount of Initial
Underwritten Securities (except as otherwise provided in the
applicable Terms Agreement).
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall
be made at the office of Brown & Wood, 58th Floor, One World
Trade Center, New York, New York 10048-0557, or at such other
place as shall be agreed upon by you and the Trust, at 10:00
A.M., New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section 10 hereof)
following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Trust (each
such time and date of payment and delivery being referred to
herein as the "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of
certificates representing, such Option Securities, shall be made
at the above-mentioned offices of Brown & Wood, or at such other
place as shall be agreed upon by you and the Trust on each Date
of Delivery as specified in the notice from you to the Trust.
Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Trust by certified or official bank
check or checks in Federal or similar same-day funds payable to
the order of the Trust against delivery to you for the respective
accounts of the Underwriters for the Underwritten Securities to
be purchased by them. The Underwritten Securities shall be in
such authorized denominations and registered in such names as you
may request in writing at least two business days prior to the
Closing Time or Date of Delivery, as the case may be. The
Underwritten Securities, which may be in temporary form, will be
made available for examination and packaging by you on or before
the first business day prior to the Closing Time or the Date of
Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase
Underwritten Securities from the Trust pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially
in the form of Exhibit B hereto with such changes therein as the
Trust may approve. As compensation for arranging Delayed
Delivery Contracts, the Trust will pay to you at Closing Time,
for the respective accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Underwritten
Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement.
Any Delayed Delivery Contracts are to be with institutional
investors of the types described in the Prospectus. At the
Closing Time, the Trust will enter into Delayed Delivery
Contracts (for not less than the minimum principal amount of
Underwritten Securities per Delayed Delivery Contract specified
in the applicable Terms Agreement) with all purchasers proposed
by the Underwriters and previously approved by the Trust as
provided below, but not for an aggregate principal amount of
Underwritten Securities in excess of that specified in the
applicable Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed
Delivery Contracts.
You shall submit to the Trust, at least three business days
prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Trust will enter
into Delayed Delivery Contracts and the principal amount of
Underwritten Securities to be purchased by each of them, and the
Trust will advise you, at least two business days prior to the
Closing Time, of the names of the institutions with which the
making of Delayed Delivery Contracts is approved by the Trust and
the principal amount of Underwritten Securities to be covered by
each such Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be
purchased by the several Underwriters pursuant to the applicable
Terms Agreement shall be reduced by the principal amount of
Underwritten Securities covered by Delayed Delivery Contracts, as
to each Underwriter as set forth in a written notice delivered by
you to the Trust; provided, however, that the total principal
amount of Underwritten Securities to be purchased by all
Underwriters shall be the total amount of Underwritten Securities
covered by the applicable Terms Agreement, less the principal
amount of Underwritten Securities covered by Delayed Delivery
Contracts.
SECTION 3. Covenants of the Trust. The Trust covenants
with you, and with each Underwriter participating in the offering
of Underwritten Securities, as follows:
(a) Immediately following the execution of the applicable
Terms Agreement, the Trust will prepare a Prospectus Supplement
setting forth the principal amount of Underwritten Securities
covered thereby and their terms not otherwise specified in the
Prospectus or the Indenture pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters
participating in the offering and the principal amount of
Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in
connection with the offering, the price at which the Underwritten
Securities are to be purchased by the Underwriters from the
Trust, the initial public offering price, if any, the selling
concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Trust
deem appropriate in connection with the offering of the
Underwritten Securities; and the Trust will promptly transmit
copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will
furnish to the Underwriters named therein as many copies of the
Prospectus (including such Prospectus Supplement) as you shall
reasonably request.
(b) The Trust will notify you immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to
the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus Supplement or other
supplement or amendment to the Prospectus to be filed pursuant to
the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; and the Trust will make every
reasonable effort to prevent the issuance of any such stop order
and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, the Trust will give you
notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, and will furnish you with copies of any such amendment
or supplement a reasonable amount of time prior to such proposed
filing and, unless required by law, will not file or use any such
amendment or supplement or other documents in a form to which you
or counsel for the Underwriters shall reasonably object.
(d) The Trust will deliver to each Underwriter a signed
copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith and
documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act) as each Underwriter reasonably
request and will also deliver to such Underwriter a conformed
copy of the Registration Statement as originally filed and of
each amendment thereto (including documents incorporated by
reference but without exhibits).
(e) The Trust will furnish to each Underwriter, from time
to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations.
(f) If at any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities any event shall occur or
condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for the Trust,
to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations,
then the Trust will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents
pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make
the Registration Statement and Prospectus comply with such
requirements.
(g) The Trust will endeavor, in cooperation with the Under-
writers, to qualify the Underwritten Securities, the Warrant
Securities, if any, and the Common Shares or Preferred Shares
issuable upon conversion of the Securities, if any, for offering
and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions of the
United States as you may designate; and in each jurisdiction in
which the Underwritten Securities, the Warrant Securities, if
any, and the Common Shares or Preferred Shares issuable upon
conversion of the Securities, if any, have been so qualified, the
Trust will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification in
effect for so long as may be required for the distribution of the
Underwritten Securities, the Warrant Securities, if any, and the
Common Shares or Preferred Shares issuable upon conversion of the
Securities, if any; provided, however, that the Trust shall not
be obligated to qualify as a foreign corporation in any
jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities,
the Trust will make generally available to its security holders
as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later
than the first day of the Trust's fiscal quarter next following
the "effective date" (as defined in such Rule 158) of the Regis-
tration Statement.
(i) The Trust will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust"
under the Code for the taxable year in which sales of the
Underwritten Securities are to occur.
(j) The Trust, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Trust will not, between the date of the applicable
Terms Agreement and the termination of any trading restrictions
or the Closing Time, whichever is later, with respect to the
Underwritten Securities covered thereby, without your prior
written consent, offer or sell, grant any option for the sale of,
or enter into any agreement to sell, any debt securities of the
Trust, excluding debt issued in connection with the acquisition
of portfolio properties, with a maturity of more than one year
(other than the Underwritten Securities which are to be sold
pursuant to such Terms Agreement), or if such Terms Agreement
relates to Senior Securities or Subordinated Securities that are
convertible into Common Shares or Preferred Shares, any Common
Shares or Preferred Shares or any security convertible into
Common Shares or Preferred Shares (except for Common Shares or
Preferred Shares issued pursuant to reservations, agreements,
employee benefit plans, dividend reinvestment plans, or employee
and trustee stock option plans), except as may otherwise be
provided in the applicable Terms Agreement.
(l) If the Senior Securities or Subordinated Securities are
convertible into Common Shares or Preferred Shares, the Trust
will reserve and keep available at all times, free of preemptive
rights or other similar rights, a sufficient number of Common
Shares or Preferred Shares, as the case may be, for the purpose
of enabling the Trust to satisfy any obligations to issue such
shares upon conversion of the Securities.
(m) If the Senior Securities or Subordinated Securities are
convertible into Common Shares or Preferred Shares, the Trust
will use its best efforts to list the Common Shares or Preferred
Shares, as the case may be, issuable upon conversion of the
Securities on the New York Stock Exchange or such other national
exchange on which the Trust's Common Shares or Preferred Shares,
as the case may be, are then listed.
(n) The Trust has complied and will comply with all of the
provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the
Florida Securities and Investors Act, and all regulations
thereunder relating to issuers doing business with Cuba.
Section 4. Payment of Expenses. The Trust will pay all
expenses incident to the performance of its obligations under
this Agreement or the applicable Terms Agreement, including
(i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the cost of
printing, filing and distributing to the Underwriters copies of
this Agreement and the applicable Terms Agreement, (iii) the
preparation, issuance and delivery of the Underwritten Securities
to the Underwriters and the Warrant Securities, if any, (iv) the
fees and disbursements of the Trust's counsel and accountants, of
the Trustee and its counsel and of any applicable calculation
agent or exchange rate agent, (v) the qualification of the
Underwritten Securities, the Warrant Securities, if any, and the
Common Shares and Preferred Shares issuable upon conversion of
the Securities, if any, under securities laws and real estate
syndication laws in accordance with the provisions of Section
3(g), including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey, (vi) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment
thereto, and of the Prospectus and any amendments or supplements
thereto, (vii) the cost of reproducing and distributing to the
Underwriters copies of the Indenture and the applicable Warrant
Agreement, if any, (viii) the cost of reproducing and delivering
to the Underwriters copies of the Blue Sky Survey, (ix) any fees
charged by nationally recognized statistical rating organizations
for the rating of the Securities, (x) the fees and expenses, if
any, incurred with respect to the listing of the Underwritten
Securities, the Warrant Securities, if any, or the Common Shares
or Preferred Shares issuable upon conversion of the Securities,
if any, on any national securities exchange, (xi) the fees and
expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc., (xii) the cost
of providing any CUSIP or other identification numbers for the
Underwritten Securities or the Common Shares or Preferred Shares
issuable upon conversion of the Securities, if applicable, and
(xiii) the fees and expenses of any depositary in connection with
the Underwritten Securities.
If the applicable Terms Agreement is cancelled or terminated
by you in accordance with the provisions of Section 5 or Section
9(b)(1), the Trust shall reimburse the Underwriters named in such
Terms Agreement for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for
the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase Underwritten
Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the
Trust herein contained, to the accuracy of the statements of the
Trust's officers made in any certificate pursuant to the
provisions hereof, to the performance by the Trust of all of its
covenants and other obligations hereunder, and to the following
further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission and (ii) the rating assigned by any
nationally recognized statistical rating organization to any
long-term debt securities of the Trust as of the date of the
applicable Terms Agreement shall not have been lowered since such
date nor shall any such rating organization have publicly
announced that it has placed any long-term debt securities of the
Trust on what is commonly termed a "watch list" for possible
downgrading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time,
of Robinson Silverman Pearce Aronsohn & Berman, counsel for
the Trust, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) The Trust has been duly established and is
validly existing and in good standing as an
unincorporated association commonly referred to as a
business trust under the laws of the Commonwealth of
Massachusetts.
(ii) The Trust has power and authority to conduct
its business as described in the Registration Statement
and possesses all licenses, permits, authorizations,
consents and orders required for the contemplated
method of operation of its business as described in the
Registration Statement, the absence of which would
materially adversely affect the business of the Trust.
(iii) The Trust is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the ownership of
its properties or the conduct of its business requires
such qualification, unless failure to so qualify would
not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business or
business prospects of the Trust and its subsidiaries
considered as one enterprise.
(iv) Each significant subsidiary of the Trust (as
such term is defined in Rule 405 under the 1933 Act)
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power
and authority to hold mortgages, to own and lease
property and to conduct its business as described in
the Prospectus and is duly qualified as a foreign cor-
poration to transact business and is in good standing
in each jurisdiction in which such qualification is
required, except where the failure to so qualify would
not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business or
business prospects of the Trust and its subsidiaries
considered as one enterprise; all of the issued and
outstanding capital stock of each such significant
subsidiary has been duly authorized and validly issued
and is fully paid and non-assessable and is owned by
the Trust free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(v) The authorized, issued and outstanding Common
Shares and Preferred Shares of the Trust are as set
forth in the Prospectus under "Capitalization" (except
for subsequent issuances, if any, pursuant to
reservations, agreements or the exercise of convertible
securities referred to in the Registration Statement
including, without limitation, exercise of share
options, granting of share options or issuance of
shares pursuant to the dividend reinvestment plan) and
such shares of beneficial interest are duly authorized,
validly issued, fully paid and non-assessable and are
not subject to preemptive or other similar rights
arising by operation of law or, to the best of such
counsel's knowledge, otherwise.
(vi) The Underwritten Securities have been duly and
validly authorized by all necessary action and, when
executed, authenticated and delivered pursuant to the
provisions of the Indenture and against payment of the
consideration therefor specified in the applicable
Terms Agreement or the Delayed Delivery Contracts, if
any, the Underwritten Securities will constitute valid
and legally binding obligations of the Trust entitled
to the benefits provided by the Indenture and
enforceable in accordance with their terms.
(vii) The Warrants, if applicable, have been duly
authorized and, when issued and delivered pursuant to
this Agreement and countersigned by the Warrant Agent
as provided in the Warrant Agreement, will have been
duly executed, countersigned, issued and delivered and
will constitute valid and legally binding obligations
of the Trust entitled to the benefits provided by the
Warrant Agreement under which they are to be issued,
except as enforcement of such benefits may be limited
by bankruptcy, insolvency or other similar laws
relating to or affecting creditors' rights generally
and by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or
at law).
(viii) If applicable, the Common Shares or Preferred
Shares issuable upon conversion of any of the Senior
Securities or Subordinated Securities, or the Warrant
Securities, have been duly and validly authorized and
reserved for issuance upon such conversion or exercise
by all necessary action and such shares, when issued
upon such conversion or exercise, will be duly and
validly issued and will be fully paid and non-
assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to
preemptive or other similar rights arising by operation
of law or, to the best of such counsel's knowledge,
otherwise.
(ix) The applicable Warrant Agreement, if any, has
been duly authorized, executed and delivered by the
Trust, and (assuming due authorization, execution and
delivery by the Warrant Agent) constitutes a valid and
legally binding agreement of the Trust enforceable in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or
other similar laws relating to or affecting creditors'
rights generally and by general equity principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Warrant
Agreement, if any, conforms in all material respects to
all statements relating thereto contained in the
Prospectus.
(x) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any,
has been duly authorized, executed and delivered by the
Trust.
(xi) The Indenture has been duly and validly
authorized, executed and delivered by the Trust and
(assuming due authorization, execution and delivery by
the Trustee) constitutes the valid and legally binding
agreement of the Trust, enforceable in accordance with
its terms.
(xii) The Indenture has been duly qualified under
the 1939 Act.
(xiii) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xiv) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference
therein, as of their respective effective or issue
dates, comply as to form in all material respects with
the requirements for registration statements on Form S-
3 under the 1933 Act and the 1933 Act Regulations; it
being understood, however, that no opinion need be
rendered with respect to the financial statements,
schedules and other financial and statistical data
included or incorporated by reference in the
Registration Statement or the Prospectus or with
respect to the Statement of Eligibility of the Trustee.
(xv) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and
other financial and statistical data included therein,
as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed (or as when
amended prior to the Representation Date) as to form in
all material respects with the 1934 Act and the 1934
Act Regulations.
(xvi) The Underwritten Securities, the Warrant
Securities, the Common Shares or Preferred Shares
issuable upon conversion of the Senior Securities or
the Subordinated Securities, if applicable, and the
Indenture conform in all material respects to the
statements relating thereto contained in the
Prospectus.
(xvii) To the best of their knowledge and informa-
tion, there are no legal or governmental proceedings
pending or threatened which are required to be
disclosed in the Prospectus, other than those disclosed
therein, and all pending legal or governmental
proceedings to which the Trust or any of its
subsidiaries is a party or of which any of the property
of the Trust or its subsidiaries is the subject which
are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are,
considered in the aggregate, not material to the
business of the Trust and its subsidiaries considered
as one enterprise.
(xviii) To the best of their knowledge and informa-
tion, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments
required to be described or referred to in the
Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement other than
those described or referred to therein or filed as
exhibits thereto, the descriptions thereof or
references thereto are correct, and, to the best of
their knowledge and information, no default exists in
the due performance or observance of any obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to or
filed which would have a material adverse effect on the
condition, financial or otherwise, or in the earnings,
business or business prospects of the Trust and its
subsidiaries considered as one enterprise.
(xix) No authorization, approval or consent of any
court or governmental authority or agency is required
that has not been obtained in connection with the
consummation by the Trust of the transactions
contemplated by this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any,
and the Indenture except such as may be required under
the 1933 Act, the 1934 Act and state securities laws or
real estate syndication laws; and to the best of their
knowledge and information, the execution and delivery
of this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement, if any, and the Indenture
and the consummation of the transactions contemplated
herein and therein and compliance by the Trust with its
obligations hereunder and thereunder will not conflict
with or constitute a breach of, or default under or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
the Trust or any of its subsidiaries pursuant to any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Trust or any of
its subsidiaries is a party or by which they may be
bound or to which any of the property or assets of the
Trust or any of its subsidiaries is subject, nor will
such action result in violation of the provisions of
the Declaration of Trust or any law, administrative
regulation or court decree.
(xx) The Trust is not required to be registered
under the 1940 Act.
(3) The favorable opinion dated as of Closing Time, of
Altheimer & Gray, tax counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The information in the Prospectus under
"Certain Federal Income Tax Considerations to the Trust
of its REIT Election," to the extent that it
constitutes matters of law or legal conclusions, has
been reviewed by them and is correct.
(ii) The Trust has all legal rights, powers and
authority necessary to qualify and has qualified as a
"real estate investment trust" under Sections 856
through 860 of the Internal Revenue Code of 1986, as
amended.
(4) The favorable opinion, dated as of the Closing
Time, of Brown & Wood, counsel for the Underwriters, with
respect to the matters set forth in (i), (vi) to (xiv),
inclusive, and (xvi) of subsection (b)(1) of this Section.
(5) In giving their opinions required by subsections
(b)(1) and (b)(4), respectively, of this Section, Robinson
Silverman Pearce Aronsohn & Berman and Brown & Wood shall
each additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement or any amendment thereto (excluding
the financial statements and financial schedules included or
incorporated by reference therein, as to which such counsel
need express no belief), at the time it became effective or
at the time an Annual Report on Form 10-K was filed by the
Trust with the Commission (whichever is later), or at the
Representation Date, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any
amendment or supplement thereto (excluding the financial
statements and financial schedules included or incorporated
by reference therein, as to which such counsel need express
no belief), at the Representation Date or at Closing Time,
included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving their opinions, Robinson Silverman Pearce
Aronsohn & Berman, Altheimer & Gray and Brown & Wood may
rely, or assume the accuracy of, (1) as to matters involving
the laws of the Commonwealth of Massachusetts upon the
opinion of Fordham & Starrett (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and
substance satisfactory to counsel for the Underwriters, (2)
as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for
the Trust and (3) as to the qualification and good standing
of the Trust or any of its subsidiaries to do business in
any state or jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such
jurisdictions.
(c) At Closing Time, there shall not have been, since the
date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business; and you shall have
received a certificate of the Chief Executive Officer, the
President or the chief financial or chief accounting officer of
the Trust, dated as of such Closing Time, to the effect that (i)
there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct
with the same force and effect as though such Closing Time were a
Representation Date. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first used to
confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms
Agreement, you shall have received from Coopers & Lybrand a
letter dated such date, in form and substance satisfactory to
you, to the effect that (i) they are independent accountants with
respect to the Trust and its subsidiaries within the meaning of
the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the consolidated financial statements and supporting
schedules of the Trust included or incorporated by reference in
the Registration Statement and the Prospectus and covered by
their opinions therein comply in form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the
latest available unaudited interim consolidated financial
statements of the Trust, a reading of the minute books of the
Trust, inquiries of certain officials of the Trust who have
responsibility for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, and on the basis of such limited review and procedures
nothing came to their attention that caused them to believe that
(A) the unaudited financial statements and financial statement
schedules of the Trust included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, (B)
the unaudited operating data and balance sheet data of the Trust
in the Registration Statement and the Prospectus under the
caption "Selected Consolidated Financial Data" were not
determined on a basis substantially consistent with that used in
determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus, or (C) at a specified
date not more than five days prior to the date of the applicable
Terms Agreement, there has been any change in the capital stock
of the Trust or in the consolidated long term debt of the Trust
or any decrease in the net assets of the Trust, as compared with
the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration
Statement and the Prospectus or, during the period from the date
of the most recent consolidated statement of operations included
or incorporated by reference in the Registration Statement and
the Prospectus to a specified date not more than five days prior
to the date of the applicable Terms Agreement, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, or decrease in net
income or net income per share of the Trust, except in all
instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred
or may occur; and (iv) in addition to the audit referred to in
their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and the
Prospectus and which are specified by you, and have found such
amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Trust and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Coopers &
Lybrand a letter dated as of such Closing Time to the effect that
they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the
"specified date" referred to shall be a date not more than five
days prior to such Closing Time.
(f) At the time of execution of the applicable Terms
Agreement, you shall have received from Eichler, Bergsman,
Belonsky & Co. a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that (i) they are
independent public accountants as required by the 1933 Act and
the applicable published rules and regulations thereunder with
respect to the Trust and its subsidiaries and certain properties
acquired by the Trust; and (ii) it is their opinion that the
financial statements and supporting schedules of the properties
acquired by the Trust included in the Trust's Form 8-K
incorporated by reference in the Registration Statement and
covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1934 Act and the related published rules and
regulations thereunder.
(g) At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Underwritten Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Trust in connection with the issuance
and sale of the Underwritten Securities as herein contemplated
shall be satisfactory in form and substance to you and counsel
for the Underwriters.
(h) In the event the Underwriters exercise their option
provided in a Terms Agreement as set forth in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the
representations and warranties of the Trust contained herein and
the statements in any certificates furnished by the Trust
hereunder shall be true and correct as of each Date of Delivery,
and you shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chief Executive Officer or the President of the Trust, in
their capacities as such, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Robinson Silverman Pearce
Aronsohn & Berman, counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as
the opinion required by Section 5(b)(1) hereof.
(3) The favorable opinion of Altheimer & Gray, tax
counsel for the Trust, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by
Section 5(b)(2) hereof.
(4) The favorable opinion of Brown & Wood, counsel for
the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b)(3) hereof.
(5) A letter from Coopers & Lybrand, in form and
substance satisfactory to you and dated such Date of
Delivery, substantially the same in scope and substance as
the letter furnished to you pursuant to Section 5(d) hereof,
except that the "specified date" in the letter furnished
pursuant to this Section 5(h)(5) shall be a date not more
than five days prior to such Date of Delivery.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement may be terminated by you by notice to
the Trust at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Trust agrees to
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any un-
true statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission, or alleged omission therefrom, of
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission referred to
in subsection (1) above, or any such alleged untrue
statement or omission, if such settlement is effected with
the written consent of the Trust; and
(3) against any and all expense whatsoever (including,
the fees and disbursements of counsel chosen by you)
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings
by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Trust by any
Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or made in reliance upon the Trustee's Statement of
Eligibility filed as an exhibit to the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Trust, its trustees, each of its officers who signed
the Registration Statement and each person, if any, who controls
the Trust within the meaning of Section 15 of the 1933 Act,
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this
Section, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Trust by such Underwriter
through you expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability which it
may have otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Trust and the Underwriters with
respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity
agreement incurred by the Trust and one or more of the
Underwriters in respect of such offering, as incurred, in such
proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount appearing on the cover page of the applicable Prospectus
Supplement in respect of such offering bears to the initial
public offering price appearing thereon and the Trust is respon-
sible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten
Securities purchased by it pursuant to the applicable Terms
Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this
Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each trustee
of the Trust, each officer of the Trust who signed the
Registration Statement, and each person, if any, who controls the
Trust within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Trust.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement or the applicable Terms Agreement, or
contained in certificates of officers of the Trust submitted
pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or
investigation made by or on behalf of any Underwriter or any
controlling person, or by or on behalf of the Trust and shall
survive delivery of and payment for the Underwritten Securities
until the expiration of any statute of limitations applicable to
any legal or regulatory action.
Section 9. Termination of Agreement. (a) This Agreement
(excluding the applicable Terms Agreement) may be terminated for
any reason at any time by the Trust or by you upon the giving of
30 days' written notice of such termination to the other party
hereto; provided that this Agreement may not be terminated prior
to the Closing Time set forth in any applicable Terms Agreement.
(b) You may also terminate the applicable Terms Agreement,
by notice to the Trust, at any time at or prior to the Closing
Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
or business prospects of the Trust and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United
States or any outbreak of hostilities or other calamity or crisis
or escalation of any existing hostilities, the effect of which is
such as to make it, in your judgment, impracticable to market the
Underwritten Securities or enforce contracts for the sale of the
Underwritten Securities, or (iii) if trading in any of the
securities of the Trust has been suspended by the Commission or
the New York Stock Exchange, or if trading generally on either
the New York Stock Exchange or the American Stock Exchange has
been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or
Massachusetts authorities, or (iv) if the rating assigned by any
nationally recognized statistical rating organization to any
long-term debt securities of the Trust as of the date of the
applicable Terms Agreement shall have been lowered since such
date or if any such rating organization shall have publicly
announced that it has placed any long-term debt securities of the
Trust on what is commonly termed a "watch list" for possible
downgrading. As used in this Section 9(b), the term "Prospectus"
means the Prospectus in the form first used to confirm sales of
the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of
Underwritten Securities shall remain in effect so long as any
Underwriter owns any such Underwritten Securities purchased from
the Trust pursuant to the applicable Terms Agreement and (y) the
covenant set forth in Section 3(h) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections
8, 13 and 14 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time to
purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then you shall have the right, within 48
hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities
in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, you shall not have completed such
arrangements within such 48-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount
of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters named in such Terms
Agreement shall be obligated to purchase the full amount thereof
in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of
Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default
under this Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the
Trust shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
c/o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Merrill Lynch World Headquarters, North Tower,
World Financial Center, New York, New York 10281-1326, attention
of Tjarda V.S. Clagett, Director; and notices to the Trust shall
be directed to it at 1120 Avenue of the Americas, New York, New
York 10036, attention of William Newman, Chairman.
Section 12. Parties. This Agreement and the applicable
Terms Agreement shall inure to the benefit of and be binding upon
you and the Trust and any Underwriter who becomes a party to such
Terms Agreement, and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable Terms
Agreement is intended or shall be construed to give any person,
firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or such Terms Agreement or any provision herein or
therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors and
said controlling persons and officers and trustees and their
heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified
times of day refer to New York City time.
Section 14. No Liability of Shareholders, Trustees or
Officers. This Agreement, the applicable Terms Agreement and all
documents, agreements, understandings and arrangements relating
to this transaction have been executed by the undersigned in
his/her capacity as an officer or trustee of the Trust which has
been formed as a Massachusetts business trust pursuant to a
Declaration of Trust of New Plan Realty Trust dated as of July
31, 1972, as amended, and not individually, and neither the
trustees, officers or shareholders of the Trust shall be bound or
have any person liability hereunder or thereunder. Each party
hereto shall look solely to the assets of the Trust for
satisfaction of any liability of the Trust in respect of this
Agreement, the applicable Terms Agreement and all documents,
agreements, understandings and arrangements relating to this
transaction and will not seek recourse or commence any action
against any of the trustees, officers or shareholders of the
Trust or any of their personal assets for the performance or
payment of any obligation hereunder or thereunder. The foregoing
shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties
hereto.
Section 15. Counterparts. This Agreement and the
applicable Terms Agreement may be executed in one or more
counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart
hereof, whereupon this instrument along with all counterparts
will become a binding agreement between you and the Trust in
accordance with its terms.
Very truly yours,
NEW PLAN REALTY TRUST
By: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:____________________________
<PAGE>
<PAGE>
Exhibit A
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
TERMS AGREEMENT
Dated: , 1994
To: New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
We (the "Representative") understand that New Plan Realty
Trust, a Massachusetts business trust (the "Trust"), proposes to
issue and sell $ aggregate principal amount of its
[Title of Debt Securities] [and] [ Warrants (the
"Warrants") to purchase an aggregate of $ principal
amount of [Title of Warrant Securities] (the "Warrant
Securities")] (the "Underwritten Securities"). Subject to the
terms and conditions set forth or incorporated by reference
herein, the underwriters named below (the "Underwriters") offer
to purchase, severally and not jointly, the respective amounts of
[Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below)] [, including the respective numbers
of Warrants, if applicable,] set forth below opposite their
respective names, and a proportionate share of Option Securities
(as defined in the Underwriting Agreement referred to below) to
the extent any are purchased, at the purchase price set forth
below.
Principal Amount Number of
Underwriter of Debt Securities Warrants
___________ __________________ ________
__________ __________
Total $ $
========== ==========
The Underwritten Securities shall have the following terms:
[Securities]
Title of Securities:
Currency:
Principal amount to be issued:
Current Ratings:
Interest rate or formula:
Interest payment dates:
Stated maturity date:
Redemption and/or repayment provisions:
Sinking fund requirements:
Number of Option Securities, if any, that may be purchased by the
Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum aggregate principal amount:
Fee: %]
Initial public offering price: %, plus accrued interest, if
any, or amortized original issue discount, if any, from
, 19 .
Purchase price: %, plus accrued interest, if any, or
amortized original issue discount, if any, from , 19
(payable in [same] [next] day funds).
Conversion provisions:
Form:
Other terms:
Closing time, date and location:
[Warrants]
Number of Warrants to be issued:
Warrant Agent:
Issuable jointly with Securities: [Yes] [No]
[Number of Warrants issued
with each $ principal amount of Securities:]
[Detachable data:]
Date from which Warrants are exercisable:
Date on which Warrants expire:
Exercise price(s) of Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
All the provisions contained in the document attached as
Annex A hereto entitled "New Plan Realty Trust-Debt Securities
and Warrants to Purchase Debt Securities-Underwriting Agreement"
are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein
defined.
Please accept this offer no later than o'clock P.M. (New
York City time) on by signing a copy of this Terms
Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_________________________
Acting on behalf of itself and
the other named Underwriters.
Accepted:
NEW PLAN REALTY TRUST
By:_________________________
Name:
Title:
<PAGE>
<PAGE>
Exhibit B
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
DELAYED DELIVERY CONTRACT
, 19
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
The undersigned hereby agrees to purchase from New Plan
Realty Trust (the "Trust"), and the Trust agrees to sell to the
undersigned on __________, 19__ (the "Delivery Date"),
of the Trust's [insert title of security] (the "Securities"),
offered by the Trust's Prospectus dated __________, 19__, as
supplemented by its Prospectus Supplement dated ___________,
19__, receipt of which is hereby acknowledged, at a purchase
price of _____% of the principal amount thereof, plus accrued
interest from __________, 19__,] [and, $__________ per Warrant,
respectively], on the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed
to purchase on the Delivery Date shall be made to the Trust or
its order by certified or official bank check in Federal or
similar same-day funds at the office of
, on the Delivery Date, upon delivery
to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Trust not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date shall be subject
only to the conditions that (1) the purchase of Securities to be
made by the undersigned shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Trust, on or before
__________, 19__, shall have sold to the Underwriters of the
Securities (the "Underwriters") such principal amount of the
Securities as is to be sold to them pursuant to the Terms
Agreement dated __________, 19__ between the Trust and the
Underwriters. The obligation of the undersigned to take delivery
of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments
for Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters,
the Trust will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Trust delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the Trust that all necessary action for the due
execution and delivery of this contract and the payment for and
purchase of the Securities has been taken by it and no further
authorization or approval of any governmental or other regulatory
authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Trust and
mailing or delivery of a copy as provided below, this contract
will constitute a valid and binding agreement of the undersigned
in accordance with its terms.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that the Trust will not accept Delayed
Delivery Contracts for an aggregate principal amount of
Securities in excess of $________ and that the acceptance of any
Delayed Delivery Contract is in the Trust's sole discretion and,
without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to the Trust,
it is requested that the Trust sign the form of acceptance on a
copy hereof and mail or deliver a signed copy hereof to the
undersigned at its address set forth below. This will become a
binding contract between the Trust and the undersigned when such
copy is so mailed or delivered.
This Agreement shall be governed by the laws of the State of
New York.
Yours very truly,
_____________________________
(Name of Purchaser)
By___________________________
(Title)
_____________________________
_____________________________
(Address)
Accepted as of the date first above written.
NEW PLAN REALTY TRUST
By___________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may
be discussed are as follows: (Please print.)
Telephone No.
(including
Name Area Code)
____ _____________
<PAGE>
<PAGE>
EXHIBIT (1.2)
B&W Draft
5/19/94
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
Common Shares, Preferred Shares,
Warrants to Purchase Common Shares and
Preferred Shares, and Depositary Shares
UNDERWRITING AGREEMENT
____________, 1994
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1326
Dear Sirs:
New Plan Realty Trust, a Massachusetts business trust (the
"Trust") proposes to issue and sell shares of beneficial interest
without par value (the "Common Shares"), preferred shares of
beneficial interest, par value $1.00 per share (the "Preferred
Shares"), and/or warrants to purchase a number of Common Shares
or Preferred Shares (the "Warrants"), from time to time, in one
or more offerings on terms to be determined at the time of sale.
The Preferred Shares may be offered in the form of depositary
shares (the "Depositary Shares") represented by depositary
receipts (the "Depositary Receipts"). The Warrants will be
issued pursuant to a Warrant Agreement (the "Warrant Agreement")
between the Trust and a warrant agent (the "Warrant Agent").
Each series of Preferred Shares may vary as to the specific
number of shares, title, stated value, liquidation preference,
issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, any redemption or sinking
fund requirements, any conversion provisions and any other
variable terms as set forth in the applicable resolutions (each,
the "Resolutions") relating to such Preferred Shares. As used
herein, "Securities" shall mean the Common Shares, the Preferred
Shares, the Warrants, the Depositary Shares and the Depositary
Receipts; and "Warrant Securities" shall mean the Common Shares
or Preferred Shares issuable upon exercise of Warrants. As used
herein, "you" and "your", unless the context otherwise requires,
shall mean the parties to whom this Agreement is addressed
together with the other parties, if any, identified in the
applicable Terms Agreement (as hereinafter defined) as additional
co-managers with respect to Underwritten Securities (as
hereinafter defined) purchased pursuant thereto.
Whenever the Trust determines to make an offering of
Securities through you or through an underwriting syndicate
managed by you, the Trust will enter into an agreement (the
"Terms Agreement") providing for the sale of such Securities (the
"Underwritten Securities") to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on
their behalf (the "Underwriters", which term shall include you
whether acting alone in the sale of the Underwritten Securities
or as a member of an underwriting syndicate and any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify
the number of Underwritten Securities of each class or series to
be initially issued, including the number of Warrants, if any
(the "Initial Underwritten Securities"), whether the Initial
Underwritten Securities shall be in the form of Depositary Shares
and the fractional amount of Preferred Shares represented by each
Depositary Share, the names of the Underwriters participating in
such offering (subject to substitution as provided in Section 10
hereof), the number of Initial Underwritten Securities which each
such Underwriter severally agrees to purchase, the names of such
of you or such other Underwriters acting as co-managers, if any,
in connection with such offering, the price at which the Initial
Underwritten Securities are to be purchased by the Underwriters
from the Trust, the initial public offering price, the time, date
and place of delivery and payment, any delayed delivery
arrangements and any other variable terms of the Initial
Underwritten Securities (including, but not limited to, current
ratings (in the case of Preferred Shares and Depositary Shares
only), designations, liquidation preferences, conversion
provisions, redemption provisions and sinking fund requirements
and the terms of the Warrant Securities and the terms, prices and
dates upon which such Warrant Securities may be purchased). In
addition, each Terms Agreement shall specify whether the Trust
has agreed to grant to the Underwriters an option to purchase
additional Underwritten Securities to cover over-allotments, if
any, and the number of Underwritten Securities subject to such
option (the "Option Securities"). As used herein, the term
"Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of the Option Securities agreed
to be purchased by the Underwriters as provided herein, if any.
The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any
standard form of written telecommunication between you and the
Trust. Each offering of Underwritten Securities through you or
through an underwriting syndicate managed by you will be governed
by this Agreement, as supplemented by the applicable Terms
Agreement.
The Trust has filed with the Securities and Exchange Com-
mission (the "Commission") a registration statement on Form S-3
(No. 33-53311) for the registration of the Securities (including
the Underwritten Securities) and Warrant Securities and certain
of the Trust's debt securities and warrants to purchase debt
securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), and
the Trust has filed such amendments thereto as may have been
required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission. Such
registration statement (as amended, if applicable), on the one
hand, and the prospectus constituting a part thereof and each
prospectus supplement relating to the offering of Underwritten
Securities provided to the Underwriters for use (whether or not
such prospectus supplement is required to be filed by the Trust
pursuant to Rule 424(b) of the 1933 Act Regulations) (the
"Prospectus Supplement"), on the other hand, including all
documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act") or otherwise,
are referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a Prospectus
Supplement shall be deemed to have supplemented the Prospectus
only with respect to the offering of Underwritten Securities to
which it relates. All references in this Agreement to financial
statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement
or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include,
without limitation, the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
Section 1. Representations and Warranties.
(a) The Trust represents and warrants to you, as of the
date hereof, and to you and each other Underwriter named in the
applicable Terms Agreement, as of the date thereof (such latter
date being referred to herein as a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective,
complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of
the 1933 Act and 1933 Act Regulations; the Registration
Statement, at the time the Registration Statement became
effective, did not, and as of the applicable Representation
Date, will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; the Prospectus, as of the date hereof does not,
and as of the applicable Representation Date and at Closing
Time (as hereinafter defined) will not, include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to that
part of the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished
to the Trust in writing by any Underwriter through you
expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were or
hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission
under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus,
at the time the Registration Statement became effective and
as of the applicable Representation Date or Closing Time or
during the period specified in Section 3(f), did not and
will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(iii) The accountants who certified the financial
statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement
and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements and supporting schedules
included in, or incorporated by reference into, the Regis-
tration Statement and the Prospectus present fairly in all
material respects the financial position of the Trust and
its consolidated subsidiaries as of the dates indicated and
the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules
included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material
respects the information required to be stated therein.
(v) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or
otherwise, or in the earnings, business or business
prospects of the Trust and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary
course of business, (B) there have been no transactions or
acquisitions entered into by the Trust or any of its
subsidiaries other than those arising in the ordinary course
of business, which are material with respect to the Trust
and its subsidiaries considered as one enterprise, and (C)
except for regular quarterly dividends on the Trust's
shares of beneficial interest, or dividends declared, paid
or made in accordance with the terms of any series of the
Trust's preferred shares of beneficial interest, there has
been no dividend or distribution of any kind declared, paid
or made by the Trust on any class of its shares of
beneficial interest or preferred shares of beneficial
interest.
(vi) The Trust has been duly established and is validly
existing as a voluntary association (commonly referred to as
a business trust) in good standing under the laws of the
Commonwealth of Massachusetts; the declaration of trust, as
amended (the "Declaration of Trust") pursuant to which the
Trust was established, confers upon the trustees therein
named, and their successors in trust, power and authority to
hold mortgages, to own and lease real property and to
conduct its business as described in the Prospectus; and the
Trust is duly qualified and in good standing in each
jurisdiction in which the ownership of its property or the
conduct of its business requires such qualification, except
where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or
the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise; and the
Resolutions relating to the Preferred Shares or Depositary
Shares, if applicable, will be in full force and effect as
of the applicable Representation Date.
(vii) Each subsidiary of the Trust has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to hold
mortgages, to own and lease property and to conduct its
business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so
qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
or business prospects of the Trust and its subsidiaries
considered as one enterprise; and all of the issued and
outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and non-
assessable and is owned by the Trust free and clear of any
security interest, mortgage, pledge, lien, encumbrance,
claim or equity[, except for security interests granted in
respect of indebtedness of the Trust or any of its
subsidiaries and referred to in the Prospectus].
(viii) The authorized, issued and outstanding common and
preferred shares of beneficial interest of the Trust are as
set forth in the Prospectus under "Capitalization" (except
for subsequent issuances, if any, pursuant to reservations,
agreements or the exercise of convertible securities
referred to in the Registration Statement including, without
limitation, exercise of share options, granting of share
options or issuance of shares pursuant to the dividend
reinvestment plan); and such shares of beneficial interest
and preferred shares of beneficial interest of the Trust
have been duly authorized and validly issued and are fully
paid and non-assessable and are not subject to preemptive or
other similar rights.
(ix) The Underwritten Securities (other than Warrants)
and, if applicable, the deposit of the Preferred Shares in
accordance with the provisions of a Deposit Agreement (each,
a "Deposit Agreement"), among the Trust, the financial
institution named in the Deposit Agreement (the
"Depositary") and the holders of the Depositary Receipts
issued thereunder, have been duly authorized by the Trust
for issuance and sale pursuant to this Agreement (and, if
applicable, the Deposit Agreement) and, when issued and
delivered pursuant to this Agreement (and, if applicable,
the Deposit Agreement) against payment of the consideration
therefor specified in the applicable Terms Agreement or any
Delayed Delivery Contract (as hereinafter defined), such
Underwritten Securities will be duly and validly issued,
fully paid and non-assessable; the Preferred Shares, if
applicable, conform to the provisions of the Resolutions;
such Underwritten Securities conform in all material
respects to all statements relating thereto contained in the
Prospectus; and the issuance of such Underwritten Securities
is not subject to preemptive or other similar rights.
(x) The Warrants have been duly authorized and, when
issued and delivered pursuant to this Agreement and
countersigned by the Warrant Agent as provided in the
Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute
valid and legally binding obligations of the Trust entitled
to the benefits provided by the Warrant Agreement under
which they are to be issued, except as enforcement of such
benefits may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights
generally and by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity
or at law); the issuance of the Warrant Securities upon
exercise of the Warrants will not be subject to preemptive
or other similar rights; and the Warrants conform in all
material respects to all statements relating thereto
contained in the Prospectus.
(xi) If applicable, the Common Shares issuable upon
conversion of any of the Preferred Shares or the Depositary
Shares, or the Warrant Securities, will have been duly and
validly authorized and reserved for issuance upon such
conversion or exercise by all necessary action and such
shares, when issued upon such conversion or exercise, will
be duly and validly issued, fully paid and non-assessable,
and the issuance of such shares upon such conversion or
exercise will not be subject to preemptive or other similar
rights; the Common Shares so issuable or the Warrant
Securities conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xii) The applicable Warrant Agreement, if any, and
the applicable Deposit Agreement, if any, will have been
duly authorized, executed and delivered by the Trust prior
to the issuance of any applicable Underwritten Securities,
and each constitutes a valid and legally binding agreement
of the Trust enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting
creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Warrant Agreement,
if any, and the Deposit Agreement, if any, each conforms in
all material respects to all statements relating thereto
contained in the Prospectus.
(xiii) If applicable, upon execution and delivery
thereof pursuant to the terms of the Deposit Agreement, the
persons in whose names the Depositary Receipts are
registered will be entitled to the rights specified therein
and in the Deposit Agreement, except as enforcement of such
rights may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights
generally and by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity
or at law).
(xiv) Neither the Trust nor any of its subsidiaries is
in violation of its Declaration of Trust or in default in
the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease (other than as
disclosed in the Prospectus) or other instrument to which
the Trust or any of its subsidiaries is a party or by which
it or any of them may be bound, or to which any of the
property or assets of the Trust or any of its subsidiaries
is subject and in which the violation or default might
result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries
considered as one enterprise; and the execution, delivery
and performance of this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any, or the
applicable Deposit Agreement, if any, and the consummation
of the transactions contemplated herein and therein and
compliance by the Trust with its obligations hereunder and
thereunder have been duly authorized by all necessary action
on the part of the Trust, and will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust or any of its
subsidiaries pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Trust or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any property or
assets of the Trust or any of its subsidiaries is subject,
except for any such default or violation that could not
reasonably result in a material adverse change in the
condition, financial or otherwise, or in the earnings,
business or business prospects of the Trust and its
subsidiaries considered as one enterprise nor will such
action result in any violation of the Declaration of Trust
of the Trust or any law, administrative regulation or
administrative or court decree except for any such default
or violation that could not reasonably result in a material
adverse change in the condition, financial or otherwise, or
in the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise.
(xv) The Trust is qualified as a "real estate
investment trust" under the Internal Revenue Code of 1986,
as amended (the "Code"), and will be so qualified for the
taxable year in which sales of the Underwritten Securities
are to occur.
(xvi) The Trust is not required to be registered under
the Investment Company Act of 1940, as amended (the "1940
Act").
(xvii) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Trust (for
purposes of this Agreement, such knowledge shall mean the
actual knowledge of a Trust officer, trustee or regional
manager), threatened against or affecting the Trust or any
of its subsidiaries which is required to be disclosed in the
Prospectus (other than as disclosed therein) or which might
result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries
considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which
might materially and adversely affect the consummation of
this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement, if any, or the applicable
Deposit Agreement, if any, or the transactions contemplated
herein and therein; all pending legal or governmental
proceedings to which the Trust or any of its subsidiaries is
a party or of which any of their respective property is the
subject which are not described in the Prospectus, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material; and there are no
contracts or documents of the Trust or any of its
subsidiaries which would be required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been filed as exhibits to the
Registration Statement.
(xviii) Neither the Trust nor any of its subsidiaries
is required to own or possess any trademarks, service marks,
trade names or copyrights in order to conduct the business
now operated by them.
(xix) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the consummation by the Trust of the transactions
contemplated by this Agreement, the applicable Terms
Agreement, any Warrant Agreement or any Deposit Agreement,
except such as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws.
(xx) The Trust and its subsidiaries possess adequate
certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or bodies
necessary to conduct the business now operated by them, and
neither the Trust nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially
and adversely affect the conduct of the business,
operations, financial condition or income of the Trust and
its subsidiaries considered as one enterprise.
(xxi) Each of the Trust and its subsidiaries has good
and indefeasible title in fee simple to all real property
and interests in real property owned by it in each case free
and clear of all liens, encumbrances and defects except such
as are described in the Registration Statement or such as do
not materially adversely affect the value of such property
or interests and do not materially interfere with the use
made and proposed to be made of such property or interests
by the Trust or such subsidiary, as the case may be; and,
except as otherwise described in the Prospectus, any real
property and buildings held under lease by the Trust or any
of its subsidiaries or leased by the Trust or any of its
subsidiaries to a third party are held or leased by the
Trust or its subsidiary, as the case may be, under valid,
binding and enforceable leases conforming to the description
thereof set forth in the Prospectus (to the extent described
therein), enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting the
enforcement of creditors' rights or by general equity
principles, with such exceptions as do not materially
interfere with the use made and proposed to be made of such
property and buildings by the Trust or its subsidiary, as
the case may be, or third party.
(xxii) The Trust has full right, power and authority
to enter into this Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, and this
Agreement has been, and as of the applicable Representation
Date, the applicable Terms Agreement and the Delayed
Delivery Contracts, if any, will have been, duly authorized,
executed and delivered by the Trust.
(xxiii) Neither the Trust nor any of its subsidiaries
has knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of
the properties owned by the Trust or any of its
subsidiaries, or of (b) any unlawful spills, releases,
discharges or disposal of Hazardous Materials that have
occurred or are presently occurring off such properties as a
result of any construction on or operation and use of such
properties which presence or occurrence would have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business or business prospects
of the Trust and its subsidiaries considered as one
enterprise; and in connection with the construction on or
operation and use of the properties owned by the Trust or
any of its subsidiaries, the Trust represents that it has no
knowledge of any material failure to comply with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous
Materials.
(b) Any certificate signed by any officer of the Trust and
delivered to you or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed
a representation and warranty by the Trust to each Underwriter
participating in such offering as to the matters covered thereby
on the date of such certificate and, unless subsequently amended
or supplemented, at the applicable Representation Date subsequent
thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Trust may grant, if so provided
in the applicable Terms Agreement relating to the Initial
Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up
to the number of Option Securities set forth therein at the same
price per Option Security as is applicable to the Initial
Underwritten Securities. Such option, if granted, will expire 30
days (or such lesser number of days as may be specified in the
applicable Terms Agreement) after the Representation Date
relating to the Initial Underwritten Securities, and may be
exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial
Underwritten Securities upon notice by you to the Trust setting
forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date
of payment and delivery for such Option Securities. Any such
time, date and place of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than seven full
business days nor earlier than two full business days after the
exercise of said option, nor in any event prior to Closing Time,
unless otherwise agreed upon by you and the Trust. If the option
is exercised as to all or any portion of the Option Securities,
each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase
as set forth in the applicable Terms Agreement bears to the total
number of Initial Underwritten Securities (except as otherwise
provided in the applicable Terms Agreement), subject to such
adjustments as you in your discretion shall make to eliminate any
sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall
be made at the office of Brown & Wood, 58th Floor, One World
Trade Center, New York, New York 10048-0557, or at such other
place as shall be agreed upon by you and the Trust, at 10:00
A.M., New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section 10 herein)
following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Trust (each
such time and date of payment and delivery being referred to
herein as the "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of
certificates representing, such Option Securities, shall be made
at the above-mentioned offices of Brown & Wood, or at such other
place as shall be agreed upon by you and the Trust on each Date
of Delivery as specified in the notice from you to the Trust.
Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Trust by certified or official bank
check or checks in Federal or similar same-day funds payable to
the order of the Trust against delivery to you for the respective
accounts of the Underwriters of the certificates for the
Underwritten Securities to be purchased by them. The
Underwritten Securities shall be in such authorized denominations
and registered in such names as you may request in writing at
least two business days prior to the Closing Time or Date of
Delivery, as the case may be. The Underwritten Securities, which
may be in temporary form, will be made available for examination
and packaging by you on or before the first business day prior to
the Closing Time or the Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase
Underwritten Securities from the Trust pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially
in the form of Exhibit B hereto with such changes therein as the
Trust may approve. As compensation for arranging Delayed
Delivery Contracts, the Trust will pay to you at Closing Time,
for the respective accounts of the Underwriters, a fee specified
in the applicable Terms Agreement for each of the Underwritten
Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement.
Any Delayed Delivery Contracts are to be with institutional
investors of the types described in the Prospectus. At the
Closing Time, the Trust will enter into Delayed Delivery
Contracts (for not less than the minimum number of Underwritten
Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Trust as provided
below, but not for an aggregate number of Underwritten Securities
in excess of that specified in the applicable Terms Agreement.
The Underwriters will not have any responsibility for the
validity or performance of Delayed Delivery Contracts.
You shall submit to the Trust, at least three business days
prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Trust will enter
into Delayed Delivery Contracts and the number of Underwritten
Securities to be purchased by each of them, and the Trust will
advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Trust and the number of
Underwritten Securities to be covered by each such Delayed
Delivery Contract.
The number of Underwritten Securities agreed to be purchased
by the several Underwriters pursuant to the applicable Terms
Agreement shall be reduced by the number of Underwritten
Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by you to
the Trust; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall
be the total number of Underwritten Securities covered by the
applicable Terms Agreement, less the number of Underwritten
Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Trust. The Trust covenants
with you, and with each Underwriter participating in the offering
of Underwritten Securities, as follows:
(a) Immediately following the execution of the applicable
Terms Agreement, the Trust will prepare a Prospectus Supplement
setting forth the number of Underwritten Securities covered
thereby and their terms not otherwise specified in the Prospectus
pursuant to which the Underwritten Securities are being issued,
the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has
agreed to purchase, the names of the Underwriters acting as co-
managers in connection with the offering, the price at which the
Underwritten Securities are to be purchased by the Underwriters
from the Trust, the initial public offering price, if any, the
selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Trust
deem appropriate in connection with the offering of the
Underwritten Securities; and the Trust will promptly transmit
copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will
furnish to the Underwriters named therein as many copies of the
Prospectus (including such Prospectus Supplement) as you shall
reasonably request.
(b) The Trust will notify you immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to
the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus Supplement or other
supplement or amendment to the Prospectus to be filed pursuant to
the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; and the Trust will make every
reasonable effort to prevent the issuance of any such stop order
and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, the Trust will give you
notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, and will furnish you with copies of any such amendment
or supplement a reasonable amount of time prior to such proposed
filing and, unless required by law, will not file or use any such
amendment or supplement or other documents in a form to which you
or counsel for the Underwriters shall reasonably object.
(d) The Trust will deliver to each Underwriter a signed
copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith and
documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act) as you reasonably request and
will also deliver to each Underwriter a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (including documents incorporated by reference but
without exhibits).
(e) The Trust will furnish to each Underwriter, from time
to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations.
(f) If at any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities any event shall occur or
condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for the Trust,
to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations,
then the Trust will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents
pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make
the Registration Statement and Prospectus comply with such
requirements.
(g) The Trust will endeavor, in cooperation with the Under-
writers, to qualify the Underwritten Securities, the Warrant
Securities, if any, and the Common Shares issuable upon
conversion of the Preferred Shares or the Depositary Shares, if
any, for offering and sale under the applicable securities laws
and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate; and in
each jurisdiction in which the Underwritten Securities, the
Warrant Securities, if any, and the Common Shares issuable upon
conversion of the Preferred Shares or the Depositary Shares, if
any, have been so qualified, the Trust will file such statements
and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for so long as may be
required for the distribution of the Underwritten Securities, the
Warrant Securities, if any, the Common Shares issuable upon
conversion of the Preferred Shares or the Depositary Shares, if
any; provided, however, that the Trust shall not be obligated to
qualify as a foreign corporation in any jurisdiction where it is
not so qualified.
(h) With respect to each sale of Underwritten Securities,
the Trust will make generally available to its security holders
as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later
than the first day of the Trust's fiscal quarter next following
the "effective date" (as defined in such Rule 158) of the Regis-
tration Statement.
(i) The Trust will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust"
under the Code for the taxable year in which sales of the
Underwritten Securities are to occur.
(j) The Trust, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Trust will not, between the date of the applicable
Terms Agreement and the termination of any trading restrictions
or the Closing Time, whichever is later, with respect to the
Underwritten Securities covered thereby, without your prior
written consent, offer or sell, grant any option for the sale of,
or enter into any agreement to sell, any securities of the same
class or series or ranking on a parity with such Underwritten
Securities (other than the Underwritten Securities which are to
be sold pursuant to such Terms Agreement), or if such Terms
Agreement relates to Preferred Shares or Depositary Shares that
are convertible into Common Shares, any Common Shares or any
security convertible into Common Shares (except for Common Shares
issued pursuant to reservations, agreements, employee benefit
plans, dividend reinvestment plans, or employee and trustee stock
option plans), except as may otherwise be provided in the
applicable Terms Agreement.
(l) If the Preferred Shares or Depositary Shares are
convertible into Common Shares or if Warrants are issued, the
Trust will reserve and keep available at all times, free of
preemptive rights or other similar rights, a sufficient number of
Common Shares or Preferred Shares, as the case may be, for the
purpose of enabling the Trust to satisfy any obligations to issue
such shares upon conversion of the Preferred Shares or the
Depositary Shares, as the case may be, or upon exercise of the
Warrants.
(m) If the Preferred Shares or Depositary Shares are
convertible into Common Shares, the Trust will use its best
efforts to list the Common Shares issuable upon conversion of the
Preferred Shares or Depositary Shares on the New York Stock
Exchange or such other national exchange on which the Trust's
Common Shares are then listed.
(n) The Trust has complied and will comply with all of the
provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the
Florida Securities and Investors Act, and all regulations
thereunder relating to issuers doing business with Cuba.
Section 4. Payment of Expenses. The Trust will pay all
expenses incident to the performance of its obligations under
this Agreement or the applicable Terms Agreement, including (i)
the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the cost of
printing, filing and distributing to the Underwriters copies of
this Agreement and the applicable Terms Agreement, (iii) the
preparation, issuance and delivery of the Underwritten Securities
to the Underwriters and the Warrant Securities, if any, (iv) the
fees and disbursements of the Trust's counsel and accountants,
(v) the qualification of the Underwritten Securities, the Warrant
Securities, if any, and the Common Shares issuable upon
conversion of the Preferred Shares or the Depositary Shares, if
any, under securities laws and real estate syndication laws in
accordance with the provisions of Section 3(g), including filing
fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, and
of the Prospectus and any amendments or supplements thereto,
(vii) the cost of reproducing and distributing to the
Underwriters copies of the applicable Deposit Agreement, if any,
and the applicable Warrant Agreement, if any, (viii) the cost of
reproducing and delivering to the Underwriters copies of the Blue
Sky Survey, (ix) any fees charged by nationally recognized
statistical rating organizations for the rating of the
Securities, (x) the fees and expenses, if any, incurred with
respect to the listing of the Underwritten Securities, the
Warrant Securities, if any, or the Common Shares issuable upon
conversion of the Preferred Shares or the Depositary Shares, if
any, on any national securities exchange, and (xi) the fees and
expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is cancelled or terminated
by you in accordance with the provisions of Section 5 or Section
9(b)(1), the Trust shall reimburse the Underwriters named in such
Terms Agreement for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for
the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase Underwritten
Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the
Trust herein contained, to the accuracy of the statements of the
Trust's officers made in any certificate pursuant to the
provisions hereof, to the performance by the Trust of all of its
covenants and other obligations hereunder, and to the following
further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission and (ii) if Preferred Shares or
Depositary Shares are being offered, the rating assigned by any
nationally recognized statistical rating organization to any
preferred shares of beneficial interest of the Trust as of the
date of the applicable Terms Agreement shall not have been
lowered since such date nor shall any such rating organization
have publicly announced that it has placed any preferred shares
of beneficial interest of the Trust on what is commonly termed a
"watch list" for possible downgrading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time,
of Robinson Silverman Pearce Aronsohn & Berman, counsel for
the Trust, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) The Trust has been duly established and is
validly existing and in good standing as an
unincorporated association commonly referred to as a
business trust under the laws of the Commonwealth of
Massachusetts.
(ii) The Trust has power and authority to conduct
its business as described in the Registration Statement
and possesses all licenses, permits, authorizations,
consents and orders required for the contemplated
method of operation of its business as described in the
Registration Statement, the absence of which would
materially adversely affect the business of the Trust.
(iii) The Trust is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the ownership of
its properties or the conduct of its business requires
such qualification, unless failure to so qualify would
not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business or
business prospects of the Trust and its subsidiaries
considered as one enterprise.
(iv) Each significant subsidiary of the Trust (as
such term is defined in Rule 405 under the 1933 Act)
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power
and authority to hold mortgages, to own and lease
property and to conduct its business as described in
the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, except where the failure to
so qualify would not have a material adverse effect on
the condition, financial or otherwise, or the earnings,
business or business prospects of the Trust and its
subsidiaries considered as one enterprise; all of the
issued and outstanding capital stock of each such
significant subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable and
is owned by the Trust free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(v) The authorized, issued and outstanding
shares of beneficial interest and preferred shares of
beneficial interest of the Trust are as set forth in
the Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations,
agreements or the exercise of convertible securities
referred to in the Registration Statement including,
without limitation, exercise of share options, granting
of share options or issuance of shares pursuant to the
dividend reinvestment plan) and such shares of
beneficial interest are duly authorized, validly
issued, fully paid and non-assessable and are not
subject to preemptive or other similar rights arising
by operation of law or, to the best of such counsel's
knowledge, otherwise.
(vi) The Underwritten Securities and, if
applicable, the deposit of the Preferred Shares in
accordance with the provisions of a Deposit Agreement,
have been duly and validly authorized by all necessary
action and, when issued and delivered pursuant to this
Agreement against payment of the consideration therefor
specified in the applicable Terms Agreement or the
Delayed Delivery Contracts, the Underwritten Securities
will be validly issued, fully paid and non-assessable;
and the Preferred Shares, if applicable, conform to the
provisions of the Resolutions.
(vii) The Warrants, if applicable, have been duly
authorized and, when issued and delivered pursuant to
this Agreement and countersigned by the Warrant Agent
as provided in the Warrant Agreement, will have been
duly executed, countersigned, issued and delivered and
will constitute valid and legally binding obligations
of the Trust entitled to the benefits provided by the
Warrant Agreement under which they are to be issued,
except as enforcement of such benefits may be limited
by bankruptcy, insolvency or other similar laws
relating to or affecting creditors' rights generally
and by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or
at law).
(viii) If applicable, the Common Shares issuable
upon conversion of any of the Preferred Shares or
Depositary Shares, or the Warrant Securities, have been
duly and validly authorized and reserved for issuance
upon such conversion or exercise by all necessary
action and such shares, when issued upon such
conversion or exercise, will be duly and validly issued
and will be fully paid and non-assessable, and the
issuance of such shares upon such conversion or
exercise will not be subject to preemptive or other
similar rights arising by operation of law or, to the
best of such counsel's knowledge, otherwise.
(ix) The applicable Warrant Agreement, if any, and
the applicable Deposit Agreement, if any, have been
duly authorized, executed and delivered by the Trust,
and (assuming due authorization, execution and delivery
by the Warrant Agent in the case of the Warrant
Agreement, and the Depositary, in the case of the
Deposit Agreement) each constitutes a valid and legally
binding agreement of the Trust enforceable in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or
other similar laws relating to or affecting creditors'
rights generally and by general equity principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Warrant
Agreement, if any, and the Deposit Agreement, if any,
each conforms in all material respects to all
statements relating thereto contained in the
Prospectus.
(x) If applicable, upon execution and delivery
thereof pursuant to the terms of the Deposit Agreement,
the persons in whose names the Depositary Receipts are
registered will be entitled to the rights specified
therein and in the Deposit Agreement, except as
enforcement of such rights may be limited by
bankruptcy, insolvency or other similar laws relating
to or affecting creditors' rights generally and by
general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or
at law).
(xi) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any,
has been duly authorized, executed and delivered by the
Trust.
(xii) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xiii) The Registration Statement and the
Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or
issue dates, comply as to form in all material respects
with the requirements for registration statements on
Form S-3 under the 1933 Act and the 1933 Act
Regulations; it being understood, however, that no
opinion need be rendered with respect to the financial
statements, schedules and other financial and
statistical data included or incorporated by reference
in the Registration Statement or the Prospectus.
(xiv) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and
other financial and statistical data included therein,
as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed (or as when
amended prior to the Representation Date) as to form in
all material respects with the 1934 Act and the 1934
Act Regulations.
(xv) If applicable, the relative rights,
preferences, interests and powers of the Preferred
Shares or Depositary Shares, as the case may be, are as
set forth in the Resolutions relating thereto, and all
such provisions are valid under applicable
Massachusetts Law; and, as applicable, the form of
certificate used to evidence the Preferred Shares being
represented by the Depositary Shares and form of
certificate used to evidence the related Depositary
Receipts are in due and proper form under applicable
Massachusetts Law and comply in all material respects
with all applicable statutory requirements.
(xvi) The Underwritten Securities, the Warrant
Securities, and the Common Shares issuable upon
conversion of the Preferred Shares or Depositary
Shares, if applicable, conform in all material respects
to the statements relating thereto contained in the
Prospectus.
(xvii) To the best of their knowledge and informa-
tion, there are no legal or governmental proceedings
pending or threatened which are required to be
disclosed in the Prospectus, other than those disclosed
therein, and all pending legal or governmental
proceedings to which the Trust or any of its
subsidiaries is a party or of which any of the property
of the Trust or its subsidiaries is the subject which
are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are,
considered in the aggregate, not material to the
business of the Trust and its subsidiaries considered
as one enterprise.
(xviii) To the best of their knowledge and informa-
tion, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments
required to be described or referred to in the
Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement other than
those described or referred to therein or filed as
exhibits thereto, the descriptions thereof or
references thereto are correct, and, to the best of
their knowledge and information, no default exists in
the due performance or observance of any obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to or
filed which would have a material adverse effect on the
condition, financial or otherwise, or in the earnings,
business or business prospects of the Trust and its
subsidiaries considered as one enterprise.
(xix) No authorization, approval or consent of any
court or governmental authority or agency is required
that has not been obtained in connection with the
consummation by the Trust of the transactions
contemplated by this Agreement, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or
the applicable Warrant Agreement, if any, except such
as may be required under the 1933 Act, the 1934 Act and
state securities laws or real estate syndication laws;
and to the best of their knowledge and information, the
execution and delivery of this Agreement, the
applicable Terms Agreement, the applicable Deposit
Agreement, if any, or the applicable Warrant Agreement,
if any, and the consummation of the transactions
contemplated herein and therein and compliance by the
Trust with its obligations hereunder and thereunder
will not conflict with or constitute a breach of, or
default under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or
assets of the Trust or any of its subsidiaries pursuant
to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Trust or
any of its subsidiaries is a party or by which they may
be bound or to which any of the property or assets of
the Trust or any of its subsidiaries is subject, nor
will such action result in violation of the provisions
of the Declaration of Trust or any law, administrative
regulation or court decree.
(xx) The Trust is not required to be registered
under the 1940 Act.
(3) The favorable opinion dated as of Closing Time, of
Altheimer & Gray, tax counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The information in the Prospectus under
"Certain Federal Income Tax Considerations to the Trust
of its REIT Election," to the extent that it
constitutes matters of law or legal conclusions, has
been reviewed by them and is correct.
(ii) The Trust has all legal rights, powers and
authority necessary to qualify and has qualified as a
"real estate investment trust" under Sections 856
through 860 of the Internal Revenue Code of 1986, as
amended.
(4) The favorable opinion, dated as of the Closing
Time, of Brown & Wood, counsel for the Underwriters, with
respect to the matters set forth in (i), (vi) to (xiii),
inclusive, and (xvi) of subsection (b)(1) of this Section.
(5) In giving their opinions required by subsections
(b)(1) and (b)(4), respectively, of this Section, Robinson
Silverman Pearce Aronsohn & Berman and Brown & Wood shall
each additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement or any amendment thereto (excluding
the financial statements and financial schedules included or
incorporated by reference therein, as to which such counsel
need express no belief), at the time it became effective or
at the time an Annual Report on Form 10-K was filed by the
Trust with the Commission (whichever is later), or at the
Representation Date, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any
amendment or supplement thereto (excluding the financial
statements and financial schedules included or incorporated
by reference therein, as to which such counsel need express
no belief), at the Representation Date or at Closing Time,
included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving their opinions, Robinson Silverman Pearce
Aronsohn & Berman, Altheimer & Gray and Brown & Wood may
rely, or assume the accuracy of, (1) as to matters involving
the laws of the Commonwealth of Massachusetts upon the
opinion of Fordham & Starrett (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and
substance satisfactory to counsel for the Underwriters, (2)
as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for
the Trust and (3) as to the qualification and good standing
of the Trust or any of its subsidiaries to do business in
any state or jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such
jurisdictions.
(c) At Closing Time, there shall not have been, since the
date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business; and you shall have
received a certificate of the Chief Executive Officer, the
President or the chief financial or chief accounting officer of
the Trust, dated as of such Closing Time, to the effect that (i)
there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct
with the same force and effect as though such Closing Time were a
Representation Date. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first used to
confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms
Agreement, you shall have received from Coopers & Lybrand a
letter dated such date, in form and substance satisfactory to
you, to the effect that (i) they are independent accountants with
respect to the Trust and its subsidiaries within the meaning of
the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the consolidated financial statements and supporting
schedules of the Trust included or incorporated by reference in
the Registration Statement and the Prospectus and covered by
their opinions therein comply in form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the
latest available unaudited interim consolidated financial
statements of the Trust, a reading of the minute books of the
Trust, inquiries of certain officials of the Trust who have
responsibility for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, and on the basis of such limited review and procedures
nothing came to their attention that caused them to believe that
(A) the unaudited financial statements and financial statement
schedules of the Trust included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, (B)
the unaudited operating data and balance sheet data of the Trust
in the Registration Statement and the Prospectus under the
caption "Selected Consolidated Financial Data" were not
determined on a basis substantially consistent with that used in
determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus, (C) at a specified
date not more than five days prior to the date of the applicable
Terms Agreement, there has been any change in the capital stock
of the Trust or in the consolidated long term debt of the Trust
or any decrease in the net assets of the Trust, as compared with
the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration
Statement and the Prospectus or, during the period from the date
of the most recent consolidated statement of operations included
or incorporated by reference in the Registration Statement and
the Prospectus to a specified date not more than five days prior
to the date of the applicable Terms Agreement, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, or decrease in net
income or net income per share of the Trust, except in all
instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred
or may occur; and (iv) in addition to the audit referred to in
their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and the
Prospectus and which are specified by you, and have found such
amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Trust and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Coopers &
Lybrand a letter dated as of such Closing Time to the effect that
they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the
"specified date" referred to shall be a date not more than five
days prior to such Closing Time.
(f) At the time of execution of the applicable Terms
Agreement, you shall have received from Eichler, Bergsman,
Belonsky & Co. a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that (i) they are
independent public accountants as required by the 1933 Act and
the applicable published rules and regulations thereunder with
respect to the Trust and its subsidiaries and certain properties
acquired by the Trust; and (ii) it is their opinion that the
financial statements and supporting schedules of the properties
acquired by the Trust included in the Trust's Form 8-K
incorporated by reference in the Registration Statement and
covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1934 Act and the related published rules and
regulations thereunder.
(g) At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Underwritten Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Trust in connection with the issuance
and sale of the Underwritten Securities as herein contemplated
shall be satisfactory in form and substance to you and counsel
for the Underwriters.
(h) In the event the Underwriters exercise their option
provided in a Terms Agreement as set forth in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the
representations and warranties of the Trust contained herein and
the statements in any certificates furnished by the Trust
hereunder shall be true and correct as of each Date of Delivery,
and you shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chief Executive Officer or the President of the Trust, in
their capacities as such, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Robinson Silverman Pearce
Aronsohn & Berman, counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as
the opinion required by Section 5(b)(1) hereof.
(3) The favorable opinion of Altheimer & Gray, tax
counsel for the Trust, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by
Section 5(b)(2) hereof.
(4) The favorable opinion of Brown & Wood, counsel for
the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b)(3) hereof.
(5) A letter from Coopers & Lybrand, in form and
substance satisfactory to you and dated such Date of
Delivery, substantially the same in scope and substance as
the letter furnished to you pursuant to Section 5(d) hereof,
except that the "specified date" in the letter furnished
pursuant to this Section 5(h)(5) shall be a date not more
than five days prior to such Date of Delivery.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement may be terminated by you by notice to
the Trust at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Trust agrees to
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any un-
true statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission, or alleged omission therefrom, of
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission referred to
in subsection (1) above, or any such alleged untrue
statement or omission, if such settlement is effected with
the written consent of the Trust; and
(3) against any and all expense whatsoever (including,
the fees and disbursements of counsel chosen by you)
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings
by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Trust by any
Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Trust, its trustees, each of its officers who signed
the Registration Statement and each person, if any, who controls
the Trust within the meaning of Section 15 of the 1933 Act,
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this
Section, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Trust by such Underwriter
through you expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability which it
may have otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Trust and the Underwriters with
respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity
agreement incurred by the Trust and one or more of the
Underwriters in respect of such offering, as incurred, in such
proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount appearing on the cover page of the applicable Prospectus
Supplement in respect of such offering bears to the initial
public offering price appearing thereon and the Trust is respon-
sible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten
Securities purchased by it pursuant to the applicable Terms
Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this
Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each trustee
of the Trust, each officer of the Trust who signed the
Registration Statement, and each person, if any, who controls the
Trust within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Trust.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement or the applicable Terms Agreement, or
contained in certificates of officers of the Trust submitted
pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or
investigation made by or on behalf of any Underwriter or any
controlling person, or by or on behalf of the Trust and shall
survive delivery of and payment for the Underwritten Securities
until the expiration of any statute of limitations applicable to
any legal or regulatory action.
Section 9. Termination of Agreement. (a) This Agreement
(excluding the applicable Terms Agreement) may be terminated for
any reason at any time by the Trust or by you upon the giving of
30 days' written notice of such termination to the other party
hereto; provided that this Agreement may not be terminated prior
to the Closing Time set forth in any applicable Terms Agreement.
(b) You may also terminate the applicable Terms Agreement,
by notice to the Trust, at any time at or prior to the Closing
Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
or business prospects of the Trust and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United
States or any outbreak of hostilities or other calamity or crisis
or escalation of any existing hostilities, the effect of which is
such as to make it, in your judgment, impracticable to market the
Underwritten Securities or enforce contracts for the sale of the
Underwritten Securities, or (iii) if trading in any of the
securities of the Trust has been suspended by the Commission or
the New York Stock Exchange, or if trading generally on either
the New York Stock Exchange or the American Stock Exchange has
been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or
Massachusetts authorities, or (iv) if Preferred Shares or
Depositary Shares are being offered and the rating assigned by
any nationally recognized statistical rating organization to any
preferred shares of beneficial interest of the Trust as of the
date of the applicable Terms Agreement shall have been lowered
since such date or if any such rating organization shall have
publicly announced that it has placed any preferred shares of
beneficial interest of the Trust on what is commonly termed a
"watch list" for possible downgrading. As used in this Section
9(b), the term "Prospectus" means the Prospectus in the form
first used to confirm sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of
Underwritten Securities shall remain in effect so long as any
Underwriter owns any such Underwritten Securities purchased from
the Trust pursuant to the applicable Terms Agreement and (y) the
covenant set forth in Section 3(h) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections
8, 13 and 14 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time to
purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then you shall have the right, within 48
hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities
in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, you shall not have completed such
arrangements within such 48-hour period, then:
(a) if the total number of Defaulted Securities does not
exceed 10% of the total number of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10%
of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement
shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default
under this Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the
Trust shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
c/o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Merrill Lynch World Headquarters, North Tower,
World Financial Center, New York, New York 10281-1326, attention
of Tjarda V.S. Clagett, Director; and notices to the Trust shall
be directed to it at 1120 Avenue of the Americas, New York, New
York 10036, attention of William Newman, Chairman.
Section 12. Parties. This Agreement and the applicable
Terms Agreement shall inure to the benefit of and be binding upon
you and the Trust and any Underwriter who becomes a party to such
Terms Agreement, and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable Terms
Agreement is intended or shall be construed to give any person,
firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or such Terms Agreement or any provision herein or
therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors and
said controlling persons and officers and trustees and their
heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified
times of day refer to New York City time.
Section 14. No Liability of Shareholders, Trustees or
Officers. This Agreement, the applicable Terms Agreement and all
documents, agreements, understandings and arrangements relating
to this transaction have been executed by the undersigned in
his/her capacity as an officer or trustee of the Trust which has
been formed as a Massachusetts business trust pursuant to a
Declaration of Trust of New Plan Realty Trust dated as of July
31, 1972, as amended, and not individually, and neither the
trustees, officers or shareholders of the Trust shall be bound or
have any person liability hereunder or thereunder. Each party
hereto shall look solely to the assets of the Trust for
satisfaction of any liability of the Trust in respect of this
Agreement, the applicable Terms Agreement and all documents,
agreements, understandings and arrangements relating to this
transaction and will not seek recourse or commence any action
against any of the trustees, officers or shareholders of the
Trust or any of their personal assets for the performance or
payment of any obligation hereunder or thereunder. The foregoing
shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties
hereto.
Section 15. Counterparts. This Agreement and the
applicable Terms Agreement may be executed in one or more
counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart
hereof, whereupon this instrument along with all counterparts
will become a binding agreement between you and the Trust in
accordance with its terms.
Very truly yours,
NEW PLAN REALTY TRUST
By: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: __________________________
<PAGE>
<PAGE>
Exhibit A
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
TERMS AGREEMENT
Dated: , 1994
To: New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
We (the "Representative") understand that New Plan Realty
Trust, a Massachusetts business trust (the "Trust"), proposes to
issue and sell the number of its [shares of beneficial interest
(the "Common Shares")] [preferred shares of beneficial interest
(the "Preferred Shares")] [ Warrants (the "Warrants")
to purchase Shares (the "Warrant Securities")]
[interests in Preferred Shares in the form of
depositary shares (the "Depositary Shares") represented by
depositary receipts (the "Depositary Receipts")] (such [Common
Shares] [Preferred Shares] [Warrants] [Depositary Shares and
Depositary Receipts] being collectively hereinafter [also]
referred to as the "Underwritten Securities"). Subject to the
terms and conditions set forth or incorporated by reference
herein, the underwriters named below (the "Underwriters") offer
to purchase, severally and not jointly, the respective numbers of
[Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below)] [, including the respective numbers
of Warrants, if applicable,] set forth below opposite their
respective names, and a proportionate share of Option Securities
(as defined in the Underwriting Agreement referred to below) to
the extent any are purchased, at the purchase price set forth
below.
Number of Shares
of Initial Number of
Underwriter Underwritten Securities Warrants
___________ _______________________ ________
__________ __________
Total $ $
========== ===========
The Underwritten Securities shall have the following terms:
[Common Shares] [Preferred Shares] [Depositary Shares]
Title of Securities:
Number of Shares:
[If applicable, fractional amount of Preferred Shares represented
by each Depositary Share:]
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated
dividends, if any, from , 19 .]
Purchase price per share: $ [, plus accumulated
dividends, if any, from , 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of Option Securities, if any, that may be purchased by the
Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee:]
Additional co-managers, if any:
Other terms:
Closing time, date and location:
Warrants
Number of Warrants to be issued:
Warrant Agent:
Issuable jointly with _______ Shares: [Yes] [No]
[Number of Warrants issued
with each ______ Share:]
[Detachable data:]
Date from which Warrants are exercisable:
Date on which Warrants expire:
Exercise price(s) of Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
All the provisions contained in the document attached as
Annex A hereto entitled "New Plan Realty Trust-Common Shares,
Preferred Shares, Warrants to Purchase Common Shares and
Preferred Shares, and Depositary Shares-Underwriting Agreement"
are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein
defined.
Please accept this offer no later than o'clock P.M. (New
York City time) on by signing a copy of this Terms
Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_________________________
Acting on behalf of itself and
the other named Underwriters.
Accepted:
NEW PLAN REALTY TRUST
By:_________________________
Name:
Title:
<PAGE>
Exhibit B
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_____________, 19__
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
The undersigned hereby agrees to purchase from New Plan
Realty Trust (the "Trust"), and the Trust agrees to sell to the
undersigned on __________, 19__ (the "Delivery Date"),
of the Trust's [insert title of security] (the "Securities"),
offered by the Trust's Prospectus dated __________, 19__, as
supplemented by its Prospectus Supplement dated ___________,
19__, receipt of which is hereby acknowledged, at a purchase
price of [$__________] [and, $__________ per Warrant,
respectively], on the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed
to purchase on the Delivery Date shall be made to the Trust or
its order by certified or official bank check in Federal or
similar same-day funds at the office of
, on the Delivery Date, upon delivery
to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Trust not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date shall be subject
only to the conditions that (1) the purchase of Securities to be
made by the undersigned shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Trust, on or before
__________, 19__, shall have sold to the Underwriters of the
Securities (the "Underwriters") such principal amount of the
Securities as is to be sold to them pursuant to the Terms
Agreement dated __________, 19__ between the Trust and the
Underwriters. The obligation of the undersigned to take delivery
of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments
for Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters,
the Trust will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Trust delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the Trust that all necessary action for the due
execution and delivery of this contract and the payment for and
purchase of the Securities has been taken by it and no further
authorization or approval of any governmental or other regulatory
authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Trust and
mailing or delivery of a copy as provided below, this contract
will constitute a valid and binding agreement of the undersigned
in accordance with its terms.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that the Trust will not accept Delayed
Delivery Contracts for a number of Securities in excess of
________ and that the acceptance of any Delayed Delivery Contract
is in the Trust's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the Trust, it is requested that
the Trust sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address
set forth below. This will become a binding contract between the
Trust and the undersigned when such copy is so mailed or
delivered.
This Agreement shall be governed by the laws of the State of
New York.
Yours very truly,
_____________________________
(Name of Purchaser)
By___________________________
(Title)
_____________________________
_____________________________
(Address)
Accepted as of the date first above written.
NEW PLAN REALTY TRUST
By___________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may
be discussed are as follows: (Please print.)
Telephone No.
(including
Name Area Code)
____ _____________
<PAGE>
<PAGE>
EXHIBIT (5)
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
1290 Avenue of the Americas
New York, New York 10104
May 20, 1994
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Re: $250,000,000 Aggregate Offering Price of
Securities of New Plan Realty Trust
________________________________________
Ladies and Gentlemen:
We are acting as counsel for New Plan Realty Trust
(the "Trust") in connection with the registration statement on
Form S-3 (the "Registration Statement") filed by the Trust with
the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to the offering from time to time,
as set forth in the prospectus contained in the Registration
Statement (the "Prospectus") and as to be set forth in one or
more supplements to the Prospectus (each a "Prospectus
Supplement"), by the Trust of up to $250,000,000 aggregate
offering price of one or more series of (i) unsecured debt
securities, which may be either senior debt securities (the
"Senior Securities") or subordinated debt securities (the
"Subordinated Securities," and together with the Senior
Securities, the "Debt Securities"), (ii) preferred shares of
beneficial interest, par value $1.00 per share (the "Preferred
Shares"), (iii) Preferred Shares represented by depositary
shares (the "Depositary Shares"), (iv) shares of beneficial
interest without par value (the "Common Shares"), or (v)
warrants to purchase Debt Securities, Preferred Shares or Common
Shares (the "Warrants"). The Debt Securities, Preferred Shares,
Depositary Shares, Common Shares and Warrants are collectively
referred to herein as the "Securities." Any Debt Securities may
be convertible into Preferred Shares or Common Shares and any
Preferred Shares may be convertible into Common Shares.
The Senior Securities are to be issued under an
Indenture, as amended or supplemented from time to time (the
"Senior Securities Indenture"), between the Trust and a trustee
to be selected by the Trust (the "Senior Securities Trustee")
and the Subordinated Securities are to be issued under an
Indenture, as amended or supplemented from time to time (the
"Subordinated Securities Indenture"), between the Trust and a
trustee to be selected by the Trust (the "Subordinated
Securities Trustee"). The Depositary Shares are to be issued
under one or more Deposit Agreements (each, a "Deposit
Agreement"), each to be between the Trust and a financial
institution identified therein as the depositary (each, a
"Depositary"). The Warrants are to be issued under one or more
Warrant Agreements (each, a "Warrant Agreement"), each to be
between the Trust and a financial institution identified therein
as warrant agent (each, a "Warrant Agent").
In our capacity as your counsel in connection with
such registration, we are familiar with the proceedings taken
and proposed to be taken by the Trust in connection with the
authorization and issuance of the Securities and for the
purposes of this opinion, have assumed such proceedings will be
timely completed. In addition, we have made such legal and
factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and
instruments, as we have deemed necessary or appropriate for
purposes of this opinion.
In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to
us as originals, and the conformity to authentic original
documents of all documents submitted to us as copies. With your
knowledge and permission, with respect to matters of
Massachusetts law and as to the matters set forth therein, we
have relied on the opinion of Fordham & Starrett, Massachusetts
counsel to the Trust, a copy of which is attached hereto and
made a part hereof.
We have been furnished with, and with your consent
have relied upon, certificates of officers of the Trust with
respect to certain factual matters. In addition, we have
obtained and relied upon such certificates and assurances from
public officials as we have deemed necessary.
We are members of the Bar of the State of New York and
we express no opinion herein concerning any law other than the
laws of the State of New York and the laws of the United States
of America.
Subject to the foregoing and the other matters set
forth herein, it is our opinion that, as of the date hereof:
1. The Senior Securities Indenture has been duly
authorized, and when duly executed and delivered by the
Trust will constitute the legally valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms.
2. The Senior Securities have been duly authorized
and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when the Senior Securities have been duly established
pursuant to the Senior Securities Indenture, duly
authenticated by the Senior Securities Trustee and duly
executed and delivered on behalf of the Trust against
payment therefor in accordance with the terms and
provisions of the Senior Securities Indenture and as
contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, the Senior Securities
will constitute legally valid and binding obligations of
the Trust, enforceable against the Trust in accordance with
their terms.
3. The Subordinated Securities Indenture has been
duly authorized and, when the final terms thereof have been
duly established in accordance with the laws of
Massachusetts, and when duly executed and delivered by the
Trust will constitute the legally valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms.
4. The Subordinated Securities have been duly
authorized and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when the Subordinated Securities have been established
pursuant to the Subordinated Securities Indenture, duly
authenticated by the Subordinated Securities Trustee and
duly executed and delivered on behalf of the Trust against
payment therefor in accordance with the terms and
provisions of the Subordinated Securities Indenture and as
contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, the Subordinated
Securities will constitute legally valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their terms.
5. The Preferred Shares have been duly authorized
and when the Preferred Shares have been duly established in
accordance with the terms of the Trust's Declaration of
Trust, as amended and applicable law, and, upon issuance,
delivery and payment therefor in the manner contemplated by
the Registration Statement and/or the applicable Prospectus
Supplement, the Preferred Shares will be validly issued,
fully paid and nonassessable.
6. The Deposit Agreements have been duly authorized
and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when duly executed and delivered by the Trust will
constitute the legally valid and binding agreements of the
Trust, enforceable against the Trust in accordance with
their respective terms.
7. The Depositary Shares have been duly authorized,
and when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when the
depositary receipts representing the Depositary Shares (the
"Depositary Receipts") have been duly executed and
delivered by the Depositary and delivered to and paid for
by the purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, and when all corporate action necessary for the
issuance of such Depositary Shares and the underlying
Preferred Shares has been taken, such Depositary Shares
will be validly issued and will entitle the holders thereof
to the rights specified in the Depositary Receipts and the
Deposit Agreement.
8. The Common Shares have been duly authorized, and
upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, will be validly issued,
fully paid and nonassessable.
9. The Warrant Agreements have been duly authorized
and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when duly executed and delivered by the Trust will
constitute the legally valid and binding agreements of the
Trust, enforceable against the Trust in accordance with
their respective terms.
10. The Warrants have been duly authorized, and when
the final terms thereof have been duly established in
accordance with the laws of Massachusetts, and when duly
executed and delivered by the Trust and countersigned by
the applicable Warrant Agent in accordance with the
applicable Warrant Agreement and delivered to and paid for
by the purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, will constitute legally valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their respective terms.
The opinions set forth above are subject to the
following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, whether enforcement is
considered in a proceeding in equity or law; (iii) the
unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy;
(iv) we express no opinion concerning the enforceability of the
waiver of rights or defenses contained in Section 514 of the
Senior Securities Indenture or any similar provision to be
contained in the Subordinated Securities Indenture; and (iii) we
express no opinion with respect to whether acceleration of Debt
Securities may affect the collectibility of any portion of the
stated principal amount thereof which might be determined to
constitute unearned interest thereon.
To the extent that the obligations of the Trust under
the Senior Securities Indenture may be dependent upon such
matters, we assume for purposes of this opinion that the Senior
Securities Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of
organization; that the Senior Securities Trustee is duly
qualified to engage in the activities contemplated by the Senior
Securities Indenture; that the Senior Securities Indenture has
been duly authorized, executed and delivered by the Senior
Securities Trustee and constitutes the legally valid and binding
obligation of the Senior Securities Trustee enforceable against
the Senior Securities Trustee in accordance with its terms; that
the Senior Securities Trustee is in compliance, generally with
respect to acting as a trustee under the Senior Securities
Indenture, with all applicable laws and regulations; and that
the Senior Securities Trustee has the requisite organization and
legal power and authority to perform its obligations under the
Senior Securities Indenture.
To the extent that the obligations of the Trust under
the Subordinated Securities Indenture may be dependent upon such
matters, we assume for purposes of this opinion that the
Subordinated Securities Trustee is duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization; that the Subordinated Securities Trustee is
duly qualified to engage in the activities contemplated by the
Senior Securities Indenture; that the Subordinated Securities
Indenture has been duly authorized, executed and delivered by
the Subordinated Securities Trustee and constitutes the legally
valid and binding obligation of the Subordinated Securities
Trustee enforceable against the Subordinated Securities Trustee
in accordance with its terms; that the Subordinated Securities
Trustee is in compliance, generally with respect to acting as a
trustee under the Subordinated Securities Indenture, with all
applicable laws and regulations; and that the Subordinated
Securities Trustee has the requisite organization and legal
power and authority to perform its obligations under the
Subordinated Securities Indenture.
To the extent that the obligations of the Trust under
each Deposit Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Depositary is duly
organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Depositary is duly
qualified to engage in the activities contemplated by the
Deposit Agreement; that the Deposit Agreement has been duly
authorized, executed and delivered by the Depositary and consti-
tutes the legally valid and binding obligation of the Depositary
enforceable against the Depositary in accordance with its terms;
that the Depositary is in compliance, generally with respect to
acting as a Depositary under the Deposit Agreement, with all
applicable laws and regulations; and that the Depositary has the
requisite organizational and legal power and authority to
perform its obligations under the Deposit Agreement.
To the extent that the obligations of the Trust under
each Warrant Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Warrant Agent is
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Warrant Agent
is duly qualified to engage in the activities contemplated by
the Warrant Agreement; that the Warrant Agreement has been duly
authorized, executed and delivered by the Warrant Agent and
constitutes the legally valid and binding obligation of the
Warrant Agent enforceable against the Warrant Agent in
accordance with its terms; that the Warrant Agent is in
compliance, generally with respect to acting as a Warrant Agent
under the Warrant Agreement, with all applicable laws and
regulations; and that the Warrant Agent has the requisite
organizational and legal power and authority to perform its
obligations under the Warrant Agreement.
We consent to your filing this opinion as an exhibit
to the Registration Statement and to the reference to our firm
under the caption "Legal Matters" in the prospectus included
therein.
This opinion is rendered only to you and is solely for
your benefit in connection with the transactions covered hereby.
This opinion may not be relied upon by you for any other
purpose, or furnished to, quoted to, or relied upon by any other
person, firm or corporation for any purpose, without our prior
written consent.
Very truly yours,
ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN
<PAGE>
<PAGE>
FORDHAM & STARRETT, P.C.
260 Franklin Street, Suite 1900
Boston, Massachusetts 02110
May 20, 1994
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Robinson Silverman Pearce Aronsohn & Berman
1290 Avenue of the Americas
New York, NY 10104
Re: $250,000,000 Aggregate Offering Price of
Securities of New Plan Realty Trust
________________________________________
Ladies and Gentlemen:
We are acting as Massachusetts counsel for New Plan
Realty Trust (the "Trust") in connection with the registration
statement on Form S-3 (the "Registration Statement") filed by the
Trust with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the offering from
time to time, as set forth in the prospectus contained in the
Registration Statement (the "Prospectus") and as to be set forth
in one or more supplements to the Prospectus (each a "Prospectus
Supplement"), by the Trust of up to $250,000,000 aggregate
offering price of one or more series of (i) unsecured debt
securities, which may be either senior debt securities (the
"Senior Securities") or subordinated debt securities (the
"Subordinated Securities," and together with the Senior
Securities, the "Debt Securities"), (ii) preferred shares of
beneficial interest, par value $1.00 per share (the "Preferred
Shares"), (iii) Preferred Shares represented by depositary shares
(the "Depositary Shares"), (iv) shares of beneficial interest
without par value (the "Common Shares"), or (v) warrants to
purchase Debt Securities, Preferred Shares or Common Shares (the
"Warrants"). The Debt Securities, Preferred Shares, Depositary
Shares, Common Shares and Warrants are collectively referred to
herein as the "Securities." Any Debt Securities may be
convertible into Preferred Shares or Common Shares and any
Preferred Shares may be convertible into Common Shares.
The Senior Securities are to be issued under an
Indenture, as amended or supplemented from time to time (the
"Senior Securities Indenture"), between the Trust and a trustee
to be selected by the Trust (the "Senior Securities Trustee") and
the Subordinated Securities are to be issued under an Indenture,
as amended or supplemented from time to time (the "Subordinated
Securities Indenture"), between the Trust and a trustee to be
selected by the Trust (the "Subordinated Securities Trustee").
The Depositary Shares are to be issued under one or more Deposit
Agreements (each, a "Deposit Agreement"), each to be between the
Trust and a financial institution identified therein as the
depositary (each, a "Depositary"). The Warrants are to be issued
under one or more Warrant Agreements (each, a "Warrant
Agreement"), each to be between the Trust and a financial
institution identified therein as warrant agent (each, a "Warrant
Agent").
In our capacity as your Massachusetts counsel in
connection with such registration, we are familiar with the
proceedings taken and proposed to be taken by the Trust in
connection with the authorization and issuance of the Securities
and for the purposes of this opinion, have assumed such
proceedings will be timely completed. In addition, we have made
such legal and factual examinations and inquiries, including an
examination of originals or copies certified or otherwise
identified to our satisfaction of such documents, corporate
records and instruments, as we have deemed necessary or
appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to authentic original documents
of all documents submitted to us as copies.
We have been furnished with, and with your consent have
relied upon, certificates of officers of the Trust with respect
to certain factual matters. In addition, we have obtained and
relied upon such certificates and assurances from public
officials as we have deemed necessary.
We are members of the Bar of the Commonwealth of
Massachusetts and we express no opinion herein concerning any law
other than the laws of the Commonwealth of Massachusetts. We
also express no opinion on Massachusetts securities or blue sky
laws, nor on Massachusetts tax law.
Subject to the foregoing and the other matters set
forth herein, it is our opinion that, as of the date hereof:
1. The Senior Securities Indenture has been duly
authorized, and when duly executed and delivered by the
Trust will constitute the legally valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms.
2. The Senior Securities have been duly authorized
and, when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when the
Senior Securities have been duly established pursuant to the
Senior Securities Indenture, duly authenticated by the
Senior Securities Trustee and duly executed and delivered on
behalf of the Trust against payment therefor in accordance
with the terms and provisions of the Senior Securities
Indenture and as contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, the Senior
Securities will constitute legally valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their terms.
3. The Subordinated Securities Indenture has been
duly authorized and, when the final terms thereof have been
duly established in accordance with the laws of
Massachusetts, and when duly executed and delivered by the
Trust will constitute the legally valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms.
4. The Subordinated Securities have been duly
authorized and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when the Subordinated Securities have been established
pursuant to the Subordinated Securities Indenture, duly
authenticated by the Subordinated Securities Trustee and
duly executed and delivered on behalf of the Trust against
payment therefor in accordance with the terms and provisions
of the Subordinated Securities Indenture and as contemplated
by the Registration Statement and/or the applicable
Prospectus Supplement, the Subordinated Securities will
constitute legally valid and binding obligations of the
Trust, enforceable against the Trust in accordance with
their terms.
5. The Preferred Shares have been duly authorized and
when the Preferred Shares have been duly established in
accordance with the terms of the Trust's Declaration of
Trust, as amended and applicable law, and, upon issuance,
delivery and payment therefor in the manner contemplated by
the Registration Statement and/or the applicable Prospectus
Supplement, the Preferred Shares will be validly issued,
fully paid and nonassessable.
6. The Deposit Agreements have been duly authorized
and, when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when duly
executed and delivered by the Trust will constitute the
legally valid and binding agreements of the Trust,
enforceable against the Trust in accordance with their
respective terms.
7. The Depositary Shares have been duly authorized,
and when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when the
depositary receipts representing the Depositary Shares (the
"Depositary Receipts") have been duly executed and delivered
by the Depositary and delivered to and paid for by the
purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, and when all corporate action necessary for the
issuance of such Depositary Shares and the underlying
Preferred Shares has been taken, such Depositary Shares will
be validly issued and will entitle the holders thereof to
the rights specified in the Depositary Receipts and the
Deposit Agreement.
8. The Common Shares have been duly authorized, and
upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, will be validly issued,
fully paid and nonassessable.
9. The Warrant Agreements have been duly authorized
and, when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when duly
executed and delivered by the Trust will constitute the
legally valid and binding agreements of the Trust,
enforceable against the Trust in accordance with their
respective terms.
10. The Warrants have been duly authorized, and when
the final terms thereof have been duly established in
accordance with the laws of Massachusetts, and when duly
executed and delivered by the Trust and countersigned by the
applicable Warrant Agent in accordance with the applicable
Warrant Agreement and delivered to and paid for by the
purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, will constitute legally valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their respective terms.
The opinions set forth above are subject to the
following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, whether enforcement is
considered in a proceeding in equity or law; (iii) the
unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy;
(iv) we express no opinion concerning the enforceability of the
waiver of rights or defenses contained in Section 514 of the
Senior Securities Indenture or any similar provision to be
contained in the Subordinated Securities Indenture; and (iii) we
express no opinion with respect to whether acceleration of Debt
Securities may affect the collectibility of any portion of the
stated principal amount thereof which might be determined to
constitute unearned interest thereon.
To the extent that the obligations of the Trust under
the Senior Securities Indenture may be dependent upon such
matters, we assume for purposes of this opinion that the Senior
Securities Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization;
that the Senior Securities Trustee is duly qualified to engage in
the activities contemplated by the Senior Securities Indenture;
that the Senior Securities Indenture has been duly authorized,
executed and delivered by the Senior Securities Trustee and
constitutes the legally valid and binding obligation of the
Senior Securities Trustee enforceable against the Senior
Securities Trustee in accordance with its terms; that the Senior
Securities Trustee is in compliance, generally with respect to
acting as a trustee under the Senior Securities Indenture, with
all applicable laws and regulations; and that the Senior
Securities Trustee has the requisite organization and legal power
and authority to perform its obligations under the Senior
Securities Indenture.
To the extent that the obligations of the Trust under
the Subordinated Securities Indenture may be dependent upon such
matters, we assume for purposes of this opinion that the
Subordinated Securities Trustee is duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization; that the Subordinated Securities Trustee is duly
qualified to engage in the activities contemplated by the Senior
Securities Indenture; that the Subordinated Securities Indenture
has been duly authorized, executed and delivered by the
Subordinated Securities Trustee and constitutes the legally valid
and binding obligation of the Subordinated Securities Trustee
enforceable against the Subordinated Securities Trustee in
accordance with its terms; that the Subordinated Securities
Trustee is in compliance, generally with respect to acting as a
trustee under the Subordinated Securities Indenture, with all
applicable laws and regulations; and that the Subordinated
Securities Trustee has the requisite organization and legal power
and authority to perform its obligations under the Subordinated
Securities Indenture.
To the extent that the obligations of the Trust under
each Deposit Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Depositary is duly
organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Depositary is duly
qualified to engage in the activities contemplated by the Deposit
Agreement; that the Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes the
legally valid and binding obligation of the Depositary
enforceable against the Depositary in accordance with its terms;
that the Depositary is in compliance, generally with respect to
acting as a Depositary under the Deposit Agreement, with all
applicable laws and regulations; and that the Depositary has the
requisite organizational and legal power and authority to perform
its obligations under the Deposit Agreement.
To the extent that the obligations of the Trust under
each Warrant Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Warrant Agent is
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Warrant Agent
is duly qualified to engage in the activities contemplated by the
Warrant Agreement; that the Warrant Agreement has been duly
authorized, executed and delivered by the Warrant Agent and
constitutes the legally valid and binding obligation of the
Warrant Agent enforceable against the Warrant Agent in accordance
with its terms; that the Warrant Agent is in compliance,
generally with respect to acting as a Warrant Agent under the
Warrant Agreement, with all applicable laws and regulations; and
that the Warrant Agent has the requisite organizational and legal
power and authority to perform its obligations under the Warrant
Agreement.
We consent to your filing this opinion as an attachment
to the opinion of Robinson Silverman Pearce Aronsohn & Berman
which opinion is an exhibit to the Registration Statement and to
the reference to our firm under the caption "Legal Matters" in
the prospectus included therein.
This opinion is rendered only to you and is solely for
your benefit in connection with the transactions covered hereby.
This opinion may not be relied upon by you for any other purpose,
or furnished to, quoted to, or relied upon by any other person,
firm or corporation for any purpose, without our prior written
consent.
Very truly yours,
FORDHAM & STARRETT, P.C.
By_________________________
Brian W. LeClair
<PAGE>
<PAGE>
EXHIBIT (8)
Law Offices
ALTHEIMER & GRAY
Suite 4000
10 South Wacker Drive
Chicago, Illinois 60606
(312) 715-4000
May 18, 1994
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Gentlemen:
This opinion is delivered to you in connection with a public
offering of Debt Securities, Preferred Shares, Depository Shares,
Common Shares and Warrants having an aggregate offering price of
up to $250,000,000 of New Plan Realty Trust (the "Trust")
pursuant to the Trust's Registration Statement on Form S-3, as
filed with the Securities and Exchange Commission.
For purposes of this opinion:
1. We have examined the Declaration of Trust, as amended
to date, of the Trust.
2. We have prepared and sent to the Trust a memorandum
setting forth the various rules and definitions relating to the
qualification of the Trust as a real estate investment trust
("REIT") within the meaning of the Internal Revenue Code of 1986,
as amended (the "Code").
3. We have relied, as to matters of fact necessary to this
opinion, on certificates and representations of officers or
employees of the Trust and of Coopers & Lybrand, independent
public accountants of the Trust.
4. We have been advised by the Trust that the Internal
Revenue Service has completed tax audits of the Trust for taxable
years 1973, 1974, and 1975 and has made no assertion that the
Trust has not qualified as a REIT for any of such years or any
taxable year thereafter.
5. We have reviewed the information in the Trust's
Prospectus related to the above described offering (the
"Prospectus") under the caption "CERTAIN FEDERAL INCOME TAX
CONSIDERATIONS TO THE TRUST OF ITS REIT ELECTION."
6. We have made no independent investigation of the facts
represented or set forth in any of the foregoing paragraphs of
this letter and are relying for purposes hereof on said
Declaration of Trust, certificates, representations and advice.
Based on the foregoing, it is our opinion that the Trust has
been organized in conformity with the requirements for
qualification as a REIT, and has operated in such a manner as to
have qualified for taxation as a REIT under the Code.
Norman M. Gold, a partner of this firm, is a Trustee of the
Trust.
We consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and to the use of
our name wherever appearing in such Registration Statement,
including the Prospectus, and any amendment thereto.
Very truly yours,
ALTHEIMER & GRAY
<PAGE>
<PAGE>
EXHIBIT (23.3)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement on Form S-3 (File No. 33-53311) of our
report dated September 22, 1993, on our audits of the
consolidated financial statements and financial statement
schedules of New Plan Realty Trust (the "Trust") as of July 31,
1993 and 1992 and for each of the three years in the period ended
July 31, 1993, which are included in the Annual Report on Form
10-K of the Trust for the year ended July 31, 1993. We also
consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND
New York, New York
May 20, 1994
<PAGE>
<PAGE>
EXHIBIT (23.4)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement on Form S-3 of our reports dated September
3, 1993 and January 4, 1994, on our audits of the Historical
Summary of Revenues and Certain Operating Expenses of certain
properties acquired by New Plan Realty Trust (the "Trust") for
the year ended December 31, 1992, which are included in the
Reports on Form 8-K/A of the Trust dated October 6, 1993 and
January 13, 1994, respectively. We also consent to the
incorporation by reference in this Registration Statement on Form
S-3 of our report dated February 3, 1994, on our audit of the
Historical Summary of Revenues and Certain Operating Expenses of
certain properties acquired by the Trust for the year ended July
31, 1993, which are included in the Report on Form 8-K of the
Trust dated February 10, 1994. We also consent to the reference
to our firm under the caption "Experts" in the Prospectus.
EICHLER, BERGSMAN, BELONSKY & CO.
New York, New York
May 20, 1994
