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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) May 24, 1996 (May 24,
1996)
____________________________
NEW PLAN REALTY TRUST
___________________________________________________________________________
(Exact Name of Registrant as Specified in Charter)
Massachusetts 0-7532 13-1995781
___________________________________________________________________________
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1120 Avenue of the Americas, New York, New York 10036
___________________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 869-3000
_____________________
___________________________________________________________________________
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events.
(a) On May 24, 1996, New Plan Realty Trust, a Massachusetts business
trust (the "Company"), entered into a Distribution Agreement (the
"Distribution Agreement") with Lehman Brothers, Lehman Brothers Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated and Smith Barney Inc. (collectively, the
"Agents"), providing for the offer and sale from time to time of up to an
aggregate initial offering price of U.S. $163,000,000 (or the equivalent
thereof at the time of original issuance in one or more foreign currencies
or composite currencies) of the Company's Medium-Term Notes Due Nine Months
or More from Date of Issue (the "Notes"), to or through the Agents. The
Notes were registered as part of the Company's Registration Statement on
Form S-3 (No. 33-61383), which was declared effective by the Securities and
Exchange Commission on September 13, 1995. The Notes are to be issued
under the Senior Securities Indenture by and between the Company and State
Street Bank and Trust Company (as successor to The First National Bank of
Boston), as trustee, dated as of March 29, 1995, as amended, supplemented
or modified from time to time.
(b) On March 12, 1996, the Company filed an Amended and Restated
Declaration of Trust with the Secretary of the Commonwealth of
Massachusetts. The Amended and Restated Declaration of Trust is a
compilation of Amendment #4 to the Declaration of Trust dated December 6,
1972 (amending the original Declaration of Trust in its entirety) and
Amendments #5 through #11 thereto.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(a) Financial Statements of Businesses Acquired.
None
(b) Pro Forma Financial Information.
None
(c) Exhibits.
1. Distribution Agreement.
99.1 Fixed Rate Medium-Term Note.
99.2 Floating Rate Medium-Term Note.
99.3 Amended and Restated Declaration of Trust.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date: May 24, 1996
NEW PLAN REALTY TRUST
By: /s/ Michael I. Brown
______________________________
Michael I. Brown
Chief Financial Officer
and Controller
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
May 24, 1996
LEHMAN BROTHERS
Lehman Brothers Inc.
American Express Tower
World Financial Center, 10th Floor
New York, New York 10285
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center, 10th Floor
New York, New York 10281-1380
MORGAN STANLEY & CO.
INCORPORATED
1585 Broadway
New York, New York 10036-8293
SMITH BARNEY INC.
390 Greenwich Street
New York, New York 10013
Dear Sirs:
New Plan Realty Trust, a Massachusetts business trust (the "Trust"),
confirms its agreement with Lehman Brothers, Lehman Brothers Inc., Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated and Smith Barney Inc. (each, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Trust
of a series of its debt securities entitled "Medium-Term Notes Due Nine
Months or More from Date of Issue" (the "Notes"). The Notes are to be issued
pursuant to an Indenture, dated as of March 29, 1995, as amended,
supplemented or modified from time to time (the "Indenture"), between the
Trust and State Street Bank and Trust Company (as successor to The First
National Bank of Boston), as trustee (the "Trustee"). As of the date hereof,
the Trust has authorized the issuance and sale of up to U.S. $163,000,000
aggregate initial offering price (or its equivalent, based upon the
applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Trust shall designate at the time of issuance) of
Notes to or through the Agents pursuant to the terms of this Agreement.
This Agreement provides both for the sale of Notes by the Trust to one
or more Agents as principal for resale to investors and other purchasers, or
directly to investors (as may from time to time be agreed to by the Trust and
the applicable Agent), in which case such Agent will act as an agent of the
Trust in soliciting purchases of Notes.
The Trust has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-61383) for the
registration of various securities, including the Notes, 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 SEC
under the 1933 Act (the "1933 Act Regulations"). Such registration statement
has been declared effective by the SEC and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (and any further registration statements which
may be filed by the Trust for the purpose of registering additional Notes and
in connection with which this Agreement is included or incorporated by
reference as an exhibit) and the prospectus constituting a part thereof, on
the one hand, and such prospectus and any prospectus supplement and pricing
supplement relating to the Notes, on the other hand, in each case including
all documents incorporated therein by reference, as from time to time amended
or supplemented by the filing of documents pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the "Prospectus,"
respectively, except that if any revised prospectus shall be provided to the
Agents by the Trust for use in connection with the offering of the Notes,
whether or not such revised prospectus is required to be filed by the Trust
pursuant to Rule 424(b) of the 1933 Act Regulations, then, unless otherwise
specified herein, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for
such use. All references in this Agreement to financial statements and
schedules and other information which are "contained", "included",
"described", "disclosed" 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.
It is understood that the Trust may from time to time authorize the
issuance of and may register additional Notes and that such additional Notes
may be sold to or through the Agents pursuant to the terms of this Agreement,
all as though the issuance of such Notes were authorized as of the date
hereof.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to (i) the terms and conditions stated herein
and (ii) the reservation by the Trust of the right to sell Notes to any
broker or dealer (as principal) other than an Agent or directly on its own
behalf, upon such terms and conditions as the Trust may determine from time
to time, the Trust hereby agrees that Notes will be sold to or through the
Agents and will not appoint any other agents to act on its behalf, or to
assist it, in the placement of the Notes. Notwithstanding anything to the
contrary contained herein, the Trust may solicit or accept offers to purchase
Notes through any broker or dealer (as agent) other than an Agent, provided
that (i) such broker or dealer is engaged on the same terms and conditions
(including the same commission schedule) as those contained in this Agreement
and (ii) the Trust shall notify the Agents promptly following the acceptance
of such offer.
(b) Sale of Notes. The Trust shall not sell or approve the solicitation
of purchases of Notes in excess of the amount which shall be authorized by
the Trust from time to time or in excess of the aggregate initial offering
price of Notes registered pursuant to the Registration Statement. The Agents
shall have no responsibility for maintaining records with respect to the
aggregate initial offering price of Notes sold, or of otherwise monitoring
the availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation
to purchase Notes from the Trust as principal, but one or more Agents may
agree from time to time to purchase Notes as principal for resale to
investors and other purchasers determined by such Agent or Agents. Any such
purchase of Notes by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the Trust,
such Agent, acting solely as an agent for the Trust and not as principal,
will solicit purchases of the Notes. Such Agent will communicate to the Tru-
st, orally, each offer to purchase Notes solicited by it on an agency basis,
other than those offers rejected by such Agent. Such Agent shall have the
right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein. The Trust may accept or
reject any proposed purchase of Notes, in whole or in part. Such Agent shall
make reasonable efforts to assist the Trust in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it and accepted
by the Trust. Such Agent shall not have any liability to the Trust in the
event that any such purchase is not consummated for any reason. If the Trust
shall default on its obligation to deliver Notes to a purchaser whose offer
it has accepted, the Trust shall (i) hold such Agent harmless against any
loss, claim or damage arising from or as a result of such default by the
Trust and (ii) pay to such Agent any commission to which it would otherwise
be entitled absent such default.
(e) Reliance. The Trust and the Agents agree that any Notes purchased
by one or more Agents as principal shall be purchased, and any Notes the
placement of which an Agent arranges as agent shall be placed by such Agent,
in reliance on the representations, warranties, covenants and agreements of
the Trust contained herein and on the terms and conditions and in the manner
provided herein.
SECTION 2. Representations and Warranties.
(a) The Trust represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Trust of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent
as agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
the Agent as principal being hereafter referred to as a "Settlement Date"),
and as of any time that the Registration Statement or the Prospectus shall be
amended or supplemented or there is filed with the SEC any document incorpo-
rated by reference into the Prospectus (each of the times referenced above
being referred to herein as a "Representation Date"), as follows:
(i) Due Establishment and Qualification. 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 named therein, 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 is 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 and be in good standing 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.
(ii) Subsidiaries. Each subsidiary of the Trust which is a
significant subsidiary (each, a "Significant Subsidiary"), as defined in
Rule 405 of Regulation C of the 1933 Act Regulations, 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 and operate
property and 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 and be in good standing
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 Significant 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, mort-
gage, pledge, lien, encumbrance, claim or equity, except for security
interests granted in respect of indebtedness of the Trust or any of its
subsidiaries which are referred to in the Prospectus.
(iii) Registration Statement and Prospectus. The Registration
Statement and the Prospectus, at the time the Registration Statement
became effective, complied, and as of each Representation Date will
comply, in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder; the Registration State-
ment, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective or any Annual Report on Form 10-K is filed by the Trust with
the SEC and as of each 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; and the Prospectus, as of the date hereof does not, and as
of each Representation Date 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
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to
the Trust in writing by the Agents expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
consisting of the Trustee's Statement of Eligibility on Form T-1 under
the 1939 Act (the "Statement of Eligibility").
(iv) Incorporated Documents. The documents incorporated or
deemed 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 SEC, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the 1934 Act
and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, did
not, and at each time thereafter at which any amendment to the
Registration Statement becomes effective or Annual Report on Form 10-K
is filed by the Trust with the SEC and as of each Representation Date
will not, include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(v) Accountants. The accountants who certified the financial
statements and any supporting schedules thereto included or incorporated
by reference in the Registration Statement and the Prospectus are
independent public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(vi) Financial Statements. The financial statements of the
Trust and its subsidiaries included in the Registration Statement and
the Prospectus, together with the related schedules and notes, as well
as any financial statements, schedules and notes of any other entity or
property included therein, present fairly in all material respects the
financial position of the Trust and its subsidiaries, or such other
entity or property, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Trust and its subsidiaries, or such other entity or property, as the
case may be, for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved; the supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in all material respects in
accordance with generally accepted accounting principles the information
required to be stated therein; the selected financial data and the
summary financial information included in the Registration Statement and
the Prospectus present fairly in all material respects the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement
and the Prospectus; and any pro forma financial statements and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly in all material respects the information shown
therein, have been prepared in accordance with the SEC's rules and
guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Trust; the Indenture has been duly
authorized, executed and delivered by the Trust and constitutes a valid
and legally binding agreement of the Trust enforceable in accordance
with its terms, except as enforcement thereof may be limited by bank-
ruptcy, insolvency, reorganization, moratorium 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), and except further as
enforcement thereof may be limited by (1) requirements that a claim with
respect to any Notes payable other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority to
limit, delay or prohibit the making of payments outside the United
States; the Notes have been duly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor, the Notes will constitute valid
and legally binding obligations of the Trust enforceable in accordance
with their terms, except as enforcement thereof may be limited by bank-
ruptcy, insolvency, reorganization, moratorium 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), and except further as
enforcement thereof may be limited by (1) requirements that a claim with
respect to any Notes payable other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority to
limit, delay or prohibit the making of payments outside the United
States; the Notes and the Indenture will be substantially in the form
heretofore delivered to the Agents and conform in all material respects
to all statements relating thereto contained in the Prospectus; and each
holder of Notes will be entitled to the benefits of the Indenture.
(viii) Material Changes, Material Transactions or Distributions.
Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated therein, (1) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business or busi-
ness prospects of the Trust and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
(2) 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 (3) except for
regular quarterly dividends on the Trust's shares of beneficial interest
without par value (the "Common Shares"), Common Shares issued pursuant
to the Trust's Distribution Reinvestment and Share Purchase Plan, 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.
(ix) No Defaults. The Trust is not in violation of its
Declaration of Trust, and no subsidiary of the Trust is in violation of
its charter or by-laws, and neither the Trust nor any subsidiary is 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
where 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 and the Indenture and the consummation of the transactions
contemplated herein and therein and the compliance by the Trust with its
obligations hereunder and thereunder have been duly authorized by all
necessary action 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 of the property or assets of the Trust
or any of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Declaration of Trust of the Trust
or any law, administrative regulation or administrative or court order
or decree.
(x) Regulatory Approvals. No authorization, approval or
consent of any court or governmental agency or body is required for the
consummation by the Trust of the transactions contemplated by this
Agreement or in connection with the sale of Notes hereunder, except such
as have been obtained or rendered, as the case may be, or as may be
required under state securities laws ("Blue Sky").
(xi) Legal Proceedings. 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 executive officer or trustee), 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 of the Trust and its subsidiaries considered as one
enterprise, or which might adversely affect the consummation of this
Agreement or the Indenture or any transaction contemplated hereby or
thereby; and 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.
(xii) Contracts. There are no contracts or documents of the
Trust or any of its subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
(xiii) Possession of Licenses and Permits. 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.
(xiv) Title to Property. 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 Prospectus 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, reorganization,
moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights or by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xv) Environmental Laws. 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 in either case 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.
(xvi) Trademarks; Service Marks. 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.
(xvii) Internal Revenue Code. 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 Notes are to occur.
(xviii) Investment Company Act. The Trust is not required to be
registered under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xix) Commodity Exchange Act. The Notes, when issued,
authenticated and delivered pursuant to the provisions of this Agreement
and the Indenture, will be excluded or exempted under the provisions of
the Commodity Exchange Act.
(xx) Doing Business with Cuba. The Trust has complied and
will comply with the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended, and all
regulations promulgated thereunder relating to issuers doing business in
Cuba.
(b) Additional Certifications. Any certificate signed by any trustee
or executive officer of the Trust and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Trust to such Agent or Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an Agent and the
Trust, Notes shall be purchased by one or more Agents as principal in
accordance with terms agreed upon by such Agent or Agents and the Trust
(which terms shall be agreed upon orally (with written confirmation prepared
promptly by such Agent or Agents and mailed promptly to the Trust) and,
unless otherwise agreed, shall, to the extent applicable, include those terms
specified in Exhibit A hereto). An Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representa-
tions and warranties of the Trust herein contained and shall be subject to
the terms and conditions herein set forth. Unless the context otherwise
requires, references herein to "this Agreement" shall include the applicable
agreement of one or more Agents to purchase Notes from the Trust as
principal. Each purchase of Notes, unless otherwise agreed, shall be at a
discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Schedule A hereto. The Agents may engage
the services of any other broker or dealer in connection with the resale of
the Notes purchased by them as principal and may allow all or any portion of
the discount received in connection with such purchases from the Trust to
such brokers and dealers. At the time of each purchase of Notes by one or
more Agents as principal, such Agent or Agents shall specify the requirements
for the officers' certificate, opinions of counsel and comfort letter
pursuant to Sections 7(b), 7(c) and 7(d) hereof. In addition, such Agent or
Agents shall promptly notify the Trust when the related Notes are no longer
held as principal pursuant hereto.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Trust and an Agent, such Agent, as an agent of
the Trust, will use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth in the Prospectus. The Agents
are not authorized to appoint sub-agents with respect to Notes sold through
them as agent. All Notes sold through an Agent as agent will be sold at 100%
of their principal amount unless otherwise agreed to by the Trust and such
Agent.
The Trust reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing
at any time for any period of time or permanently. As soon as practicable
after receipt of instructions from the Trust, such Agent will suspend
solicitation of purchases from the Trust until such time as the Trust has
advised such Agent that such solicitation may be resumed.
The Trust agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Trust as a result of a solicitation made by such Agent as
set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified
in Exhibit A hereto shall be agreed upon by the Trust and the applicable
Agent or Agents and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared in connection with each sale of
Notes. Except as may be otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures (the "Procedures") with respect to the sale of Notes shall be
agreed upon from time to time by the Trust, the Agents and the Trustee. The
current Procedures are attached hereto as Exhibit B. The Agents and the
Trust agree to perform, and the Trust agrees to cause the Trustee to agree to
perform, their respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. Covenants of the Trust.
The Trust covenants with the Agents as follows:
(a) Notice of Certain Events. The Trust will notify the Agents
immediately, and confirm such notice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal to the SEC
for filing of any amendment or supplement to the Prospectus (it being
understood that only the applicable Agent(s) will receive notice and a copy
of the related pricing supplement) or any document to be filed pursuant to
the 1934 Act (other than any amendment, supplement or document relating
solely to securities other than the Notes), (iii) the receipt of any comments
from the SEC with respect to the Registration Statement or the Prospectus,
(iv) any request by the SEC for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional
information relating to the Notes, (v) the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose and (vi) any change in the
rating assigned by Moody's Investors Service, Inc. or Standard & Poor's
Ratings Group to any debt securities of the Trust or the public announcement
by Moody's Investors Service, Inc. or Standard & Poor's Ratings Group that it
has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Trust. The Trust will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Notice of Certain Proposed Filings. The Trust will give the Agents
advance notice of its intention to file any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes or relating solely to the
issuance and/or offering of securities other than the Notes), whether by the
filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise.
In the event of such additional registration statement, amendment or
supplement, the Trust will furnish to the Agents copies thereof a reasonable
time in advance of the related proposed filing or use thereof, as the case
may be, and will not file any such additional registration statement,
amendment or supplement in a form to which the Agents or counsel for the
Agents shall reasonably object; provided, however, that, in lieu of the
foregoing, in the event that the conditions of subsection (k) of this Section
have been satisfied and the Trust has notified the Agents in writing that
offerings of Notes are suspended, then the Trust shall be required to deliver
copies of all such additional registration statements, amendments and
supplements at least five business days prior to the date that offerings of
Notes may be resumed.
(c) Copies of the Registration Statement and the Prospectus. The Trust
will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents
reasonably request. The Trust will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Trust will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the SEC on the fifth business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which
it is necessary, in the opinion of counsel for the Agents 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 mis-
leading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, 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, the Trust shall give immediate notice, confirmed in
writing, to the Agents to cease the solicitation of offers to purchase the
Notes in their capacity as agents and to cease sales of any Notes they may
then own as principal, and the Trust will promptly amend the Registration
Statement and the Prospectus, whether by filing documents pursuant to the
1934 Act or the 1933 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.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Trust with respect to each of the first
three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Trust shall furnish such
information in writing to the Agents and shall cause the Prospectus to be
amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other infor-
mation and explanations as shall be required by the 1933 Act or the 1933 Act
Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Trust for
the preceding fiscal year, the Trust shall furnish such information in
writing to the Agents and shall cause the Registration Statement and the
Prospectus to be amended, whether by the filing of documents pursuant to the
1934 Act or the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be required by the 1933 Act or the 1933 Act
Regulations.
(h) Earnings Statements. 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 each
twelve month period beginning, in each case, 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 Registration Statement with respect to each sale of
Notes.
(i) Blue Sky Qualifications. The Trust will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; provided, however, that the Trust shall not be obligated to
file any general consent to service of process or to qualify as a foreign
entity in any jurisdiction in which it is not so qualified. The Trust will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Trust will promptly advise the Agents of the receipt by the Trust of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening
of any proceeding for such purpose.
(j) 1934 Act Filings. 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 Notes, will file all documents required to be filed with
the SEC pursuant to Sections 13, 14 or 15(d) of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) Suspension of Certain Obligations. The Trust shall not be required
to comply with the provisions of subsections (b), (e), (f) or (g) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant
to a request from the Trust and (ii) no Agent shall then hold any Notes
purchased as principal pursuant hereto, until the time the Trust shall
determine that solicitation of purchases of the Notes should be resumed or an
Agent shall subsequently purchase Notes from the Trust as principal.
(l) Code Requirements. 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 Notes are to occur.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the Trust as
principal and to solicit offers to purchase Notes as agent of the Trust, and
the obligations of any purchasers of Notes sold through an Agent as agent,
will be subject to the accuracy of the representations and warranties on the
part of the Trust herein and to the accuracy of the statements of the Trust's
trustees or executive officers made in any certificate furnished pursuant to
the provisions hereof, to the performance and observance by the Trust of all
its covenants and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) Opinion of Trust Counsel. The favorable opinion of Robinson
Silverman Pearce Aronsohn & Berman LLP, counsel to the Trust (or, with
respect to matters involving the laws of the Commonwealth of
Massachusetts, Goodwin, Procter & Hoar LLP), 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 pursuant to its
Declaration of Trust under the laws of the Commonwealth of
Massachusetts.
(ii) The Trust has power and authority to own, lease and
operate its current properties and to conduct its business as
described in the Prospectus and possesses all licenses, permits,
authorizations, consents and orders required for the conduct of its
business as described in the Prospectus, the absence of which would
materially adversely affect the business of the Trust and its
subsidiaries considered as one enterprise.
(iii) Each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and has corporate
power and authority to hold mortgages, own, lease and operate its
properties and conduct its business as described in the Prospectus;
and all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and, to the best of such counsel's
knowledge and information, is owned by the Trust, free and clear of
any mortgage, pledge, lien, encumbrance, claim or equity except for
security interests granted in respect of the Trust or any of its
subsidiaries which are referred to in the Prospectus.
(iv) This Agreement has been duly authorized, executed and
delivered by the Trust.
(v) The Indenture has been duly authorized, executed and
delivered by the Trust and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a
legal, valid and binding agreement of the Trust, enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally or by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by (1)
requirements that a claim with respect to any Notes payable other
than in U.S. dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay or
prohibit the making of payments outside the United States.
(vi) The Notes, in the form(s) certified by the Trust as of
the date hereof, have been duly authorized for issuance, offer and
sale pursuant to this Agreement by all necessary trust action and,
when issued, authenticated and delivered pursuant to the provisions
of this Agreement and the Indenture against payment of the
consideration therefor, 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, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equity principles (regardless of whether enforcement is considered
in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by (1) requirements that a claim
with respect to any Notes payable other than in U.S. dollars (or a
foreign currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange pre-
vailing on a date determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the making of
payments outside the United States; and each holder of Notes will
be entitled to the benefits of the Indenture.
(vii) The Notes and the Indenture conform in all material
respects to the statements relating thereto in the Prospectus; and
the statements in the Prospectus under the captions "Description of
the Notes", "Special Provisions Relating to Foreign Currency Notes"
and "Description of Debt Securities", insofar as they purport to
summarize certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(viii) The Indenture has been duly qualified under the 1939 Act.
(ix) The Registration Statement has been declared effective
by the SEC under the 1933 Act and, to the best of such counsel's
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
SEC.
(x) 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.
(xi) 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 as to form in
all material respects with the 1934 Act and the 1934 Act
Regulations.
(xii) The Notes, in the form(s) certified by the Trust as of
the date hereof, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the Indenture, will be
excluded or exempted from the provisions of the Commodity Exchange
Act; provided that such counsel need not express any opinion as to
compliance with Part 34 of the Commodity Exchange Act ("Regulation
of Hybrid Instruments"), or any exclusion thereunder, of Notes
bearing interest determined by reference to one or more interest
rate or other indices not described in the Prospectus.
(xiii) The Trust is not required to be registered under the 1940
Act.
(xiv) To the best of such counsel's knowledge and information,
the execution and delivery of this Agreement 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; and 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 and the Indenture except such as may
be required under state securities laws or real estate syndication
laws.
(xv) To the best of such counsel's knowledge and information,
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
condition, financial or otherwise, or to the earnings, business or
business prospects of the Trust and its subsidiaries considered as
one enterprise and would not adversely affect the consummation of
this Agreement or the Indenture or any transaction contemplated
hereby or thereby.
(xvi) To the best of such counsel's knowledge and information,
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 in all
material respects, and, to the best of such counsel's 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 on the earnings, business or business prospects of
the Trust and its subsidiaries considered as one enterprise.
(2) Opinion of General Counsel for the Trust. The favorable
opinion of the General Counsel of the Trust, or other counsel
satisfactory to the Agents, to the effect that:
(i) The Trust is duly qualified as a foreign entity to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify and be in good standing 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.
(ii) Each Significant Subsidiary is 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 and be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects
of the Trust and its subsidiaries considered as one enterprise.
(3) Opinion of Tax Counsel for the Trust. The favorable opinion
of Altheimer & Gray, tax counsel for the Trust, to the effect that:
(i) The information in the Prospectus under "Certain United
States Federal Income Tax Considerations" and "Certain Federal
Income Tax Considerations to the Trust of its REIT Election", to
the extent that such information 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 Code.
(4) Opinion of Counsel to the Agents. The favorable opinion of
Brown & Wood, counsel to the Agents, covering the matters referred to in
subsection (a)(1) under the subheadings (i), (vi) to (xii), inclusive,
above. Brown & Wood may rely upon, or assume the accuracy of, the
opinion of Goodwin, Procter & Hoar LLP as to matters involving the laws
of the Commonwealth of Massachusetts.
(5) Disclosure Documents. In giving their opinions required by
subsection (a)(1) and (a)(4), respectively, of this Section 5, Robinson
Silverman Pearce Aronsohn & Berman LLP and Brown & Wood shall each
additionally state that nothing has come to their attention that would
lead them to believe that the Registration Statement, at the time it
became effective (or, if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the Trust with the SEC
subsequent to the effectiveness of the Registration Statement, then at
the time such amendment became effective or at the time of the most
recent such filing, as the case may be) or at the date hereof, contained
or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the
Prospectus, at the date hereof (or, if such opinion is being delivered
in connection with the purchase of Notes from the Trust by one or more
Agents as principal pursuant to Section 7(c) hereof, at the date of any
agreement by such Agent or Agents to purchase Notes as principal and at
the Settlement Date with respect thereto, as the case may be) (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 (it being understood that counsel need not comment on the
financial statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or
the Prospectus).
In giving their opinions, the foregoing counsel may rely upon, or
assume the accuracy of, (1) as to all matters of fact, the certificates
and written statements of officers and employees of and accountants for
the Trust and (2) as to the qualification and good standing of the Trust
or any of its subsidiaries to do business in any state or jurisdiction,
the certificates of appropriate government officials or opinions of
counsel in such jurisdictions.
(b) Officer's Certificate. On the date hereof, the Agents shall have
received a certificate of the Chief Executive Officer, President or Vice
President and the principal financial officer or principal accounting officer
of the Trust, dated as of the date hereof, to the effect that (i) since the
respective dates as of which information is given in the Prospectus or, if
such certificate is required pursuant to Section 7(b) hereof, since the date
of the agreement, if any, by one or more Agents to purchase Notes from the
Trust as principal, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii)
the representations and warranties of the Trust contained in Section 2 hereof
are true and correct with the same force and effect as though expressly made
at and as of the date of such certificate and (iii) the Trust has performed
or complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the date of such
certificate. As used in this Section 5(b), the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or Agents for
use in confirming sales of the Notes.
(c) Comfort Letter of Coopers & Lybrand L.L.P. On the date hereof, the
Agents shall have received a letter from Coopers & Lybrand L.L.P., dated as
of the date hereof, in form and substance satisfactory to the Agents, to the
effect that:
(i) They are independent public accountants with respect to the
Trust and its subsidiaries within the meaning of the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations.
(ii) It is their opinion that the consolidated financial statements
and supporting schedules of the Trust and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial
statements of the Trust and its indicated subsidiaries, a reading of the
minute books of the Trust and such subsidiaries since the end of the
most recent fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials of the Trust
and such subsidiaries responsible for financial and accounting matters
with respect to the unaudited consolidated financial statements included
or incorporated by reference in the Registration Statement and
Prospectus and the latest available interim unaudited financial
statements of the Trust and its subsidiaries, and such other inquiries
and procedures as may be specified in such letter, and on the basis of
such inquiries and procedures, nothing came to their attention that
caused them to believe that: (A) any material modifications should be
made to the unaudited consolidated financial statements of the Trust and
its subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus for them to be in conformity with
generally accepted accounting principles in the United States, (B) the
unaudited consolidated financial statements of the Trust and its
subsidiaries included or incorporated by reference in the Registration
Statement and 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 (C) at a specified date not more than three
days prior to the date of such letter, there was any change in the
consolidated capital stock, any increase in consolidated long-term debt
or any decrease in the consolidated net current assets or consolidated
net assets of the Trust and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance sheet of
the Trust and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus or, during the period from the
date of such balance sheet to a specified date not more than three days
prior to the date of such letter, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated
revenues or in the total or per-share amounts of income before
extraordinary items or of net income of the Trust and its subsidiaries,
except in all instances for changes, increases or decreases that the
Registration Statement and Prospectus disclose have occurred or may
occur or except for such exceptions enumerated in such letter as shall
have been agreed to by the Agents and the Trust.
(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 the Agents, 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 letters.
(d) Comfort Letter of Applicable Accountants. On the date hereof, the
Agents shall have received, with respect to the financial statements and any
supporting schedules for properties or entities acquired by the Trust which
are included or incorporated by reference in the Registration Statement and
the Prospectus, a letter from the applicable accountants covering such
financial statements and supporting schedules, dated as of the date hereof,
in form and substance satisfactory to the Agents, to the effect that (i) they
are independent public accountants within the meaning of the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations with respect
to the Trust and its subsidiaries and the applicable properties or entities
acquired by the Trust, (ii) it is their opinion that the financial statements
and supporting schedules of the properties or entities acquired by the Trust
which are included or incorporated by reference in the Registration Statement
and the Prospectus and covered by their opinions therein, comply as to form
in all material respects with the applicable accounting requirements of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations
and (iii) with respect to any pro forma financial statements and any
supporting schedules for properties or entities acquired by the Trust which
are included or incorporated by reference in the Registration Statement and
the Prospectus, they have read such pro forma financial statements, have
performed an audit or review in accordance with SAS 71 of such financial
statements, have made appropriate inquiries about the basis for the pro forma
adjustments and whether such pro forma financial statements comply as to form
in all material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X and have proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in such
pro forma adjustments, and on the basis of such review, inquiries and
procedures, nothing came to their attention that caused them to believe that
such pro forma financial statements do not comply as to form in all material
respects with the applicable requirements of Rule 11-02 of Regulation S-X or
that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such pro forma financial statements.
(e) Other Documents. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy
and completeness of any of the representations and 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 Notes as
herein contemplated shall be satisfactory in form and substance to the Agents
and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the applicable Agent or Agents by notice to the Trust at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 10 hereof, the indemnity and contribution
agreement set forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery set forth in
Section 11 hereof, the termination provisions set forth in Section 12 hereof,
the provisions relating to governing law and forum set forth in Section 14
and the provisions relating to parties set forth in Section 15 hereof shall
remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Trust to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Trust and deliver
such Note to the Trust and, if such Agent has theretofore paid the Trust for
such Note, the Trust will promptly return such funds (without interest) to
such Agent.
SECTION 7. Additional Covenants of the Trust.
The Trust covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance
by the Trust of an offer for the purchase of Notes (whether to one or more
Agents as principal or through an Agent as agent), and each delivery of Notes
(whether to one or more Agents as principal or through an Agent as agent),
shall be deemed to be an affirmation that the representations and warranties
of the Trust contained in this Agreement and in any certificate theretofore
delivered to the Agents pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to such Agent or Agents or to the purchaser or its agent, as the
case may be, of the Note or Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it is understood
that such representations and warranties shall relate to the Registration
Statement and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in
the interest rate or formula applicable to the Notes or relating solely to
the issuance and/or offering of securities other than the Notes), (ii) there
is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating solely to the
issuance and/or offering of securities other than the Notes), (iii) (if
required in connection with the purchase of Notes from the Trust by one or
more Agents as principal) the Trust sells Notes to such Agent or Agents as
principal or (iv) the Trust sells Notes in a form not previously certified to
the Agents by the Trust, the Trust shall furnish or cause to be furnished to
the Agent(s), forthwith a certificate dated the date of filing with the SEC
of such supplement or document, the date of effectiveness of such amendment,
or the date of such sale, as the case may be, in form and substance
reasonably satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof which were
last furnished to the Agents are true and correct at the time of such amend-
ment, supplement, filing or sale, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(b) hereof, modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in
the interest rate or formula applicable to the Notes, providing solely for
the inclusion of additional financial information, or relating solely to the
issuance and/or offering of securities other than the Notes), (ii) there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating solely to the issuance
and/or offering of securities other than the Notes), (iii) (if required in
connection with the purchase of Notes from the Trust by one or more Agents as
principal) the Trust sells Notes to such Agent or Agents as principal or (iv)
the Trust sells Notes in a form not previously certified to the Agents by the
Trust, the Trust shall furnish or cause to be furnished forthwith to the
Agent(s) and to counsel to the Agents the written opinions of Robinson
Silverman Pearce Aronsohn & Berman LLP, Goodwin, Procter & Hoar LLP, the
General Counsel of the Trust, and Altheimer & Gray, or other counsel
satisfactory to the Agent(s), dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form and substance reasonably
satisfactory to the Agent(s), of the same tenor as the opinion referred to in
Section 5(a)(1), 5(a)(2) and 5(a)(3), as the case may be, hereof, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
opinion or, in lieu of such opinion, counsel last furnishing such opinion to
the Agents shall furnish the Agent(s) with a letter substantially to the
effect that the Agent(s) may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance); provided, however, that, with
respect to (i) and (ii) above, in the event that the conditions of Section
4(k)(i) hereof have been satisfied and the Trust has notified the Agents in
writing that offerings of Notes are suspended, then the Trust shall be
required to furnish or cause to be furnished such opinions or such letter, as
the case may be, only prior to the date that offerings of Notes may be
resumed.
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus which contains additional
financial information, or (iii) (if required in connection with the purchase
of Notes from the Trust by one or more Agents as principal) the Trust sells
Notes to such Agent or Agents as principal, the Trust shall cause Coopers &
Lybrand L.L.P. forthwith to furnish to the Agent(s) a letter, dated the date
of such filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance reasonably satisfactory to the Agent(s), of the
same tenor as the portions of the letter referred to in clauses (i) and (ii)
of Section 5(c) hereof but modified to relate to the Registration Statement
and Prospectus as amended and supplemented to the date of such letter, and of
the same general tenor as the portions of the letter referred to in clauses
(iii) and (iv) of said Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other information derived
from the accounting records of the Trust; provided, however, that with
respect to (i) and (ii) above, in the event that the conditions of Section
4(k)(i) hereof have been satisfied and the Trust has notified the Agents in
writing that offerings of Notes are suspended, then the Trust shall be
required to furnish or cause to be furnished such letter only prior to the
date that offerings of Notes may be resumed. In addition, each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include financial statements and any supporting schedules thereto of
properties or entities acquired by the Trust, the Trust shall cause the
applicable accountants covering such financial statements and supporting
schedules to furnish to the Agents a letter, dated the date of such amendment
or supplement with the SEC, in form satisfactory to the Agents, of the same
tenor as the letter referred to in Section 5(d) hereof; provided, however,
that in the event that the conditions of Section 4(k)(i) hereof have been
satisfied and the Trust has notified the Agents in writing that offerings of
Notes are suspended, then the Trust shall be required to furnish or cause to
be furnished such letter only prior to the date that offerings of Notes may
be resumed.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Trust agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue 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 to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) 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 (i) above, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Trust; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Agent), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding 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 (i) or (ii) 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 the Agents 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 incorporated by reference into the Registration
Statement and the Prospectus.
(b) Indemnification of the Trust. Each Agent 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, as incurred, 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 Agent 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) General. Each indemnified party shall give notice as promptly as
is reasonably practical 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 the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all indem-
nified 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 9. Contribution.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 8 is for any reason
held to be unenforceable by the indemnified parties although applicable in
accordance with its terms, the Trust and the Agents shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Trust and the
Agents, as incurred, in such proportions that each Agent is responsible for
that portion represented by the percentage that the commission or
underwriting discount received by such Agent bears to the total sales price
from the sale of the Notes sold to or through such Agent that were the
subject of the claim for indemnification, and the Trust is responsible 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. For purposes of this Section 9, each person,
if any, who controls an Agent within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Agent, 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 10. Payment of Expenses.
The Trust will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form;
(d) The fees and disbursements of the Trust's accountants and counsel,
of the Trustee and its counsel, and of any calculation agent or exchange rate
agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
or Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supple-
ments thereto in connection with solicitations or confirmations of sales of
the Notes;
(h) The preparation, reproduction and delivery to the Agents of copies
of the Indenture and all amendments, supplements and modifications thereto;
(i) Any fees charged by nationally recognized statistical rating
organizations for the rating of the Notes;
(j) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any filing with the
National Association of Securities Dealers, Inc.; and
(l) The cost of providing any CUSIP or other identification numbers for
the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Trust submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Trust, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Trust as
principal) may be terminated for any reason, at any time by either the Trust
or an Agent, as to itself, upon the giving of 7 days' written notice of such
termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent or Agents may terminate any agreement by such Agent or
Agents to purchase Notes from the Trust as principal, immediately upon notice
to the Trust, at any time prior to the Settlement Date relating thereto, if
(i) there has been, since the date of such 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 affairs 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) there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect
of which is such as to make it, in the reasonable judgment of such Agent or
Agents, impracticable to market the Notes or enforce contracts for the sale
of the Notes, or (iii) trading in any securities of the Trust has been
suspended by the SEC or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock
Exchange shall have been suspended, or if 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 SEC or any
other governmental authority, or if a banking moratorium shall have been
declared by either Federal, New York or Massachusetts authorities or if a
banking moratorium shall have been declared by the relevant authorities in
the country or countries of origin of any foreign currency or currencies in
which the Notes are denominated or payable, or (iv) the rating assigned by
Moody's Investors Service, Inc. or Standard and Poor's Ratings Group to any
debt securities of the Trust as of the date of such agreement shall have been
lowered since such date or if any such rating organization shall have
publicly announced since such date that it has under surveillance or review,
with possible negative implications, its rating of any debt securities of the
Trust, or (v) there shall have come to the attention of such Agent or Agents
any facts that would cause them to believe that the Prospectus, at the time
it was required to be delivered to a purchaser of Notes, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing
at the time of such delivery, not misleading. As used in this Section 12(b),
the term "Prospectus" means the Prospectus in the form first provided to the
applicable Agent or Agents for use in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents
shall be entitled to any commission earned as a result of a sale of a Note by
the Trust, (ii) if at the time of termination (a) any Agent shall own any
Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Trust but
the time of delivery to the purchaser or his agent of the Note or Notes
relating thereto has not occurred, the covenants set forth in Sections 4 and
7 hereof shall remain in effect until such Notes are so resold or delivered,
as the case may be, and (iii) the covenant set forth in Section 4(h) hereof,
the provisions of Section 10 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, and the provisions of
Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail
or by telex, telecopier or telegram, and any such notice shall be effective
when received at the address specified below.
If to the Trust:
New Plan Realty Trust
1120 Avenue of the Americas, 12th Floor
New York, New York 10036
Attention: President
With a copy to: General Counsel
If to the Agents:
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Telephone No.: (212) 526-2040
Telecopy No.: (212) 528-1718
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone No.: (212) 449-7476
Telecopy No.: (212) 449-2234
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone No.: (212) 761-4000
Telecopy No.: (212) 761-0783
with a copy to
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Attention: Peter Cooper - Investment Banking Information Center
Telephone No.: (212) 761-8385
Telecopy No.: (212) 761-0260
Smith Barney Inc.
390 Greenwich Street, 4th Floor
New York, New York 10013
Attention: Frank W. Hamilton III
Telephone: (212) 723-5151
Telecopy No.: (212) 723-8853/4.
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Forum.
This Agreement and all the rights and obligations of the parties 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 such State. Any
suit, action or proceeding brought by the Trust against any Agent in
connection with or arising under this Agreement shall be brought solely in
the state or federal court of appropriate jurisdiction located in the Borough
of Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Trust and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and trustees
referred to in Sections 8 and 9 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and 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 Notes shall be deemed to be a successor by reason merely of
such purchase.
SECTION 16. No Liability of Shareholders, Trustees or Officers.
This Agreement and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by an officer of the Trust in his/her capacity
as an officer of the Trust which has been formed as a Massachusetts business
trust pursuant to the Declaration of Trust, and not individually, and neither
the trustees, officers or shareholders of the Trust shall be bound or have
any personal 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 and all documents, agreements,
understandings and arrangements relating to any transaction contemplated
hereby or thereby 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 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
<PAGE>
If the foregoing is in accordance with the Agents' 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 the Agents and the Trust in accordance with its terms.
Very truly yours,
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
--------------------------
Name: Dean Bernstein
Title: Vice President
Confirmed and Accepted, as of the date
first above written:
LEHMAN BROTHERS INC.
By: /s/ Herbert McDade
---------------------------------------
Herbert McDade
Authorized Signatory
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott Primrose
---------------------------------------
Scott Primrose
Authorized Signatory
MORGAN STANLEY & CO.
INCORPORATED
By: /s/ Catherine A. Kennedy
----------------------------------------
Authorized Signatory
SMITH BARNEY INC.
By: /s/ Frank W. Hamilton, III
----------------------------------------
Managing Director<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Trust in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[ ] LIBOR Reuters
Page:
[ ] LIBOR Telerate
Page:
Index Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Closing Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Trust by one or
more Agents as principal, agreement as to whether the following will be
required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Trust
shall pay the applicable Agent, on a discount basis, a commission for the
sale of each Note equal to the principal amount of such Note multiplied by
the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- - - --------------- ----------------
From 9 months to less than 1 year . . . . . . . .125%
From 1 year to less than 18 months. . . . . . . .150
From 18 months to less than 2 years . . . . . . .200
From 2 years to less than 3 years . . . . . . . .250
From 3 years to less than 4 years . . . . . . . .350
From 4 years to less than 5 years . . . . . . . .450
From 5 years to less than 6 years . . . . . . . .500
From 6 years to less than 7 years . . . . . . . .550
From 7 years to less than 10 years. . . . . . . .600
From 10 years to less than 15 years . . . . . . .625
From 15 years to less than 20 years . . . . . . .700
From 20 years to 30 years . . . . . . . . . . . .750
Greater than 30 years. . . . . . . . . . . . . . . . . . *
_______________________
* As agreed to by the Company and the applicable Agent at the time of
sale.
<PAGE>
EXHIBIT A
New Plan Realty Trust
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes
Due Nine Months or More from Date of Issue
(Dated as of May 24, 1996)
Medium-Term Notes Due Nine Months or More from Date of Issue (the
"Notes") are to be offered on a continuous basis by New Plan Realty Trust,
a Massachusetts business trust (the "Trust"), to or through Lehman
Brothers, Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and Smith
Barney Inc. (each, an "Agent" and, collectively, the "Agents") pursuant to
a Distribution Agreement, dated May 24, 1996 (the "Distribution Agree-
ment"), by and among the Trust and the Agents. The Distribution Agreement
provides both for the sale of Notes by the Trust to one or more of the
Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Trust directly to investors (as may from time to
time be agreed to by the Trust and the related Agent or Agents), in which
case each such Agent will act as an agent of the Trust in soliciting
purchases of Notes.
Unless otherwise agreed by the related Agent or Agents and the Trust,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related
Agent or Agents and the Trust (which terms shall be agreed upon orally,
with written confirmation prepared promptly by the related Agent or Agents
and mailed promptly to the Trust). If agreed upon by any Agent or Agents
and the Trust, the Agent or Agents, acting solely as agent or agents for
the Trust and not as principal, will use reasonable efforts to solicit
offers to purchase the Notes. Only those provisions in these
Administrative Procedures that are applicable to the particular role to be
performed by the related Agent or Agents shall apply to the offer and sale
of the relevant Notes.
The Notes will be issued as a series of debt securities under an
Indenture, dated as of March 29, 1995, as amended, supplemented or modified
from time to time (the "Indenture"), between the Trust and State Street
Bank and Trust Company (as successor to The First National Bank of Boston),
as trustee (together with any successor in such capacity, the "Trustee").
The Trust has filed a Registration Statement with the Securities and
Exchange Commission (the "Commission") registering, among other securities,
debt securities (which includes the Notes) (the "Registration Statement",
which term shall include any additional registration statements filed in
connection with the Notes). The most recent base prospectus deemed part of
the Registration Statement, as supplemented with respect to the Notes, is
herein referred to as "Prospectus". The most recent supplement to the
Prospectus setting forth the purchase price, interest rate or formula,
maturity date and other terms of the Notes (as applicable) is herein
referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Global
Note") delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC, or (b) in
certificated form (each, a "Certificated Note") delivered to the investor
or other purchaser thereof or a person designated by such investor or other
purchaser.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be
issued in accordance with the procedures set forth in Part II hereof and
Certificated Notes will be issued in accordance with the procedures set
forth in Part III hereof. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture or the
Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note
shall also bear an original issue date (each,
an "Original Issue Date"). The Original
Issue Date shall remain the same for all
Notes subsequently issued upon transfer,
exchange or substitution of an original Note
regardless of their dates of authentication.
Maturities: Each Note will mature on a date nine months
or more from its Original Issue Date (the
"Stated Maturity Date") selected by the
investor or other purchaser and agreed to by
the Trust.
Registration: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued only
in fully registered form.
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, the Notes will be issued
in denominations of $1,000 and integral
multiples thereof.
Interest Rate Bases
applicable to
Floating Rate
Notes: Unless otherwise provided in the applicable
Pricing Supplement, Floating Rate Notes will
bear interest at a rate or rates determined
by reference to the CD Rate, the CMT Rate,
the Commercial Paper Rate, the Eleventh
District Cost of Funds Rate, the Federal
Funds Rate, LIBOR, the Prime Rate, the
Treasury Rate, or such other interest rate
basis or formula as may be set forth in
applicable Pricing Supplement, or by
reference to two or more such rates, as
adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such
Floating Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption by
the Trust in accordance with the terms of the
Notes, which will be fixed at the time of
sale and set forth in the applicable Pricing
Supplement. If no Initial Redemption Date is
specified on the face of a Note, such Note
will not be redeemable prior to its Stated
Maturity Date.
The Notes will be subject to repayment at the
option of the Holders thereof in accordance
with the terms of the Notes, which will be
fixed at the time of sale and set forth in
the applicable Pricing Supplement. If no
Optional Repayment Date is specified on the
face of a Note, such Note will not be
repayable at the option of the Holder prior
to its Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest
(including payments for partial periods) will
be calculated and paid on the basis of a 360-
day year of twelve 30-day months.
The interest rate on each Floating Rate Note
will be calculated by reference to the
specified Interest Rate Basis or Bases plus
or minus the applicable Spread, if any,
and/or multiplied by the applicable Spread
Multiplier, if any.
Unless otherwise provided in the applicable
Pricing Supplement, interest on each Floating
Rate Note will be calculated by multiplying
its principal amount by an accrued interest
factor. Such accrued interest factor is
computed by adding the interest factor
calculated for each day in the period for
which accrued interest is being calculated.
Unless otherwise provided in the applicable
Pricing Supplement, the interest factor for
each such day is computed by dividing the
interest rate applicable to such day by 360
if the CD Rate, Commercial Paper Rate,
Eleventh District Cost of Funds Rate, Federal
Funds Rate, LIBOR or Prime Rate is an
applicable Interest Rate Basis, or by the
actual number of days in the year if the CMT
Rate or Treasury Rate is an applicable
Interest Rate Basis. As provided in the
applicable Pricing Supplement, the interest
factor for Notes for which the interest rate
is calculated with reference to two or more
Interest Rate Bases will be calculated in
each period in the same manner as if only one
of the applicable Interest Rate Bases applied
as specifed in the applicable Pricing
Supplement.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in the applicable Pricing
Supplement, interest on each Note will accrue
from and including the Original Issue Date of
such Note for the first interest period or
from the most recent Interest Payment Date
(as defined below) to which interest has been
paid or duly provided for all subsequent
interest periods to but excluding the
applicable Interest Payment Date or the
Stated Maturity Date or date of earlier
redemption or repayment, as the case may be
(the Stated Maturity Date or date of earlier
redemption or repayment is referred to herein
as the "Maturity Date" with respect to the
principal repayable on such date).
If an Interest Payment Date or the Maturity
Date with respect to any Fixed Rate Note
falls on a day that is not a Business Day (as
defined below), the required payment to be
made on such day need not be made on such
day, but may be made on the next succeeding
Business Day with the same force and effect
as if made on such day, and no interest shall
accrue on such payment for the period from
and after such day to the next succeeding
Business Day. If an Interest Payment Date
other than the Maturity Date with respect to
any Floating Rate Note would otherwise fall
on a day that is not a Business Day, such
Interest Payment Date will be postponed to
the next succeeding Business Day, except that
in the case of a Note for which LIBOR is an
applicable Interest Rate Basis, if such
Business Day falls in the next succeeding
calendar month, such Interest Payment Date
will be the immediately preceding Business
Day. If the Maturity Date with respect to
any Floating Rate Note falls on a day that is
not a Business Day, the required payment to
be made on such day need not be made on such
day, but may be made on the next succeeding
Business Day with the same force and effect
as if made on such day, and no interest shall
accrue on such payment for the period from
and after the Maturity Date to the next
succeeding Business Day. Unless otherwise
provided in the applicable Pricing
Supplement, "Business Day" means any day,
other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which
banking institutions are authorized or
required by law, regulation or executive
order to close in The City of New York;
provided, however, that, with respect to
Notes the payment of which is to be made in a
currency other than U.S. dollars or composite
currencies (such currency or composite
currency in which a Note is denominated is
the "Specified Currency"), such day is also
not a day on which banking institutions are
authorized or required by law, regulation or
executive order to close in the Principal
Financial Center (as defined below) of the
country issuing such Specified Currency (or,
if the Specified Currency is European
Currency Units ("ECUs")), is not a day that
appears as an ECU non-settlement day on the
display designated as "ISDE" on the Reuter
Monitor Money Rates Service (or a day so
designated by the ECU Banking Association),
or, if ECU non-settlement days do not appear
on that page (and are not so designated), is
not a day on which payments in ECU cannot be
settled in the international interbank
market); provided, further, that, with
respect to Notes for which LIBOR is an
applicable Interest Rate Basis, such day is
also a London Business Day (as defined
below). "London Business Day" means (i) if
the currency (including composite currencies)
specified in the applicable Pricing
Supplement as the currency (the "Index
Currency") for which LIBOR is calculated is
other than ECU, any day on which dealings in
such Index Currency are transacted in the
London interbank market or (ii) if the Index
Currency is ECU, any day that does not appear
as an ECU non-settlement day on the display
designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated
by the ECU Banking Association) or, if ECU
non-settlement days do not appear on that
page (and are not so designated), is not a
day on which payments in ECU cannot be
settled in the international interbank
market. It being understood that if no such
currency or composite currency is specified
in the applicable Pricing Supplement, the
Index Currency shall be U.S. dollars.
"Principal Financial Center" means the
capital city of the country issuing the
currency or composite currency in which any
payment in respect of the Notes is to be made
or, solely with respect to the calculation of
LIBOR, the Index Currency, except that with
respect to U.S. dollars, Australian dollars,
Deutsche marks, Dutch guilders, Italian lire,
Swiss francs and ECUs, the Principal
Financial Center shall be The City of New
York, Sydney, Frankfurt, Amsterdam, Milan,
Zurich and Luxembourg, respectively.
Regular Record Dates. Unless otherwise
provided in the applicable Pricing
Supplement, the "Regular Record Date" for a
Note shall be the date 15 calendar days
(whether or not a Business Day) preceding the
applicable Interest Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first Interest Payment
Date following the Original Issue Date;
provided, however, the first payment of
interest on any Note originally issued
between a Regular Record Date and an Interest
Payment Date will occur on the Interest
Payment Date immediately following the next
succeeding Regular Record Date.
Unless otherwise provided in the applicable
Pricing Supplement, interest payments on the
Notes will be made in arrears as specified in
the applicable Pricing Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Trust,
then such Agent acting solely as agent for
the Trust and not as principal will solicit
purchases of the Notes. Each Agent will
communicate to the Trust, orally or in
writing, each reasonable offer to purchase
Notes solicited by such Agent on an agency
basis, other than those offers rejected by
such Agent. Each Agent has the right, in its
discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or
in part, and any such rejection shall not be
a breach of such Agent's agreement contained
in the Distribution Agreement. The Trust has
the sole right to accept or reject any
proposed purchase of Notes, in whole or in
part, and any such rejection shall not
constitute a breach of the Trust's agreement
contained in the Distribution Agreement.
Each Agent has agreed to make reasonable
efforts to assist the Trust in obtaining
performance by each purchaser whose offer to
purchase Notes has been solicited by such
Agent and accepted by the Trust.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted
by the Trust, the Trust will promptly prepare
a Pricing Supplement reflecting the terms of
such Note. Information to be included in the
Pricing Supplement shall include:
1. the name of the Trust;
2. the title of the Notes;
3. the date of the Pricing Supplement and
the date of the Prospectus to which the
Pricing Supplement relates;
4. the name of the Offering Agent (as
defined below);
5. whether such Notes are being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Trust;
6. with respect to Notes sold to the
Offering Agent as principal, whether
such Notes will be resold by the
Offering Agent to investors and other
purchasers at (i) a fixed public
offering price of a specified percentage
of their principal amount or (ii) at
varying prices related to prevailing
market prices at the time of resale to
be determined by the Offering Agent;
7. with respect to Notes sold to an
investor or other purchaser through the
Offering Agent acting as agent for the
Trust, whether such Notes will be sold
at (i) 100% of their principal amount or
(ii) a specified percentage of their
principal amount;
8. the Offering Agent's discount
or commission;
9. Net proceeds to the Trust;
10. the Principal Amount, Specified
Currency, Original Issue Date, Stated
Maturity Date, Interest Payment Date(s),
Authorized Denomination, Initial
Redemption Date, if any, Initial
Redemption Percentage, if any, Annual
Redemption Percentage Reduction, if any,
Optional Repayment Date(s), if any,
Exchange Rate Agent, if any, Default
Rate, if any, and, in the case of Fixed
Rate Notes, the Interest Rate, and
whether such Fixed Rate Note is an
Original Issue Discount Note (and, if
so, the Issue Price), and, in the case
of Floating Rate Notes, the Interest
Category, the Interest Rate Basis or
Bases, the Day Count Convention, Index
Maturity (if applicable), Initial
Interest Rate, if any, Maximum Interest
Rate, if any, Minimum Interest Rate, if
any, Initial Interest Reset Date,
Interest Reset Dates, Spread and/or
Spread Multiplier, if any, and
Calculation Agent; and
11. any other additional provisions of the
Notes material to investors or other
purchasers of the Notes not otherwise
specified in the Prospectus.
The Trust shall use its reasonable best
efforts to send such Pricing Supplement by
telecopy or overnight express (for delivery
by the close of business on the applicable
trade date, but in no event later than 11:00
a.m. New York City time, on the Business Day
following the applicable trade date) to the
Agent which made or presented the offer to
purchase the applicable Note (in such
capacity, the "Offering Agent") and the
Trustee at the following applicable address:
if to Lehman Brothers Inc., c/o ADP,
Prospectus Services, 536 Broad Hollow Road,
Melville, New York 11747, Attention: Mike
Ward, (516) 254-7106, telecopier: (516) 249-
7942 and by hand to Lehman Brothers Inc., 3
World Financial Center, 9th floor, New York,
New York 10285, Attention: Brunnie Vazquez,
(212) 526-8400; and if to the Trustee, to:
State Street Bank and Trust Company, Two
International Place, Boston, Massachusetts
02110, Attention: Corporate Trust
Department, (617) 664-5602, telecopier: (617)
664-5371; if to Merrill Lynch & Co., to:
Tritech Services, 40 Colonial Drive,
Piscataway, New Jersey 08854, Attention:
Prospectus Operations/ Susannah Putnam, (908)
885-2769, telecopier: (908) 885-2774/5/6, for
record keeping purposes, one copy of such
Pricing Supplement shall also be mailed or
telecopied to Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
World Financial Center, North Tower, 10th
Floor, New York, New York, 10281-1310,
Attention: MTN Product Management, (212) 449-
7476, telecopier: (212) 449-2234, with a copy
to Brown & Wood, One World Trade Center, New
York, New York 10048, Attention: Edward F.
Petrosky, Esq.; if to Morgan Stanley & Co.,
Morgan Stanley & Co. Incorporated, 1585
Broadway, 2nd floor, New York, New York
10036, Attention: Medium-Term Note Trading
Desk, Carlos Cabrera, Telephone No.: (212)
761-2000, Telecopy No.: (212) 761-8846; and
if to Smith Barney Inc., 1345 Avenue of the
Americas, 46th Floor, New York, New York
10105, Attention: Ted Hamilton, Telephone:
(212) 698-8007, Telecoopy No.: (212) 698-
5873.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a
copy of such Pricing Supplement to each
investor or purchaser of the relevant Notes
or its agent. Pursuant to Rule 434 ("Rule
434") of the Securities Act of 1933, as
amended, the Pricing Supplement may be
delivered separately from the Prospectus.
Outdated Pricing Supplements (other than
those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by
the Trust in payment for a Note and the
authentication and delivery of such Note
shall, with respect to such Note, constitute
"settlement". Offers accepted by the Trust
will be settled in three Business Days, or at
such time as the purchaser, the applicable
Agent and the Trust shall agree, pursuant to
the timetable for settlement set forth in
Parts II and III hereof under "Settlement
Procedure Timetable" with respect to Global
Notes and Certificated Notes, respectively
(each such date fixed for settlement is
hereinafter referred to as a "Settlement
Date"). If procedures A and B of the
applicable Settlement Procedures with respect
to a particular offer are not completed on or
before the time set forth under the
applicable "Settlement Procedures Timetable",
such offer shall not be settled until the
Business Day following the completion of
settlement procedures A and B or such later
date as the purchaser and the Trust shall
agree.
The foregoing settlement procedures may be
modified with respect to any purchase of
Notes by an Agent as principal if so agreed
by the Trust and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change
the interest rate or any other variable term
on any Notes being sold by the Trust, the
Trust will promptly advise the Agents and the
Trustee by telephone and the Agents will
forthwith suspend solicitation of offers to
purchase such Notes. The Agents will
telephone the Trust with recommendations as
to the changed interest rates or other
variable terms. At such time as the Trust
notifies the Agents and the Trustee of the
new interest rates or other variable terms,
the Agents may resume solicitation of offers
to purchase such Notes. Until such time,
only "indications of interest" may be
recorded. Immediately after acceptance by
the Trust of an offer to purchase Notes at a
new interest rate or new variable term, the
Trust, the Offering Agent and the Trustee
shall follow the procedures set forth under
the applicable "Settlement Procedures".
Suspension of
Solicitation;
Amendment or
Supplement: The Trust may instruct the Agents to suspend
solicitation of offers to purchase Notes at
any time. Upon receipt of such instructions,
the Agents will forthwith suspend
solicitation of offers to purchase from the
Trust until such time as the Trust has
advised the Agents that solicitation of
offers to purchase may be resumed. Any
notice of an amendment or supplement to the
Registration Statement or the Prospectus
required to be given by the Trust to the
Agents pursuant to the Distribution Agreement
shall be given as so required and any
amendment or supplement to the Registration
Statement or the Prospectus required to be
delivered or mailed to the Agents pursuant to
the Distribution Agreement shall be delivered
or mailed as so required in quantities which
such parties may reasonably request at the
following respective addresses: if to Lehman
Brothers Inc., 3 World Financial Center, 12th
floor, New York, New York 10285-1200,
Attention: Medium-Term Note Department,(212)
526-2040, telecopier: (212) 528-1718; and if
to the Trustee, to: State Street Bank and
Trust Company, Two International Place,
Boston, Massachusetts 02110, Attention:
Corporate Trust Department, (617) 664-5602,
telecopier: (617) 664-5371; if to Merrill
Lynch & Co., World Financial Center, North
Tower, 10th Floor, New York, New York
10281-1310, Attention: MTN Product
Management, (212) 449-7476, telecopier: (212)
449-2234, for record keeping purposes, one
copy of each such amendment or supplement
shall also be mailed or telecopied to Brown &
Wood, One World Trade Center, New York, New
York 10048, Attention: Edward F. Petrosky,
Esq., (212) 839-5455, telecopier: (212) 839-
5599; if to Morgan Stanley & Co., Morgan
Stanley & Co. Incorporated, 1585 Broadway,
2nd floor, New York, New York 10036,
Attention: Medium-Term Note Trading Desk,
Carlos Cabrera, Telephone No.: (212) 761-
2000, Telecopy No.: (212) 761-8846; and if
to Smith Barney Inc., 1345 Avenue of the
Americas, 46th Floor, New York, New York
10105, Attention: Ted Hamilton, Telephone:
(212) 698-8007, Telecoopy No.: (212) 698-
5873.
In the event that at the time the
solicitation of offers to purchase from the
Trust is suspended (other than to establish
or change interest rates or formulas,
maturities, prices or other similar variable
terms with respect to the Notes) there shall
be any offers to purchase Notes that have
been accepted by the Trust which have not
been settled, the Trust will promptly advise
the Offering Agent and the Trustee whether
such offers may be settled and whether copies
of the Prospectus as theretofore amended
and/or supplemented as in effect at the time
of the suspension may be delivered in
connection with the settlement of such
offers. The Trust will have the sole
responsibility for such decision and for any
arrangements which may be made in the event
that the Trust determines that such offers
may not be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant
to Rule 434 may be delivered separately from
the Prospectus, must accompany or precede the
earlier of (a) the written confirmation of a
sale sent to an investor or other purchaser
or its agent and (b) the delivery of Notes to
an investor or other purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligation or
liability to the Trust or the Trustee in
respect of the authenticity of the signature
of any officer, employee or agent of the
Trust or the Trustee on any Note.
Documents Incorporated
by Reference: The Trust shall supply the Agents with an
adequate supply of all documents incorporated
by reference in the Registration Statement
and the Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry
form for eligibility in the book-entry system maintained by DTC, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations
under a Letter of Representations from the Trust and the Trustee to DTC,
dated May 24, 1996, and a Certificate Agreement, dated September 27, 1988,
between the Trustee and DTC, as amended (the "Certificate Agreement"), and
its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form having the same Original Issue Date,
Specified Currency, Interest Rate, Default
Rate, Interest Payment Dates, redemption
and/or repayment terms, if any, and Stated
Maturity Date (collectively, the "Fixed Rate
Terms") will be represented initially by a
single Global Note; and all Floating Rate
Notes issued in book-entry form having the
same Original Issue Date, Specified Currency,
Interest Category, formula for the
calculation of interest (including the
Interest Rate Basis or Bases, which may be
the CD Rate, the CMT Rate, the Commercial
Paper Rate, the Eleventh District Cost of
Funds Rate, the Federal Funds Rate, LIBOR,
the Prime Rate or the Treasury Rate or any
other interest rate basis or formula, and
Spread and/or Spread Multiplier, if any), Day
Count Convention, Initial Interest Rate,
Default Rate, Index Maturity (if applicable),
Minimum Interest Rate, if any, Maximum
Interest Rate, if any, redemption and/or
repayment terms, if any, Interest Payment
Dates, Initial Interest Reset Date, Interest
Reset Dates and Stated Maturity
Date(collectively, the "Floating Rate Terms")
will be represented initially by a single
Global Note.
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes, see
the Prospectus and the applicable Pricing
Supplement.
Owners of beneficial interests in Global
Notes will be entitled to physical delivery
of Certificated Notes equal in principal
amount to their respective beneficial
interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Trust has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation
of one series of CUSIP numbers, which series
consists of approximately 900 CUSIP numbers
which have been reserved for and relating to
Global Notes and the Trust has delivered to
each of the Trustee and DTC such list of such
CUSIP numbers. The Trust will assign CUSIP
numbers to Global Notes as described below
under Settlement Procedure B. DTC will
notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Trust has
assigned to Global Notes. The Trustee will
notify the Trust at any time when fewer than
100 of the reserved CUSIP numbers remain
unassigned to Global Notes, and, if it deems
necessary, the Trust will reserve and obtain
additional CUSIP numbers for assignment to
Global Notes. Upon obtaining such additional
CUSIP numbers, the Trust will deliver a list
of such additional numbers to the Trustee and
DTC. Notes issued in book-entry form in
excess of $200,000,000 (or the equivalent
thereof in one or more foreign or composite
currencies) aggregate principal amount and
otherwise required to be represented by the
same Global Note will instead be represented
by two or more Global Notes which shall all
be assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each
Global Note will be registered in the name of
Cede & Co., as nominee for DTC, on the
register maintained by the Trustee under the
Indenture. The beneficial owner of a Note
issued in book-entry form (i.e., an owner of
a beneficial interest in a Global Note) (or
one or more indirect participants in DTC
designated by such owner) will designate one
or more participants in DTC (with respect to
such Note issued in book-entry form, the
"Participants") to act as agent for such
beneficial owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance
with instructions provided by such
Participants, a credit balance with respect
to such Note issued in book-entry form in the
account of such Participants. The ownership
interest of such beneficial owner in such
Note issued in book-entry form will be
recorded through the records of such
Participants or through the separate records
of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of beneficial ownership interests
in a Global Note will be accomplished by book
entries made by DTC and, in turn, by
Participants (and in certain cases, one or
more indirect participants in DTC) acting on
behalf of beneficial transferors and
transferees of such Global Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or
more Global Notes outstanding on such date
that represent Global Notes having the same
Fixed Rate Terms or Floating Rate Terms, as
the case may be (other than Original Issue
Dates), and for which interest has been paid
to the same date; (b) a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the
next Interest Payment Date for the related
Notes issued in book-entry form, on which
such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a new
CUSIP number, obtained from the Trust, to be
assigned to such replacement Global Note.
Upon receipt of such a notice, DTC will send
to its Participants (including the Trustee) a
written reorganization notice to the effect
that such exchange will occur on such date.
Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service
Bureau written notice setting forth such
exchange date and the new CUSIP number and
stating that, as of such exchange date, the
CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Global Notes for a single
Global Note bearing the new CUSIP number and
the CUSIP numbers of the exchanged Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing,
if the Global Notes to be exchanged exceed
$200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies)
in aggregate principal amount, one
replacement Note will be authenticated and
issued to represent each $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal
amount of the exchanged Global Notes and an
additional Global Note or Notes will be
authenticated and issued to represent any
remaining principal amount of such Global
Notes (See "Denominations" below).
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes issued in
book-entry form will be issued in
denominations of $1,000 and integral
multiples thereof. Global Notes will not be
denominated in excess of $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) aggregate principal
amount. If one or more Notes are issued in
book-entry form in excess of $200,000,000 (or
the equivalent thereof in one or more foreign
or composite currencies) aggregate principal
amount and would, but for the preceding
sentence, be represented by a single Global
Note, then one Global Note will be issued to
represent each $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal
amount of such Notes issued in book-entry
form and an additional Global Note or Notes
will be issued to represent any remaining
aggregate principal amount of such Note or
Notes issued in book-entry form. In such a
case, each of the Global Notes representing
Notes issued in book-entry form shall be
assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after
each Regular Record Date, the Trustee will
deliver to the Trust and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Global Note on
the following Interest Payment Date (other
than an Interest Payment Date coinciding with
the Maturity Date) and the total of such
amounts. DTC will confirm the amount payable
on each Global Note on such Interest Payment
Date by reference to the daily bond reports
published by Standard & Poor's Corporation.
On such Interest Payment Date, the Trust will
pay to the Trustee in immediately available
funds an amount sufficient to pay the
interest then due and owing on the Global
Notes, and upon receipt of such funds from
the Trust, the Trustee in turn will pay to
DTC such total amount of interest due on such
Global Notes (other than on the Maturity
Date) which is payable in U.S. dollars, at
the times and in the manner set forth below
under "Manner of Payment". The Trustee shall
make payment of that amount of interest due
and owing on any Global Notes that Partici-
pants have elected to receive in foreign or
composite currencies directly to such
Participants.
Notice of Interest Rates. Promptly after
each Interest Determination Date or
Calculation Date, as the case may be, for
Floating Rate Notes issued in book-entry
form, the Trustee will notify each of Moody's
Investors Service, Inc. and Standard & Poor's
Corporation of the interest rates determined
as of such Interest Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Trust and DTC a written list
of principal, premium, if any, and interest
to be paid on each Global Note maturing or
otherwise becoming due in the following
month. The Trustee, the Trust and DTC will
confirm the amounts of such principal,
premium, if any, and interest payments with
respect to each such Global Note on or about
the fifth Business Day preceding the Maturity
Date of such Global Note. On the Maturity
Date, the Trust will pay to the Trustee in
immediately available funds an amount
sufficient to make the required payments, and
upon receipt of such funds the Trustee in
turn will pay to DTC the principal amount of
Global Notes, together with premium, if any,
and interest due on the Maturity Date, which
are payable in U.S. dollars, at the times and
in the manner set forth below under "Manner
of Payment". The Trustee shall make payment
of the principal, premium, if any, and
interest to be paid on the Maturity Date of
each Global Note that Participants have
elected to receive in foreign or composite
currencies directly to such Participants.
Promptly after (i) payment to DTC of the
principal, premium, if any, and interest due
on the Maturity Date of such Global Note
which are payable in U.S. dollars and (ii)
payment of the principal, premium, if any,
and interest due on the Maturity Date of such
Global Note to those Participants who have
elected to receive such payments in foreign
or composite currencies, the Trustee will
cancel such Global Note and deliver it to the
Trust with an appropriate debit advice. On
the first Business Day of each month, the
Trustee will deliver to the Trust a written
statement indicating the total principal
amount of outstanding Global Notes as of the
close of business on the immediately
preceding Business Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Global Notes on any Interest Payment Date
or the Maturity Date, as the case may be,
which is payable in U.S. dollars shall be
paid by the Trust to the Trustee in funds
available for use by the Trustee no later
than 10:00 a.m., New York City time, on such
date. The Trust will make such payment on
such Global Notes to an account specified by
the Trustee. Upon receipt of such funds, the
Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in
a form previously specified by DTC) to an
account at the Federal Reserve Bank of New
York previously specified by DTC, in funds
available for immediate use by DTC, each
payment in U.S. dollars of principal,
premium, if any, and interest due on Global
Notes on such date. Thereafter on such date,
DTC will pay, in accordance with its SDFS
operating procedures then in effect, such
amounts in funds available for immediate use
to the respective Participants in whose names
the beneficial interests in such Global Notes
are recorded in the book-entry system
maintained by DTC. Neither the Trust nor the
Trustee shall have any responsibility or
liability for the payment in U.S. dollars by
DTC of the principal of, or premium, if any,
or interest on, the Global Notes. The
Trustee shall make all payments of principal,
premium, if any, and interest on each Global
Note that Participants have elected to
receive in foreign or composite currencies
directly to such Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Global Note
will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Global Note.
Settlement
Procedures: Settlement Procedures with regard to each
Note in book-entry form sold by an Agent, as
agent of the Trust, or purchased by an Agent,
as principal, will be as follows:
A. The Offering Agent will advise the Trust
by telephone, confirmed by facsimile, of
the following settlement information:
1. Principal amount, Authorized
Denomination, and Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the
terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset Date
or Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(viii) Calculation Agent.
4. Price to public, if any, of such Note
(or whether such Note is being
offered at varying prices relating to
prevailing market prices at time of
resale as determined by the Offering
Agent).
5. Trade Date.
6. Settlement Date (Original Issue
Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
9. Repayment provisions, if any.
10. Default Rate, if any.
11. Net proceeds to the Trust.
12. The Offering Agent's discount or
commission.
13. Whether such Note is being sold to
the Offering Agent as principal or to
an investor or other purchaser
through the Offering Agent acting as
agent for the Trust.
14. Such other information specified with
respect to such Note (whether by
Addendum or otherwise).
B. The Trust will assign a CUSIP number to
the Global Note representing such Note
and then advise the Trustee by facsimile
transmission or other electronic
transmission of the above settlement
information received from the Offering
Agent, such CUSIP number and the name of
the Offering Agent. The Trust will also
advise the Offering Agent of the CUSIP
number assigned to the Global Note.
C. The Trustee will communicate to DTC and
the Offering Agent through DTC's
Participant Terminal System a pending
deposit message specifying the following
settlement information:
1. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained by
DTC on behalf of the Trustee and the
Offering Agent.
3. Identification of the Global Note as
a Fixed Rate Global Note or Floating
Rate Global Note.
4. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related record
date for DTC purposes (or, in the
case of Floating Rate Notes which
reset daily or weekly, the date five
calendar days preceding the Interest
Payment Date) and, if then
calculable, the amount of interest
payable on such Interest Payment Date
(which amount shall have been
confirmed by the Trustee).
5. CUSIP number of the Global Note
representing such Note.
6. Whether such Global Note represents
any other Notes issued or to be
issued in book-entry form.
DTC will arrange for each pending deposit
message described above to be transmitted
to Standard & Poor's Corporation, which
will use the information in the message
to include certain terms of the related
Global Note in the appropriate daily bond
report published by Standard & Poor's
Corporation.
D. The Trustee will complete and
authenticate the Global Note representing
such Note.
E. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
F. The Trustee will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such
Note to the Trustee's participant account
and credit such Note to the participant
account of the Offering Agent maintained
by DTC and (ii) to debit the settlement
account of the Offering Agent and credit
the settlement account of the Trustee
maintained by DTC, in an amount equal to
the price of such Note less such Offering
Agent's discount or underwriting
commission, as applicable. Any entry of
such a deliver order shall be deemed to
constitute a representation and warranty
by the Trustee to DTC that (i) the Global
Note representing such Note has been
issued and authenticated and (ii) the
Trustee is holding such Global Note
pursuant to the Certificate Agreement.
G. In the case of Notes in book-entry form
sold through the Offering Agent, as
agent, the Offering Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System instructing
DTC (i) to debit such Note to the
Offering Agent's participant account and
credit such Note to the participant
account of the Participants maintained by
DTC and (ii) to debit the settlement
accounts of such Participants and credit
the settlement account of the Offering
Agent maintained by DTC in an amount
equal to the initial public offering
price of such Note.
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS operating
procedures in effect on the Settlement
Date.
I. Upon receipt, the Trustee will pay the
Trust, by wire transfer of immediately
available funds to an account specified
by the Trust to the Trustee from time to
time, the amount transferred to the
Trustee in accordance with Settlement
Procedure F.
J. The Trustee will send a copy of the
Global Note by first class mail to the
Trust together with a statement setting
forth the principal amount of Notes
Outstanding as of the related Settlement
Date after giving effect to such
transaction and all other offers to
purchase Notes of which the Trust has
advised the Trustee but which have not
yet been settled.
K. If such Note was sold through the
Offering Agent, as agent, the Offering
Agent will confirm the purchase of such
Note to the investor or other purchaser
either by transmitting to the Participant
with respect to such Note a confirmation
order through DTC's Participant Terminal
System or by mailing a written
confirmation to such investor or other
purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the
Trust, Settlement Procedures A through K set
forth above shall be completed as soon as
possible following the trade but not later
than the respective times (New York City
time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C No later than the close of
business on the trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on
Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to
extension in accordance with any extension of
Fedwire closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry
form is rescheduled or canceled, the Trustee
will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 5:00
p.m., New York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Note issued in
book-entry form pursuant to Settlement
Procedure F, the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as
soon as practicable a withdrawal message
instructing DTC to debit such Note to the
participant account of the Trustee maintained
at DTC. DTC will process the withdrawal
message, provided that such participant
account contains a principal amount of the
Global Note representing such Note that is at
least equal to the principal amount to be
debited. If withdrawal messages are
processed with respect to all the Notes
represented by a Global Note, the Trustee
will mark such Global Note "canceled", make
appropriate entries in its records and send
certification of destruction of such canceled
Global Note to the Trust. The CUSIP number
assigned to such Global Note shall, in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If withdrawal messages are
processed with respect to a portion of the
Notes represented by a Global Note, the
Trustee will exchange such Global Note for
two Global Notes, one of which shall
represent the Global Notes for which
withdrawal messages are processed and shall
be canceled immediately after issuance and
the other of which shall represent the other
Notes previously represented by the
surrendered Global Note and shall bear the
CUSIP number of the surrendered Global Note.
In the case of any Note in book-entry form
sold through the Offering Agent, as agent, if
the purchase price for any such Note is not
timely paid to the Participants with respect
thereto by the beneficial investor or other
purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf
of such investor or other purchaser), such
Participants and, in turn, the related
Offering Agent may enter SDFS deliver orders
through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures F and G, respectively.
Thereafter, the Trustee will deliver the
withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Note in
book-entry form, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect. In the event of a failure to
settle with respect to a Note that was to
have been represented by a Global Note also
representing other Notes, the Trustee will
provide, in accordance with Settlement
Procedure D, for the authentication and
issuance of a Global Note representing such
remaining Notes and will make appropriate
entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, the Certificated Notes
will be issued in denominations of $1,000 and
integral multiples thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the
Certificated Note, the Trustee upon receipt
of immediately available funds from the Trust
will pay the principal of, premium, if any,
and interest on, each Certificated Note on
the Maturity Date in immediately available
funds. All interest payments on a
Certificated Note, other than interest due on
the Maturity Date, will be made by check
mailed to the address of the person entitled
thereto as such address shall appear in the
Security Register; provided, however, that
Holders of $10,000,000 (or, if the applicable
Specified Currency is other than United
States dollars, the equivalent thereof in
such Specified Currency) or more in aggregate
principal amount of Certificated Notes
(whether having identical or different terms
and provisions) shall be entitled to receive
such interest payments by wire transfer of
immediately available funds if appropriate
wire transfer instructions have been received
in writing by the Trustee not less than 15
calendar days prior to the applicable
Interest Payment Date.
The Trustee will provide monthly to the Trust
a list of the principal, premium, if any, and
interest to be paid on Certificated Notes
maturing in the next succeeding month. The
Trustee will be responsible for withholding
taxes on interest paid as required by
applicable law.
Certificated Notes presented to the Trustee
on the Maturity Date for payment will be
canceled by the Trustee. All canceled
Certificated Notes held by the Trustee shall
be destroyed, and the Trustee shall furnish
to the Trust a certificate with respect to
such destruction.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent,
shall be as follows:
A. The Offering Agent will advise the Trust
by telephone of the following Settlement
information with regard to each
Certificated Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery,
notices and payments of principal,
premium, if any, and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount, Authorized
Denomination and Specified Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is
being issued with
Original Issue Discount
and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset
Date and Interest Reset
Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
7. Price to public of such Certificated
Note (or whether such Note is being
offered at varying prices relating to
prevailing market prices at time of
resale as determined by the Offering
Agent).
8. Trade Date.
9. Settlement Date (Original Issue
Date).
10. Stated Maturity Date.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Net proceeds to the Trust.
15. The Offering Agent's discount or
commission.
16. Whether such Note is being sold to
the Offering Agent as principal or to
an investor or other purchaser
through the Offering Agent acting as
agent for the Trust.
17. Such other information specified with
respect to such Note (whether by
Addendum or otherwise).
B. After receiving such settlement
information from the Offering Agent, the
Trust will advise the Trustee of the
above settlement information by facsimile
transmission confirmed by telephone. The
Trust will cause the Trustee to issue,
authenticate and deliver the Certificated
Note.
C. The Trustee will complete the
Certificated Note in the form approved by
the Trust and the Offering Agent, and
will make three copies thereof (herein
called "Stub 1", "Stub 2" and "Stub 3"):
1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering
Agent's customer confirmation, if
traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Trust.
D. With respect to each trade, the Trustee
will deliver the Certificated Note and
Stub 2 thereof to the Offering Agent at
the following applicable address: if to
Lehman Brothers Inc., to Chemical Bank, 4
New York Plaza, Ground Floor, Receive
Window, FAO Lehman Brothers, New York,
New York, Attention: Jennifer Jones,(212)
623-5953; if to Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Merrill
Lynch Money Markets Clearance, 55 Water
Street, Concourse Level, N.S.C.C. Window,
New York, New York 10041, Attention: Al
Mitchell, (212) 558-2405, telecopier:
(212) 558-2457; if to Morgan Stanley &
Co., Morgan Stanley & Co. Incorporated,
to Bank of New York, Dealer Clearance
Department, 1 Wall Street, 3rd Floor,
Window 3B, New York, New York 10005,
Attention: For the Account of Morgan
Stanley & Co. Incorporated; and if to
Smith Barney Inc., 1345 Avenue of the
Americas, 46th Floor, New York, New York
10105, Attention: Ted Hamilton,
Telephone: (212) 698-8007, Telecoopy
No.: (212) 698-5873. The Trustee will
keep Stub 1. The Offering Agent will
acknowledge receipt of the Certificated
Note through a broker's receipt and will
keep Stub 2. Delivery of the
Certificated Note will be made only
against such acknowledgment of receipt.
Upon determination that the Certificated
Note has been authorized, delivered and
completed as aforementioned, the Offering
Agent will wire the net proceeds of the
Certificated Note after deduction of its
applicable commission to the Trust
pursuant to standard wire instructions
given by the Trust.
E. In the case of a Certificated Note sold
through the Offering Agent, as agent, the
Offering Agent will deliver such
Certificated Note (with the confirmation)
to the purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3 to the
Trust.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes
accepted by the Trust, Settlement Procedures
A through F set forth above shall be
completed as soon as possible following the
trade but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold
through the Offering Agent, as agent, if an
investor or other purchaser of a Certificated
Note from the Trust shall either fail to
accept delivery of or fail to make payment
for such Certificated Note on the date fixed
for settlement, the Offering Agent will
forthwith notify the Trustee and the Trust by
telephone, confirmed in writing, and return
such Certificated Note to the Trustee.
The Trustee, upon receipt of such
Certificated Note from the Offering Agent,
will immediately advise the Trust and the
Trust will promptly arrange to credit the
account of the Offering Agent in an amount of
immediately available funds equal to the
amount previously paid to the Trust by such
Offering Agent in settlement for such
Certificated Note (without interest). Such
credits will be made on the Settlement Date
if possible, and in any event not later than
the Business Day following the Settlement
Date; provided that the Trust has received
notice on the same day. Immediately upon
receipt of the Certificated Note in respect
of which the failure occurred, the Trustee
will cancel and destroy such Certificated
Note, make appropriate entries in its records
to reflect the fact that such Certificated
Note was never issued, and accordingly notify
in writing the Trust.
<PAGE>
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FXR-______ _____________________________
New Plan Realty Trust
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] _______ and ______
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
________________________
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
New Plan Realty Trust, a Massachusetts business trust (the "Trust",
which term includes any successor entity under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
, on the Stated Maturity Date specified above (or any Redemption Date or
Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity Date, Redemption Date or Repayment Date being hereinafter referred
to as the "Maturity Date" with respect to the principal repayable on such
date) and to pay interest thereon, at the Interest Rate per annum specified
above, until the principal hereof is paid or duly made available for
payment, and (to the extent that the payment of such interest shall be
legally enforceable) at the Default Rate per annum specified above on any
overdue principal, premium and/or interest. The Trust will pay interest in
arrears on each Interest Payment Date, if any, specified above (each, an
"Interest Payment Date"), commencing with the first Interest Payment Date
next succeeding the Original Issue Date specified above, and on the
Maturity Date; provided, however, that if the Original Issue Date occurs
between a Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest
Payment Date next succeeding the Original Issue Date to the holder of this
Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will be computed on the basis of a 360-day year of
twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be
(each, an "Interest Period"). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the fifteenth calendar day (whether or not a Business Day, as defined
below) immediately preceding such Interest Payment Date (the "Record
Date"); provided, however, that interest payable on the Maturity Date will
be payable to the person to whom the principal hereof and premium, if any,
hereon shall be payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") will forthwith cease to be payable to
the holder on any Record Date, and shall be paid to the person in whose
name this Note 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 Trustee hereinafter referred to, notice whereof shall be
given to the holder of this Note by the Trustee not less than 10 calendar
days prior to such Special Record Date or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which this Note may be listed, and upon such notice
as may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds
upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, a duly completed election form as
contemplated on the reverse hereof) at the office or agency maintained by
the Trust for that purpose in the Borough of Manhattan, The City of New
York, currently the office of the Trustee located at 61 Broadway, New York,
New York 10006, or at such other paying agency in the Borough of Manhattan,
The City of New York, as the Trust may determine; provided, however, that
if the Specified Currency specified above is other than United States
dollars and such payment is to be made in the Specified Currency in
accordance with the provisions set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the
Maturity Date, provided that such bank has appropriate facilities therefor
and that this Note (and, if applicable, a duly completed repayment election
form) is presented and surrendered at the aforementioned office or agency
maintained by the Trust in time for the Trustee to make such payment in
such funds in accordance with its normal procedures. Payment of interest
due on any Interest Payment Date other than the Maturity Date will be made
at the aforementioned office or agency maintained by the Trust or, at the
option of the Trust, by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register maintained by
the Trustee; provided, however, that a holder of U.S.$10,000,000 (or, if
the Specified Currency is other than United States dollars, the equivalent
thereof in the Specified Currency) or more in aggregate principal amount of
Notes (whether having identical or different terms and provisions) will be
entitled to receive interest payments on such Interest Payment Date by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked
by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be,
to the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive
order to close in The City of New York; provided, however, that if the
Specified Currency is other than United States dollars, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center
(as defined below) of the country issuing the Specified Currency (or, if
the Specified Currency is European Currency Units ("ECU"), is not a day
that appears as an ECU non-settlement day on the display designated as
"ISDE" on the Reuter Monitor Money Rates Service (or a day so designated by
the ECU Banking Association) or, if ECU non-settlement days do not appear
on that page (and are not so designated), is not a day on which payments in
ECU cannot be settled in the international interbank market). "Principal
Financial Center" means the capital city of the country issuing the
Specified Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss
francs and ECU, the "Principal Financial Center" shall be The City of New
York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The Trust is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment
is legal tender for the payment of such debts). If the Specified Currency
is other than United States dollars, except as otherwise provided below,
any such amounts so payable by the Trust will be converted by the Exchange
Rate Agent specified above into United States dollars for payment to the
holder of this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election
to receive all or a specified portion of any payment of principal, premium,
if any, and/or interest in respect of this Note in the Specified Currency,
any United States dollar amount to be received by the holder of this Note
will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 A.M., New York City time,
on the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Trust for
the purchase by the quoting dealer of the Specified Currency for United
States dollars for settlement on such payment date in the aggregate amount
of the Specified Currency payable to all holders of Notes scheduled to
receive United States dollar payments and at which the applicable dealer
commits to execute a contract. All currency exchange costs will be borne
by the holder of this Note by deductions from such payments. If three such
bid quotations are not available, payments on this Note will be made in the
Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its corporate trust office in The City of New
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may
be mailed or hand delivered or sent by cable, telex or other form of
facsimile transmission. The holder of this Note may elect to receive all
or a specified portion of all future payments in the Specified Currency in
respect of such principal, premium, if any, and/or interest and need not
file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice
of any such revocation must be received by the Trustee on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the control
of the Trust, the Trust will be entitled to satisfy its obligations to the
holder of this Note by making such payment in United States dollars on the
basis of the Market Exchange Rate (as defined below) on the second Business
Day prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate
or as otherwise specified on the face hereof. The "Market Exchange Rate"
for the Specified Currency means the noon dollar buying rate in The City of
New York for cable transfers for the Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by)
the Federal Reserve Bank of New York. Any payment made under such
circumstances in United States dollars will not constitute an Event of
Default (as defined in the Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite
currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Trust, then the Trust will be
entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars. The amount of each payment in
United States dollars shall be computed by the Exchange Rate Agent on the
basis of the equivalent of the composite currency in United States dollars.
The component currencies of the composite currency for this purpose
(collectively, the "Component Currencies" and each, a "Component Currency")
shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the
Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a
Component Currency shall be divided or multiplied in the same proportion.
If two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
amounts of the consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced
by the amounts of such two or more currencies, the sum of which shall be
equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the holder of this
Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof,
in the Addendum hereto, which further provisions shall have the same force
and effect as if set forth on the face hereof.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this
Note shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, New Plan Realty Trust has caused this Note to be
duly executed by one of its duly authorized officers.
NEW PLAN REALTY TRUST
By________________________________
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By____________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
New Plan Realty Trust
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Trust issued and to be issued under an Indenture,
dated as of March 29, 1995, as amended, modified or supplemented from time
to time (the "Indenture"), between the Trust and State Street Bank and
Trust Company (as successor to The First National Bank of Boston), as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Trust, the
Trustee and the holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Securities designated as "Medium-Term Notes Due Nine
Months or More from Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture or on the face hereof, as the case
may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise specified on the face hereof in accordance with the provisions of
the following two paragraphs, will not be redeemable or repayable prior to
the Stated Maturity Date.
This Note will be subject to redemption at the option of the
Trust on any date on or after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided
that any remaining principal amount hereof shall be at least U.S. $1,000 or
such minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on notice given no more than 60 nor
less than 30 calendar days prior to the Redemption Date and in accordance
with the provisions of the Indenture. The "Redemption Price" shall
initially be the Initial Redemption Percentage specified on the face hereof
multiplied by the unpaid principal amount of this Note to be redeemed. The
Initial Redemption Percentage shall decline at each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of
unpaid principal amount to be redeemed. In the event of redemption of this
Note in part only, a new Note of like tenor for the unredeemed portion
hereof and otherwise having the same terms as this Note shall be issued in
the name of the holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Trust at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified
on the face hereof, in whole or in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the
date fixed for repayment (each, a "Repayment Date"). For this Note to be
repaid, the Trustee must receive at its office in the Borough of Manhattan,
The City of New York, referred to on the face hereof, at least 30 days but
not more than 60 days prior to the Repayment Date (i) this Note and the
form hereon entitled "Option to Elect Repayment" duly completed or (ii) a
telegram, telex, facsimile transmission, or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or trust company in the United States
setting forth the name of the holder hereof, the principal amount of this
Note, the principal amount of this Note to be repaid, the certificate
number or a description of the tenor and terms of this Note, a statement
that the option to elect repayment is being exercised thereby, and a
guarantee that this Note, together with the form hereon entitled "Option to
Elect Repayment" duly completed, will be received by the Trustee not later
than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter, provided that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and
duly completed form are received by the Trustee by such fifth Business Day.
Exercise of such repayment option by the holder hereof will be irrevocable.
In the event of repayment of this Note in part only, a new Note of like
tenor for the unrepaid portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on
the face hereof, the amount payable to the holder of this Note in the event
of redemption, repayment or acceleration of maturity will be equal to the
sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any
redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest on this Note accrued
from the Original Issue Date to the Redemption Date, Repayment Date or date
of acceleration of maturity, as the case may be. The difference between
the Issue Price and 100% of the principal amount of this Note is referred
to herein as the "Discount".
For purposes of determining the amount of Discount that has
accrued as of any Redemption Date, Repayment Date or date of acceleration
of maturity of this Note, such Discount will be accrued so as to cause the
yield on the Note to be constant. The constant yield will be calculated
using a 30-day month, 360-day year convention, a compounding period that,
except for the Initial Period (as defined below), corresponds to the
shortest period between Interest Payment Dates (with ratable accruals
within a compounding period) and an assumption that the maturity of this
Note will not be accelerated. If the period from the Original Issue Date
to the initial Interest Payment Date (the "Initial Period") is shorter than
the compounding period for this Note, a proportionate amount of the yield
for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur
and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the
entire indebtedness of the Notes or (ii) certain covenants and Events of
Default with respect to the Notes, in each case upon compliance with
certain conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trust and the rights of the holders of the Securities at
any time by the Trust and the Trustee with the consent of the holders of
not less than a majority of the aggregate principal amount of all
Securities at the time outstanding and affected thereby. The Indenture
also contains provisions permitting the holders of not less than a majority
of the aggregate principal amount of the outstanding Securities of any
series, on behalf of the holders of all such Securities, to waive
compliance by the Trust with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less
than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all
of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
holder of this Note shall be conclusive and binding upon such holder and
upon all future holders of this Note and other Notes issued upon the
registration of transfer hereof or in exchange heretofore or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Trust,
which is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this Note at the times, places and rate or formula,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in
the Security Register of the Trust upon surrender of this Note for
registration of transfer at the office or agency of the Trust in any place
where the principal hereof and any premium or interest hereon are payable,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Trust and the Security Registrar duly executed by,
the holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations
but otherwise having the same terms and conditions, as requested by the
holder hereof surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Trust may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of
transfer, the Trust, the Trustee and any agent of the Trust or the Trustee
may treat the holder in whose name this Note is registered as the owner
thereof for all purposes, whether or not this Note be overdue, and neither
the Trust, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby
have been executed or entered into by an officer of the Trust in his/her
capacity as an officer of the Trust which has been formed as a
Massachusetts business trust pursuant to the Declaration of Trust, and not
individually, and neither the trustees, officers or shareholders of the
Trust shall be bound or have any personal 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 Note and
all documents, agreements, understandings and arrangements relating to any
transaction contemplated hereby or thereby 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.
The Indenture and this Note 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 entirely in such State.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|______________________________|___________________________________________
___________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
___________________________________________________________________________
This Note and all rights thereunder hereby irrevocably constituting and
appointing
__________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
_______________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Trust to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at __________________________________________________________
__________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in the Borough of Manhattan, The City of New York,
currently located at 61 Broadway, New York, New York 10006, this Note with
this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S.$1,000
(or, if the Specified Currency is other than United States dollars, the
minimum Authorized Denomination specified on the face hereof)) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be an Authorized Denomination) of the Notes to be issued to
the holder for the portion of this Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not
being repaid).
Principal Amount
to be Repaid: $_________________
Notice: The signature(s) on this
Date: __________________________ Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this Note
in every particular, without
alteration or enlargement or any
change whatsoever.
<PAGE>
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FLR-____ __________________________________
NEW PLAN REALTY TRUST
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT MAturity Index:
[ ] LIBOR Telerate
Page:
INDEX CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST RATE: % MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples
[ ] Other: thereof
[ ] Other:
EXCHANGE RATE AGENT:
DEFAULT RATE: %
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
New Plan Realty Trust, a Massachusetts business trust (the "Trust",
which term includes any successor entity under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
, on the Stated Maturity Date specified above (or any Redemption Date or
Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity Date, Redemption Date or Repayment Date being hereinafter referred
to as the "Maturity Date" with respect to the principal repayable on such
date) and to pay interest thereon, at a rate per annum equal to the initial
Interest Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof or in an Addendum
hereto with respect to one or more Interest Rate Bases specified above
until the principal hereof is paid or duly made available for payment, and
(to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal, premium and/or interest. The Trust will pay interest in arrears
on each Interest Payment Date, if any, specified above (each, an "Interest
Payment Date"), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity
Date; provided, however, that if the Original Issue Date occurs between a
Record Date (as defined below) and the next succeeding Interest Payment
Date, interest payments will commence on the second Interest Payment Date
next succeeding the Original Issue Date to the holder of this Note on the
Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be
(each, an "Interest Period"). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the fifteenth calendar day (whether or not a Business Day, as defined on
the reverse hereof) immediately preceding such Interest Payment Date (the
"Record Date"); provided, however, that interest payable on the Maturity
Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith
cease to be payable to the holder on any Record Date, and shall be paid to
the person in whose name this Note 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 Trustee hereinafter referred to,
notice whereof shall be given to the holder of this Note by the Trustee not
less than 10 calendar days prior to such Special Record Date or may be paid
at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Note may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds
upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, a duly completed election form as
contemplated on the reverse hereof) at the office or agency maintained by
the Trust for that purpose in the Borough of Manhattan, The City of New
York, currently the office of the Trustee located at 61 Broadway, New York,
New York 10006, or at such other paying agency in the Borough of Manhattan,
The City of New York, as the Trust may determine; provided, however, that
if the Specified Currency specified above is other than United States
dollars and such payment is to be made in the Specified Currency in
accordance with the provisions set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the
Maturity Date, provided that such bank has appropriate facilities therefor
and that this Note (and, if applicable, a duly completed repayment election
form) is presented and surrendered at the aforementioned office or agency
maintained by the Trust in time for the Trustee to make such payment in
such funds in accordance with its normal procedures. Payment of interest
due on any Interest Payment Date other than the Maturity Date will be made
at the aforementioned office of agency maintained by the Trust or, at the
option of the Trust, by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register maintained by
the Trustee; provided, however, that a holder of U.S. $10,000,000 (or, if
the Specified Currency is other than United States dollars, the equivalent
thereof in the Specified Currency) or more in aggregate principal amount of
Notes (whether having identical or different terms and provisions) will be
entitled to receive interest payments on such Interest Payment Date by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked
by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date
shall be postponed to the next succeeding Business Day, except that if
LIBOR is an applicable Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest Payment Date shall be the
immediately preceding Business Day. If the Maturity Date falls on a day
that is not a Business Day, the required payment of principal, premium, if
any, and interest shall be made on the next succeeding Business Day with
the same force and effect as if made on the date such payment was due, and
no interest shall accrue with respect to such payment for the period from
and after the Maturity Date to the date of such payment on the next
succeeding Business Day.
The Trust is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment
is legal tender for the payment of such debts). If the Specified Currency
is other than United States dollars, except as provided below, any such
amounts so payable by the Trust will be converted by the Exchange Rate
Agent specified above into United States dollars for payment to the holder
of this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election
to receive all or a specified portion of any payment of principal, premium,
if any, and/or interest in respect of this Note in the Specified Currency,
any United States dollar amount to be received by the holder of this Note
will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 A.M., New York City time,
on the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Trust for
the purchase by the quoting dealer of the Specified Currency for United
States dollars for settlement on such payment date in the aggregate amount
of the Specified Currency payable to all holders of Notes scheduled to
receive United States dollar payments and at which the applicable dealer
commits to execute a contract. All currency exchange costs will be borne
by the holder of this Note by deductions from such payments. If three such
bid quotations are not available, payments on this Note will be made in the
Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its corporate trust office in The City of New
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may
be mailed or hand delivered or sent by cable, telex or other form of
facsimile transmission. The holder of this Note may elect to receive all
or a specified portion of all future payments in the Specified Currency in
respect of such principal, premium, if any, and/or interest and need not
file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice
of any such revocation must be received by the Trustee on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the control
of the Trust, the Trust will be entitled to satisfy its obligations to the
holder of this Note by making such payment in United States dollars on the
basis of the Market Exchange Rate (as defined below) on the second Business
Day prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate
or as otherwise specified on the face hereof. The "Market Exchange Rate"
for the Specified Currency means the noon dollar buying rate in The City of
New York for cable transfers for the Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by)
the Federal Reserve Bank of New York. Any payment made under such
circumstances in United States dollars will not constitute an Event of
Default (as defined in the Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite
currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Trust, then the Trust will be
entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars. The amount of each payment in
United States dollars shall be computed by the Exchange Rate Agent on the
basis of the equivalent of the composite currency in United States dollars.
The component currencies of the composite currency for this purpose
(collectively, the "Component Currencies" and each, a "Component Currency")
shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the
Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a
Component Currency shall be divided or multiplied in the same proportion.
If two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
amounts of the consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced
by the amounts of such two or more currencies, the sum of which shall be
equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the holder of this
Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof,
in the Addendum hereto, which further provisions shall have the same force
and effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if
the face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the
terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, New Plan Realty Trust has caused this Note to be
duly executed by one of its duly authorized officers.
NEW PLAN REALTY TRUST
By________________________________
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By____________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
NEW PLAN REALTY TRUST
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Trust issued and to be issued under an Indenture,
dated as of March 29, 1995, as amended, modified or supplemented from time
to time (the "Indenture"), between the Trust and State Street Bank and
Trust Company (as successor to The First National Bank of Boston), as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Trust, the
Trustee and the holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Securities designated as "Medium-Term Notes Due Nine
Months or More from Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture or on the face hereof, as the case
may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise specified on the face hereof in accordance with the provisions of
the following two paragraphs, will not be redeemable or repayable prior to
the Stated Maturity Date.
This Note will be subject to redemption at the option of the
Trust on any date on or after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided
that any remaining principal amount hereof shall be at least U.S. $1,000 or
such minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on notice given no more than 60 nor
less than 30 calendar days prior to the Redemption Date and in accordance
with the provisions of the Indenture. The "Redemption Price" shall
initially be the Initial Redemption Percentage specified on the face hereof
multiplied by the unpaid principal amount of this Note to be redeemed. The
Initial Redemption Percentage shall decline at each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of
unpaid principal amount to be redeemed. In the event of redemption of this
Note in part only, a new Note of like tenor for the unredeemed portion
hereof and otherwise having the same terms as this Note shall be issued in
the name of the holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Trust at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified
on the face hereof, in whole or in part in increments of U.S. $1,000 or the
minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, (each, a Repayment Date"). For this Note to be
repaid, the Trustee must receive at its office in the Borough of Manhattan,
the City of New York, referred to on the face hereof, at least 30 days but
not more than 60 days prior to the Repayment Date (i) this Note and the
form hereon entitled "Option to Elect Repayment" duly completed or (ii) a
telegram, telex, facsimile transmission, or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or trust company in the United States
setting forth the name of the holder hereof, the principal amount of this
Note, the principal amount of this Note to be repaid, the certificate
number or a description of the tenor and terms of this Note, a statement
that the option to elect repayment is being exercised thereby, and a
guarantee that this Note, together with the form hereon entitled "Option to
Elect Repayment" duly completed, will be received by the Trustee not later
than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter, provided that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and
duly completed form are received by the Trustee by such fifth Business Day.
Exercise of such repayment option by the holder hereof will be irrevocable.
In the event of repayment of this Note in part only, a new Note of like
tenor for the unrepaid portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
If the Interest Category of this Note is specified on the face
hereof as an Original Issue Discount Note, the amount payable to the holder
of this Note in the event of redemption, repayment or acceleration of
maturity of this Note will be equal to the sum of (i) the Issue Price
specified on the face hereof (increased by any accruals of the Discount, as
defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted
by the Annual Redemption Percentage Reduction, if applicable) and (ii) any
unpaid interest on this Note accrued from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has
accrued as of any Redemption Date, Repayment Date or date of acceleration
of maturity of this Note, such Discount will be accrued so as to cause an
assumed yield on the Note to be constant. The assumed constant yield will
be calculated using a 30-day month, 360-day year convention, a compounding
period that, except for the Initial Period (as defined below), corresponds
to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
interest rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount
of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will
be divided into a regular compounding period and a short period, with the
short period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as
follows:
(i) Unless the Interest Category of this Note is specified
on the face hereof as a "Floating Rate/Fixed Rate Note" or an
"Inverse Floating Rate Note" or as otherwise specified as
Other/Additional Provisions on the face hereof or in an Addendum
hereto, this Note shall be designated as a "Regular Floating Rate
Note" and, except as set forth below or specified on the face
hereof or in an Addendum hereto, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any, in each case as specified on
the face hereof. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note shall be payable shall be
reset as of each Interest Reset Date specified on the face
hereof; provided, however, that the interest rate in effect for
the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note", then,
except as set forth below or specified on the face hereof or in
an Addendum hereto, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the
period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate and (z)
the interest rate in effect for the period commencing on the
Fixed Rate Commencement Date specified on the face hereof to the
Maturity Date shall be the Fixed Interest Rate specified on the
face hereof or, if no such Fixed Interest Rate is specified, the
interest rate in effect hereon on the day immediately preceding
the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then, except
as set forth below or specified on the face hereof or in an
Addendum hereto, this Note shall bear interest at the Fixed
Interest Rate minus the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier,
if any; provided, however, that, unless otherwise specified on
the face hereof or in an Addendum hereto, the interest rate
hereon shall not be less than zero. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date;
provided, however, that the interest rate in effect for the
period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
Except as set forth above or specified on the face hereof or in
an Addendum hereto, the interest rate in effect on each day shall be (i) if
such day is an Interest Reset Date, the interest rate determined as of the
Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (ii) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the most recent Interest Reset Date. If any Interest Reset Date
would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next succeeding Business Day, except that if
LIBOR is an applicable Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. In addition, if the Treasury Rate is
an applicable Interest Rate Basis and the Interest Determination Date would
otherwise fall on an Interest Reset Date, then such Interest Reset Date
will be postponed to the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law, regulation or
executive order to close in The City of New York; provided, however, that
if the Specified Currency is other than United States dollars, such day is
also not a day on which banking institutions are authorized or required by
law, regulation or executive order to close in the Principal Financial
Center (as defined below) of the country issuing the Specified Currency
(or, if the Specified Currency is European Currency Units ("ECU"), is not a
day that appears as an ECU non-settlement day on the display designated as
"ISDE" on the Reuter Monitor Money Rates Service (or a day so designated by
the ECU Banking Association) or, if ECU non-settlement days do not appear
on that page (and are not so designated), is not a day on which payments in
ECU cannot be settled in the international interbank market); provided,
further, that if LIBOR is an applicable Interest Rate Basis, such day is
also a London Business Day (as defined below). "London Business Day" means
(i) if the Index Currency (as defined below) is other than ECU, any day on
which dealings in such Index Currency are transacted in the London
interbank market or (ii) if the Index Currency is ECU, any day that does
not appear as an ECU non-settlement day on the display designated as "ISDE"
on the Reuter Monitor Money Rates Service (or a day so designated by the
ECU Banking Association) or, if ECU non-settlement days do not appear on
that page (and are not so designated), is not a day on which payments in
ECU cannot be settled in the international interbank market. "Principal
Financial Center" means the capital city of the country issuing the
Specified Currency, or solely with respect to the calculation of LIBOR, the
Index Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss
francs and ECU, the "Principal Financial Center" shall be The City of New
York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The interest rate applicable to each Interest Reset Period
commencing on the related Interest Reset Date will be determined by the
Calculation Agent as of the applicable Interest Determination Date and will
be calculated by the Calculation Agent on or prior to the Calculation Date
(as defined below), except with respect to LIBOR and the Eleventh District
Cost of Funds Rate, which will be calculated on such Interest Determination
Date. The "Interest Determination Date" with respect to the CD Rate, the
CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime
Rate will be the second Business Day immediately preceding the applicable
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate shall be the last working day of the
month immediately preceding the applicable Interest Reset Date on which the
Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco")
publishes the Index (as defined below); and the "Interest Determination
Date" with respect to LIBOR shall be the second London Business Day
immediately preceding the applicable Interest Reset Date, unless the Index
Currency is British pounds sterling, in which case the "Interest
Determination Date" will be the applicable Interest Reset Date. The
"Interest Determination Date" with respect to the Treasury Rate shall be
the day in the week in which the applicable Interest Reset Date falls on
which day Treasury Bills (as defined below) are normally auctioned
(Treasury Bills are normally sold at an auction held on Monday of each
week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that such auction may be
held on the preceding Friday); provided, however, that if an auction is
held on the Friday of the week preceding the applicable Interest Reset
Date, the "Interest Determination Date" shall be such preceding Friday. If
the interest rate of this Note is determined with reference to two or more
Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent
Business Day which is at least two Business Days prior to the applicable
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate Basis shall be determined as of such date, and the applicable
interest rate shall take effect on the related Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum
hereto, the rate with respect to each Interest Rate Basis will be
determined in accordance with the applicable provisions below.
CD Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the CD Rate, the CD Rate shall be determined as of the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date") as the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified on the face
hereof as published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates" or any
successor publication ("H.15(519)") under the heading "CDs (Secondary
Market)", or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such CD Rate Interest Determination
Date for negotiable United States dollar certificates of deposit of the
Index Maturity as published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 P.M. Quotations for United States
Government Securities" or any successor publication ("Composite
Quotations") under the heading "Certificates of Deposit". If such rate is
not yet published in either H.15(519) or Composite Quotations by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the
Calculation Agent specified on the face hereof and will be the arithmetic
mean of the secondary market offered rates as of 10:00 A.M., New York City
time, on such CD Rate Interest Determination Date, of three leading nonbank
dealers in negotiable United States dollar certificates of deposit in The
City of New York selected by the Calculation Agent for negotiable United
States dollar certificates of deposit of major United States money center
banks in the market for negotiable United States dollar certificates of
deposit with a remaining maturity closest to the Index Maturity in an
amount that is representative for a single transaction in that market at
that time; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate determined as of such CD Rate Interest Determination Date will be the
CD Rate in effect on such CD Rate Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified
on the face hereof as the CMT rate, the CMT Rate shall be determined as of
the applicable Interest Determination Date (a "CMT Rate Interest
Determination Date") as the rate displayed on the Designated CMT Telerate
Page (as defined below) under the caption "...Treasury Constant
Maturities...Federal Reserve Board Release H.15...Mondays Approximately
3:45 P.M.", under the column for the Designated CMT Maturity Index (as
defined below) for (i) if the Designated CMT Telerate Page is 7055, the
rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the
related CMT Rate Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page or is not displayed by 3:00 P.M., New
York City time, on the related Calculation Date, then the CMT Rate for such
CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index as published in
H.15(519). If such rate is no longer published or is not published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT
Rate on such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for the
CMT Rate Interest Determination Date with respect to such Interest Reset
Date as may then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in H.15(519).
If such information is not provided by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York
selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest)), for the most recently
issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent is unable to obtain three such Treasury Note quotations, the CMT Rate
on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic
mean of the secondary market offer side prices as of approximately 3:30
P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for Treasury
Notes with an original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an amount of
at least U.S.$100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined
as of such CMT Rate Interest Determination Date will be the CMT Rate in
effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence
have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the Calculation Agent will obtain quotations for the
Treasury Note with the shorter remaining term to maturity and will use such
quotations to calculate the CMT Rate.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the
face hereof (or any other page as may replace such page on such service (or
any successor service) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is specified on the
face hereof, the Designated CMT Telerate Page shall be 7052, for the most
recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the United States Treasury securities (either one, two, three,
five, seven, 10, 20 or 30 years) specified on the face hereof with respect
to which the CMT Rate will be calculated. If no such maturity is specified
on the face hereof, the Designated CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note
is specified on the face hereof as the Commercial Paper Rate, the
Commercial Paper Rate shall be determined as of the applicable Interest
Determination Date (a "Commercial Paper Rate Interest Determination Date")
as the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity as published in H.15(519) under
the heading "Commercial Paper". In the event that such rate is not
published by 3:00 P.M., New York City time, on such Calculation Date, then
the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be the Money Market Yield of the rate for
commercial paper having the Index Maturity as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of
one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate is not yet
published in either H.15(519) or Composite Quotations by 3:00 P.M., New
York City time, on such Calculation Date, then the Commercial Paper Rate on
such Commercial Paper Rate Interest Determination Date will be calculated
by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered rates at approximately 11:00 A.M., New York
City time, on such Commercial Paper Rate Interest Determination Date of
three leading dealers of commercial paper in The City of New York selected
by the Calculation Agent for commercial paper having the Index Maturity
placed for an industrial issuer whose bond rating is "AA", or the equi-
valent, from a nationally recognized statistical rating organization;
provided, however, that if the dealers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate
determined as of such Commercial Paper Rate Interest Determination Date
will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and "M" refers
to the actual number of days in the Interest Period for which interest is
being calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis
for this Note is specified on the face hereof as the Eleventh District Cost
of Funds Rate, the Eleventh District Cost of Funds Rate shall be determined
as of the applicable Interest Determination Date (an "Eleventh District
Cost of Funds Rate Interest Determination Date") as the rate equal to the
monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate
Interest Determination Date falls, as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If
such rate does not appear on Telerate Page 7058 on such Eleventh District
Cost of Funds Rate Interest Determination Date, then the Eleventh District
Cost of Funds Rate on such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid
by member institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of San Francisco as
such cost of funds for the calendar month immediately preceding such
Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such
Eleventh District Cost of Funds Rate Interest Determination Date for the
calendar month immediately preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in
effect on such Eleventh District Cost of Funds Rate Interest Determination
Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds
Rate shall be determined as of the applicable Interest Determination Date
(a "Federal Funds Rate Interest Determination Date") as the rate on such
date for United States dollar federal funds as published in H.15(519) under
the heading "Federal Funds (Effective)" or, if not published by 3:00 P.M.,
New York City time, on the Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date as published in Composite Quotations under
the heading "Federal Funds/Effective Rate". If such rate is not published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City
time, on the related Calculation Date, then the Federal Funds Rate on such
Federal Funds Interest Determination Date shall be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent, prior to 9:00 A.M., New York City time,
on such Federal Funds Rate Interest Determination Date; provided, however,
that if the brokers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate determined as of such
Federal Funds Rate Interest Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on
the face hereof as LIBOR, LIBOR shall be determined by the Calculation
Agent as of the applicable Interest Determination Date (a "LIBOR Interest
Determination Date") in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case
such single rate will be used) for deposits in the Index Currency having
the Index Maturity, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is required as aforesaid, appears) on the
Designated LIBOR Page (as defined below) as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date, or (b) "LIBOR Telerate" is
specified on the face hereof, or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified on the face hereof as the method for calculating
LIBOR, the rate for deposits in the Index Currency having the Index
Maturity, commencing on such Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear, or if no
such rate appears, as applicable, LIBOR on such LIBOR Interest
Determination Date shall be determined in accordance with the provisions
described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent shall request the principal London offices of each of
four major reference banks in the London interbank market, as selected by
the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity, commencing on the applicable Interest Reset Date, to prime banks
in the London interbank market at approximately 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date will be the arithmetic
mean of the rates quoted at approximately 11:00 A.M., in the applicable
Principal Financial Center, on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in
effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated. If no
such currency or composite currency is specified on the face hereof, the
Index Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified
on the face hereof, the display on the Reuter Monitor Money Rates Service
(or any successor service) on the page specified on the face hereof (or any
other page as may replace such page on such service (or any successor
service)), for the purpose of displaying the London interbank rates of
major banks for the Index Currency, or (b) if "LIBOR Telerate" is specified
on the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified on the face hereof as the method for calculating LIBOR, the
display on the Dow Jones Telerate Service (or any successor service) on the
page specified on the face hereof (or any other page as may replace such
page on such service (or any successor service)), for the purpose of
displaying the London interbank rates of major banks for the Index
Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified
on the face hereto as the Prime Rate, the Prime Rate shall be determined as
of the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan". If such rate is not
published prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters
Screen USPRIME1 Page for such Prime Rate Interest Determination Date, the
Prime Rate shall be the arithmetic mean of the prime rates quoted on the
basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest Determination Date by
four major money center banks in The City of New York selected by the
Calculation Agent. If fewer than four such quotations are so provided, the
Prime Rate shall be the arithmetic mean of four prime rates quoted on the
basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest Determination Date as
furnished in The City of New York by the major money center banks, if any,
that have provided such quotations and by a reasonable number of substitute
banks or trust companies to obtain four such prime rate quotations,
provided such substitute banks or trust companies are organized and doing
business under the laws of the United States, or any State thereof, each
having total equity capital of at least U.S.$500 million and being subject
to supervision or examination by Federal or State authority, selected by
the Calculation Agent to provide such rate or rates; provided, however,
that if the banks or trust companies so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Prime Rate determined as
of such Prime Rate Interest Determination Date will be the Prime Rate in
effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as
page "USPRIME1" on the Reuter Monitor Money Rates Service (or any successor
service) (or such other page as may replace the USPRIME1 page on such
service (for any successor service) for the purpose of displaying prime
rates or base lending rates of major United States banks).
Treasury Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Treasury Rate, the Treasury Rate shall
be determined as of the applicable Interest Determination Date (a "Treasury
Rate Interest Determination Date") as the rate from the auction held on
such Treasury Rate Interest Determination Date (the "Auction") of direct
obligations of the United States ("Treasury Bills") having the Index
Maturity, as such rate is published in H.15(519) under the heading
"Treasury bills-auction average (investment)" or, if not published by 3:00
P.M., New York City time, on the related Calculation Date, the auction
average rate of such Treasury Bills (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills
having the Index Maturity are not reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such Auction is
held, then the Treasury Rate shall be calculated by the Calculation Agent
and shall be a yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of ap-
proximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent, for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity;
provided, however, that if the dealers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate determined
as of such Treasury Rate Interest Determination Date will be the Treasury
Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not
be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law
of general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after
such Interest Determination Date or, if such day is not a Business Day, the
next succeeding Business Day or (ii) the Business Day immediately preceding
the applicable Interest Payment Date or the Maturity Date, as the case may
be. At the request of the Holder hereof, the Calculation Agent will
provide to the Holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of
a determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by
multiplying the principal amount hereof by an accrued interest factor.
Such accrued interest factor shall be computed by adding the interest
factor calculated for each day in the applicable Interest Period. Unless
otherwise specified as the Day Count Convention on the face hereof, the
interest factor for each such date shall be computed by dividing the
interest rate applicable to such day by 360 if the CD Rate, the Commercial
Paper Rate, the Eleventh District Cost of Funds Rate, the Federal Funds
Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis or by
the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the
Day Count Convention on the face hereof, the interest factor for this Note,
if the interest rate is calculated with reference to two or more Interest
Rate Bases, shall be calculated in each period in the same manner as if
only the Applicable Interest Rate Basis specified on the face hereof
applied.
All percentages resulting from any calculation on this Note shall
be rounded to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upwards, and all
amounts used in or resulting from such calculation on this Note shall be
rounded, in the case of United States dollars, to the nearest cent or, in
the case of a Specified Currency other than United States dollars, to the
nearest unit (with one-half cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur
and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the
entire indebtedness of the Notes or (ii) certain covenants and Events of
Default with respect to the Notes, in each case upon compliance with
certain conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trust and the rights of the holders of the Securities at
any time by the Trust and the Trustee with the consent of the holders of
not less than a majority of the aggregate principal amount of all
Securities at the time outstanding and affected thereby. The Indenture
also contains provisions permitting the holders of not less than a majority
of the aggregate principal amount of the outstanding Securities of any
series, on behalf of the holders of all such Securities, to waive
compliance by the Trust with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less
than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all
of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
holder of this Note shall be conclusive and binding upon such holder and
upon all future holders of this Note and other Notes issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Trust,
which is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this Note at the times, places and rate or formula,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in
the Security Register of the Trust upon surrender of this Note for
registration of transfer at the office or agency of the Trust in any place
where the principal hereof and any premium or interest hereon are payable,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Trust and the Security Registrar duly executed by,
the holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations
but otherwise having the same terms and conditions, as requested by the
holder hereof surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Trust may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of
transfer, the Trust, the Trustee and any agent of the Trust or the Trustee
may treat the holder in whose name this Note is registered as the owner
thereof for all purposes, whether or not this Note be overdue, and neither
the Trust, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby
have been executed or entered into by an officer of the Trust in his/her
capacity as an officer of the Trust which has been formed as a
Massachusetts business trust pursuant to the Declaration of Trust, and not
individually, and neither the trustees, officers or shareholders of the
Trust shall be bound or have any personal 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 Note and
all documents, agreements, understandings and arrangements relating to any
transaction contemplated hereby or thereby 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.
The Indenture and this Note 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 entirely in such State.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________
| |
|______________________________|___________________________________________
___________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
___________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
_________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
_______________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of this
Note in every particular, without
alteration or enlargement or any change
whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Trust to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at ___________________________________________________________
___________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at 61 Broadway, New York, New York 10006, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof)) which the holder
elects to have repaid and specify the denomination or denominations (which
shall be an Authorized Denomination) of the Notes to be issued to the
holder for the portion of this Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid).
Principal Amount
to be Repaid: $_____________ ___________________________________
Notice: The signature(s) on
Date: ______________________ this Option to Elect Repayment
must correspond with the name(s) as
written upon the face of this Note
in every particular, without
alteration or enlargement or any
change whatsoever.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NEW PLAN REALTY TRUST
This AMENDED AND RESTATED DECLARATION OF TRUST OF NEW PLAN REALTY
TRUST is made as of the 15th day of January, 1996 by William Newman, Arnold
Laubich, Norman Gold, Melvin Newman, James Steuterman, Raymond Bottorf,
Dean Bernstein, John Wetzler and Gregory White, not personally but solely
as Trustees of New Plan Realty Trust.
W I T N E S S E T H:
WHEREAS, on July 31, 1972 the original Declaration of Trust of
New Plan Realty Trust (the "Trust") was duly declared, executed and
delivered and filed with the Secretary of The Commonwealth of
Massachusetts;
WHEREAS, said original Declaration of Trust has been duly
amended, with the approval of the holders of the requisite number of the
Shares of Beneficial Interest of the Trust as provided in the Declaration
of Trust, from time to time, most recently by Amendment No. 11, so approved
by holders of Shares of Beneficial Interest on December 13, 1995;
WHEREAS, said Declaration of Trust as so amended authorizes the
Trustees from time to time to approve and file in the office of the
Secretary of The Commonwealth of Massachusetts (and in any other office
where the Declaration of Trust and amendments may be filed or recorded) an
Amended and Restated Declaration of Trust which restates (with
nonsubstantive conforming changes which the Trustees consider appropriate)
the original Declaration of Trust as previously amended and provides that
from and after the filing thereof such Amended and Restated Declaration of
Trust shall be deemed for all purposes to have superseded the earlier
Declaration of Trust and amendments thereto and shall constitute the
Declaration of Trust;
WHEREAS, the Trustees determine it to be in the interests of the
Trust, the holders of Shares of Beneficial Interest of the Trust, and
others doing business with or having an interest in the Trust that the
original Declaration of Trust as previously amended be restated into a
single document as herein set forth;
WHEREAS, the Trustees have appointed Goodwin, Procter & Hoar LLP
as resident agent of the Trust in Massachusetts and have designated the
principal place of business of the Trust in Massachusetts to be c/o
Goodwin, Procter & Hoar LLP, Exchange Place, Boston, MA 02109.
NOW, THEREFORE, the undersigned, being all of the Trustees of New
Plan Realty Trust, do hereby approve and adopt this Amended and Restated
Declaration of Trust and do restate the original Declaration of Trust of
New Plan Realty Trust, as heretofore amended, in its entirety to read as
hereinafter set forth.
ARTICLE I
THE TRUST; DEFINITIONS
SECTION 1.1. Name. The name of the trust created by this
Declaration of Trust shall be "New Plan Realty Trust" and so far as may be
practicable the Trustees shall conduct the Trust's activities, execute all
documents and sue or be sued under that name, which name (and the word
"Trust" wherever used in this Declaration of Trust, except where the
context otherwise requires) shall refer to the Trustees in their capacity
as Trustees, and not individually or personally, and shall not refer to the
officers, agents, employees or Shareholders of the Trust. Should the
Trustees determine that the use of such name is not practicable, legal or
convenient, they may use such other designation or they may adopt such
other name for the Trust as they deem proper, and the Trustees may hold
property of the Trust and conduct activities as Trustees under such
designation or name.
SECTION 1.2. Adviser. The Trustees may appoint, employ or contract
with an Adviser pursuant to Article III.
SECTION 1.3. Location; Places of Business. The principal place of
business of the Trust shall be in Boston, Massachusetts, unless changed by
the Trustees to another location within or without Massachusetts. The
Trust may have such other offices or places of business as the Trustees
from time to time may determine as necessary or expedient.
SECTION 1.4. Nature of Trust. The Trust shall be a Massachusetts
unincorporated voluntary association of the type commonly termed a
Massachusetts business trust and as "association" is defined in Section 1
of Chapter 182 of the General Laws of the Commonwealth of Massachusetts.
The Trust is not intended to be, shall not be deemed to be, and shall not
be treated as, a general partnership, limited partnership, joint venture, a
consortium, corporation, association or joint stock company (but nothing
herein shall preclude the Trust from being taxable as an association under
the REIT Provisions of the Internal Revenue Code), nor shall the Trustees
or Shareholders or any of them for any purpose be or be deemed to be
treated in any way whatsoever to be liable or responsible hereunder as
partners or joint venturers. The Shareholders shall be beneficiaries and
their relationship to the Trustees shall be solely in that capacity in
accordance with the rights conferred upon them hereunder. The Trust is
intended to have the status of a "real estate investment trust" as that
term is defined in the REIT Provisions of the Internal Revenue Code, and
this Declaration of Trust and all actions of the Trustees hereunder shall
be construed in accordance with such intent.
SECTION 1.5. Definitions. As used in this Declaration of Trust, the
following terms shall have the following meanings unless the context hereof
otherwise requires:
1.5.1. Adviser. "Adviser" shall mean any business
organization appointed, employed or contracted with by the Trustees
under the provisions of Section 3.1 hereof to administer the day-to-
day operations of the Trust.
1.5.2. Affiliate. "Affiliate" shall mean, (a) as to any
corporation, partnership or trust: (i) any Person who directly or
indirectly controls, is controlled by, or is under common control
with, such corporation, partnership or trust; (ii) any Person who is
an officer, director, employee, partner or trustee of such
corporation, partnership or trust, or of any Person which controls, is
controlled by, or is under common control with, such corporation,
partnership or trust; (b) as to any Person: any corporation,
partnership or trust of which such Person is an Affiliate under (a)
above.
1.5.3. Affiliated Trustee. "Affiliated Trustee" shall mean a
Trustee who in his individual capacity, is an Affiliate of the
Adviser, if any.
1.5.4. Annual Meeting. "Annual Meeting of Shareholders" shall
have the meaning set forth in Section 9.1.
1.5.5. Annual Report. "Annual Report" shall have the meaning
set forth in Section 9.6.
1.5.6. Appraisal. "Appraisal" shall mean a determination of
the fair market value of a specified interest in Real Property in its
existing state or in a state to be created, by any disinterested
Person having no economic interest in the Real Property, provided any
such Person, in the sole judgment of the Trustees, is properly
qualified to make such a determination.
1.5.7. Book Value. "Book Value" shall mean the value of
assets on the books of the Trust before provision for amortization,
depreciation or depletion and before deduction of any indebtedness or
other liability (but after provision for bad debt loss and similar
reserves). Depreciable assets shall be included in such computation
at the cost of such assets before provision for depreciation,
amortization or depletion unless the Trustees determine that the fair
market value of such assets is less than such amount. At the time the
Trust acquires any asset, if such asset is acquired in connection with
a reorganization or any other transaction in which the historical cost
of such asset in the Trust's predecessor is carried over to the Trust,
the Book Value of such asset shall be the fair market value thereof at
the time the Trust acquired such asset, determined by an Appraisal.
1.5.8. Construction Loans. "Construction Loans" shall mean
Mortgage Loans made to finance all or part of the cost of the
acquisition of land (including leaseholds therein) and the
construction of buildings and other improvements thereon.
1.5.9. Declaration of Trust; Declaration. "Declaration of
Trust" and "Declaration" shall mean this Amended and Restated
Declaration of Trust as amended, restated or modified from time to
time. References in this Declaration of Trust to "Declaration,"
"hereof," "herein" and "hereunder" shall be deemed to refer to the
Declaration of Trust and shall not be limited to the particular text,
article or section in which such words appear.
1.5.10. Development Loans. "Development Loans" shall mean
Mortgage Loans made to finance all or part of the cost of the
acquisition of land (including leaseholds therein and including costs
of demolition, wrecking and clearing) and the development of such land
into a site or sites suitable for the construction of improvements
thereon or suitable for other residential, recreational, commercial,
industrial or public uses.
1.5.11. Equity Investments in Real Property. "Equity
Investments in Real Property" shall mean investments in the ownership
of, or participations in the ownership of, Real Property, improved and
unimproved, including the development thereof, and any interest
therein other than Mortgage Loans, or investments in any corporate or
other entity principally involved in owning, developing, improving,
financing, operating or managing Real Property.
1.5.12. FHA. "FHA" shall mean the Federal Housing
Administration and any successor thereto.
1.5.13. First Mortgage. "First Mortgage" shall mean a Mortgage
which takes priority or precedence over all other charges or
encumbrances upon the same interest in Real Property, other than a
lessee's interest therein, and which must be satisfied before such
other charges or encumbrances are entitled to participate in the
proceeds of any sale or other disposition of such interest in Real
Property. Such Mortgage may be upon a lessee's interest in Real
Property. Such priority shall not be deemed to be abrogated by any
charges or encumbrances if the amount deemed necessary to discharge
said charges or encumbrances is withheld from disbursements made under
the loan secured by such Mortgage, liens for taxes, assessments which
are not due or remain payable without penalty, contracts (other than
contracts for repayment of borrowed moneys), leases, mechanics' and
materialmen's liens for work performed and materials furnished which
are not in default or are in good faith being contested, other minor
encumbrances immaterial in amount, and other claims normally deemed in
the local jurisdiction in which the Real Property is located not to
abrogate the priority of a first mortgage.
1.5.14. First Mortgage Loans. "First Mortgage Loans" shall
mean Mortgage Loans secured or collateralized at the time of the
making or organization thereof by the Trust by First Mortgages.
1.5.15. Internal Revenue Code. "Internal Revenue Code" shall
mean the Internal Revenue Code of the United States of America, as
amended from time to time and regulations and rulings promulgated
thereunder from time to time.
1.5.16. Invested Assets. "Invested Assets" shall mean the Book
Value of the Total Assets of the Trust Estate but excluding good will
and other intangible assets, cash, cash items and obligations of
municipal, state and federal governments and governmental agencies
(other than obligations secured by a lien on Real Property owned or to
be acquired by such governments or governmental agencies and
securities issued or guaranteed by such governments or governmental
agencies which are backed by a pool of Mortgages). For purposes of
this Trust, the Federal National Mortgage Association, Government
National Mortgage Association and any other governmental agency
issuing securities backed by a pool of mortgages shall be deemed to be
governmental agencies.
1.5.17. Investment Committee. "Investment Committee" shall
mean a committee consisting of three or more Trustees, a majority of
whom (except as permitted by Section 3.3 hereof) shall not be
Affiliated Trustees and to whom the approval of investments may be
delegated pursuant to Section 2.2.12 hereof.
1.5.18. Junior Mortgages. "Junior Mortgage" shall mean a
Mortgage which (a) has the same priority or precedence over all
charges or encumbrances upon an interest in Real Property as that
required for a First Mortgage except that it is subject to the
priority of one or more other Mortgages and (b) must be satisfied
before such other charges or encumbrances (other than prior Mortgages)
are entitled to participate in the proceeds of any sale or other
disposition of such interest in Real Property.
1.5.19. Junior Mortgage Loans. "Junior Mortgage Loans" shall
mean Mortgage Loans secured or collateralized at the time of the
making or acquisition thereof by the Trust by Junior Mortgages.
1.5.20. Mortgage Loans. "Mortgage Loans" shall mean notes,
debentures, bonds and other evidences of indebtedness or obligations
which are negotiable or non-negotiable and which are secured or
collateralized by Mortgages.
1.5.21. Mortgages. "Mortgages" shall mean mortgages, deeds of
trust, deeds to secure debt, or other security deeds on or interests
in Real Property or on rights or interests, including leasehold
interests, in Real Property.
1.5.22. Net Assets. "Net Assets" shall mean the Total Assets
of the Trust after deducting therefrom any liabilities of the Trust.
1.5.23. Net Income. "Net Income" of the Trust for any period
shall mean the net income of the Trust for such period, determined in
accordance with generally accepted accounting principles after
deducting Operating Expenses, but excluding extraordinary items and
realized gains and losses from the sale, exchange or other disposition
of assets of the Trust, and without deduction of:
(a) regular fees or compensation payable by the Trust to
the Adviser, if any; and
(b) depreciation, depletion and amortization of any Assets
of the Trust.
1.5.24. Non-Affiliated Trustee. "Non-Affiliated Trustee" shall
mean a Trustee who is not an Affiliated Trustee.
1.5.25. Non-Recourse Indebtedness. "Non-Recourse Indebtedness"
shall mean indebtedness which does not represent a general obligation
of the Trust or the Trust Estate but is indebtedness of the Trust
incurred in connection with any asset wherein the liability of the
Trust is limited to such asset (including any increments or additions
thereto) and the income and proceeds attributable thereto.
1.5.26. Operating Expenses. "Operating Expenses" shall mean
with respect to any Fiscal Year the aggregate expenses for such Fiscal
Year of every character regarded as operating expenses in accordance
with generally accepted accounting principles, as determined by
independent accountants selected by the Trustees, exclusive of the
following:
(a) fees and compensation paid to the Adviser, if any,
whether regular or for additional services;
(b) the cost of borrowed money;
(c) taxes on income;
(d) taxes and assessments on real property, and all
other taxes applicable to the Trust;
(e) legal, audit, accounting, underwriting, brokerage,
listing, registration, printing, engraving and
other expenses, taxes and fees incurred in
connection with the issuance, distribution,
transfer and stock exchange listing of the Trust's
Securities;
(f) fees and expenses paid to Non-Affiliated Trustees;
(g) fees and expenses paid or accrued to independent
contractors, independent advisers, consultants,
Mortgage servicers, Real Property managers,
employees and other agents employed by or on behalf
of the Trust in connection with the acquisition,
operation, maintenance, management, protection and
disposition of Equity Investments in Real Property
or Mortgage Loans or other properties;
(h) expenses connected with the acquisition, operation,
maintenance, management, protection and disposition
of Equity Investments in Real Property or Mortgage
Loans or other properties (including as exclusions
from Operating Expenses, in connection with such
investments or Mortgage Loans, travel, telephone
and other out-of-pocket expenses of the Adviser, if
any, and its officers and employees, the costs of
foreclosures, loan administration, insurance
premiums, legal services, architectural and
engineering fees, mortgage taxes, appraisal and
inspection fees, title and abstract expenses,
brokerage, sale and leasing commissions, and costs
incurred for maintenance, repairs and improvements
of property);
(i) insurance as required by the Trust (including as
exclusions from Operating Expenses Trustees' and
officers' liability insurance and fidelity bonds of
the Adviser, if any);
(j) expenses of organizing, modifying, amending or
terminating the Trust;
(k) expenses connected with payments of dividends,
distributions, or interest to security holders of
the Trust;
(l) all expenses connected with communications to
security holders of the Trust and the other
bookkeeping and clerical work necessary in
maintaining relations with security holders,
including the cost of preparing, printing and
mailing proxy solicitation materials and reports to
holders of the Trust's Securities and the cost of
holding shareholders' meetings;
(m) transfer agents', registrars', indenture trustees',
warrant agents', authenticating agents', and paying
agents' charges and fees;
(n) realized losses (exceeding provisions therefor) on
disposition of assets;
(o) all provisions for depletion, depreciation,
amortization and losses; and
(p) miscellaneous expenses connected with any of the
foregoing items.
1.5.27. Person. "Person" shall mean and include individuals,
corporations, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, consortia, trusts,
banks, trust companies, land trusts, business trusts, or other
entities and governments and agencies and political subdivisions
thereof.
1.5.28. Real Property. "Real Property" shall mean land, rights
in land (including but not limited to leasehold interests as lessee or
lessor), and any buildings, structures, improvements, furnishings,
fixtures and equipment located on or used in connection with land,
leasehold interests and rights in land or interests therein, and air
rights, but does not include Mortgages, Mortgage Loans or interests
therein.
1.5.29. REIT Provisions of the Internal Revenue Code. "REIT
Provisions of the Internal Revenue Code" shall mean Sections 856
through 860 of the Internal Revenue Code, as now enacted or hereafter
amended, or successor statutes, and regulations and rulings
promulgated thereunder from time to time.
1.5.30. Securities. "Securities" shall mean any stock, shares,
voting trust certificates, bonds, debentures, notes or other evidences
of indebtedness, secured or unsecured, convertible, subordinated or
otherwise or, in general, any instruments commonly known as
"securities" or any certificates of interest, shares or participations
in, temporary or interim certificates for, receipts for, guarantees
of, or warrants, options or rights to subscribe to, purchase or
acquire any of the foregoing.
1.5.31. Securities of the Trust. "Securities of the Trust"
shall mean any Securities issued by the Trust or payment of which has
been assumed by the Trust.
1.5.32. Shareholders. "Shareholders" shall mean as of any
particular time all holders of record of outstanding Shares at such
time.
1.5.33. Shares. "Shares" shall mean the Shares of Beneficial
Interest and the Preferred Shares of the Trust as described in Section
6.1.
1.5.34. Standby and Gap Commitments. "Standby and Gap
Commitments" shall mean commitments to make Mortgage Loans if the
borrowers are unable otherwise to obtain financing on specified terms
or in specified amounts.
1.5.35. Standing Loans. "Standing Loans" shall mean loans which
provide only for periodic interest payments and not for amortization
of principal which is paid in full at maturity.
1.5.36. Total Assets of the Trust. "Total Assets of the Trust"
shall mean the Book Value of all of the Trust Estate.
1.5.37. Trust. "Trust" shall mean the Trust existing pursuant
to this Declaration and/or where the context so requires, in
furtherance of the purposes of this Trust being a Massachusetts
unincorporated voluntary association, shall mean the Trustees under
this Declaration holding in trust for the benefit of the Shareholders.
1.5.38. Trustees. "Trustees" shall mean, as of any particular
time, Trustees holding office under this Declaration at such time,
whether they be the Trustees named herein or additional or successor
Trustees and shall not include the officers, representatives or agents
of the Trust or the Shareholders. Nothing herein shall be deemed to
preclude the Trustees from also serving as officers, representatives
or agents of the Trust, or the Adviser, if any, or any Real Property
Manager, or owning Shares of the Trust, the Adviser, if any, or any
Real Property Manager; provided that ownership or affiliation with the
Real Property Manager does not prevent such Manager from being an
"independent contractor" under the REIT Provisions of the Internal
Revenue Code.
1.5.39. Trust Estate. "Trust Estate" shall have the same
meaning as "Trust Property" defined in Section 1.5.40.
1.5.40. Trust Property. "Trust Property" shall mean as of any
particular time any and all property, real, personal or otherwise,
tangible or intangible, which is transferred, conveyed, held or paid
to the Trust or Trustees and all rents, income, profits and gains
therefrom and which at such time is owned or held by, or for the
account of, the Trust or the Trustees.
1.5.41. Trustees' Regulations. "Trustees' Regulations" shall
have the meaning set forth in Section 10.8.
1.5.42. Wrap Around Loan. "Wrap Around Loan" shall mean a
Junior Mortgage Loan made pursuant to an agreement obligating the
borrower to pay the Trust a combined principal amount equal to that of
any First Mortgage Loan plus that of such Junior Mortgage Loan with
interest on the combined principal and obligating the Trust to pay, as
received from the borrower, the principal and interest due on any such
First Mortgage Loan.
1.5.43. Fiscal Year. "Fiscal Year" of the Trust shall mean the
12-month period ending July 31 in each year, or such other period as
may be determined by the Trustees.
ARTICLE II
POWERS OF TRUSTEES
SECTION 2.1. General Power and Authority of Trustees. The Trustees,
subject only to the specific limitations contained in this Declaration,
shall have, without further or other authorization and free from any power
or control on the part of the Shareholders, full, absolute and exclusive
power, control and authority over the Trust Property, the Trust Estate and
the business and affairs of the Trust, to the same extent as if the
Trustees were the sole and absolute owners thereof in their own right, and
to do all such acts and things as in their sole judgment and discretion are
necessary or incidental to, or desirable for the carrying out of any of the
purposes of the Trust or conducting the business of the Trust. Any
determination made in good faith by the Trustees of the purposes of the
Trust or the existence of any power or authority hereunder shall be
conclusive. In construing the provisions of this Declaration, there shall
be a presumption in favor of the grant of powers and authority to the
Trustees. The enumeration of any specific power or authority herein shall
not be construed as limiting the general powers or authority or any other
specified power or authority conferred herein upon the Trustees.
SECTION 2.2. Specific Powers and Authorities of Trustees. Subject
only to the express limitations contained in this Declaration and in
addition to any powers and authorities conferred by this Declaration or
which the Trustees may have by virtue of any present or future statute or
rule or law, without any action or consent by the Shareholders, the
Trustees shall have and may exercise at any time and from time to time any
or all of the following powers and authorities which may or may not be
exercised by them in their sole judgment and discretion and in such manner
and upon such terms and conditions as from time to time they may deem
proper, and all of which powers and authorities shall be exercisable
without regard to whether such exercise would be permissible or appropriate
for Trustees subject to the "prudent man rule" or other statutes or legal
principles limiting or restricting in any manner the investment or trust
funds, none of which limiting statutes or principles shall be applicable to
the Trustees or the Trust:
2.2.1. Investments. To retain, invest, reinvest, the capital
or other funds of the Trust, whether by purchase or other acquisition
for cash or other property or through the issuance or assumption of
Securities of the Trust or taking property subject to debt, in Real
Property, Equity Investments in Real Property, Mortgage Loans and such
other real, personal, mixed or otherwise, tangible or intangible
property of any kind and description wherever located (within or
without the United States), improved or unimproved, including without
limitation, the following: (a) a full or participating interest in
Securities which are secured by Mortgages; (b) a full or participating
interest in rents, lease payments or other income from, or a full or
participating interest in equity or ownership of, Real Property; (c)
investments secured by the pledge or transfer of Mortgage Loans; and
(d) Securities of every nature, whether or not secured by Mortgages,
without regard to whether such interests are in newly constructed
properties and other new ventures with no history of operations or
earnings. The Trustees shall have the power to enter into commitments
to make any investments, purchase, or acquisition of any kind
authorized by this Article II, including, but not limited to, Standby
and Gap Commitments.
2.2.2. No Limitations Relating to Term of Trust. The Trustees
shall have full authority and power to make any and all investment and
commitments therefor, within the limitations of this Declaration of
Trust, that they, in their absolute discretion, shall determine, and
without liability for loss, even though such investments shall be of a
character or in an amount not considered proper for the investment of
trust funds or which do not or may not produce income and regardless
of whether any such investments mature after the possible termination
of the Trust.
2.2.3. Participations with or in Persons. To acquire a share
of rents, lease payments, or other gross income from or a share of the
profits from or a share in the equity or ownership of Real Property as
a general or limited partner, co-owner, joint venturer, or otherwise;
to invest in loans secured by the pledge or transfer of mortgages; to
develop, operate, pool, unitize, grant production payments out of or
lease or otherwise dispose of mineral, oil and gas properties rights.
2.2.4. Disposition and Encumbering of Assets. To sell, rent,
lease, hire, exchange, release, partition, assign, mortgage, pledge,
hypothecate, grant security interests in, otherwise encumber,
negotiate, convey, transfer, exchange or otherwise dispose of any and
all of the Trust Property by warranty or other deeds, trustees' deeds,
assignments, warranty or other bills of sale, transfers, leases,
mortgages, financing statements, security agreements and other
instruments for any of such purposes executed and delivered for and on
behalf of the Trust or the Trustees free and clear from any and all
trusts, at public or private sale, for cash or on terms, with or
without advertisement, and subject to such restrictions, stipulations,
agreements and reservations as they shall deem proper, including the
taking back of mortgages with or without personal liability to secure
the whole or any part of the purchase price of any of the Trust
Property sold or transferred; provided, however, the affirmative vote
at a meeting of Shareholders of the holders of at least 66-2/3% of all
outstanding Shares having the right to vote thereon shall be required
to approve the principal terms of the transaction and the nature and
the amount of consideration involving any sale, lease, exchange or
other disposition of more than 50% of the Trust Estate. The vote or
consent of Shareholders shall not be required for the pledging,
hypothecating, granting a security interest in, mortgaging or
encumbering all or any of the Trust Estate, or for the sale, lease,
exchange or other disposition of less than 50% of the Trust Estate.
2.2.5. Agreement Pertaining to Assets. To enter into leases,
contracts, obligations, easement agreements, party wall agreements,
boundary line agreements, loan commitments of every kind, nature and
description, including Standby and Gap Commitments and other
agreements, any one of which may be for a term extending beyond the
term of office of the Trustees and beyond the possible termination of
the Trust or for a lesser term.
2.2.6. Financing. To lend money, whether secured or unsecured.
2.2.7. Borrowing. To borrow or in any other manner raise such
sum or sums of money or other property as they shall determine in any
amount and in any manner and on any terms, and to evidence the same by
Securities or negotiable or non-negotiable instruments which may
mature at any time or times even beyond the possible date of
termination of the Trust, and to reacquire any such Securities; to
enter into other contracts on behalf of the Trust; and to execute and
deliver any mortgage, pledge, assignment, conveyance, transfer,
subordination, security agreement, encumbrance or other instrument to
secure any such Securities or other obligations or contracts; provided
that upon the completion of and after giving effect to any proposed
borrowing (other than any new borrowing for the purpose of extending,
renewing, refunding or replacing an equal or larger aggregate
principal amount of any then existing borrowing) the amount of
outstanding indebtedness of the Trust for money borrowed from or
guaranteed to others (including Non-Recourse Indebtedness) shall not
exceed 500% of the Net Assets of the Trust. Any such Securities,
instruments or other obligations of the Trust may, at the discretion
of the Trustees, without vote of the Shareholders, be convertible into
Shares at such time and on such terms as the Trustees may prescribe.
2.2.8. Issuance of or Repurchase of Securities. Subject to the
provisions of Section 4.3, to issue, purchase or repurchase or
otherwise acquire any type of Securities of the Trust, without vote of
or other action by the Shareholders, including but not limited to
Shares, bonds, debentures, notes or other evidences of indebtedness,
which may be secured or unsecured, and which may be subordinated to
any indebtedness of the Trust and may be convertible into Shares, and
to issue options, warrants and rights to subscribe to, purchase or
acquire any type of Securities of the Trust, and stock appreciation
rights and other rights and awards in respect of any type of
Securities of the Trust, all to or from such Persons for such cash,
property, services or other consideration (including Securities issued
or created by, or interests in, any Person) at such time or times and
in such amounts and in such manner and on such terms as the Trustees
may deem advisable and to list any of the foregoing Securities of the
Trust on any securities exchange. Securities so purchased,
repurchased or acquired by the Trustees for the account of the Trust
shall not, so long as they belong to the Trust, receive distributions
(other than, at the option of the Trustees, distributions in Shares)
or be entitled to any voting rights. Such Securities in the
discretion of the Trustees may be cancelled and the number of
Securities issued thereby reduced, or such Securities in the
discretion of the Trustees may be held in the treasury and may be
disposed of by the Trustees at such time or times, to such party or
parties and for such considerations as the Trustees may determine.
2.2.9. Reserves. To create a reserve fund or reserve funds for
any purposes, and to use the same in any manner that the Trustees see
fit.
2.2.10. Taxes. To pay out of the Trust Estate all taxes or
assessments, of whatever kind or nature, imposed upon or against the
Trust or the Trustees in connection with the Trust Property or upon or
against the Trust Property or income or any part thereof; to settle
and compromise disputed tax liabilities; and for the foregoing
purposes to make such returns and do all such other acts and things as
may be deemed by the Trustees necessary or desirable.
2.2.11. Rights as Holder of Mortgages and Securities. To
possess and exercise all the rights, powers and privileges
appertaining to the ownership of all or any Mortgages or Securities
issued or created by, or interests in, any Person forming a part of
the Trust Property to the same extent that an individual might, and,
without limiting the generality of the foregoing, to vote or give any
consent, request or notice or waive any notice, either in person or by
proxy or power of attorney, with or without power of substitution, to
one or more Persons, which proxies and powers of attorney may be for
meetings or actions generally or for any particular meeting or action,
and may include the exercise of discretionary powers.
2.2.12. Delegation; Investment Committee. Consistent with the
Trustees' ultimate responsibility to supervise the affairs of the
Trust, and their exclusive authority over the management of the Trust
and the Trust property, to delegate from time to time to such one or
more of their number or to their officers, employees and agents the
doing of such things and the execution of such deeds or other
instruments either in the name of the Trust or the names of the
Trustees or as their attorney or attorneys or otherwise as the
Trustees may from time to time deem expedient, except that powers of
the Trustees relating to the approval of investments for the Trust may
be delegated only to an Investment Committee.
2.2.13. Collection. To collect, sue for, receive and receipt
for all sums of money or other property coming due to the Trust; to
consent to extensions of the time for payment, or to the renewal, of
any bonds or other Securities or obligations; to engage in, intervene
in, prosecute, join, defend, compound, compromise, abandon or adjust
by arbitration or otherwise any actions, suits, proceedings, disputes,
claims, demands or things relating to the Trust, the Trust Property or
the Trust's affairs; to enter into agreements therefor, whether or not
any suit is commenced or claimed, accrued or asserted; to foreclose
any Mortgage or other Security securing any note, debenture, bond,
obligation or contract, by virtue of which any sums of money are owed
to the Trust; to exercise any power of sale held by the Trustees or
the Trust, and to convey good title thereunder free of any and all
trusts, and, in connection with any such foreclosure or sale, to
purchase or otherwise acquire title to any property; to be parties to
reorganizations and to transfer to and deposit with any corporation,
committee, voting trustee or other Person any stocks, shares, bonds or
other Securities or obligations of any corporation, trust, association
or other organization, the Securities of which form a part of the
Trust Property, for the purpose of any reorganization of any such
corporation, trust, association or other organization, or otherwise to
participate in any arrangement for enforcing or protecting the
interests of the Trustees as the owners or holders of such stocks,
shares, bonds or other Securities or obligations and to pay any
assessment levied in connection with such reorganization or
arrangement; to extend the time with or without security for the
payment or delivery of any debts or property and to execute and enter
into releases, agreements and other instruments; to pay or satisfy any
debts or claims upon any evidence that the Trustees shall think
sufficient, and in advance of any potential controversy or proceedings
to enter into agreements regarding arbitration, adjudication or
settlement thereof.
2.2.14. Expenses. To incur and pay out of the Trust Estate any
charges or expenses and disburse any funds of the Trust which, in the
opinion of the Trustees is necessary or incidental to or desirable or
proper for carrying out any of the purposes of this Declaration of
Trust or conducting the business of the Trust.
2.2.15. Compensation. To pay appropriate compensation or fees
from the funds of the Trust to themselves as Trustees and to Persons
with whom the Trust has contracted or transacted business. The
Trustees shall fix the compensation of all officers and Trustees. The
Trustees shall be entitled to receive reasonable compensation for
their general services as Trustees and officers hereunder, and the
Trustees may pay themselves or any one or more of themselves such
compensation for special services, including legal services, as they
in good faith may deem reasonable.
2.2.16. Guarantees. To endorse or guarantee the payment of any
notes or other obligations of any Person; to make contracts of
guaranty or suretyship, or otherwise assume liability for payment
thereof; and to mortgage and pledge the Trust Property or any part
thereof to secure any of or all such obligations.
2.2.17. Deposits. To deposit any moneys or Securities included
in the Trust Property with any one or more banks, trust companies or
other banking, savings or savings and loan institutions, whether or
not such deposits will draw interest. Such deposits shall be subject
to withdrawal on such terms and in such manner and by such Person or
Persons (including any one or more Trustees, officers, agents or
representatives) as the Trustees may determine, and the Trustees shall
have no responsibility for any loss which may occur by reason of the
failure of the bank, trust company or other banking, savings or
savings and loan institution with whom the moneys or Securities have
been deposited.
2.2.18. Allocation. To determine whether moneys, Securities or
other assets received by the Trustees under the Trust shall be charged
or credited to income or capital or allocated between income and
capital, including the power to amortize or fail to amortize any part
or all of any premium or discount; to treat any part or all the profit
resulting from the maturity or sale of any asset, whether purchased at
a premium or at a discount, as income or capital, or apportion the
same between income and capital; to apportion the sales price of any
asset between income and capital; and to determine in what manner any
expenses or disbursements are to be borne as between income and
capital, whether or not in the absence of the power and authority
conferred by this Section 2.2.18 such assets would be regarded as
income or as capital or such expense or disbursement would be charged
to income or to capital; to treat any dividend or other distribution
on any investment as income, or capital or apportion the same between
income and capital; to provide or fail to provide reserves for
depreciation, amortization, depletion or obsolescence in respect of
all or any Trust Property in such amounts and by such methods as they
shall determine, and to allocate the consideration received for Shares
between paid-in capital and other appropriate accounts, all as the
Trustees may reasonably deem proper. All of the foregoing
determinations by the Trustees are final, absolute, valid and binding,
notwithstanding any contrary provisions of any statutory or common law
of any jurisdiction which might be applicable in the absence of this
Section 2.2.18 and the making of such determinations by the Trustees.
2.2.19. Valuation. To determine conclusively from time to time
and at any time the value of any of the Trust Property and of any
services, Securities, assets or other consideration hereafter to be
acquired or disposed of by the Trustees under the Trust, and to
revalue the Trust Property, in accordance with such appraisals or
other information as the Trustees, in their sole judgment, deem
necessary or advisable, and to keep the books of the Trust on the
basis of the figures so adopted. If the Trustees should at any time
purchase or otherwise acquire Real Property, the consideration paid
for such Real Property shall generally be based upon the fair market
value of the property but the Trustees shall not be required to secure
an Appraisal.
2.2.20. Fiscal Year. To determine the fiscal year of the Trust
and the method or form in which its accounts shall be kept and from
time to time to change the fiscal year or method or form of accounts.
2.2.21. Title. To cause legal title to any or all of the Trust
Estate or Trust Property to be held by or in the name of the Trustees,
or except as prohibited by law, by or in the name of the Trust or one
or more of the Trustees, in joint tenancy or otherwise, as the
Trustees may determine or any other Person, as nominee or otherwise,
on such terms, in such manner, and with such powers in such Person as
the Trustees may determine, and with or without the disclosure that
the Trust or Trustees are interested therein; provided, that the Trust
Estate at all times shall be held for the exclusive benefit of the
Trust.
2.2.22. Renewal; Modification; Extension. To renew, modify,
release, compromise, extend, consolidate or cancel in whole or in
part, any obligation to or of the Trust.
2.2.23. Insurance. To purchase and pay for entirely out of
Trust Property insurance contracts and policies insuring the
Shareholders, Trustees, officers, employees, agents, investment
advisers or independent contractors of the Trust individually against
all claims and liabilities of every nature arising by reason of
holding, being or having held any such office or position, or by
reason of any action taken or omitted that may be determined to
constitute negligence, whether or not the Trust would have the power
to indemnify such Person against such liability.
2.2.24. Seal. To adopt and use a seal (but the use of a seal
shall not be required for the execution of instruments or obligations
of the Trust).
2.2.25. Organize, Merge, Consolidate, Liquidate or Dissolve
Others. To cause to be organized, merged, consolidated, liquidated or
dissolved or assist in organizing, merging, consolidating, liquidating
or dissolving any Person under the laws of any jurisdiction, or to
acquire the Trust Estate or any part or parts thereof or to carry on
any business in which the Trust directly or indirectly, shall have any
interest, and to sell, rent, lease, hire, convey, negotiate, assign,
exchange, merge or transfer the Trust Estate or any part or parts
thereof to or with any such Person whether or not in exchange for the
Securities of any Person, and enter into any contracts with Persons to
effectuate the above or in which the Trust holds or is about to
acquire Securities or any other interest.
2.2.26. Officers. To elect, appoint, engage or employ officers
for the Trust (including a President, Secretary, and Treasurer, and
such Vice Presidents and other officers as the Trustees may
determine), from among their number or otherwise, who may be removed
or discharged at the discretion of the Trustees which officers shall
have such powers and duties, and to serve such terms, as may be
prescribed by the Trustees or by the Trustees' Regulations, if any; to
engage or employ or contract with any Persons (including, subject to
the provisions of Section 10.9, any Trustee, officer or employee of
the Trust or any Affiliate of any such Trustee, officer or employee of
the Trust) as agents, representatives, employees or independent
contractors (including without limitation, real estate advisers,
investment advisers, transfer agents, registrars, underwriters,
accountants, attorneys at law, real estate agents, managers,
appraisers, brokers, architects, engineers, construction managers,
general contractors or otherwise) in one or more capacities, and to
pay compensation from the Trust for services in as many capacities as
such Persons may be so engaged or employed; and, except as prohibited
by law, to delegate any of the powers and duties of the Trustees to
any one or more Trustees, the Investment Committee, agents,
representatives, officers, employees, independent contractors or other
Persons. Any action taken and any obligations entered into by such
officers or agents on behalf of the Trust pursuant to authority
granted to them by the deeds, mortgage notes or bonds, mortgages,
deeds of trust, extension agreements, consolidation agreements,
releases and management agreements, shall be binding upon the Trust
and the Trust Property. Any officers or employees of the Trust shall
not be required to solely perform such functions, and may have other
business interests and activities, unless prohibited by the Trustees.
2.2.27. FHA Qualification. If the Trust shall be a so-called
"FHA Approved Mortgagee", the Trustees shall have power to sell or
otherwise dispose of any FHA loan or any interest therein which the
Trust owns in accordance with the provisions of the National Housing
Act of 1934, as amended, and regulations promulgated thereunder. The
Trustees shall have the power to execute on behalf of the Trust, in
connection with any project on which FHA has insured the indebtedness,
any and all deeds of trust or mortgages, and other agreements,
documents and forms which may be required by FHA in connection with
the approval by FHA of the transfer of physical assets from any entity
to the Trustees or the insurance by FHA of any indebtedness on any
project as to which the Trustees are or shall become owners pursuant
to this Declaration of Trust, and the provisions of any such agreement
shall be binding upon the Trust notwithstanding any conflict with or
limitation of this Declaration of Trust.
2.2.28. Power to Contract. Subject to the provisions of
Sections 2.2.12 and 3.1 with respect to delegation of authority by the
Trustees, the Trustees shall have power to appoint, employ, or
contract with any Person (including one or more of themselves and any
corporation, partnership or trust of which one or more of them may be
an Affiliate, subject to the applicable requirements of Section 3.3
and Section 10.9) as the Trustees may deem necessary or desirable for
the transaction of the business of the Trust, including any Person
who, under the supervision of the Trustees, among other things, may:
administer the day-to-day investment operations of the Trust; serve as
the Trust's investment adviser and consultant in connection with
policy decisions made by the Trustees; furnish reports to the Trustees
and provide research, economic and statistical data in connection with
the Trust's investments; act as consultants, accountants, mortgage
loan originators or servicers, correspondents, lenders, technical
advisers, attorneys, brokers, underwriters, corporate fiduciaries,
escrow agents, depositaries, custodians or agents for collection,
insurers or insurance agents, transfer agents or registrars for
Securities of the Trust, or in any other capacity deemed by the
Trustees necessary or desirable; investigate, select, and, on behalf
of the Trust, conduct relations with Persons acting in such
capacities, and pay appropriate fees to, and enter into appropriate
contracts with, or employ, or retain services performed or to be
performed by, any of them, in connection with the investments
acquired, sold, or otherwise disposed of, or committed, negotiated, or
contemplated to be acquired, sold, or otherwise disposed of;
substitute any other Person for any such Person; act as attorney-in-
fact or agent in the purchase or sale or other disposition of
investments, and in the handling, prosecuting or settling of any
mortgage or other lien or other security securing investments, and
exercise its own sound discretion in doing so; invest or reinvest any
moneys held by the Trustees under this Trust; and perform or assist in
the performance of such administrative functions necessary in the
management of the Trust as may be agreed upon with the Trustees or
officers of the Trust.
2.2.29. Associations. To cause or permit the Trust to enter
into joint ventures, general or limited partnerships as a general or
limited partner, and any other forms of ownership, combinations or
associations.
2.2.30. Pensions and Other Plans. To pay pensions for faithful
service, as deemed appropriate by the Trustees, and to adopt,
establish and carry out pension, profit-sharing, Share bonus, Share
purchase, stock option, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions for any or all of
the Trustees, officers, employees and agents of the Trust.
2.2.31. Dividends. To declare and pay dividends in cash, Shares
or otherwise and make other distributions to Shareholders in cash,
Shares or otherwise, whether out of earnings, profits, surplus,
capital or otherwise.
2.2.32. Charitable Contributions. To make donations,
irrespective of benefit to the Trust, for the public welfare or for
community fund, hospital, charitable, religious, educational,
scientific, civic or similar purposes, and in time of war or other
national emergency in aid thereof.
2.2.33. Indemnification. In addition to the indemnification
provided for in Section 5.4, to the extent permitted by law, to
indemnify or enter into agreements with respect to indemnification
with any Person with whom the Trust has dealings, including, without
limitation the Adviser, if any, any investment adviser or independent
contractor and any underwriters of any offering of the Trust's
Securities, to such extent as the Trustees shall determine.
2.2.34. Remedies. Notwithstanding any provisions in this
Declaration of Trust, when the Trustees deem that there is a
significant risk that an obligor to the Trust may default or is in
default under the terms of any obligation to the Trust, to pursue any
remedies permitted by law which in their sole judgment, are in the
interests of the Trust, and the power to enter into any investment,
commitment or obligation of the Trust resulting from the pursuit of
such remedies or necessary or desirable to dispose of property
acquired in the pursuit of such remedies.
2.2.35. Further Powers. To do all such other matters and things
and execute all such instruments as they deem necessary and proper or
desirable in order to carry out, promote or advance the interests and
purposes of the Trust for the benefit of the Shareholders, although
such matters or things are not herein specifically mentioned. Any
determination as to what is in the interests of the Shareholders made
by the Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration of Trust, the presumption shall be in
favor of a grant of power to the Trustees. The Trustees shall not be
required to obtain any court order to deal with the Trust property.
ARTICLE III
ADVISER
SECTION 3.1. Appointment. The Trustees are responsible for the
general policies of the Trust and for such general supervision of the
business of the Trust conducted by all officers, agents, employees,
advisers or independent contractors of the Trust as may be necessary to
insure that such business conforms to the provisions of this Declaration.
However, the Trustees are not and shall not be required personally to
conduct all the business of the Trust and, consistent with their ultimate
responsibility as stated herein, the Trustees may appoint, employ or
contract with any business organization as Adviser, and may grant or
delegate such authority to the Adviser (pursuant to the terms of Section
2.2.28) as the Trustees, in their sole discretion, may deem to be necessary
or desirable, without regard to whether such authority is normally granted
or delegated by Trustees. The Trustees may contract with an Adviser to
administer the day-to-day operations of the Trust and to serve as the
Trust's advisor, and the Trustees may exercise broad discretion in allowing
the Adviser to administer and regulate the operations of the Trust, to act
as agent for the Trust, to execute documents on behalf of the Trustees and
to make executive decisions which conform to general policies and general
principles previously established by the Trustees.
The Trustees (subject to the provisions of Section 3.8) shall have the
power to determine the terms and compensation of the Adviser or any other
person whom they may employ or with whom they may contract; provided,
however, that any determination to employ or contract with any Trustee or
any Person which is an Affiliate of any Trustee shall be valid only if
made, approved or ratified by a majority of the Trustees who are not
Affiliates of such Trustee or Person.
The provisions of Sections 3.2 through 3.9 of this Declaration shall
be applicable at such times as there is an Adviser appointed, employed or
contracted with by the Trustees to administer the day-to-day operations of
the Trust, but shall not apply when the day-to-day operations of the Trust
are being administered by the Trust's own employees directly responsible to
officers of the Trust elected by the Trustees in accordance with Section
10.7.
SECTION 3.2. Term of Agreement. The Trustees shall not enter into
any agreement with an Adviser pursuant to the provisions of Section 3.1
hereof unless all of the following conditions are met: (a) such agreement
has an initial term of not more than 12 months; (b) its renewal or
extension provisions, if any, shall provide for renewals or extensions of
not more than one year in length; (c) the approval of a majority of the
Trustees who are not Affiliated Trustees is necessary to enter into, renew,
modify or extend such an agreement; and (d) such agreement may be
terminated for any reason or for no reason upon 60 days' written notice by
the Trustees to the Adviser, either by a vote of a majority of the Trustees
or the holders of a majority of all outstanding Shares having the right to
vote thereon. Any contract with an Adviser shall terminate automatically
upon assignment thereof by the Adviser or upon the sale or other transfer
of all or substantially all of the business or assets of the Adviser,
unless following such assignment or transfer, the Adviser, or its
successor, will carry on the business and continue to provide the services
required of the Adviser under the contract with substantially the same
employees and in substantially the same manner as prior to the transfer.
SECTION 3.3. Independence of Trustees. Not more than 49% of the
total number of Trustees, or of the number of Trustees constituting the
Investment Committee, acting at any time and from time to time may be
Affiliated Trustees; provided, however, that if at any time the percentage
of all Trustees or those Trustees who are members of the Investment
Committee who are Affiliated Trustees becomes more than 49% of the
applicable number of Trustees because of the death, resignation, removal or
change in affiliation of one or more Trustees or members of the Investment
Committee who are not such Affiliated Trustees, such requirement shall not
be applicable for a period of 60 days after any such event, during which
time a majority of the Trustees then in office shall appoint a sufficient
number of other individuals as Trustees or as members of the Investment
Committee, so that there is again not more than 49% of the total number of
all Trustees, or of the number of Trustees constituting the Investment
Committee, who are Affiliated Trustees. The Trustees at all times shall
endeavor to comply with such requirements, but failure so to comply shall
not affect the validity or effectiveness of any action of the Trustees or
of the Investment Committee, as the case may be.
SECTION 3.4. Other Activities. The Adviser shall not be required to
administer the investment activities of the Trust as its sole and exclusive
function and may have other business interests and may engage in other
activities similar or in addition to those relating to the Trust, including
the rendering of services or advice of any kind to any other Person,
whether or not competitive with the Trust, provided that except with the
permission of a majority of the Trustees who are not Affiliates of the
Adviser, the Adviser and its Affiliates, for compensation, shall not render
services or advice to Persons or Affiliates of such Persons having as their
investment policy the investment of a major portion of their assets in the
types of investments in which the Trust, pursuant to Section 4.1 hereof,
intends to invest at least 90% of the Total Assets of the Trust to remain
qualified for certain tax benefits under the REIT Provisions of the
Internal Revenue Code. The Trustees may request the Adviser to engage in
other activities which complement the Trust's investments and to provide
services requested by the borrowers or prospective borrowers from the
Trust, and the Adviser may receive compensation or commissions therefor
from the Trust or other Persons without such payments being credited
against sums due the Adviser as part of its regular fees and compensation.
SECTION 3.5. Presentation of Investment Opportunities. The Adviser
shall be required to use its best efforts to present a continuing and
suitable program of investments to the Trust which is consistent with the
investment policies and objectives of the Trust. The Adviser shall be
required to act on a basis which is fair and reasonable to the Trust and to
the Shareholders in selecting from among its investment opportunities the
particular investment opportunities which it presents to the Trust.
Subject to the foregoing provisions of this Section 3.5, neither the
Adviser nor any Affiliate of the Adviser shall be obligated to present any
particular investment opportunity to the Trust even if such opportunity is
of a character which, if presented to the Trust, could be taken by the
Trust, and subject to the provisions of Sections 3.4, 3.6, and 10.9.5
hereof, each of them shall have the right to take for its own account
(individually or as a trustee) or to recommend to others any such
particular investment opportunity. The Adviser at all times shall disclose
any interest it has, and any interest known to it of any Affiliate of it,
in any investment opportunity presented to the Trust from time to time.
SECTION 3.6. Adviser's Reports. Within a reasonable time after the
end of each calendar year, the Adviser shall furnish, and where
appropriate, shall use its best efforts to cause any of its Affiliates to
furnish, to the Trustees on a confidential basis (to the extent feasible,
legally permissible and not in violation of trust or confidence) a list,
together with a brief description, of all Real Property investments made by
the Adviser or an Affiliate of the Adviser, or by investment entities
advised or managed by the Adviser or an Affiliate of the Adviser, during
such year.
SECTION 3.7. Trustees Have no Investment Responsibilities. So long
as there is an Adviser or other person performing similar functions, the
Trustees shall have no responsibility to originate investment opportunities
for the Trust.
SECTION 3.8. Limitation on Adviser's Compensation and Operating
Expenses. The total of Operating Expenses of the Trust and any regular
fees or compensation payable by the Trust to the Adviser, in any Fiscal
Year of the Trust, shall not exceed an amount equal to the lesser of:
3.8.1. 1 1/2% of the Invested Assets of the Trust for such
Fiscal Year of the Trust, calculated quarterly (prorated for fiscal
years of less than 12 months); or
3.8.2. the greater of: (A) 1 1/2% of the average Book Value of
the Net Assets of the Trust for such Fiscal Year of the Trust,
calculated quarterly (prorated for fiscal years of less than 12
months), or (B) 25% of the Net Income of the Trust for such Fiscal
Year.
Each contract made with an Adviser under this Article III shall
specifically provide for reimbursement to the Trust of the Adviser's fees
or compensation to the extent, if any, by which the total of Operating
Expenses and any regular fees or compensation paid by the Trust to the
Adviser so exceed said amount.
SECTION 3.9. Compensation of Adviser. If the Adviser or any
Affiliate of the Adviser shall receive and retain any origination fees or
brokerage commissions or fees in connection with a loan or investment
originated by them for the Trust, such fees shall be credited against the
regular fees and compensation otherwise payable to the Adviser.
ARTICLE IV
INVESTMENTS AND TRUST LIMITATIONS
SECTION 4.1. General Statement of Investment Policy. Subject to the
investment restrictions in Section 4.3, it is the policy of the Trust to
invest in a wide variety of interests in Real Property, of an income or
non-income producing nature, but predominantly in already improved income
producing Real Property, including without limitation Real Property, Equity
Investments in Real Property, land purchase and leasebacks, Mortgage Loans,
with or without equity participation, short-term construction and
development loans, short-term government and governmental-agency
securities, certificates of deposit of commercial banks, savings, and
savings and loan associations and deposits in members of the Federal Home
Loan Bank System, First Mortgage Loans and Junior Mortgage Loans, Wrap-
Around Loans, loans on residential, commercial and industrial Real
Property, Standby Loans and loans requiring periodic amortization of
principal on a self amortizing and non self amortizing basis, and other
investments related to Real Property, and to issue Standby and Gap
Commitments, as the Trustees may deem advisable from time to time in light
of changing economic conditions. Investment may be made in newly
constructed properties with no significant operating history, properties
being constructed, unimproved property, and developed and undeveloped
property. Investments of the Trust may be made in various combinations and
may involve participation with other Persons, including Affiliates of the
Trust or the Adviser, if any. Such investments may incorporate a variety
of real property financing techniques, including without limitation,
purchases, joint ventures, sales and leasebacks, land purchase leasebacks,
net lease financings, conventional mortgages, lease-secured mortgages,
convertible mortgages and mortgages of special interests including, without
limitation, leaseholds, air rights and condominiums.
4.1.1. Restrictions on General Investment Policy. It is the
intention that the Trust be a real estate investment trust, qualifying
under the REIT Provisions of the Internal Revenue Code for certain tax
benefits provided under such provisions. While such qualification as
a real estate investment trust is the policy of the Trust, the
Trustees intend at all times to make investments in such a manner as
to comply with the requirements of the REIT Provisions of the Internal
Revenue Code with respect to the composition of the Trust's
investments and the derivation of its income; provided, however, that
no Trustee, officer, employee or agent of the Trust shall be liable
for any act or omission resulting in the loss of tax benefits under
the Internal Revenue Code, except for that arising from his own bad
faith, willful misconduct, gross negligence or reckless disregard of
his duties; and provided further that the Trustees, if they deem it
advisable, may adopt the specific policy of disqualifying the Trust
for such tax benefits.
4.1.2. Failure to Invest Pursuant to Stated Investment Policies.
The Trustees shall endeavor to invest the Trust's assets in accordance
with the investment policies set forth in this Article IV, but the
failure so to invest its assets shall not affect the validity of any
investment made or action taken by the Trustees.
4.1.3. Change in Investment Policy. Subject to the restrictions
contained in Section 4.3 hereof, the Trustees, in their discretion and
without Shareholder approval, may alter the above declared investment
policy in the light of changes and economic circumstances or other
factors the Trustees deem relevant and the methods of implementing the
Trust's investment policies may change as new investment forms are
developed or financial conditions change.
SECTION 4.2. Uninvested Assets. To the extent that the Trust has
assets not otherwise invested in accordance with Section 4.1, the Trustees
may invest such assets in:
4.2.1. obligations of, or guaranteed or insured by, the United
States Government or any agencies or political subdivisions thereof;
4.2.2. obligations of, or guaranteed or insured by, any state,
territory or possession of the United States of America or any
agencies or political subdivisions thereof;
4.2.3. evidences of deposits in, or obligations of, banking
institutions, state and federal savings and loan associations and
savings institutions which are members of the Federal Deposit
Insurance Corporation or the Federal Home Loan Bank System;
4.2.4. shares of other "real estate investment trusts," to the
extent permitted by the REIT Provisions of the Internal Revenue Code,
which do not, to the actual knowledge of the Trustees, hold
investments or engage in activities prohibited to the Trustees under
Section 4.3; and
4.2.5. other securities and property; provided that while the
Trust is qualified for certain tax benefits under the REIT Provisions
of the Internal Revenue Code, only to the extent not prohibited by the
REIT Provisions of the Internal Revenue Code.
SECTION 4.3. Restrictions. The Trustees shall not:
4.3.1. invest more than 10% of the Total Assets of the Trust
Estate in unimproved Real Property, or mortgages on unimproved Real
Property, except Real Property in the process of development or which
will be developed within a reasonable period of time, as determined by
the Trustees;
4.3.2. engage in any trading activities with respect to the
Trust's properties;
4.3.3. except as permitted under Section 6.1.2. or under any
Dividend Reinvestment and Share Purchase Plan of the Trust, issue
redeemable equity securities or equity securities of more than one
class (which shall not, however, prohibit the issuance of convertible
obligations, warrants, rights and options);
4.3.4. invest more than 10% of the Total Assets of the Trust in
Junior Mortgage Loans excluding Wrap-Around Loans;
4.3.5. issue debt securities to the public unless the historical
cash flow of the Trust or the substantiated future cash flow of the
Trust, excluding extraordinary items, is sufficient to cover the
interest on the debt securities;
4.3.6. invest in commodities;
4.3.7. invest in contracts between third parties for the sale of
real estate for the purpose of reselling such contracts to others;
4.3.8. invest in securities of any company which to the actual
knowledge of the Trustees holds investments or engages in activities
prohibited by this Section 4.3; and
4.3.9. engage in underwriting or the agency distribution of
securities issued by others.
ARTICLE V
LIMITATIONS OF LIABILITY
SECTION 5.1. Liability to Third Persons. No Shareholder shall be
subject to any personal liability whatsoever, in tort, contract or
otherwise, to any other Person or Persons in connection with Trust Property
or the affairs of the Trust. No Trustee, officer, employee or agent of the
Trust shall be subject to any personal liability whatsoever including,
without limitation, liability to the Trust or to any Trustee for any act or
omission of any other Trustee, Shareholder, officer, employee or agent of
the Trust, or any personal liability whatsoever, in tort, contract or
otherwise, to any holder of Securities of the Trust or to any other Person
or Persons in connection with Trust Property or the affairs of the Trust,
save only that arising from his own bad faith, willful misconduct, gross
negligence or reckless disregard of his duties or for his failure to act in
good faith in the reasonable belief that his action was in the best
interests of the Trust. All such other Persons shall look solely to the
Trust Property for satisfaction of claims of any nature arising in
connection with the affairs of the Trust. If any Shareholder, Trustee,
officer, employee or agent, as such, of the Trust is made a party to any
suit or proceedings to enforce any such liability, he shall not, on account
thereof, be held to any personal liability. The Trustees, officers and
employees in incurring any debts, liabilities or obligations, or in taking
or omitting any other actions for or in connection with the Trust are, and
shall be deemed to be, acting as Trustees, officers or employees of the
Trust and not in their own individual capacities. Except to the extent
provided in this Section 5.1, no Trustee, officer, employee or agent shall
be liable for any debt, claim, demand, judgment, decree, liability or
obligation of any kind of, against or with respect to the Trust, or arising
out of any action taken or omitted for on behalf of the Trust, and the
Trust shall be solely liable therefor and resort shall be had solely to the
Trust Estate for the payment or performance thereof. The Trustees shall
have no power to bind the Shareholders personally.
SECTION 5.2. Liability to Trust or to Shareholders.
5.2.1. No Liability of Trustees, Officers, Employees or Agents
for Certain Acts or Omissions. No Trustee, officer, employee or agent
of the Trust shall be liable to the Trust or to any Shareholder,
Trustee, officer, employee or agent of the Trust for any action or
failure to act (including without limitation the failure to compel in
any way any former or acting Trustee to redress any breach of trust)
except for his own bad faith, willful misconduct, gross negligence or
reckless disregard of his duties or for his failure to act in good
faith in the reasonable belief that his action was in the best
interests of the Trust.
5.2.2. No Liability of Trustees for Monetary Damages for Breach
of Fiduciary Duty. No Trustee shall be personally liable to the Trust
or the Shareholders of the Trust for monetary damages for breach of
fiduciary duty as a Trustee notwithstanding any provision of law
imposing such liability, except for liability (i) for any breach of
the Trustee's duty of loyalty to the Trust or its Shareholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 61 or 62
of the Massachusetts Business Corporation Law, or (iv) for any
transaction from which the Trustee derived an improper personal
benefit. This Section 5.2.2 shall limit any liability of a Trustee
for any monetary damages for breach of fiduciary duty notwithstanding
any other provision of this Declaration of Trust (including, without
limitation, Sections 4.1.1, 5.1., 5.2.1, 5.4.2 and 5.5).
SECTION 5.3. Express Exculpatory Clauses and Instruments; Recitals.
Every note, debenture, bond, obligation, contract, instrument, certificate,
Share, security or undertaking, and every other act or thing whatsoever
executed in connection with the Trust, shall be conclusively taken to have
been executed or done by a Trustee or Trustees or an officer, employee or
agent of the Trust only in their or his capacity as Trustees or Trustee
under this Declaration of Trust or in the capacity of officer, employee or
agent of the Trust. Every written note, debenture, bond, obligation,
contract, instrument, certificate, Share, security or undertaking made or
issued by or on behalf of the Trust shall refer to this Declaration of
Trust and contain a recital to the effect that the obligations thereunder
are not personally binding upon, nor shall resort be had to the private
property of, any of the Trustees, Shareholders, officers, employees or
agents of the Trust, but the Trust Property or a specific portion thereof
only shall be bound for payment or performance, and may contain any further
recital which shall not operate to impose personal liability on any of the
Trustees, Shareholders, officers, employees or agents of the Trust;
provided, however, the omission of such recital or a portion of such
recital shall not render the Trustees, Shareholders, officers, employees,
or agents of the Trust to be personally liable. The Trustees, at all
times, shall maintain insurance for the protection of the Trust Property,
its Shareholders, Trustees, officers, employees and agents in such amount
as the Trustees shall deem adequate to cover all foreseeable tort liability
to the extent available at reasonable rates.
SECTION 5.4. Indemnification and Reimbursement.
5.4.1. Indemnification of Shareholders by Trust. The Trust
shall indemnify, hold harmless, protect and defend each of its
Shareholders of, from and against all claims, liabilities and expenses
asserted against them, including, without limitation, amounts paid in
satisfaction of judgments, in compromise or as fines and penalties,
and reasonable fees, including, without limitation, counsel fees
actually and reasonably incurred in connection with the defense or
disposition of any action, suit or other proceeding, claim or alleged
liability, or any appeal therein by the Trust or any other Person
whether civil or criminal, in which they may be involved or with which
they may be involved or with which they may be threatened solely by
reason of the fact of his being or having been a Shareholder. The
rights accruing to a Shareholder under this Section 5.4.1 shall not
exclude any other right to which such Shareholder may be lawfully
entitled, nor shall anything herein contained restrict the right of
the Trust to indemnify or reimburse a Shareholder in any appropriate
situation even though not specifically provided herein; provided,
however, that the Trust shall have no liability to reimburse
Shareholders for taxes assessed against them by reason of their
ownership of Shares, nor for any losses suffered by reason of changes
in the market value of Securities of the Trust.
5.4.2. Indemnification of Trustees, Officers, Employees and
Agents by Trust. The Trust shall indemnify, hold harmless, protect
and defend each of its Trustees, officers, employees and agents
(including those who serve at its written request as directors,
officers or trustees of another organization in which it has any
interest as a shareholder, creditor or otherwise) of, from and against
all claims, liabilities and expenses asserted against them, including,
without limitation, amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and reasonable fees, including,
without limitation, counsel fees actually and reasonably incurred in
connection with the defense or disposition of any action, suit or
other proceeding, claim or alleged liability, or any appeal therein by
the Trust or any other Person, whether civil or criminal, in which
they may be involved or with which they may be threatened by reason of
the fact that he, while in office or thereafter, has been such a
Trustee, officer, employee or agent, except with respect to any matter
as to which he shall have been adjudicated to have acted in bad faith
or with willful misconduct, gross negligence or reckless disregard of
his duties provided that such person gives prompt notice thereof,
executes such documents and takes such action as will permit the Trust
to conduct the defense or settlement thereof and cooperates therein,
further provided, that as to any matter disposed of by a compromise
payment by such Trustee, officer, employee or agent, pursuant to a
consent decree or otherwise, no indemnification either for said
payment or for any other expenses shall be provided unless such
compromise shall be approved as in the best interests of the Trust by
a majority of the disinterested Trustees or the Trust shall have
received a written opinion of independent legal counsel to the effect
that such Trustee, officer, employee or agent appears to have acted in
good faith in the reasonable belief that his action was in the best
interests of the Trust. The rights accruing to any Trustee, officer,
employee or agent under these provisions shall not exclude any other
right to which he may be lawfully entitled; provided, however, that no
Trustee, officer, employee or agent may satisfy any right of indemnity
or reimbursement granted herein or to which he may be otherwise
entitled except out of the Trust Property, and no Shareholder shall be
personally liable to any Person with respect to any claim for
indemnity or reimbursement or otherwise.
5.4.3. Advance Payments. The Trustees may make advance payments
in connection with indemnification under this Section 5.4, provided
that the indemnified Shareholder, Trustee, officer, employee or agent
shall have given a written undertaking to reimburse the Trust in the
event it is subsequently determined that he is not entitled to such
indemnification.
SECTION 5.5. Bad Faith. For the purposes of this Trust (including
without limitation, Sections 5.1, 5.2, 5.3 and 5.4), any action taken by,
or conduct on the part of, the Adviser, if any, or its affiliates, a
Trustee, officer, employee or agent of the Trust, in conformity with, or in
good faith reliance upon, the provisions of Section 10.9 or 3.4, shall not
constitute bad faith, willful misconduct, gross negligence or reckless
disregard of its duties, or failure to act in good faith in the reasonable
belief that his action was in the best interests of the Trust.
SECTION 5.6. Surety Bonds. No Trustee, as such, shall be obligated
to give any bond or surety or other security for the performance of any of
its duties.
SECTION 5.7. Persons Dealing with Trustees or Officers. Any act of
the Trustees or officers purporting to be done in their capacity as such,
as to any persons dealing with such Trustees or officers, shall be
conclusively deemed to be within the purposes of this Trust and within the
powers of the Trustees and officers. No Person dealing with the Trustees
or any of them, or with the authorized officers, agents or representatives
of the Trust, shall be bound to see to the application of any funds or
property passing into their hands or control. The receipt of the Trustees
or any of them, or of authorized officers, agents or representatives of the
Trust, for monies or other consideration, shall be binding upon the Trust.
SECTION 5.8. Restriction of Duties and Liabilities. To the extent
that the nature of this Trust (that is, a business trust of the type
referred to in Chapter 182 of the General Laws of the Commonwealth of
Massachusetts) will permit, the duties and liabilities of Shareholders,
Trustees and officers in no event shall be greater than the duties and
liabilities of shareholders, directors and officers of a Massachusetts
corporation. The Shareholders, Trustees and officers in no event shall
have any greater duties or liabilities than those imposed by applicable law
as shall be in effect from time to time.
SECTION 5.9. Reliance. The Trustees and officers, employees and
agents of the Trust may consult with counsel (which may be a firm in which
one or more of the Trustees, officers, employees or agents is or are
members) and the advice or opinion of such counsel shall be full and
complete personal protection to all of the Trustees, officers, employees or
agents of the Trust in respect of any action taken or suffered by them in
good faith and in reliance on or in accordance with such advice or opinion.
In discharging their duties, Trustees, officers, employees or agents, when
acting in good faith, may rely upon financial statements of the Trust
represented to them to be correct by the President or the officer of the
Trust having charge of its books of account, or stated in a written report
by an independent certified public accountant fairly to present the
financial position of the Trust. The Trustees, officers, employees and
agents may rely, and shall be personally protected in acting, upon any
instrument or other document believed by them to be genuine. In matters
relating to the fair value of Real Property, the Trustees and officers,
employees and agents of the Trust, when acting in good faith, may rely upon
an Appraisal.
ARTICLE VI
SHARES
SECTION 6.1. Description of Shares. The interests of the
Shareholders hereunder shall be divided into two classes of Shares: Shares
of Beneficial Interest and Preferred Shares. Ownership of Shares shall be
evidenced by certificates. All Shares shall be fully paid and
nonassessable by the Trust upon receipt of full consideration for which
they have been issued or without additional consideration if issued by way
of share dividend or share split. Shares reacquired by the Trust shall no
longer be deemed outstanding and shall have no voting or other rights
unless and until reissued. Shares reacquired by the Trust may be cancelled
and restored to the status of authorized and unissued shares by action of
the Trustees. The Shares shall not entitle the holder to any preemptive or
appraisal rights of any kind. Shares may be issued for such consideration
as the Trustees shall determine or by way of share dividend or share split
in the discretion of the Trustees.
6.1.1. Shares of Beneficial Interest. Shares of Beneficial
Interest shall be without par value, shall all be of the same class,
and shall have equal non-cumulative voting, distribution, liquidation
and other rights. Shares of Beneficial Interest shall not entitle the
holder thereof to preference, conversion, exchange or redemption
rights of any kind. The number of Shares of Beneficial Interest
authorized hereunder shall be unlimited.
6.1.2. Preferred Shares. Preferred Shares shall have a par
value of $1.00 per share. The Trustees are authorized to provide for
the issuance of the Preferred Shares in series, and, by resolution, to
establish the number of Shares to be included in each series and to
fix the designation and relative rights, preferences and limitations
of the Shares of each series, including, but not limited to, the
determination of the following: any dividend and distribution rights;
any terms on which Shares may be redeemed; any voting rights; any
rights in the event of the dissolution, liquidation or winding up of
the Trust; any conversion rights; and any other rights, preferences
and limitations; provided, however, that no Preferred Shares shall be
issued with preemptive rights or with the right to elect one or more
separate Trustees. The number of Preferred Shares authorized
hereunder shall be limited to 1,000,000 Shares.
SECTION 6.2. Certificates. Every Shareholder shall be entitled to
receive a Certificate, containing such printed matter and in such form as
the Trustees from time to time shall approve, specifying the number and
class and series of Shares held by such Shareholder. Subject to Sections
6.4 and 8.3 hereof, such certificates shall be treated as negotiable and
title thereto and to the Shares represented thereby shall be transferred by
assignment and delivery thereof to the same extent and in all respects as a
stock certificate, and the shares represented thereby, of a Massachusetts
business corporation. Unless otherwise determined by the Trustees, such
certificates shall be signed by the Chairman or President or Chief
Executive Officer and Treasurer or Secretary and shall be countersigned by
a transfer agent, and registered by a registrar, if any. The Trustees may
authorize the use of facsimile signatures or a facsimile seal of the Trust
on Securities of the Trust, provided that where facsimile signatures are so
used, one of the authorized signatures shall be manual or the Securities
shall be manually countersigned or authenticated by a transfer agent or
registrar or by an authenticating agent or trustee or similar Person. In
case any Person who shall have signed (or whose facsimile signature shall
appear on) Securities of the Trust shall have ceased to occupy the office
or perform the function with respect to which such signature was authorized
before such Securities shall have been actually issued, such Securities may
nevertheless be issued with the same effect as though such Person had not
ceased to occupy such office or perform such function. There shall be
filed with each transfer agent a copy of each form of certificate so
approved by the Trustees, certified by the Chairman, President or
Treasurer, and each such form shall continue to be used and until the
Trustees approve some other form.
SECTION 6.3. Fractional Shares. In connection with any issuance of
Shares, the Trustees may issue fractional Shares or may provide for the
issuance of scrip for fractions of Shares and determine the terms of such
scrip, including, without limitation, the time within which any such scrip
must be surrendered for exchange into full Shares and the rights, if any,
to receive proportional distributions, and the rights, if any, to redeem
scrip for cash, or the Trustees may in their discretion, or if they see fit
at the option of each holder, provide in lieu of scrip for the adjustment
of the fractions in cash. The provisions of Section 6.2 hereof relative to
certificates for Shares shall apply so far as applicable to such scrip,
except that such scrip may, in the discretion of the Trustees, be signed by
a transfer agent alone.
SECTION 6.4. Issuance of Units. Notwithstanding any other provision
of this Declaration of Trust, the Trustees may issue from time to time
units consisting of different Securities of the Trust. Any Security issued
in any such unit shall have the same characteristics and entitle the
registered holder thereof to the same rights as any identical Securities
issued by the Trustees, except that the Trustees may provide (and may cause
a notation to be placed on the certificate representing such unit or
Securities of the Trust issued in any such unit) that for a specified
period, not to exceed one year after issuance, Securities of the Trust
issued in any such unit may be transferred upon the books of the Trust only
in such unit.
SECTION 6.5. Shares Deemed Personal Property. Shares shall be
personal property and shall confer upon the holders thereof only the
interests and rights specifically set forth in this Declaration, and, in
the case of Preferred Shares of any series, in the resolution of the
Trustees pursuant to Section 6.1.
ARTICLE VII
RECORD AND TRANSFER OF SHARES
SECTION 7.1. Share Register. A register shall be kept by or on
behalf of the Trustees, under the direction of the Trustees, which shall
contain the names and addresses of the Shareholders and the number and
class and series of Shares held by them respectively and the numbers of the
Certificates representing such Shares and a record of all transfers
thereof. The persons in whose names Certificates are registered on the
records of the Trust shall be deemed the absolute owners of the Shares
represented thereby for all purposes of the Trust; but nothing herein shall
be deemed to preclude the Trustees or officers, or their agents or
representatives, from inquiring as to the actual ownership of Shares.
Until a transfer is duly effected on the records of the Trust, the Trustees
shall not be affected by any notice of such transfer, either actual or
constructive. The receipt by the Person in whose name any Shares are
registered on the records of the Trust or of the duly authorized agent of
such Person, or if such Shares are so registered in the name of more than
one Person, the receipt of any one of such Persons, or the duly authorized
agent of such Person, shall be a sufficient discharge for all dividends or
distributions payable or deliverable in respect of such Shares and from all
liability to see to the application thereof. Only Shareholders whose
Certificates are recorded on such register shall be entitled to vote or to
receive distributions or otherwise to exercise or enjoy the rights of
Shareholders, but the recording of any series of Preferred Shares in such
register shall not be deemed to enlarge the rights or preferences of that
series. No Shareholder shall be entitled to receive any distribution, nor
to have notice given to him as herein provided, until he has given his
address to a transfer agent or such officer or agent of the Trust as shall
keep the register for entry thereon.
SECTION 7.2. Transfer Agent, Dividend Disbursing Agent and Registrar.
The Trustees shall have power to employ in the City of Boston,
Massachusetts, City of New York, New York, and in any other city, one or
more transfer agents, dividend disbursing agents and registrars and to
authorize them on behalf of the Trust to keep records, to hold and disburse
any dividends and distributions, and to have and perform in respect of all
original issue and transfer of Shares, dividends and distributions and
reports and communications to Shareholders the powers and duties usually
had and performed by transfer agents, dividend disbursing agents and
registrars of certificates of stock in a corporation, except as modified by
the Trustees.
SECTION 7.3. Blank Certificates. In accordance with the usual custom
of corporations having a transfer agent, signed Certificates for Shares in
blank may be deposited with any transfer agent of the Trust, to be issued
by such transfer agent in accordance with authority conferred upon it as
occasion may require, and in so doing the signers of such Certificates
shall not be responsible for any loss resulting therefrom.
SECTION 7.4. Owner of Record. The death, insolvency, bankruptcy or
incapacity of a Shareholder shall not dissolve or terminate the Trust or
affect its continuity nor give his legal representative any rights
whatsoever, whether against or in respect of other Shareholders, the
Trustees or the Trust Estate or otherwise, except the sole right to demand
and, subject to the provisions of this Declaration, the Trustees'
Regulations, if any, and any requirements of law, to receive a new
Certificate for Shares registered in the name of such legal representative
in exchange for the Certificate held by such Shareholder. Any Person
becoming entitled to any Shares in consequence of the death, insolvency,
bankruptcy or incapacity of any Shareholder, or otherwise by operation of
law, shall be recorded as the holder of such Shares and receive a new
Certificate for the same upon production of the proper evidence thereof and
delivery of the existing Certificate to the Trustees or a transfer agent of
the Trust and any necessary releases from applicable governmental
authorities. But until such record is made, the Shareholder of record
shall be deemed to be the holder of such Shares for all purposes hereof and
neither the Trustees nor any transfer agent or registrar nor any officer or
agent of the Trust shall be affected by any notice of such death,
insolvency, bankruptcy, incapacity or other event.
SECTION 7.5. Transfers of Shares. Shares shall be transferable on
the records of the Trust (other than by operation of law) only by the
record holder thereof or by his agent thereunto duly authorized in writing
upon delivery to the Trust, the Trustees or a transfer agent of the Trust
of the Certificate or Certificates therefor, with all transfer tax stamps
affixed or duly provided for, properly endorsed or accompanied by duly
executed instrument or instruments of transfer, together with such evidence
of the genuineness of each endorsement, execution and authorization and of
other matters as may reasonably be required by the Trust, the Trustees or
the transfer agent. Upon such delivery, the transfer shall be recorded on
the register of the Trust and a new Certificate for the Shares so
transferred shall be issued to the transferee, and in case of a transfer of
only a part of the Shares represented by any Certificate, a new Certificate
for the residue thereof shall be issued to the transferor, but until such
record is made, the Shareholder of record shall be deemed to be the holder
of such Shares for all purposes hereof and neither the Trustees nor the
Trust nor any transfer agent or registrar nor any officer or agent of the
Trust shall be affected by any notice of the proposed transfer. This
Section 7.5 and Section 7.4 are subject in all respects to the provisions
of Sections 6.4 and 8.3.
SECTION 7.6. Limitation of Fiduciary Responsibility. The Trustees
shall not, nor shall the Shareholders or any officer, transfer agent or
other agent of the Trust, be bound to see to the execution of any trust,
express, implied or constructive, or of any charge, pledge or equity to
which any of the Shares or any interest therein are subject, or to
ascertain or inquire whether any sale or transfer of any such Shares or
interest therein by any such Shareholder or his personal representatives is
authorized by such trust, charge, pledge or equity, or to recognize any
Person as having any interest therein except the Persons recorded as such
Shareholders.
SECTION 7.7. Lost Certificates. In case of the loss, mutilation or
destruction of any Certificate for Shares, the Trustees may issue or cause
to be issued a replacement Certificate on such terms and subject to such
rules and regulations as the Trustees from time to time may prescribe.
Nothing in this Declaration shall enforce upon the Trustees or upon a
transfer agent a duty or limit their rights to inquire into adverse claims.
SECTION 7.8. Notices. Any and all notices to which Shareholders
hereunder may be entitled and any and all communications shall be deemed
duly served or given if mailed, postage prepaid, addressed to Shareholders
of record at their last known post office addresses as recorded on the
Share register provided for in Section 7.1 hereof.
ARTICLE VIII
CHARACTERISTICS OF SHARES
SECTION 8.1. General. The legal ownership of the Trust Property of
every description and the right to conduct the business of the Trust are
vested exclusively in the Trustees, and the Shareholders shall have no
interest therein other than the beneficial interest in the Trust conferred
by their Shares, and they shall have no right to call for or compel any
partition or division of any property, dividend or distribution of profits,
rights or interests of the Trust, nor can they be called upon to share or
assume any losses of the Trust or suffer an assessment of any kind by
virtue of their ownership of Shares. The Shares shall be personal property
giving only the rights in this Declaration of Trust and in the Certificates
for Shares specifically set forth.
SECTION 8.2. Death of Shareholders. The death of a Shareholder
during continuance of the Trust shall not terminate this Declaration of
Trust nor give such Shareholder's legal representatives a right to an
accounting or to take any action in the courts or otherwise against other
Shareholders or the Trustees or the Trust Property, but shall simply
entitle the legal representatives of the deceased Shareholder to demand and
receive, pursuant to the provisions of Section 7.4 hereof, a new
Certificate for Shares in place of the Certificate held by the deceased
Shareholder, and upon the acceptance thereof such legal representatives
shall succeed to all the rights of the deceased Shareholder under this
Declaration of Trust.
SECTION 8.3. Redemption and Stop Transfers for Tax Purposes; Certain
Transfers Void; Certain Transfers Deemed Made to the Trust. If two-thirds
(2/3) of the Trustees, at any time and in good faith, shall be of the
opinion that direct or indirect ownership of Shares by persons has become
concentrated, or that there is a substantial possibility it may become
concentrated (determined on the basis that such concentrated ownership
existed during the entire Fiscal Year of the Trust), to an extent which
would prevent the Trust from becoming or continuing to be qualified as a
real estate investment trust eligible for certain tax benefits under the
REIT Provisions of the Internal Revenue Code, then:
8.3.1. Trustees' Power. The Trustees shall have the power, by
lot or such other means as they deem equitable, to call for redemption
on such date as they shall fix (the "redemption date"), from any owner
or owners of Shares, such number of such Shares as shall be
sufficient, in the opinion of the Trustees, to eliminate the
substantial possibility of such concentration or to maintain or bring
the direct or indirect ownership of Shares into conformity with the
aforesaid requirements under the Internal Revenue Code to qualify as a
real estate investment trust. In addition, in such cases, the
Trustees shall have the right to issue stop orders and to take such
other steps as they deem necessary to prevent transfer of Shares. In
the event of redemption under these provisions, the redemption price
to be paid for the Shares so called for redemption on the redemption
date shall be (i) the last reported sale price of the Shares on the
last business day prior to the redemption date on the principal
national securities exchange on which the Shares are listed or
admitted to trading, or (ii) if the Shares are not so listed or
admitted to trading, 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 redemption date, the holder of any Shares so called for
redemption shall cease to be a Shareholder and shall cease to be
entitled to any distributions, voting rights and other benefits with
respect to such Shares, except only the right to payment of the
redemption price fixed as aforesaid. With respect to any transactions
where the transfer of Shares would cause the Trust to lose its
continuing qualification for certain tax benefits under the REIT
Provisions of the Internal Revenue Code (determined on the basis that
such concentrated ownership existed during the entire Fiscal Year of
the Trust), the provisions of Section 8.3.2 shall first be applied,
and if Section 8.3.2. is deemed to be invalid, the provisions of
Section 8.3.3 shall next be applied, and if Section 8.3.3 is deemed to
be invalid, the provisions of Section 8.3.1 shall then be applied, it
being intended that the provisions of Sections 8.3.1, 8.3.2 and 8.3.3
are cumulative alternatives available to assure continued appropriate
qualification by the Trust, except that the provisions of Section
8.3.1 may be invoked whether or not the provisions of Sections 8.3.2
or 8.3.3 are applicable or valid. In addition, the Trustees may
invoke the provisions of Section 8.3.1 in conjunction with the
provisions of Section 8.3.3.
8.3.2. Transfers Void. Any transfer of Shares which would give
rise to a concentration of ownership (determined on the basis that
such concentrated ownership existed during the entire Fiscal Year of
the Trust), which would prevent the Trust from continuing to be
qualified as a real estate trust eligible for certain tax benefits
under the REIT Provisions of the Internal Revenue Code shall be void
ab initio, the would-be purchaser of such Shares shall be deemed never
to have had any interest in the Shares purportedly purchased, and the
transferor shall be deemed never to have transferred such Shares and
shall continue without interruption as the full record and beneficial
owner of such Shares.
In addition, except as set forth below, any issuance or transfer
of Shares, or Securities convertible into Shares, that would create a
direct or indirect owner of more than 7.5% of the lesser of the number or
the value of the total Shares outstanding ("Excess Shares") shall be void
ab initio and the would-be transferee of such Shares shall be deemed never
to have had any interest in the Shares purportedly transferred, and the
would-be transferor shall be deemed never to have transferred such Shares
and shall continue without interruption as the full and record beneficial
owner of such Shares. For purposes of this Declaration of Trust, the
number and value of the total Shares outstanding shall be determined by the
Trustees in good faith, which determination shall be conclusive for all
purposes hereunder.
The foregoing restrictions shall not apply to any Person approved
by the Trustees ("Excepted Person"), at their option and in their sole
discretion, provided, however, that such approval shall not be granted to
any Person whose ownership of Excess Shares would result, directly,
indirectly or as a result of attribution of ownership, in termination of
the status of the Trust as a real estate investment trust under the REIT
Provisions of the Internal Revenue Code.
Any Person other than an Excepted Person who could, as a result
of any transfer and/or registration of transfer on the books of the
Trust of any Shares, or Securities convertible into Shares, become a
direct or indirect owner of Excess Shares shall give written notice to
the Trust of the proposed transfer and any information as may be
required by the Trustees no later than the 15th day prior to any
transfer which, if consummated, would result in such ownership.
8.3.3. Shares Purchased on Behalf of Trust. If in connection
with an attempted transfer of Shares, Section 8.3.2 is determined to
be void or invalid by virtue of any legal decision, statute, rule or
regulation, then the transferee of Shares, by virtue of his
acquisition, the transfer of which Shares was attempted and would have
been proscribed if Section 8.3.2 were valid, shall be deemed to have
acted as agent of the Trustees in acquiring such Shares and to be
holding such Shares on behalf of the Trustees. Such person shall
simultaneously and in connection therewith deliver to the Trustees all
or such portion of such Shares so acquired, and such additional Shares
previously owned by him as in the opinion of two-thirds of the
Trustees is required to maintain or bring the direct or indirect
ownership (determined on the basis that such concentrated ownership
existed during the entire Fiscal Year of the Trust) of Shares into
conformity with the requirements of the REIT Provisions of the
Internal Revenue Code so as to enable the Trust to continue to be
qualified as a real estate investment trust and eligible for certain
tax benefits under the REIT Provisions of the Internal Revenue Code.
The price to be paid to such person for his interest in each of such
Shares acquired by such person as agent for the Trustees shall be the
price paid by such agent to the immediate seller thereof, and the
price for the additional Shares to be acquired by the Trustees from
such person shall be the redemption price described in Section 8.3.1
hereof.
8.3.4. Notice. Each Shareholder agrees, as a condition of his
becoming and remaining a Shareholder, that if such Shareholder has
knowledge that he owns, directly or indirectly, together with certain
related persons, 500,000 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
will notify the Trust in writing of such fact and will similarly
notify the Trust of any subsequent acquisition of Shares (or
convertible securities, options or warranties) by himself or related
persons of which he has knowledge within 10 days of becoming aware of
such acquisition.
8.3.5. Definitions of Ownership.
(a) For the purpose of Section 8.3.4, direct or
indirect ownership of a Shareholder and certain related persons
shall include only Shares owned beneficially or of record, by or
for a Shareholder, his spouse, brothers, sisters, ancestors,
lineal descendants, or trusts or estates for the benefit of such
persons, and corporations or partnerships controlled by the
Shareholder and related persons.
(b) For all other purposes of Section 8.3, the term
"individual" shall be construed as provided in Section 542(a)(2),
and "ownership" of Shares shall be determined as provided in
Section 544, of the Internal Revenue Code or any successor
provisions.
8.3.6. NYSE Settlement. Nothing contained in this Section 8.3.
shall preclude the settlement of any transaction entered into through
the facilities of the New York Stock Exchange, Inc. The fact that the
settlement of any transaction is permitted shall not negate the effect
of any other provision of this Section 8.3. and any transferee in such
a transaction shall be subject to all of the provisions and
limitations set forth in this Section 8.3.
SECTION 8.4. Information from Shareholders. Shareholders upon demand
shall disclose to the Trustees in writing such information regarding direct
and constructive ownership of Shares as the Trustees deem necessary to
comply with the REIT Provisions of the Internal Revenue Code or the
provisions of any other applicable law.
ARTICLE IX
SHAREHOLDERS
SECTION 9.1. Meetings of Shareholders.
9.1.1. Annual Meetings. Annual meetings of the Shareholders
shall be held in the City of Boston, Massachusetts, or in such other
place within or without the Commonwealth of Massachusetts as the
Trustees may designate, on a day, at a time and at a place set by the
Trustees. The annual meeting of Shareholders shall be held after
delivery to the Shareholders of the annual report to Shareholders and
within six months after the end of each fiscal year (exclusive of any
short first fiscal year). The business transacted at such meetings
shall include the election of Trustees by the holders of Shares
entitled to vote thereon and the transaction of such other business as
Shareholders may be entitled to vote upon as hereinafter provided in
this Article IX or otherwise in this Declaration, or as the Trustees
may determine.
9.1.2. Special Meetings. Special meetings of the Shareholders
may be called at any time by the Chairman, the President or a majority
of the Trustees in the manner provided in the Trustees' Regulations,
if any, and shall be called by any Trustee upon written request of the
Shareholders holding in the aggregate not less than 30% of the
outstanding Shares having the right to vote thereat. Such request
shall specify the purpose or purposes for which such meeting is to be
called; provided, however, that a special meeting need not be called
by any Trustee if such written request is received within 60 days
preceding the scheduled date for the annual meeting of Shareholders.
Any such meeting shall be held in Boston, Massachusetts, or such other
place within or without the Commonwealth of Massachusetts as the
Trustees shall designate.
SECTION 9.2. Notice of Meetings. Notice of all annual meetings of
Shareholders shall state the time and place and notice of all special
meetings of Shareholders shall state the time, place and purposes of the
meeting, and shall be given by the Trustees by mail to each Shareholder at
his registered address, mailed at least 10 days and not more than 60 days
before the meeting. No business not stated in the notice of the meeting
shall be considered at any special meeting. Any adjourned meeting may be
held as adjourned without further notice.
SECTION 9.3. Voting Rights of Shareholders.
9.3.1. Right to Vote. The holders of any series of Preferred
Shares shall have the right to vote only upon those of the matters
listed in this section which are specified in the resolution of the
Trustees pursuant to Section 6.1. The holders of Shares of Beneficial
Interest shall have the right to vote only upon the following matters:
(a) election of Trustees as provided in Section 10.2;
(b) removal for cause and election of Trustees as
provided in Sections 10.4 and 10.5;
(c) amendment of this Declaration of Trust or
termination of the Trust as provided in Section
13.1;
(d) the sale, conveyance, assignment, exchange,
transfer or other disposition of 50% or more of the
Trust Property as provided in Sections 13.2.2 or
2.2.4;
(e) reorganization of the Trust as provided in Section
13.3;
(f) approval of certain transactions as provided in
Section 10.9.6;
(g) termination of any contract with an Adviser
pursuant to Section 3.2;
(h) to the same extent as the Shareholders of a
Massachusetts business corporation, as to whether a
court action, proceeding or claim should be brought
or maintained derivatively or as a class action on
behalf of the Trust or its Shareholders.
Except with respect to the foregoing matters specified in this Section
9.3, on which the specified Shareholders' vote shall determine the
Trustees' action, no action taken by the Shareholders at any meeting
shall in any way bind the Trustees. Whenever any action is to be
taken by the Shareholders, except as otherwise required by this
Declaration or by law, it shall be authorized by a majority of the
votes cast at a meeting of Shareholders at which a quorum is present
by holders of Shares entitled to vote thereon.
9.3.2. Quorum. A majority of the outstanding Shares entitled to
vote at any annual or special meeting represented in person or by
proxy, shall constitute a quorum at any such meeting.
SECTION 9.4. Record Date for Meetings. For the purpose of
determining the Shareholders who, having the right to vote upon a matter as
provided in Section 9.3, are entitled to vote or act upon such matter at
any meeting or any adjournment thereof, or who, having the right to
participate in a dividend or distribution, are entitled to participate in
such dividend or distribution, or for the purpose of any other action, the
Trustees from time to time may close the transfer books for such period,
not exceeding 30 days, as the Trustees may determine; or without closing
the transfer books the Trustees may fix a date not more than 60 days prior
to the date of any meeting of Shareholders or dividend payment or other
action as a record date for the determination of such Shareholders entitled
to vote at such meeting or any adjournment thereof or to receive such
dividend or to be treated as Shareholders of record for purposes of such
other action, and any such Shareholder who was a Shareholder at the time so
fixed shall be entitled to vote at such meeting or any adjournment thereof
or to receive such dividend, even though he has since that date disposed of
his Shares, and no Shareholder becoming such after that date shall be so
entitled to vote at such meeting or any adjournment thereof or to receive
such dividend or to be treated as Shareholders of record for purposes of
such other action.
SECTION 9.5. Proxies. At any meeting of Shareholders, any holder of
Shares entitled to vote thereat may vote by proxy, provided that no proxy
shall be voted at any meeting unless it shall have been placed on file with
the Secretary, or with such other officer or agent of the Trust as the
Secretary may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of the majority of the Trustees,
proxies may be solicited in the name of one or more Trustees or one or more
of the officers of the Trust. Only Shareholders otherwise having the right
to vote at the meeting who hold Shares at the record date shall be entitled
to vote and each full Share shall be entitled to one vote. Neither
fractional Shares nor scrip fractional Shares shall be entitled to any
vote. When any Share is held jointly by several persons and is entitled to
vote at the meeting, any one of them may vote at such meeting in person or
by proxy in respect of such Shares, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Share. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger.
SECTION 9.6. Reports. The Trustee shall cause to be prepared at
least annually a report of operations containing a balance sheet and
statement of income and surplus of the Trust prepared in accordance with
generally accepted accounting principles and an opinion of an independent
certified public accountant or independent public accountant on the
financial statements based on an examination of the books and records of
the Trust. A signed copy of such report and opinion shall be filed with
the Trustees within 90 days after the close of the period covered thereby,
and with any state securities or "Blue Sky" administrator or other similar
authority who requests that such report be filed. Copies of such reports
shall be mailed to all Shareholders of record within 120 days of the period
covered by the report, and in any event within a reasonable period
preceding the annual meeting of Shareholders.
SECTION 9.7. Inspection of Records. The records of the Trust shall
be open to inspection by Shareholders to the same extent as is permitted
shareholders of a Massachusetts business corporation. Any Federal or state
securities or "Blue Sky" administrator or other similar authority shall
have the right, at reasonable times during business hours and for proper
purposes, to inspect the books of account of the Trust and the records of
the meetings of Shareholders and Trustees.
SECTION 9.8. Shareholder Action by Written Consent. Whenever
Shareholders are required or permitted to take any action, such action may
be taken without a meeting by written consent setting forth the action so
taken, signed by the holders of a majority of all outstanding Shares having
the right to vote thereon, or such larger proportion thereof as would be
required for a vote of Shareholders at a meeting.
ARTICLE X
TRUSTEES
SECTION 10.1. Number and Qualification. The number of Trustees shall
be not less than five nor more than 15 and shall be determined from time to
time by a majority of the Trustees then acting. The Trustees shall be
divided into three classes and the number of Trustees in each class shall
be designated by a majority of the Trustees and shall be as near equal as
is practicable. At each Annual Meeting of Shareholders, the term of office
of one class of Trustee only will expire and their successors will be
elected for a term expiring at the third succeeding Annual Meeting, except
that a person appointed by the Trustees to fill a vacancy, shall be subject
to election at the next Annual Meeting of Shareholders for a term equal to
the then unexpired term of the class of Trustee to which such person was
appointed. Whenever a vacancy in the number of Trustees shall occur
because of the death, resignation, bankruptcy, insolvency, adjudicated
incompetence or other incapacity to exercise the duties of office, or
removal of a Trustee, the person elected or appointed to fill the vacancy
shall become the same class of Trustee as the person who created the
vacancy. If a vacancy or vacancies occur because of an increase in the
Board of Trustees as determined by its Trustees, the Trustees shall
designate the class of the vacancies created. Whenever a vacancy in the
number of Trustees shall occur, until such vacancy is filled as provided in
Section 10.5, the Trustee or Trustees continuing in office, regardless of
their number, shall have all the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by this Declaration of
Trust. A Trustee shall be an individual at least 21 years of age who is
not under legal disability. The Trustees, in their capacity as Trustees,
shall not be required to devote their entire time to the business and
affairs of the Trust, but shall only be required to devote such time as is
reasonably necessary to perform their duties.
SECTION 10.2. Election. Each Trustee elected or appointed as
provided in Section 10.1 or 10.5 shall (except in the event of resignations
or removals or vacancies pursuant to Section 10.3, 10.4 or 10.5) hold
office until his successor has been elected. Election of Trustees at any
annual meeting shall be by the affirmative vote of the holders of at least
a majority of the Shares present in person or by proxy at such meeting and
entitled to vote for the election of Trustees thereat. The election of any
Trustee (other than an individual who was serving as a Trustee immediately
prior to such election) pursuant to this Section 10.2 shall not become
effective unless and until such person shall have in writing accepted his
election and agreed to be bound by the terms of this Declaration of Trust.
Trustees may but need not own Shares.
SECTION 10.3. Resignation. Any Trustee may resign his trust (without
need for prior or subsequent accounting) by an instrument in writing in
recordable form signed by him and delivered or mailed to the Chairman,
President or Secretary (all referred to in Section 10.7 hereof) and such
resignation shall be effective upon such delivery, or at a later date
according to the terms of the notice.
SECTION 10.4. Removal. Any of the Trustees may be removed for cause,
at any meeting of Shareholders called for that purpose, by the holders of
at least 66 2/3% of the total Shares outstanding having the right to vote
for the election of Trustees or by the written consent of all of the
Trustees other than the Trustee whose removal is then being considered.
SECTION 10.5. Vacancies. The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of the death, resignation,
bankruptcy, insolvency, adjudicated incompetence or other incapacity to
exercise the duties of the office, or removal of a Trustee. No such
vacancy shall operate to annul this Declaration of Trust or to revoke any
existing agency created pursuant to the terms of this Declaration of Trust,
and title to any Trust Property held in the name of any Trustee alone,
jointly with one or more of the other Trustees or otherwise, in the event
of the death, resignation, removal, bankruptcy, insolvency, adjudicated
incompetence or other incapacity to exercise the duties of the office of
such Trustee, shall vest in the continuing or surviving Trustees without
necessity of any further act or conveyance. In the case of an existing
vacancy, the holders of at least a majority of the Shares entitled to vote
for the election of Trustees, acting at any meeting of Shareholders duly
called for the purpose, or a majority of the Trustees continuing in office,
acting by written instrument or instruments, may fill such vacancy, and any
Trustee so elected by the Trustees shall hold office for the unexpired
portion of the term of the Trustee with respect to whom such vacancy has
occurred. No such election or appointment as provided in this Section 10.5
shall become effective unless or until the new Trustee shall have accepted
in writing his appointment and agreed to be bound by the terms of this
Declaration of Trust. If any or all of the Trustees cease to be Trustees
hereunder, whether by reason of resignation, removal, incapacity, death or
otherwise, such event shall not terminate the Trust or affect its
continuity. Until vacancies are filled, the remaining Trustee or Trustees
(even though less than five (5)) may exercise the powers of the Trustees
hereunder. If at any time there shall be no Trustees in office, successor
Trustees shall be elected by the Shareholders as provided in Section 9.1.
SECTION 10.6. Meetings of Trustees and Investment Committee.
10.6.1. Meetings of the Trustees shall be held from time to time
upon the call of the Chairman, the President, the Secretary or any two
Trustees. Notice of any meeting shall be mailed or otherwise given
not less than 24 hours before the meeting but may be waived in writing
by any Trustee either before or after such meeting. The attendance of
a Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee attends a meeting for the express
purpose of objecting to the transaction of any business on the ground
that the meeting has not been lawfully called or convened. The
Trustees may act with or without a meeting or by means of conference
telephone, telegraphic or other written consent or any similar means
by vote of a majority of the Trustees present (a quorum being present)
or without a meeting by written consents of a majority of the Trustees
(or of a majority of a particular group whose vote is required). A
quorum for all meetings of the Trustees shall be a majority of the
Trustees (provided that whenever pursuant to Article III or Section
10.9 hereof the vote of a majority of a particular group of Trustees
is required at a meeting, a quorum for such meeting shall be a
majority of the Trustees which majority, in turn, must include a
majority of such group). Any agreement, deed, mortgage, lease or
other instrument or writing executed by one or more of the Trustees or
by any authorized Person shall be valid and binding upon the Trustees
and upon the Trust when authorized or ratified by action of the
Trustees or as above provided.
10.6.2. The Investment Committee may act with or without a
meeting or by means of conference telephone, telegraphic consent or
any similar means by vote of a majority of the members present (a
quorum being present) or without a meeting by written consent of a
majority of the members (or of a majority of a particular group whose
vote is required). A quorum for all meetings of the Investment
Committee shall be a majority of the members thereof; provided,
however, that whenever pursuant to Article III or Section 10.9 hereof
the vote of a majority of a particular group of Committee members is
required at a meeting, a quorum for such meeting shall be a majority
of the Committee members which majority, in turn, must include a
majority of such group.
10.6.3. Participation in a meeting pursuant to such
communications shall constitute presence in person at such meeting.
The minutes of any meeting of Trustees or the Investment Committee
held by telephone, telegraph or other similar means shall be prepared
in the same manner as a meeting of Trustees or the Investment
Committee held in person.
SECTION 10.7. Officers. The Trustees shall annually elect from among
their number a Chairman and may elect a Vice-Chairman. The Trustees shall
annually elect, from among their number or otherwise, a President, one or
more Vice-Presidents, Controller, Secretary and Treasurer, and may elect
one or more Assistant Secretaries and Assistant Treasurers and such other
officers or agents, who shall have such powers, duties and responsibilities
as the Trustees may deem to be advisable. Two or more offices may be held
by the same person, except that the office of President and Secretary may
not be held by the same person.
SECTION 10.8. Trustees' Regulations. The Trustees may adopt and from
time to time amend or repeal Trustees' Regulations or Bylaws for the
conduct of the business of the Trust, and in such Trustees' Regulations may
define the duties of their officers, agents, employees and representatives.
SECTION 10.9. Transactions with the Trust or Adviser.
10.9.1. Transactions between the Trust and Certain Affiliates.
The Trustees may not knowingly, directly or indirectly, lend any of
the Trust Property to, purchase or otherwise acquire any property
whatsoever (other than Securities of the Trust) from, or sell or
otherwise transfer any property whatsoever (other than Securities of
the Trust) to, any Person who is (i) a Trustee, officer or employee of
the Trust or is otherwise an Affiliate of the Trust, or (ii) an
Affiliate of any Trustee, officer, or employee of the Trust, or (iii),
if there is an Adviser, the Adviser or any Affiliate of the Adviser or
Affiliates of any Affiliate of the Adviser, nor shall any such Person
receive any commission or other remuneration, directly or indirectly,
in connection with the loan, purchase, sale or transfer of assets of
the Trust, except pursuant to transactions that are (A) approved by a
majority of disinterested Trustees and (B) in all material respects on
such terms as are fair and reasonable to the Trust at the time of the
transaction.
10.9.2. Simultaneous Acquisition. The simultaneous acquisition
by the Trust and another Person of participations in a loan or other
investment on the same terms shall not be deemed to constitute the
purchase or sale of property by one of them from or to the other. An
acquisition of a participation by the Trust or such other Person from
the other party within 90 days following the acquisition of such loan
or other investment by the other party shall be deemed to be
simultaneous for purposes of the preceding sentence.
10.9.3. Ownership of Securities of the Trust. Any Trustee or
officer, director, shareholder, employee or agent of the Trust, any
Adviser or any Affiliate of any Adviser may acquire, own, hold and
dispose of Securities of the Trust, for his individual account, and
may exercise all rights of a holder of such Securities to the same
extent and in the same manner as if he were not such a Trustee,
officer, director, shareholder, employee or agent of the Trust,
Adviser or Affiliate of an Adviser.
10.9.4. Responsibility as to Investment Opportunities. The
Trustees shall use their best efforts to obtain through an Adviser or
other Persons a continuing and suitable investment program, consistent
with the investment policies and objectives of the Trust, and the
Trustees shall be responsible for reviewing and approving or rejecting
investment opportunities presented by the Adviser or such other
Persons. So long as there is such Adviser or other Person, the
Trustees shall have no responsibility for the origination of
investment opportunities for the Trust.
10.9.5. Business Interests of Trustees and Other Parties.
Except as otherwise provided herein or by law, any Trustee, Adviser or
Affiliate of an Adviser, or officer, employee, or agent of the Trust
may in his personal capacity, or in a capacity of trustee, officer,
director, stockholder, partner, member, adviser or employee of any
Person, have business interests and engage in business activities
similar or in addition to those relating to the Trust, which interests
and activities may include the acquisition, syndication, holding,
management, operation or disposition, for his own account or for the
account of such Person, of interests in Mortgages, interests in Real
Property, or interests in Persons engaged in the real estate business.
However, if there is an Adviser and if an Affiliated Trustee or agent
of the Trust who is an Affiliate of the Adviser, or any officer or
employee of the Trust or of the Adviser, or the Adviser, in each case
acting for his or its personal account, shall make any real estate
investment of the types in which the Trust, pursuant to Section 4.1
hereof, intends to invest at least 90% of the Total Assets of the
Trust to remain qualified for certain tax benefits under the REIT
Provisions of the Internal Revenue Code, such person subsequently
shall file the reports referred to in Section 3.6. Subject to the
provisions of Article III and Section 10.9.6 and 10.10, any Trustee,
Adviser or Affiliate of an Adviser, officer, employee or agent of the
Trust may be interested as trustee, officer, director, stockholder,
partner, member, adviser or employee of, or otherwise have a direct or
indirect interest in, any Person who may be engaged to render advice
or services to the Trust, and may receive compensation from such
person as well as compensation as Trustee, Adviser, officer, employee
or agent of the Trust or Adviser or otherwise hereunder. Each
Trustee, Adviser or Affiliate of an Adviser, officer, employee or
agent of the Trust shall be free of any obligation to present to the
Trust any investment opportunity which comes to him in any capacity,
even if such opportunity is of a character which, if presented to the
Trust, could be taken by the Trust; and none of the foregoing
interests or activities (singly or in combination) shall be deemed to
conflict with or be inconsistent with his powers, duties and
responsibilities as Trustee, Adviser, Affiliate of an Adviser,
officer, agent or employee of the Trust.
10.9.6. Validity of Contracts. Except as otherwise provided by
this Declaration of Trust and in the absence of fraud, no contract,
act or other transaction, between the Trust and any other Person, or
in which the Trust is interested, shall be invalid and no Trustee,
Adviser or Affiliate of an Adviser, officer, employee or agent of the
Trust shall have any liability as a result of entering into any such
contract, act or transaction solely because (a) one or more of the
Trustees, the Adviser, if any, or Affiliates of the Adviser, officers,
employees or agents of the Trust are directly or indirectly interested
in or connected with, or are trustees, partners, directors,
stockholders, members, employees, officers or agents of such other
Person, or (b) one or more of the Trustees, the Adviser, if any, or
Affiliates of the Adviser, officers, employees or agents of the Trust,
individually or jointly with others, is a party or are parties to or
directly or indirectly interested in, or connected with, such
contract, act or transaction, provided that (i) such interest or
connection is disclosed to the Trustees and the Trustees authorize
such contract, act or other transaction by vote of a majority of the
Trustees who are not interested, or (ii) such interest or connection
is disclosed to the Shareholders, and such contract, act or
transaction is approved by the Shareholders by the vote of the holders
of a majority of the Shares present at any meeting at which a quorum
is present and entitled to vote thereat.
SECTION 10.10. Compensation and Other Remuneration. The Trustees
shall be entitled to receive such reasonable compensation for their
services as Trustees as they may determine from time to time. Subject to
the provisions of Section 10.9, the Trustees, either directly or
indirectly, shall also be entitled to receive remuneration for services
rendered to the Trust in any other capacity. Such services may include,
without limitation, services as an officer of the Trust, legal, accounting
or other professional services, or services as a transfer agent or
underwriter, whether performed by a Trustee or any Person affiliated with a
Trustee. Notwithstanding the foregoing, neither the Adviser, if any, nor
any Affiliate of the Trust or of the Adviser, or any Person of which any
Trustee is an Affiliate, may receive any commissions or fees of any kind in
connection with the acquisition or disposition by the Trust of interests in
Real Property or other property of the Trust, and in the event any such
fees should be received they shall be immediately paid over to the Trust;
provided, however, if there is an Adviser, the Adviser may receive such
commissions and fees if such fees are credited against the Adviser's
regular compensation. The foregoing limitation shall not prohibit the
Adviser, if any, or any Affiliate of the Trust or of the Adviser, or any
Person of which any Trustee or the Adviser or an Affiliate of the Adviser
is an Affiliate, from receiving such fees relating to an investment by an
Affiliate of the Trust or the Adviser or by any other Person in a property
in which the Trust is also investing. Further, any fees paid to Affiliated
Trustees for their services as Trustees shall be credited against the
regular compensation of the Adviser, if any.
ARTICLE XI
DISTRIBUTIONS TO SHAREHOLDERS
SECTION 11.1. General. The Trustees from time to time may declare
and pay to the Shareholders having the right to participate in any dividend
or distribution, in proportion to their respective ownership of Shares, out
of the earnings, profits or surplus (including paid-in capital), capital or
assets in the hands of the Trustees, or any other source, such dividends or
other distributions, in accordance with the Shareholders' respective rights
to participate as the Trustees shall determine, and the determination of
earnings, profits, surplus and capital available for dividends and other
purposes shall be wholly in the discretion of the Trustees and no
Shareholder shall be entitled to receive or be paid any dividends or to
receive any distribution except as provided in the Trustees' resolution
pursuant to Section 6.1 and except as determined by the Trustees in the
exercise of said discretion. So long as qualification as a real estate
investment trust is the policy of the Trust, the Trustees shall endeavor
from time to time to declare and pay such dividends and distributions as
shall be necessary for the Trust to qualify at all times as a real estate
investment trust under the REIT Provisions of the Internal Revenue Code.
In addition, the Trustees, from time to time in their discretion, may
declare and pay as dividends or other distributions such additional
amounts, whether out of earnings, profits and surplus available therefor,
sufficient to enable the Trust to avoid or reduce its liability for federal
income taxes, inasmuch as the computations of net income and gains for
federal income tax purposes may vary from the computations thereof on the
books of the Trust. Any or all such dividends or other distributions may
be made, in whole or in part, in cash, property, or other assets of the
Trust, or in senior or subordinated, secured or unsecured, evidences of
indebtedness of the Trust, as the Trustees in their sole discretion from
time to time may determine, except any liquidating dividend or distribution
upon termination shall be governed by Section 13.2.2. The Trustees may
also distribute to the holders of any class or series of Shares, in
proportion to their respective ownership of such Shares, additional Shares
in such manner and on such terms as they deem proper.
SECTION 11.2. Retained Earnings. The Trustees, except as provided in
Section 11.1, always may retain from the net profits such amount as they
may deem necessary to pay the debts or expenses of the Trust or to meet
obligations of the Trust, or as they may deem desirable to use in the
conduct of its affairs or to retain for future requirements or extensions
of the business.
SECTION 11.3. Source of Distributions. Distributions to Shareholders
shall be accompanied from time to time by a statement in writing advising
the Shareholders of the source of the funds so distributed so that
distributions of ordinary income, return of capital, and capital gains
income will be clearly distinguished, or, if the source of funds so
distributed has not been determined, the communication shall so state, in
which event the statement of the source of funds shall be forwarded to
Shareholders promptly after the close of the Fiscal Year in which the
distribution was made.
ARTICLE XII
RECORDING OF DECLARATION OF TRUST
SECTION 12.1. Recording. This Declaration of Trust and any amendment
hereto as soon as reasonably practicable after its execution or adoption,
shall be filed in the office of the Secretary of The Commonwealth of
Massachusetts, and in the office of the Town Clerk where its principal
place of business in Massachusetts is located, which filings shall be
conditions precedent to the effectiveness of any such amendment. The
Trustees shall also cause to be filed in the aforementioned office and in
all other offices in which recording of the amendment or instrument in
question shall be required from time to time by the laws of The
Commonwealth of Massachusetts or by any other applicable laws or in which
such recording shall seem desirable to the Trustees, all amendments to this
Declaration of Trust and appropriate instruments disclosing changes in the
Persons who are Trustees of the Trust but (except as to the required filing
of amendments in the office of the Secretary of The Commonwealth of
Massachusetts) such filing shall not be deemed a condition to the
effectiveness of, and the failure to so file shall not be deemed to
invalidate, any such amendment or any election or appointment of any person
as a Trustee or the resignation or removal of any Trustee.
ARTICLE XIII
AMENDMENT OR TERMINATION OF TRUST; TRANSFER TO SUCCESSOR
SECTION 13.1. Amendment or Termination. The provisions of this
Declaration of Trust may be amended or altered (except as to the
limitations of personal liability of the Shareholders and Trustees and the
prohibition of assessments upon Shareholders), or the Trust may be
terminated, by the majority vote of the Trustees and the affirmative vote
or written consent of the holders of not less than 66 2/3% of the Shares
then outstanding having the right to vote thereon. Such amendment or
termination shall not be effective until, if such amendment or termination
is effectuated by an instrument in writing, such instrument shall have been
filed in the office of the Secretary of The Commonwealth of Massachusetts,
or, if effectuated by a vote at a meeting, a certificate, signed and
acknowledged by a Trustee, that such action was taken at a meeting duly
called and held in accordance with and by the affirmative vote required by
this Declaration of Trust shall have been so filed; provided, however, that
after at least 15 days written notice to the Shareholders having the right
to vote thereon of the proposed action, the Trustees from time to time by a
two-thirds vote of the Trustees, may amend or alter the provisions of this
Declaration of Trust, without the vote or assent of the Shareholders, to
the extent deemed by the Trustees in good faith to be necessary to meet the
requirements for qualification for certain tax benefits as a real estate
investment trust under the REIT Provisions of the Internal Revenue Code or
any interpretation thereof by a court of competent jurisdiction, but the
Trustees shall not be liable for failing to do so. No amendment may be
made, under this Section 13.1, which would change any rights with respect
to any other outstanding Securities of the Trust by reducing the amount
payable thereon upon liquidation of the Trust or by diminishing or
eliminating any voting rights pertaining thereto, except with the vote or
consent of the holders of two-thirds (2/3) of the outstanding Shares having
the right to vote thereon.
The Trustees may from time to time approve and file in the office of
the Secretary of The Commonwealth of Massachusetts (and in any other office
in any state where the Declaration of Trust and amendments may be filed or
recorded) an Amended and Restated Declaration of Trust which contains,
consolidates and conforms the substantive provisions of the Declaration of
Trust and any amendments thereto on or prior to the date thereof.
If the Amended and Restated Declaration of Trust only restates (with
nonsubstantive conforming changes which the Trustees consider appropriate)
and does not make any substantive amendment to the Declaration of Trust as
previously amended, such Amended and Restated Declaration of Trust may be
approved by the Trustees without the vote or assent of the Shareholders.
From and after the filing thereof, such Amended and Restated Declaration of
Trust shall be deemed for all purposes to have superseded the earlier
Declaration of Trust and amendments thereto and shall constitute the
Declaration of Trust of the Trust.
SECTION 13.2. Termination. Upon the termination of the Trust
pursuant to this Article XIII:
13.2.1. No Business. The Trust shall carry on no business
except for the purpose of winding up its affairs.
13.2.2. Wind Up. The Trustees shall proceed to wind up the
affairs of the Trust and all of the powers of the Trustees under this
Declaration of Trust shall continue until the affairs of the Trust
shall have been wound up, including the power to fulfill or discharge
the contracts of the Trust, collect its assets, sell, convey, assign,
exchange, transfer or otherwise dispose of all or any part of the
remaining Trust Property to one or more persons at public or private
sale for consideration which may consist in whole or in part of cash,
securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange,
transfer or other disposition of more than 50% of the Trust Estate
shall require approval of the principal terms of the transaction and
the nature and amount of the consideration by affirmative vote of not
less than 66 2/3% of all outstanding Shares having the right to vote
thereon.
13.2.3. Distribute. After paying or adequately providing for
the payment of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem necessary for their
protection, the Trustees shall distribute the remaining Trust Property
in cash among the Shareholders according to their respective rights.
SECTION 13.3. Transfer to Successor. The Trustees, after receiving
an affirmative vote of not less than 66 2/3% of all outstanding Shares
having the right to vote thereon at any meeting of Shareholders the notice
for which included a statement of such proposed action, may (a) select or
direct the organization of a corporation, association, trust or other
organization to take over the Trust Property and carry on the affairs of
the Trust, and (b) merge, dissolve or liquidate the Trust into, consolidate
the Trust with, or sell, convey and transfer the Trust Property to, any
such corporation, association, trust or organization in exchange for shares
or securities thereof, or beneficial interests therein, and the assumption
by such transferee of the liabilities of the Trust, and (c) thereupon,
terminate the Trust and deliver such shares, securities or beneficial
interests among the Shareholders in redemption of their Shares according to
their respective rights.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Governing Law. This Declaration of Trust is executed
by the Trustees and delivered in The Commonwealth of Massachusetts and with
reference to the laws thereof, and the rights of all parties and the
construction and effect of every provision hereof shall be subject to and
construed according to the laws of said Commonwealth.
SECTION 14.2. Counterparts. This Declaration of Trust may be
simultaneously executed in several counterparts, each of which so executed
shall be deemed to be an original, and such counterparts, together, shall
constitute but one and the same instrument, which shall be sufficiently
evidenced by any such original counterpart.
SECTION 14.3. Reliance by Third Parties. Any certificate executed by
an individual who, according to the records in the office of the Secretary
of The Commonwealth of Massachusetts appears to be a Trustee hereunder,
certifying to: (a) the number or identity of Trustees or Shareholders, (b)
the due authorization of the execution of any instrument or writing, (c)
the form of any By-law or Trustees' Regulations adopted by or the identity
of any officers elected by the Trustees, or (d) the existence or non-
existence of any fact or facts which in any manner relate to the affairs of
the Trust, shall be conclusive evidence as to the matters so certified in
favor of any Person dealing with the Trustees or any of them and the
successors of such Person. Persons dealing with the Trust may rely upon
the records of said Secretary of the Commonwealth.
SECTION 14.4. Provisions in Conflict with Law or Regulations.
14.4.1. Severable. The provisions of this Declaration of Trust
are severable, and while qualification as a real estate investment
trust is the policy of the Trust, if the Trustees shall determine,
with the advice of counsel, that any one or more of such provisions
(the "Conflicting Provisions") are in conflict with the REIT
Provisions of the Internal Revenue Code or with other applicable
Federal or state laws and regulations, the Conflicting Provisions
shall be deemed never to have constituted a part of this Declaration
of Trust; provided, however, that such determination by the Trustees
shall not affect or impair any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or
omitted (including but not limited to the election of Trustees) prior
to such determination. Such determination shall become effective when
a certificate signed by a Trustee, setting forth any such
determination and reciting that it was duly adopted by the Trustees,
or a copy of this Declaration of Trust with the Conflicting Provisions
removed pursuant to such a determination, signed by a Trustee, shall
be filed in the Office of the Secretary of The Commonwealth of
Massachusetts. The Trustees shall not be liable for failure to make
any determination under this Section. Nothing in this Section shall
in any way limit or affect the right of the Trustees to amend this
Declaration of Trust.
14.4.2. Invalidity. If any provisions of this Declaration of
Trust shall be held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such provision in
such jurisdiction and shall not in any manner affect or render invalid
or unenforceable such provision in any other jurisdiction or any other
provision of this Declaration of Trust in any jurisdiction.
SECTION 14.5. Section Headings. Section headings have been inserted
for convenience only and are not a part of this Declaration of Trust.
ARTICLE XV
DURATION OF TRUST
SECTION 15.1. Duration. The Trust shall continue perpetually unless
terminated pursuant to Section 13.1 hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto as Trustees hereunder have
signed these presents as of the day and year first above written.
/s/ Dean Bernstein /s/ William Newman
- - - -------------------------------- --------------------------
Dean Bernstein, Trustee William Newman, Trustee
/s/ Raymond Bottorf /s/ James Steuterman
- - - -------------------------------- --------------------------
Raymond Bottorf, Trustee James Steuterman, Trustee
/s/ Norman Gold /s/ John Wetzler
- - - -------------------------------- ---------------------------
Norman Gold, Trustee John Wetzler, Trustee
/s/ Arnold Laubich /s/ Gregory White
- - - -------------------------------- ---------------------------
Arnold Laubich, Trustee Gregory White, Trustee
/s/ Melvin Newman
- - - --------------------------------
Melvin Newman, Trustee
