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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K
[x] ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED EFFECTIVE OCTOBER 7, 1996]
For the fiscal year ended July 31, 1997 OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from __________ to __________
Commission File Number 1-8459
NEW PLAN REALTY TRUST
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts 13-1995781
(State of Incorporation) (I.R.S. Employer
Identification No.)
1120 Avenue of the Americas
New York, NY 10036 (212) 869-3000
(Address of Principal Executive Offices) (Registrant's Telephone Number)
Securities registered pursuant to Section 12(b) of the Act:
Shares of Beneficial Interest, no par value
(Title of Class)
New York Stock Exchange
(Name of Exchange on Which Registered)
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months, and (2) has been subject to such
filing requirements for the past 90 days.
YES X NO _____
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of
the Registrant was approximately $1,385,513,196 based on the closing price
on the New York Stock Exchange for such stock on September 12, 1997.
The number of shares of the Registrant's Shares of Beneficial Interest
outstanding was 58,964,171 as of October 6, 1997.
Documents Incorporated By Reference
Portions of the 1997 New Plan Realty Trust Proxy Statement to be filed with
the Securities and Exchange Commission within 120 days after the year
covered by this Form 10-K with respect to the Annual Meeting of
Shareholders to be held on December 10, 1997 are incorporated by reference
into Part III.
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<PAGE>
TABLE OF CONTENTS
Item No. Page
- -------- -----
PART I. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Item 1. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Item 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Item 3. Legal Proceedings. . . . . . . . . . . . . . . . . . . . . . . .19
Item 4. Submission of Matters to a Vote of Security Holders. . . . . . .19
PART II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Item 5. Market for the Registrant's Common Equity and
Related Shareholder Matters. . . . . . . . . . . . . . . . . . .19
Item 6. Selected Financial Data. . . . . . . . . . . . . . . . . . . . .22
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations. . . . . . . . . . . . . . .23
Item 7A. Quantitative and Qualitative Disclosures About Market Risk . . .25
Item 8. Financial Statements and Supplementary Data. . . . . . . . . . .26
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure. . . . . . . . . . . . . . .26
PART III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
Item 10. Trustees and Executive Officers of the Trust . . . . . . . . . .26
Item 11. Executive Compensation . . . . . . . . . . . . . . . . . . . . .27
Item 12. Security Ownership of Certain Beneficial Owners
and Management . . . . . . . . . . . . . . . . . . . . . . . . .27
Item 13. Certain Relationships and Related Transactions . . . . . . . . .27
PART IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Item 14. Exhibits, Consolidated Financial Statements,
Consolidated Financial Statement Schedules, and Reports
on Form 8-K. . . . . . . . . . . . . . . . . . . . . . . . . . .28
<PAGE>
PART I
This Form 10-K, together with other statements and information publicly
disseminated by New Plan Realty Trust (the "Registrant" or the "Trust"),
contains certain forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. Such statements are based on assumptions
and expectations which may not be realized and are inherently subject to
risks and uncertainties, many of which cannot be predicted with accuracy and
some of which might not even be anticipated. Future events and actual
results, financial and otherwise, may differ materially from the results
discussed in the forward-looking statements. Risks and other factors that
might cause such differences, some of which could be material, include, but
are not limited to, the effect of economic and market conditions; financing
risks, such as the inability to obtain debt or equity financing on favorable
terms; the level and volatility of interest rates; financial stability of
tenants; the rate of revenue increases versus expense increases, as well as
other risks listed from time to time in this Form 10-K and in the Company's
other reports filed with the Securities and Exchange Commission or otherwise
publicly disseminated by the Company.
Item 1. Business
(a) General Development of Business
The Trust, a self-administered and self-managed equity real estate
investment trust, was organized on July 31, 1972 as a business trust under
the laws of the Commonwealth of Massachusetts. The Trust is the successor to
the original registrant (Reg. No. 2-19671), New Plan Realty Corporation, which
was incorporated under the laws of the State of Delaware on December 4, 1961.
(b) Financial Information About Industry Segments
The Trust is in the business of managing, operating, leasing,
acquiring, developing and investing in shopping centers, factory outlet
centers and apartment complexes. See the Consolidated Financial Statements
and Notes thereto included in Item 8 of this Annual Report on Form 10-K for
certain information required by Item 1.
(c) Narrative Description of Business
General
At September 9, 1997, the Trust owned fee, mortgage or leasehold
interests in 131 shopping centers containing an aggregate of approximately
18,905,000 gross rentable square feet, six factory outlet centers
containing an aggregate of approximately 1,752,000 gross rentable square
feet and 49 apartment complexes containing 11,288 units, all located in 23
states. The average occupancy rates at July 31, 1997 for the shopping
centers, factory outlet centers and apartment complexes were approximately
89%, 93% and 95%, respectively.
The Trust is self-administered and self-managed and does not engage or
pay a REIT advisor because the Trust personnel manage and maintain all of
the Trust's properties.
The Trust maintains its executive offices at 1120 Avenue of the
Americas, New York, New York 10036, and its telephone number is (212) 869-
3000.
Acquisition, Financing and Operating Strategies
The Trust's primary investment strategy is to identify and purchase
well-located income-producing shopping centers and apartment complexes at a
discount to replacement cost. The Trust also purchases selected factory
outlet centers. The Trust seeks to achieve income growth and enhance the
cash flow potential of its properties through a program of expansion,
renovation, leasing, re-leasing and improving the tenant mix. The Trust
minimizes development risks by generally purchasing existing income-
producing properties. The Trust regularly reviews its portfolio and from
time to time considers the sale of certain of its properties.
The Trust generally has acquired properties for cash. It is
management's belief that its ability to purchase available properties for
cash enhances its negotiating position in obtaining attractive purchase
prices. In a few instances properties have been acquired subject to
existing mortgages. Long-term debt of the Trust at July 31, 1997,
consisted of $65.6 million of mortgages having a weighted average interest
rate of 7.79% and unsecured notes aggregating $412.6 million having a
weighted average interest rate of 6.88%. In July 1997 the Trust issued
150,000 shares of Series A Cumulative Preferred Stock (the "Cumulative
Preferred Shares"). In connection with the issuance of Cumulative
Preferred Shares, 1,500,000 depositary shares, each representing a 1/10
fractional interest in a Cumulative Preferred Share, were sold to the
public. This stock currently pays dividends quarterly at the rate of 7.8%
per annum and has a liquidation preference of $500 per share ($50 per
depositary share).
The Trust's short-term debt consists of normal trade payables and the
current portion of mortgages payable. As of July 31, 1997 there was no
balance outstanding under the Trust's $50 million unsecured line of credit
with the Bank of New York, Corestates Bank N.A. and Fleet National Bank.
Virtually all operating and administrative functions, such as leasing,
data processing, finance, accounting, construction and legal, are centrally
managed at the Trust's headquarters. In addition, the Trust maintains
regional offices located near its various properties. On-site functions
such as security, maintenance, landscaping and other similar activities are
either performed by the Trust or subcontracted. The cost of these
functions are passed through to tenants to the extent permitted by the
respective leases.
Developments During the 1997 Fiscal Year
In the fiscal year ended July 31, 1997, the Trust acquired 16 shopping
centers containing an aggregate of approximately 2.5 million gross rentable
square feet and 13 apartment complexes containing 3,810 units. The newly
acquired properties are located in Alabama, Florida, Georgia, Illinois,
Indiana, Kentucky, Louisiana, Michigan, Missouri, Nevada, Ohio,
Pennsylvania, Tennessee and Virginia. The aggregate purchase price for all
of the properties, including assumed mortgages, was approximately $281
million. In April 1997 construction was completed on the Trust's Six Flags
Factory Outlet in Jackson, New Jersey.
Between July 31, 1997 and September 9, 1997 the Trust purchased one
apartment complex containing 184 units and three shopping centers
containing an aggregate of approximately 479,000 gross rentable square
feet. The newly acquired properties are located in New York, North Carolina
and Florida. The aggregate purchase price for these properties was
approximately $28.7 million.
Gross revenues, net income and funds from operations of the Trust for
the fiscal year ended July 31, 1997 were the largest in the Trust's
history. Funds from operations applicable to shares of beneficial
interest, defined as net income plus depreciation and amortization of real
estate, less gains from asset sales, less preferred stock dividend
requirements, was approximately $101.6 million ($1.74 per share).
Competition
The success of the Trust depends, among other factors, upon the trends
of the economy, including interest rates, construction costs, income tax
laws, increases or decreases in operating expenses, governmental
regulations and legislation, including environmental requirements, real
estate fluctuations, retailing trends, population trends, zoning laws, the
financial condition and stability of tenants, the availability of financing
and capital on satisfactory terms and the ability of the Trust to compete
with others for tenants and keep its properties leased at profitable
levels. The Trust competes for properties with an indeterminate number of
investors, including domestic and foreign corporations and financial
institutions, other real estate investment trusts, life insurance
companies, pension funds and trust funds.
Adverse changes in general or local economic conditions could result
in the inability of some existing tenants of the Trust to meet their lease
obligations and could otherwise adversely affect the Trust's ability to
attract or retain tenants. Management believes, however, that the Trust's
financial strength and operating practices, particularly its ability to
implement renovation, expansion and leasing programs will enable it to
maintain and increase rental income from its properties.
Employees
As of September 9, 1997, the Trust employed 602 individuals, including
executive, administrative and field personnel. The Trust considers its
relations with its personnel to be good.
Qualification as a Real Estate Investment Trust
The Trust presently meets the qualification requirements of a real
estate investment trust under Sections 856-58 of the Internal Revenue Code
of 1986, as amended (the "Code"). If, as the Trust contemplates, such
qualification continues, the Trust will not be taxed on its real estate
investment trust taxable income, at least 95% of which will be distributed
to shareholders. See Item 5 below.
Item 2. Properties
The location, general character and primary occupancy information with
respect to the Trust's properties as of July 31, 1997 (including
acquisitions through September 9, 1997) are set forth on the Summary of
Properties Schedule on the pages immediately following.
<PAGE>
<TABLE>
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NEW PLAN REALTY TRUST AND SUBSIDIARIES
Summary of Properties
At July 31, 1997
(Includes acquisitions through September 9, 1997)
Description
|---------------------------| Type of Percent
Property Sq. Ft. Units Acres Interest Rented
--------------- ------- ----- ----- -------- -------
<S> <C> <C> <C> <C> <C>
Apartments
- -----------------
BRECKENRIDGE APARTMENTS 120 7 Fee 94
BIRMINGHAM AL
DEVONSHIRE PLACE 284 16 Fee 98
BIRMINGHAM AL
COURTS AT WILDWOOD 220 22 Fee 98
BIRMINGHAM AL
THE CLUB APARTMENTS 292 23 Fee 95
BIRMINGHAM AL
PLANTATION APARTMENTS 120 6 Fee 99
MOBILE AL
MAISON DE VILLE APTS 347 20 Fee 99
MOBILE AL
MAISON IMPERIAL APTS 56 6 Fee 98
MOBILE AL
KNOLLWOOD APARTMENTS 704 43 Fee 99
MOBILE AL
HILLCREST APARTMENTS 140 7 Fee 99
MOBILE AL
RODNEY APARTMENTS 207 11 Fee 88
DOVER DE
MAYFAIR APARTMENTS 96 7 Fee 98
DOVER DE
LAKE PARK APARTMENTS 227 10 Fee 95
LAKE PARK FL
CAMBRIDGE APARTMENTS 180 12 Fee 99
ATHENS GA
TARA APARTMENTS 240 19 Fee 94
ATHENS GA
REGENCY CLUB APARTMENTS 232 17 Fee 97
EVANSVILLE IN
HAWTHORNE HEIGHTS APTS 241 15 Fee 94
INDIANAPOLIS IN
JAMESTOWN APARTMENTS 125 8 Fee 95
LEXINGTON KY
SADDLEBROOK APARTMENTS 455 20 Fee 95
LEXINGTON KY
POPLAR LEVEL APARTMENTS 88 3 Fee 99
LOUISVILLE KY
LA FONTENAY APARTMENTS 248 17 Fee 99
LOUISVILLE KY
CHARLESTOWN @ DOUGLASS HILLS 244 27 Fee 95
LOUISVILLE KY
RIVERCHASE APARTMENTS 203 5 Fee 91
NEWPORT KY
SHERWOOD ACRES APARTMENTS 612 26 Fee 88
BATON ROUGE LA
FORESTWOOD APARTMENTS 272 11 Fee 87
BATON ROUGE LA
WILLOW BEND LAKE APARTMENTS 360 25 Fee 90
BATON ROUGE LA
DEERHORN VILLAGE APARTMENTS 309 36 Fee 98
KANSAS CITY MO
CARDINAL WOODS APARTMENTS 184 17 Fee (1)
CARY NC
MEADOW EAST APARTMENTS 100 15 Fee 100
POTSDAM NY
MOHAWK GARDEN APARTMENTS 208 12 Fee 88
ROME NY
SPRING CREEK APARTMENTS 288 19 Fee 99
COLUMBUS OH
ARLINGTON VILLAGE APARTMENTS 164 10 Fee 96
FAIRBORN OH
CHESTERFIELD APARTMENTS 104 9 Fee 95
MAUMEE OH
GOLDCREST APARTMENTS 173 9 Fee 95
SHARONVILLE OH
CAMBRIDGE PARK APTS 196 14 Fee 100
UNION TWP-CINN OH
GOVERNOUR'S PLACE APARTMENTS 130 9 Fee 98
HARRISBURG PA
HARBOUR LANDING APARTMENTS 208 15 Fee 98
COLUMBIA SC
SEDGEFIELD APARTMENTS 280 19 Fee 89
FLORENCE SC
TURTLE CREEK APARTMENTS 152 13 Fee 96
GREENVILLE SC
HICKORY LAKE APARTMENTS 322 26 Fee 90
ANTIOCH TN
COURTS @ WATERFORD PLACE 318 26 Fee 96
CHATTANOOGA TN
ASHFORD PLACE APARTMENTS 268 16 Fee 98
CLARKSVILLE TN
THE PINES APARTMENTS 224 10 Fee 99
CLARKSVILLE TN
CEDAR VILLAGE APARTMENTS 170 11 Fee 99
CLARKSVILLE TN
PADDOCK PLACE APARTMENTS 240 11 Fee 95
CLARKSVILLE TN
LANDMARK ESTATES APARTMENTS 92 9 Fee 95
EAST RIDGE TN
MILLER CREST APARTMENTS 121 16 Fee 99
JOHNSON CITY TN
CEDAR BLUFF APARTMENTS 192 32 Fee 100
KNOXVILLE TN
COUNTRY PLACE APARTMENTS 312 27 Fee 96
NASHVILLE TN
WOODBRIDGE APARTMENTS 220 19 Fee 95
NASHVILLE TN
Factory Outlets
- ---------------
BARSTOW FACTORY OUTLET 334,000 49 Fee 96
BARSTOW CA
ST AUGUSTINE OUTLET CENTER 335,000 32 Fee 99
ST AUGUSTINE FL
BRANSON FACTORY OUTLET 317,000 39 Fee & 91
BRANSON MO Leasehold
OSAGE FACTORY OUTLET
VILLAGE 400,000 147 Fee 99
OSAGE BEACH MO
SIX FLAGS FACTORY
OUTLET CENTER 190,000 55 Fee 91
JACKSON NJ
FT CHISWELL FACTORY
OUTLET 176,000 55 Fee 69
MAX MEADOWS VA
Miscellaneous
- -------------
PIZZA HUT - PAD 4,000 1 Fee 100
GREENVILLE NC
HARDEES - PAD 4,000 Leasehold 100
HANOVER PA
PIZZA HUT - PAD 3,000 Leasehold 100
HARRISONBURG VA
Mortgages Receivable
- --------------------
SHOPPING CENTER - NEW BERN 99,000 17 $750,000
NEW BERN NC First
Mortgage
NEWDON PLAZA 105,000 10 $10,350,000
NEW CITY NY First
Mortgage
WHITESTOWN PLAZA 83,000 11 $4,205,000
WHITESBORO NY First
Mortgage
LAUREL MALL 333,000 57 $5,180,000
CONNELLSVILLE PA First
Mortgage
SHOPPING CENTER - HANOVER 87,000 12 $700,000
HANOVER PA First
Mortgage
SHOPPING CENTER -
HARRISONBURG 119,000 10 $794,500
HARRISONBURG VA First
Mortgage
Office Building
- ---------------
INSTITUTE FOR DEFENSE
ANALYSES 51,000 8 Leasehold 100
PRINCETON NJ
Shopping Centers
- ----------------
CLOVERDALE VILLAGE 59,000 6 Fee 100
FLORENCE AL
RODNEY VILLAGE 216,000 15 Fee 73
DOVER DE
DOVERAMA @ RODNEY VILLAGE 30,000 1 75% Owned 100
DOVER DE
REGENCY PARK SHOPPING
CENTER 328,000 30 Fee 93
JACKSONVILLE FL
SOUTHGATE SHOPPING CENTER 263,000 24 Fee (1)
NEW PORT RICHIE FL
PRESIDENTIAL PLAZA 67,000 6 Fee 100
NORTH LAUDERDALE FL
PRESIDENTIAL PLAZA WEST 21,000 2 Fee 80
NORTH LAUDERDALE FL
RIVERWOOD SHOPPING CENTER 94,000 15 Fee (1)
PORT ORANGE FL
RUTLAND PLAZA 150,000 13 Fee 99
ST PETERSBURG FL
ALBANY PLAZA 114,000 7 Fee 95
ALBANY GA
SOUTHGATE PLAZA - ALBANY 60,000 5 Fee 92
ALBANY GA
PERLIS PLAZA 166,000 20 Fee 93
AMERICUS GA
EASTGATE PLAZA - AMERICUS 44,000 4 Fee 100
AMERICUS GA
ROGERS PLAZA 50,000 5 Fee 72
ASHBURN GA
SWEETWATER VILLAGE 66,000 7 Fee 98
AUSTELL GA
CEDARTOWN SHOPPING CENTER 107,000 14 Fee 100
CEDARTOWN GA
CEDAR PLAZA 83,000 9 Fee 100
CEDARTOWN GA
CORDELE SQUARE 131,000 11 Fee 91
CORDELE GA
SOUTHGATE PLAZA - CORDELE 39,000 3 Fee 41
CORDELE GA
MR B'S 14,000 1 Fee 29
CORDELE GA
HABERSHAM VILLAGE 147,000 18 Fee 98
CORNELIA GA
MIDWAY VILLAGE SHOPPING
CENTER 73,000 10 Fee 89
DOUGLASVILLE GA
WESTGATE - DUBLIN 191,000 35 Fee 76
DUBLIN GA
NEW CHASTAIN CORNERS
SHOPPING C 109,000 13 Fee 97
MARIETTA GA
CREEKWOOD SHOPPING CENTER 70,000 9 Fee 98
REX GA
VICTORY SQUARE 171,000 35 Fee 97
SAVANNAH GA
EISENHOWER SQUARE SHOPPING
CENTER 125,000 12 Fee 100
SAVANNAH GA
TIFT-TOWN 61,000 4 Fee 61
TIFTON GA
WESTGATE - TIFTON 16,000 2 Fee 92
TIFTON GA
HAYMARKET SQUARE 267,000 28 Fee 91
DES MOINES IA
HAYMARKET MALL 234,000 22 Fee 65
DES MOINES IA
SOUTHFIELD PLAZA SHOPPING
CENTER 208,000 18 Fee 87
BRIDGEVIEW IL
WESTRIDGE COURT SHOPPING
CENTER 446,000 50 Fee 96
NAPERVILLE IL
TINLEY PARK PLAZA 283,000 21 Fee 95
TINLEY PARK IL
COLUMBUS CENTER 272,000 24 Fee 93
COLUMBUS IN
JASPER MANOR 194,000 26 Fee 97
JASPER IN
TOWN FAIR SHOPPING CENTER 114,000 16 Fee 96
PRINCETON IN
WABASH CROSSING 167,000 18 Fee 98
WABASH IN
JACKSON VILLAGE 147,000 48 Fee 74
JACKSON KY
J*TOWN CENTER 187,000 17 Fee 58
JEFFERSONTOWN KY
NEW LOUISA PLAZA 115,000 20 Fee 85
LOUISA KY
PICCADILLY SQUARE 96,000 13 Fee 89
LOUISVILLE KY
EASTGATE SHOPPING CENTER 153,000 18 Fee 99
MIDDLETOWN KY
LIBERTY PLAZA 216,000 26 Fee 87
RANDALLSTOWN MD
SHOPPING CENTER -
SALISBURY 110,000 16 Fee 0
SALISBURY MD
MAPLE VILLAGE SHOPPING
CENTER 281,000 32 Fee 94
ANN ARBOR MI
FARMINGTON CROSSROADS 84,000 8 Fee 100
FARMINGTON MI
DELTA CENTER 174,000 16 Fee 91
LANSING MI
HAMPTON VILLAGE CENTRE 460,000 79 Fee 99
ROCHESTER HILLS MI
FASHION CORNERS 189,000 15 Fee & 87
SAGINAW MI Leasehold
HALL ROAD CROSSING 176,000 27 Fee 94
SHELBY MI
DELCO PLAZA 155,000 15 Fee 100
STERLING HEIGHTS MI
WASHTENAW FOUNTAIN PLAZA 136,000 12 Fee 90
YPSILANTI MI
SHOPPING CENTER -
GOLDSBORO 80,000 10 Fee 100
GOLDSBORO NC
SHOPPING CENTER - WILSON 105,000 17 Fee 76
WILSON NC
LAUREL SQUARE 246,000 35 Fee 96
BRICKTOWN NJ
HAMILTON PLAZA 149,000 18 Fee 99
HAMILTON NJ
BENNETTS MILLS PLAZA 102,000 12 Fee 98
JACKSON NJ
MIDDLETOWN PLAZA 123,000 19 Fee 74
MIDDLETOWN NJ
RENAISSANCE CENTER EAST 146,000 14 Fee 94
LAS VEGAS NV
UNIVERSITY MALL 78,000 25 Fee 73
CANTON NY
CORTLANDVILLE 100,000 13 Fee 95
CORTLAND NY
KMART PLAZA 116,000 11 Fee 100
DEWITT NY
D & F PLAZA 192,000 30 Fee 48
DUNKIRK NY
SHOPPING CENTER - ELMIRA 54,000 5 Fee 100
ELMIRA NY
PYRAMID MALL 233,000 37 Fee 82
GENEVA NY
SHOPPING CENTER -
GLOVERSVILLE 45,000 4 Fee 100
GLOVERSVILLE NY
MCKINLEY PLAZA 93,000 20 Fee 89
HAMBURG NY
CAYUGA PLAZA 208,000 22 Fee 98
ITHACA NY
SHOPS @ SENECA MALL 237,000 30 Fee 73
LIVERPOOL NY
TRANSIT ROAD PLAZA 138,000 15 Fee 79
LOCKPORT NY
SHOPPING CENTER - MARCY 123,000 21 Fee 2
MARCY NY
WALLKILL PLAZA 203,000 24 Fee 95
MIDDLETOWN NY
MONROE SHOPRITE PLAZA 122,000 12 Fee (1)
MONROE NY
ROCKLAND PLAZA 260,000 28 Fee 97
NANUET NY
SOUTH PLAZA 144,000 36 Fee 88
NORWICH NY
WESTGATE PLAZA - ONEONTA 72,000 11 Fee 92
ONEONTA NY
OSWEGO PLAZA 128,000 20 Fee 90
OSWEGO NY
MOHAWK ACRES 107,000 13 Fee 78
ROME NY
MONTGOMERY WARD 84,000 7 Fee 100
ROME NY
PRICE CHOPPER PLAZA 78,000 6 Fee 100
ROME NY
WESTGATE MANOR PLAZA -
ROME 66,000 15 Fee 59
ROME NY
NORTHLAND 123,000 23 Fee 92
WATERTOWN NY
HARBOR PLAZA 52,000 7 Fee 80
ASHTABULA OH
BELPRE PLAZA 89,000 8 Leasehold 78
BELPRE OH
SOUTHWOOD PLAZA 83,000 44 Fee 92
BOWLING GREEN OH
BRENTWOOD PLAZA 235,000 20 Fee 64
CINCINNATI OH
DELHI SHOPPING CENTER 166,000 15 Fee 93
CINCINNATI OH
WESTERN VILLAGE SHOPPING
CENTER 139,000 13 Fee 99
CINCINNATI OH
SOUTH TOWNE CENTRE 309,000 29 Fee 99
DAYTON OH
HERITAGE SQUARE 232,000 29 Fee 89
DOVER OH
MIDWAY CROSSING 139,000 15 Fee 941
ELYRIA OH
FAIRFIELD MALL 74,000 9 Fee 92
FAIRFIELD OH
SILVER BRIDGE PLAZA 146,000 20 Fee 96
GALLIPOLIS OH
SHOPPING CENTER - GENOA 17,000 2 Fee 85
GENOA OH
PARKWAY PLAZA 141,000 12 Fee 74
MAUMEE OH
NEW BOSTON SHOPPING
CENTER 234,000 22 Fee 99
NEW BOSTON OH
MARKET PLACE 169,000 18 Fee 96
PIQUA OH
CENTRAL AVE MARKET PLACE 157,000 18 Fee 98
TOLEDO OH
BETHEL PARK PLAZA 224,000 23 Fee 96
BETHEL PARK PA
DILLSBURG SHOPPING CENTER 69,000 22 Fee 100
DILLSBURG PA
NEW GARDEN SHOPPING
CENTER 149,000 19 Fee 70
KENNETT SQUARE PA
STONEMILL PLAZA 95,000 21 Fee 92
LANCASTER PA
CROSSROADS PLAZA 105,000 14 Fee 98
MT. PLEASANT PA
STRAWBRIDGE'S 313,000 Fee (A) 100
PHILADELPHIA PA
ROOSEVELT MALL NE 250,000 36 Leasehold (A) 96
PHILADELPHIA PA
IVYRIDGE SHOPPING
CENTER 112,000 9 Fee 100
PHILADELPHIA PA
ROOSEVELT MALL ANNEX 36,000 Fee (A) 100
PHILADELPHIA PA
ST MARY'S PLAZA 108,000 11 Fee 99
ST MARY'S PA
NORTHLAND CENTER 105,000 15 Fee & 98
STATE COLLEGE PA Leasehold
SHOPS AT PROSPECT 63,000 9 Fee 94
WEST HEMPFIELD PA
YORK MARKETPLACE 256,000 34 Fee & 100
YORK PA Leasehold
CONGRESS CROSSING 172,000 39 Fee 100
ATHENS TN
GREENEVILLE COMMONS 223,000 26 Fee 100
GREENEVILLE TN
KINGS GIANT SHOPPING
CENTER 162,000 18 Leasehold 94
KINGSPORT TN
GEORGETOWN SQUARE 104,000 11 Fee 94
MURFREESBORO TN
SHOPPING CENTER -
COLONIAL HTS 82,000 10 Fee 0
COLONIAL HEIGHTS VA
HANOVER SQUARE SHOPPING
CENTER 130,000 14 Fee 100
MECHANICSVILLE VA
VICTORIAN SQUARE 271,000 34 Fee 99
MIDLOTHIAN VA
CAVE SPRING CORNERS
SHOPPING CENTER 171,000 16 Fee 100
ROANOKE VA
SHOPPING CENTER -
SPOTSYLVANIA 87,000 8 Fee 100
SPOTSYLVANIA VA
RIDGEVIEW CENTRE 177,000 30 Fee 96
WISE VA
MOUNDSVILLE PLAZA 170,000 29 Fee 64
MOUNDSVILLE WV
GRAND CENTRAL PLAZA 73,000 7 Leasehold 100
PARKERSBURG WV
KMART PLAZA 106,000 14 Fee 100
VIENNA WV
Vacant Land
- -----------------
1 NORTH CENTRAL AVENUE 15,000 1 Fee
HARTSDALE NY
___________________
</TANBLE>
(A) The acreage of this property has been included in the acreage of the
Roosevelt Mall NE shopping center.
(1) Property purchased after July 31, 1997.<PAGE>
Item 3. Legal Proceedings
The Trust is not presently involved in any material litigation
nor, to its knowledge, is any material litigation threatened against the
Trust or its properties, other than routine litigation arising in the
ordinary course of business or which is expected to be covered by the
Trust's liability insurance.
Item 4. Submission of Matters to a Vote of Security Holders
No matter was submitted to a vote of security holders during the
fourth quarter of the fiscal year covered by this report.
PART II
Item 5. Market for the Registrant's Common Equity and Related Shareholder
Matters
(a) Market Information
The following table shows the high and low sales price for the Trust's
shares of beneficial interest on the New York Stock Exchange, and, prior to
June 12, 1986, on the American Stock Exchange, and cash distributions paid
for the periods indicated. Figures are adjusted to give effect to a 2-for-
1 stock split on February 1, 1983 and a 3-for-2 stock split on April 1,
1986.
<PAGE>
Fiscal Year Ended Cash Distributions
July 31, High Low Paid per Share
----------------- ---- --- ------------------
1983 $ 9.50 $ 4.96 $ .51
1984 8.50 7.25 .57
1985 11.92 7.50 .65
1986 14.50 10.00 .73
1987 18.38 13.00 .81
1988 17.63 10.75 .89
1989 17.88 14.38 .97
1990 19.13 14.88 1.05
1991 21.25 13.75 1.13
1992 25.00 19.63 1.21
1993 26.38 21.50 1.275
1994 26.38 20.38 1.315
1995 22.63 18.75 1.355
1996
First Quarter 23.00 21.13 .345
Second Quarter 22.13 20.75 .3475
Third Quarter 22.13 20.00 .35
Fourth Quarter 21.75 19.88 .3525
-----
TOTAL 1.395
1997
First Quarter 22.00 21.13 .3550
Second Quarter 25.63 21.63 .3575
Third Quarter 24.50 21.38 .3600
Fourth Quarter 23.63 21.50 .3625
-----
TOTAL 1.435
(b) Holders
The approximate number of record holders of the Trust's shares of
beneficial interest, no par value ("Common Shares") (the only class of
common equity), at September 12, 1997 was 13,745.
(c) Distributions
The Trust made distributions to shareholders aggregating $1.435 per
share during the fiscal year ended July 31, 1997. Of this distribution, it
is estimated that $1.326 will qualify as ordinary income, $0 will qualify
as capital gain distribution and $.109 will qualify as a return of capital.
The Trust has paid regular and uninterrupted cash distributions on its
Common Shares since it commenced operations as a real estate investment
trust in 1972. Since inception, each dividend has either been equal to or
greater than the dividend preceding it, and the dividends have been
increased in each of the last 73 consecutive quarters.
The Trust intends to continue to declare quarterly distributions on
its Common Shares. However, no assurances can be made as to the amounts of
future distributions since such distributions are subject to the Trust's
cash flow from operations, earnings, financial condition, capital
requirements and such other factors as the Board of Trustees deems
relevant. The principal factor in the determination of the amounts of
distributions is the requirement of the Code that a real estate investment
trust must distribute at least 95% of its real estate investment trust
taxable income. The amount of cash available for distribution is impacted
by capital expenditures to the extent the Trust were to fund such
expenditures out of cash from operations.
The Trust has a Dividend Reinvestment and Share Purchase Plan (the
"Plan") which allows shareholders to acquire additional Common Shares by
automatically reinvesting distributions. Common Shares are acquired
pursuant to the Plan at a price equal to 95% of the market price of such
Common Shares, without payment of any brokerage commission or service
charge. The Plan also allows shareholders to purchase additional Common
Shares on the dividend payment date, at 100% of the average of the high and
low sales price of such Common Shares on that date. At present,
approximately 69% of the Trust's shareholders of record participate in the
Plan, including members of the Newman family and executive officers and
trustees of the Trust.
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
Item 6. Selected Financial Data
The financial data included in this table have been selected by the Trust and have been
derived from the consolidated financial statements for the years indicated and should be read in
conjunction with the audited financial statements included in item 14(a) of this Form 10-K.
NEW PLAN REALTY TRUST AND SUBSIDIARIES
Year Ended July 31,
-------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Statement of
Income Data:
- ------------
Revenue $ 206,820,928 $167,605,981 $130,576,129 $100,954,515 $ 76,308,770
Operating expenses 127,578,431 94,867,530 65,572,225 46,913,963 31,400,256
-------------- ------------ ------------ ------------ ------------
79,242,497 72,738,451 65,003,904 54,040,552 44,908,514
(Loss)/Gain on sales
of properties and
securities, net (2,657) 398,498 227,638 989,867 939,878
-------------- ------------ ------------ ------------ ------------
79,239,840 73,136,949 65,231,542 55,030,419 45,848,392
Other deductions 2,203,045 2,616,138 2,515,669 2,713,163 2,619,754
--------------- ------------ ------------ ------------ ------------
Net income $ 77,036,795 $ 70,520,811 $ 62,715,873 $ 52,317,256 $ 43,228,638
=============== ============ ============ ============ ============
Net income
per share of
beneficial interest $ 1.31 $ 1.25 $ 1.19 $ 1.06 $ .89
------------------------------------------------------------ ------------
Balance Sheet Data:
- -------------------
Total assets $1,261,143,790 $945,393,725 $796,636,475 $616,992,574 $534,247,738
-------------- ------------ ------------ ------------ ------------
Long term
obligations $ 478,206,839 $238,426,049 $206,652,468 $ 28,060,067 $ 23,321,235
-------------- ------------ ------------ ------------ ------------
Other Data:
- -----------
Distributions
per common share $ 1.435 $ 1.395 $ 1.355 $ 1.315 $ 1.275
-------------- ------------ ------------ ------------ ------------
Funds from operations
per share of beneficial
interest(1) $ 1.74 $ 1.60 $ 1.47 $ 1.27 $ 1.02
-------------- ------------ ------------ ------------ ------------
_____________________________
(1) Represents funds from operations less preferred stock dividend requirements divided by the
weighted average shares of beneficial interest outstanding. Funds from operations is defined
as net income plus depreciation and amortization of real estate less gains from sales of
securities and properties.
</TABLE>
<PAGE>
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations
(a) Liquidity and Capital Resources
At July 31, 1997, the Trust had approximately $42.8 million in
available cash and cash equivalents, $2 million in marketable securities
and $23.1 million in mortgages receivable.
During the year the Trust issued $223 million of unsecured notes.
Three of these note issues, aggregating $99 million, have variable interest
rates ranging from 5.86% to 5.91% per annum and four of these note issues,
aggregating $124 million, have interest rates ranging from 5.95% to 7.68%
per annum. In July 1997 the Trust issued 150,000 Series A Cumulative
Preferred Shares with a liquidation preference of $75 million for $73
million net of issuance costs. The shares pay dividends at the rate of
7.8% of the liquidation preference through September 15, 2012 and at the
rate of 9.8% thereafter. They are redeemable at the option of the Trust on
or after June 15, 2007 at the liquidation preference of $500 per share.
The Trust maintains a $50 million unsecured credit facility, which it
expects to renew under substantially similar terms prior to such credit
facility's expiration in December 1997.
Debt at July 31, 1997 consisted of $65.6 million of mortgages payable
with a weighted average interest rate of 7.79% and unsecured notes
aggregating $412.6 million with a weighted average interest rate of 6.88%.
The $16.6 million increase in mortgages payable was the net result of the
assumption of $17.5 million in connection with the purchase of properties
and the repayment of $900,000 of existing mortgages. The increase in other
liabilities is due to increases in interest payable, accrued construction
costs and real estate taxes payable. These increases are due primarily to
the larger portfolio of properties and the increase in notes payable.
Short term debt consists of normal trade payables and the current portion
of mortgages payable.
During the fiscal year $16.5 million of funds were provided from the
Dividend Reinvestment and Share Purchase Plan. The Trust made
distributions of $83.8 million to shareholders, paid $274.6 million to
acquire properties and complete the construction of the Six Flags Factory
Outlet Center, and invested $8 million in expansion and improvement of
properties.
Other sources of funds are available to the Trust. Based on
management's internal valuation of the Trust's properties, most of which
are free and clear of mortgages, the estimated value is considerably in
excess of the outstanding mortgage indebtedness totaling $65.6 million.
Accordingly, management believes that potential exists for additional
mortgage financing as well as unsecured borrowing capacity from public debt
financing, banks and other lenders.
(b) Results of Operations
Fiscal year Ended July 31, 1997 Compared to Fiscal Year Ended July 31, 1996
In fiscal 1997, total revenues increased $39.2 million to $206.8
million. The increase was in the rental income and related revenues
category and came from properties in the portfolio which were acquired in
fiscal 1997 or were owned for less than a full year in fiscal 1996.
Interest and dividend income decreased slightly.
Operating expenses increased $32.7 million to $127.6 million.
Operating costs, real estate and other taxes, and depreciation and
amortization increased primarily because of property acquisitions.
Interest expense increased $10.7 million to $28.3 million due to a higher
level of outstanding debt during fiscal 1997. The increase in the
provision for doubtful accounts reflects a larger revenue base and a higher
level of receivables. Administrative expenses as a percent of revenue
declined to 1.1% of revenue from 1.6% due to increased revenue from newly
acquired properties; these costs do not increase in direct proportion to
revenue due to economies of scale.
Income before (loss)/gain on sale of properties and securities
increased $6.9 million to $77 million. During the fiscal year three former
Nichols stores, in Annville and Hanover, Pennsylvania and Lumberton, North
Carolina were sold.
Net income applicable to shares of beneficial interest increased $6.1
million to $77 million and earnings per share of beneficial interest
increased to $1.31 per share from $1.25 per share.
Funds from operations, defined as net income plus depreciation and
amortization of real estate less net gains from the sale of assets,
increased $11.9 million to $102 million. Funds from operations per share
of beneficial interest, defined as funds from operations less preferred
stock dividend requirements divided by the weighted average number of
shares of beneficial interest outstanding, increased to $1.74 from $1.60.
Funds from operations do not necessarily represent cash generated from
operating activities in accordance with generally accepted accounting
principles and should not be considered as an alternative to net income as
an indicator of the Trust's operating performance or as an alternative to
cash flow as a measure of liquidity.
During fiscal 1997, distributions declared and paid were $1.435 per
share of beneficial interest, a $.04 per share increase over fiscal 1996.
The most recent distribution declaration for shares of beneficial interest
was $.365 per share which is $1.46 per share on an annualized basis.
Fiscal Year Ended July 31, 1996 Compared to Fiscal Year Ended July 31, 1995
In fiscal 1996, total revenues increased $37 million to $167.6
million. Rental income and related revenues increased $36.4 million to
$162.8 million. The increase in rental revenue came primarily from
properties in the portfolio which were acquired in fiscal 1996 or were
owned for less than a full year in fiscal 1995. In addition, increased
revenue from all property categories, apartments, factory outlets and
shopping centers, owned prior to fiscal 1995 contributed to the rental
revenue increase.
Interest and dividend income increased $.7 million due to higher
average investment balances.
Operating expenses increased $29.3 million to $94.9 million.
Operating costs, real estate and other taxes, and depreciation and
amortization increased primarily because of property acquisitions.
Interest expense increased $10.4 million to $17.6 million due to a higher
level of outstanding debt during fiscal 1996. The increase in the
provision for doubtful accounts reflects a much larger revenue base and a
higher level of receivables. Administrative expenses as a percent of
revenue declined to 1.6% from 1.9% due to increased revenue from newly
acquired properties; these costs do not increase in direct proportion to
revenue due to economies of scale.
Income before gain/(loss) on the sale of properties and securities
increased $7.6 million to $70.1 million. During fiscal 1996, a shopping
center in Chinoe, Kentucky and two former Nichols stores in Harrisonburg,
Virginia and New Bern, North Carolina were sold for a net gain of $.5
million. The $.1 million loss on the sale of securities was due to bonds
being called which had been issued at a premium.
Net income increased $7.8 million to $70.5 million and earnings per
share of beneficial interest increased to $1.25 per share from $1.19 per
share.
Funds from operations, defined as net income plus depreciation and
amortization of real estate less net gains from the sale of assets,
increased $12.6 million to $90.1 million, and funds from operations per
share of beneficial interest increased to $1.60 from $1.47. Funds from
operations do not necessarily represent cash generated from operating
activities in accordance with generally accepted accounting principles and
should not be considered as an alternative to net income as an indicator of
the Trust's operating performance or as an alternative to cash flow as a
measure of liquidity.
During fiscal 1996, distributions declared and paid were $1.395 per
share of beneficial interest, a $.04 per share of beneficial interest
increase over the preceding year.
Fiscal Year Ended July 31, 1995 Compared to Fiscal Year Ended July 31, 1994
In fiscal 1995, total revenues increased $29.6 million to $130.6
million. Rental income and related revenues increased $30 million to
$126.4 million. The rental revenue increase came primarily from properties
in the portfolio which were acquired in fiscal 1995 or were owned for less
than a full year in fiscal 1994. In addition, increased revenue from all
property types owned prior to fiscal 1994 contributed to the rental revenue
increase.
Interest and dividend income decreased $.4 million because of lower
investment balances. Balances were lower because funds were used for
property acquisitions and expansions.
Operating expenses increased $18.7 million to $65.6 million.
Operating costs, real estate taxes and depreciation and amortization
increased primarily because of property acquisitions. Interest expense
increased because of the issuance of $181 million face amount of Senior
Notes. The decrease in the provision for doubtful accounts was mostly due
to higher recoveries in fiscal 1995. In fiscal 1995 the Trust had bad debt
recoveries of $501,000 versus $261,000 in fiscal 1994. Administrative
expenses as a percentage of revenue decreased to 1.9% from 2.67% due
primarily to increased revenue from newly acquired properties; these costs
do not vary in proportion to revenue.
Income before gains on sales of properties and securities increased
$11.2 million to $62.5 million. During the year, a very small shopping
center in Millersberg, Ohio and an outparcel at the New Bern, North
Carolina shopping center were sold. Net income increased $10.4 million to
$62.7 million and earnings per share of beneficial interest increased to
$1.19 from $1.06.
Funds from operations, defined as net income plus depreciation and
amortization of real estate less gains from the sale of assets, increased
$14.9 million to $77.5 million, and funds from operations per share of
beneficial interest increased to $1.47 from $1.27. Funds from operations
do not represent cash generated from operating activities in accordance
with generally accepted accounting principles and should not be considered
as an alternative to net income as an indicator of the Trust's operating
performance or as an alternative to cash flow as a measure of liquidity.
During fiscal 1995, distributions declared and paid were $1.355 per
share, a $.04 per share of beneficial interest increase over the preceding
fiscal year.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Not applicable.
Item 8. Financial Statements and Supplementary Data
The response to this item is included in Pages F-1 to F-37 attached to
this report.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
Not applicable.
PART III
Item 10. Trustees and Executive Officers of the Trust
Item 10 is incorporated herein pursuant to General Instruction G to
this Form 10-K by reference to Registrant's definitive proxy statement
which will be filed with the Securities and Exchange Commission pursuant to
Regulation 14A not later than 120 days after the close of the fiscal year.
Executive Officers of the Trust
The executive officers of the Trust and their principal occupations
are as follows:
<PAGE>
Name Age
- ---- ---
William Newman. . . . . . . . . . . .71 Chairman of the Board and Chief
Chairman of the Board of Trustees Executive Officer of the Trust
and Chief Executive Officer since its organization in 1972;
President of the Trust from 1972
to 1988; President of the Trust's
corporate predecessor from 1962
to 1972; formerly Chairman of
National Association of Real
Estate Investment Trusts; active
in real estate for more than 47
years.
Arnold Laubich. . . . . . . . . . . .67 President and Chief Operating
President, Chief Operating Officer Officer and Trustee of the Trust
and Trustee since August 1, 1988; President
of Dover Management Corp. (which
managed the Trust's properties)
from 1972 to 1988; Senior Vice
President of the Trust's
predecessor from 1962 to 1972.
James M. Steuterman . . . . . . . . .41 Executive Vice President since
Executive Vice President and October 1994; Trustee since 1990;
Trustee Senior Vice President from 1990
to 1994; Vice President from 1988
to 1990.
Dean Bernstein. . . . . . . . . . . .39 Vice President - Administration
Vice President - Administration and Finance since October 1994;
and Finance and Trustee Vice President and Trustee since
1992; Assistant Vice President
from 1991 to 1992; previously a
Vice President in the Real Estate
Group at Chemical Bank for three
years.
William Kirshenbaum . . . . . . . . .61 Vice President of the Trust since
Vice President, Treasurer 1981; Treasurer since 1983.
Leonard N. Cancell. . . . . . . . . .64 Senior Vice President of the
Senior Vice President - Operations Trust since August 1, 1988;
Senior Vice President of Dover
Management from 1972 to 1988;
employee of the Trust's
predecessor from 1964 to 1972.
Michael I. Brown. . . . . . . . . . .55 Chief Financial Officer since
Chief Financial Officer and 1991; Controller of the Trust
Controller since 1987.
Irwin E. Kwartler . . . . . . . . . .71 Vice President of the Trust since
Vice President 1982; previously National Sales
Manager, Kimball Division of
Litton Industries.
Steven F. Siegel. . . . . . . . . . .37 General Counsel and Secretary of
General Counsel and Secretary the Trust since October 1991.
Joseph Bosco. . . . . . . . . . . . .48 Vice President of the Trust since
Vice President -- Apartment 1993; employee of the Trust since
Operations 1983.
James DeCicco . . . . . . . . . . . .51 Senior Vice President of the
Senior Vice President -- Leasing Trust since March, 1996; Vice
President of the Trust since
1992; employee of the Trust since
1991.
Thomas J. Farrell . . . . . . . . . .40 Vice President and employee of
Vice President -- Acquisitions the Trust since 1994; formerly a
Vice President at The Balcor
Company, a real estate company,
for five years.
Item 11. Executive Compensation
Item 11 is incorporated herein pursuant to General Instruction G to
this Form 10-K by reference to Registrant's definitive proxy statement
which will be filed with the Securities and Exchange Commission pursuant to
Regulation 14A not later than 120 days after the close of the fiscal year.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Item 12 is incorporated herein pursuant to General Instruction G to
this Form 10-K by reference to Registrant's definitive proxy statement
which will be filed with the Securities and Exchange Commission pursuant to
Regulation 14A no later than 120 days after the close of the fiscal year.
Item 13. Certain Relationships and Related Transactions
Item 13 is incorporated herein pursuant to General Instruction G to
this Form 10-K by reference to Registrant's definitive proxy statement
which will be filed with the Securities and Exchange Commission pursuant to
Regulation 14A not later than 120 days after the close of the fiscal year.
<PAGE>
PART IV
Item 14. Exhibits, Consolidated Financial Statements, Consolidated
Financial Statement Schedules, and Reports on Form 8-K
(a) Consolidated Financial Statements. The following documents
are filed as a part of this report:
The response to this portion of Item 14 is submitted as a separate
section of this report.
(b) Reports on Form 8-K.
1. Form 8-K dated June 18, 1997 containing items 2, 5 and 7.
2. Form 8-K dated June 30, 1997 containing items 2, 5 and 7.
3. Form 8-K dated July 2, 1997 containing items 5 and 7.
4. Form 8-K dated July 31, 1997 containing items 5 and 7.
5. Form 8-K/A dated September 19, 1997 containing items 5 and
7.
(c) Exhibits. The following documents are filed as exhibits to this
report:
*3.1 Amended and Restated Declaration of Trust of New Plan Realty
Trust filed as Exhibit 99.3 to the Registrant's Form 8-K
dated May 24, 1996.
4.1 Specimen Certificate for Shares of Beneficial Interest.
*4.2 Certificate of Designation Supplementing the Amended and
Restated Declaration of Trust of New Plan Realty Trust filed
as Exhibit 4.1 to the Registrant's Form 8-K dated July 2,
1997.
4.3 Deposit Agreement dated as of July 3, 1997, among New Plan
Realty Trust and BankBoston N.A.
4.4 Specimen Certificate for 7.80% Series A Cumulative Step-Up
Premium Rate Preferred Shares.
4.5 Specimen Depositary Receipt.
*9.1 Agreement dated February 26, 1979 among William Newman,
Joseph Newman and Melvin Newman filed as Exhibit 9 to
Registration Statement No. 2-63669.
*9.2 Purchase Agreement dated December 18, 1990 between New Plan
Realty Trust and Beleggingsmaatschappij Midas B.V.
(presently known as Stichting Pensioenfonds) filed as
Exhibit 9.5 to the Registrant's Form 10-K for the fiscal
year ended July 31, 1994.
*9.3 Termination of Purchase Agreement dated December 17, 1981
between New Plan Realty Trust and Merchant Navy Officers
Pension Fund Trustees Limited (presently known as MNOPF
Trustees Limited) filed as Exhibit 9.6 to the Registrant's
Form 10-K for the fiscal year ended July 31, 1995.
10.1 Revolving Credit Agreement by and among New Plan Realty
Trust, the Lenders party thereto and The Bank of New York,
as agent, dated as of October 29, 1996.
*10.2 Senior Securities Indenture between New Plan Realty Trust
and The First National Bank of Boston, as Trustee, dated as
of March 29, 1995 filed as Exhibit 4.2 to Registration
Statement No. 33-60045.
*10.3 7.75% Senior Note Due April 6, 2005 filed as Exhibit 10.7 to
the Registrant's Form 10-K for the fiscal year ended July
31, 1995.
*10.4 6.8% Senior Note Due May 15, 2002 filed as Exhibit 10.8 to
the Registrant's Form 10-K for the fiscal year ended July
31, 1995.
*10.5 Distribution Agreement dated May 24, 1996 by and among New
Plan Realty Trust, Lehman Brothers, Lehman Brothers Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Smith
Barney Inc., filed as Exhibit 1 to the Registrant's Form 8-K
dated May 24, 1996.
*10.6 Form of Medium Term Note (Fixed Rate) filed as Exhibit 99.1
to the Registrant's Form 8-K dated May 24, 1996.
*10.7 Form of Medium Term Note (Floating Rate) filed as Exhibit
99.2 to the Registrant's Form 8-K dated May 24, 1996.
*10.8 Distribution Agreement dated December 6, 1996 by and among
New Plan Realty Trust, Lehman Brothers, Lehman Brothers
Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated,
Salomon Brothers Inc and Smith Barney Inc., filed as Exhibit
1 to the Registrant's Form 8-K dated December 12, 1996.
*10.9 Form of Medium Term Note (Fixed Rate) filed as Exhibit 4.1
to the Registrant's Form 8-K dated December 12, 1996.
*10.10 Form of Medium Term Note (Floating Rate) filed as Exhibit
4.2 to the Registrant's Form 8-K dated December 12, 1996.
11 Statement of Computation of Earnings Per Share for the
Twelve Months Ended July 31, 1997.
12 Ratio of Earnings to Fixed Charges.
21 Subsidiaries of the Registrant.
23 Consent of Coopers & Lybrand L.L.P. dated October 9, 1997.
27(1) Financial Data Schedule.
______________________________
* Incorporated herein by reference as above indicated.
(1) Filed as exhibit to electronic filing only.
(d) Financial Statement Schedules. The following documents are filed as
a part of this report:
The response to this portion of Item 14 is submitted as a separate
section of this report.
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
NEW PLAN REALTY TRUST
(Registrant)
By:/s/ William Newman
-----------------------
William Newman
Chief Executive Officer
Dated: October 10, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ William Newman Chief Executive Officer October 10, 1997
- ------------------------- and Trustee
William Newman
/s/ Arnold Laubich President, Chief Operating October 10, 1997
- ------------------------- Officer and Trustee
Arnold Laubich
/s/ Michael I. Brown Chief Financial Officer and October 10, 1997
- ------------------------- Chief Accounting Officer,
Michael I. Brown Controller
/s/ James M. Steuterman Executive Vice President October 10, 1997
- ------------------------- and Trustee
James M. Steuterman
/s/ Dean Bernstein Vice President - October 10, 1997
- ------------------------- Administration and Finance
Dean Bernstein and Trustee
/s/ Melvin Newman Trustee October 10, 1997
- -------------------------
Melvin Newman
- ------------------------- Trustee _________, 1997
Norman Gold
- ------------------------- Trustee _________, 1997
Raymond H. Bottorf
- ------------------------- Trustee _________, 1997
John Wetzler
- ------------------------- Trustee _________, 1997
Gregory White
<PAGE>
ANNUAL REPORT ON FORM 10-K
ITEM 8 AND ITEM 14(a)(1), (a)(2) AND (d)
LIST OF CONSOLIDATED FINANCIAL STATEMENTS,
SUPPLEMENTARY DATA AND
CONSOLIDATED FINANCIAL STATEMENT SCHEDULES
CERTAIN EXHIBITS
YEAR ENDED JULY 31, 1997
NEW PLAN REALTY TRUST AND SUBSIDIARIES
NEW YORK, NEW YORK
<PAGE>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
AND CONSOLIDATED FINANCIAL STATEMENT SCHEDULES
Report of Independent Auditors. . . . . . . . . . . . . . . . . . . . . F-2
Consolidated Balance Sheets as of July 31, 1997 and 1996. . . . . . . . F-3
Consolidated Statements of Income for the years
ended July 31, 1997, 1996 and 1995. . . . . . . . . . . . . . . . . . F-5
Consolidated Statements of Changes in Shareholders' Equity
for the years ended July 31, 1997, 1996 and 1995. . . . . . . . . . . F-6
Consolidated Statements of Cash Flows for the years
ended July 31, 1997, 1996 and 1995. . . . . . . . . . . . . . . . . . F-7
Notes to Consolidated Financial Statements. . . . . . . . . . . . . . . F-9
Schedules
II - Valuation and Qualifying Accounts . . . . . . . . . . . . . .F-19
III - Real Estate and Accumulated Depreciation. . . . . . . . . . .F-20
IV - Mortgage Loans on Real Estate . . . . . . . . . . . . . . . .F-36
All other schedules for which provision is made in the applicable
regulation of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable, and therefore have been
omitted.
<PAGE>
REPORT OF INDEPENDENT AUDITORS
To the Trustees and Shareholders
of New Plan Realty Trust:
We have audited the consolidated financial statements and financial
statement schedules of New Plan Realty Trust and Subsidiaries listed in
Item 14(a) of this Form 10-K. These financial statements and financial
statement schedules are the responsibility of the Trust's management. Our
responsibility is to express an opinion on these financial statements and
financial statement schedules based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles
used and significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial
position of New Plan Realty Trust and Subsidiaries as of July 31, 1997 and
1996, and the consolidated results of their operations and their cash flows
for each of the three years in the period ended July 31, 1997 in conformity
with generally accepted accounting principles. In addition, in our
opinion, the financial statement schedules referred to above, when
considered in relation to the basic financial statements taken as a whole,
present fairly, in all material respects, the information required to be
included therein.
COOPERS & LYBRAND L.L.P.
New York, New York
September 9, 1997
<PAGE>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
JULY 31, 1997 AND 1996
1997 1996
---- ----
ASSETS:
Real estate, at cost (Notes A and E)
Land $ 232,501,644 $ 174,711,789
Buildings and improvements 1,045,273,400 803,229,718
- ------------------------------------
1,277,775,044 977,941,507
Less accumulated depreciation and
amortization 105,866,380 82,523,169
- ------------------------------------
1,171,908,664 895,418,338
Cash and cash equivalents (Note A) 42,780,757 4,300,261
Marketable securities (Note B) 2,034,599 2,095,481
Mortgages and notes receivable (Note C) 23,106,633 23,597,342
Receivables
Trade and notes, net of allowance for
doubtful accounts (1997 - $5,581,000;
1996 - $3,976,500) (Note A) 12,035,327 11,586,091
Other (Note D) 1,463,943 1,109,164
Prepaid expenses and deferred charges 4,999,889 5,083,827
Other assets 2,813,978 2,203,221
- ------------------------------------
TOTAL ASSETS $1,261,143,790 $ 945,393,725
====================================
See Notes to Consolidated Financial Statements.
<PAGE>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
JULY 31, 1997 AND 1996
1997 1996
---- ----
LIABILITIES:
Mortgages payable (Note E) $ 65,572,883 $ 48,935,776
Credit facility (Note E) - 19,500,000
Notes payable, net of unamortized discount 412,633,956 189,490,273
(1997 - $1,366,044; 1996 - $1,509,727)
(Note F)
Other liabilities (Note G) 33,359,165 24,984,134
Tenants' security deposits 4,622,687 3,129,524
-------------- ------------
TOTAL LIABILITIES 516,188,691 286,039,707
-------------- ------------
COMMITMENTS AND CONTINGENCIES (Notes
H,I,J,N and P) - -
SHAREHOLDERS' EQUITY
Preferred shares
par value $1.00, authorized 1,000,000
shares; issued and outstanding
(1997 - 150,000 Series A Cumulative
Preferred Shares, 1996 - none), 72,775,000 -
$75,000,000 redemption value (Note H)
Shares of beneficial interest
without par value, unlimited
authorization; issued and outstanding
(1997 - 58,934,371; 1996 - 58,069,362)
(Note H) 738,010,825 719,080,157
Less: loans receivable for the purchase of
shares of beneficial interest (Note H) 2,814,366 3,083,573
Add: unrealized gain on securities reported
at fair value (Note B) 1,057,537 643,141
-------------- ------------
809,028,996 716,639,725
Less distributions in excess of net income 64,073,897 57,285,707
-------------- ------------
TOTAL SHAREHOLDERS' EQUITY 744,955,099 659,354,018
-------------- ------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $1,261,143,790 $945,393,725
============== ============
See Notes to Consolidated Financial Statements.
<PAGE>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE YEARS ENDED JULY 31, 1997, 1996 AND 1995
1997 1996 1995
---- ---- ----
Revenues:
Rental income and related
revenues $202,093,168 $162,821,434 $ 126,447,966
(Notes A and J)
Interest and dividend income
(Notes B and C) 4,727,760 4,784,547 4,128,163
------------ ------------ -------------
206,820,928 167,605,981 130,576,129
------------ ------------ -------------
Operating Expenses:
Operating costs 51,909,521 38,865,276 29,960,955
Leasehold rent (Note I) 675,434 665,237 614,084
Real estate and other taxes 18,448,503 15,787,643 11,809,539
Interest expense 28,256,473 17,561,362 7,174,028
Depreciation and amortization 25,005,629 20,004,378 15,055,225
Provision for doubtful
accounts 3,282,871 1,983,634 958,394
------------ ------------ -------------
Total operating expenses 127,578,431 94,867,530 65,572,225
------------ ------------ -------------
79,242,497 72,738,451 65,003,904
Other Expenses:
Administrative expenses 2,203,045 2,616,138 2,515,669
------------ ------------ -------------
Income Before (Loss)/Gain on
Sale of Properties and
Securities: 77,039,452 70,122,313 62,488,235
(Loss)/gain on sale of
properties, net (9,625) 540,209 227,638
Gain/(loss) on sale of
securities, net 6,968 (141,711) -
------------
- --------------------------------
(2,657) 398,498 227,638
------------ ------------ -------------
Net Income $ 77,036,795 $ 70,520,811 $ 62,715,873
------------ ------------ -------------
Net Income applicable to Shares
of Beneficial Interest $ 76,575,795 $ 70,520,811 $ 62,715,873
------------ ------------ -------------
Net Income Per Share of
Beneficial Interest (Note A) $1.31 $1.25 $1.19
------------ ------------ -------------
Cash Distribution Per Share of
Beneficial Interest $1.435 $1.395 $1.355
------------ ------------ -------------
See Notes to Consolidated Financial Statements.
<PAGE>
<TABLE>
<CAPTION>
NEW PLAN REALTY TRUST
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
For the Years Ended July 31, 1995, 1996, 1997 (Note H)
Cumulative
Shares of Beneficial Unrealized Distributions Total
Preferred Shares Interest Notes Gains on in Excess of Shareholders'
Issued Amount Issued Amount Receivable Securities Net Income Equity
---------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C> <C>
Balance July 31, 1994 52,594,161 $ 609,067,613 $(3,630,421) $ (39,944,408) $ 565,492,784
Net income 62,715,873 62,715,873
Dividends paid ($1.355 (71,616,427) (71,616,427)
per share of
beneficial interest)
Dividend Reinvestment 667,204 13,472,493 13,472,493
Exercise of stock options 1,200 21,425 21,425
Repayments of loans 260,863 260,863
At adoption of SFAS 115 $ 182,460 182,460
---------------------------------------------------------------------------------------------------------
Balance July 31, 1995 53,262,565 622,561,531 (3,369,558) 182,460 (48,844,962) 570,529,471
Net income 70,520,811 70,520,811
Dividends paid ($1.395
per share of beneficial
interest) (78,961,556) (78,961,556)
Dividend Reinvestment 737,797 15,126,326 15,126,326
Exercise of stock options 9,000 164,500 164,500
Repayments of loans 285,985 285,985
Increase during the year 460,681
460,681
Issuance of shares of
beneficial interest 4,060,000 81,227,800 81,227,800
----------------------------------------------------------------------------
Balance July 31, 1996 58,069,362 719,080,157 (3,083,573) 643,141 (57,285,707) 659,354,018
Net income 77,036,795 77,036,795
Dividends paid ($1.435
per share of beneficial
interest) (83,824,985) (83,824,985)
Dividend Reinvestment 750,209 16,475,143 16,475,143
Exercise of stock options 114,800 2,455,525 2,455,525
Repayment of loans 269,207 269,207
Increase during year 414,396 414,396
Issuance of preferred
shares 150,000 $72,775,000 72,775,000
----------------------------------------------------------------------------
Balance July 31, 1997 150,000 $72,775,000 58,934,371$ 738,010,825 $ (2,814,366) $1,057,537 $(64,073,897) $744,955,099
============================================================================
See Notes to Consolidated Financial Statements
</TABLE>
<PAGE>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED JULY 31, 1997, 1996 AND 1995
(NOTE M)
1997 1996 1995
---- ---- ----
OPERATING ACTIVITIES
- --------------------
Net income $ 77,036,795 $70,520,811 $ 62,715,873
Adjustments to reconcile
net income to net cash
provided by operating
activities:
Depreciation and amortization 25,005,629 20,004,378 15,055,225
Gain on sale of properties,
net 9,625 (540,209) (227,638)
(Gain)/Loss on sale of
securities, net (6,968) 141,711 -
------------ ----------- -----------
102,045,081 90,126,691 77,543,460
Changes in operating assets
and liabilities, net:
Increase in trade and notes
receivable (2,053,736) (5,775,617) (1,165,765)
(Increase)/decrease in other
receivables (354,781) 12,714 506,489
Increase in allowance for
doubtful accounts 1,604,500 1,054,000 591,000
Increase in other
liabilities 3,475,030 8,239,264 6,492,376
Decrease/(increase) in net
sundry assets and
liabilities 604,983 (250,994) (907,583)
------------ ----------- ------------
NET CASH PROVIDED BY
OPERATING ACTIVITIES 105,321,077 93,406,058 83,059,977
------------ ----------- ------------
INVESTING ACTIVITIES
- --------------------
Sales of marketable securities 484,314 4,274,356 424,783
Purchases of marketable
securities (2,068) - -
Net proceeds from the sale
of properties 3,862,557 3,473,913 1,025,000
Purchase and improvement of
properties (282,606,924) (186,008,486) (136,310,299)
Repayment of mortgage notes
receivable 490,709 820,662 36,172
------------ ----------- ------------
NET CASH USED IN INVESTING
ACTIVITIES (277,771,412) (177,439,555) (134,824,344)
See Notes to Consolidated Financial Statements
(Continued on next page)<PAGE>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED JULY 31, 1997, 1996 AND 1995
(NOTE M)
(CONTINUED FROM PREVIOUS PAGE)
1997 1996 1995
---- ---- ----
FINANCING ACTIVITIES
- --------------------
Distributions to
shareholders (83,824,985) (78,961,556) (71,616,427)
Issuance of preferred
shares pursuant to a
public offering, net
of offering costs 72,775,000
Issuance of shares of
beneficial interest
pursuant to dividend
reinvestment plan 16,475,143 15,126,326 13,472,493
Issuance of shares of
beneficial interest
pursuant to public offering,
net of loans receivable and
offering costs 81,227,800 -
Issuance of shares of
beneficial interest upon
exercise of stock options 2,455,525 164,500 21,425
Proceeds from short-term
borrowings 12,000,000 19,500,000 352,000,000
Repayment of short-term
borrowings (31,500,000) - (359,500,000)
Proceeds from sale of notes 223,143,682 10,000,000 179,322,720
Payment of deferred
financing costs (956,990)
Principal payments on
mortgages (862,741) (364,422) (407,892)
Repayment of mortgages (10,533,682) (12,059,000)
Repayment of loans receivable
for the purchase of shares
of beneficial interest 269,207 285,985 260,863
------------ ------------- --------------
NET CASH PROVIDED BY
FINANCING ACTIVITIES 210,930,831 36,444,951 100,537,192
------------ ------------- --------------
INCREASE/(DECREASE) IN
CASH AND CASH EQUIVALENTS 38,480,496 (47,588,546) 48,772,825
Cash and cash equivalents at
beginning of year 4,300,261 51,888,807 3,115,982
------------ ------------- --------------
CASH AND CASH EQUIVALENTS
AT END OF YEAR $ 42,780,757 $ 4,300,261 $ 51,888,807
============ ============= ==============
See Notes to Consolidated Financial Statements.
<PAGE>
Notes To Consolidated Financial Statements
Note A - Summary of Significant Accounting Policies
Organization and Income Taxes: New Plan Realty Trust was organized
July 31, 1972 as a Massachusetts Business Trust. New Plan Realty Trust and
subsidiaries (the "Trust") have elected to be taxed as a Real Estate
Investment Trust ("REIT") under the applicable provisions of the Internal
Revenue Code of 1986, as amended (the "Code"). Accordingly, the Trust does
not pay Federal income tax on income as long as income distributed to
shareholders is at least equal to 95% of real estate investment trust
taxable income and pays no Federal income tax on capital gains distributed
to shareholders. The Trust may be subject to tax by certain states that do
not recognize the REIT. Provision for such taxes has been included in real
estate and other taxes.
Basis of Consolidation: The consolidated financial statements include
the accounts of New Plan Realty Trust and its wholly owned subsidiaries.
All significant intercompany transactions and balances have been
eliminated. Certain prior period amounts have been reclassified to conform
to the current year presentation.
Real Estate: Real estate is carried at cost less accumulated
depreciation and amortization. For financial reporting purposes,
depreciation is calculated on the straight-line method based on the
estimated useful lives of the assets ranging from 5 to 40 years.
Amortization of leasehold improvements is calculated on a straight-line
basis over the shorter of the life of the lease or the estimated useful
life of the asset. If there is an event or a change in circumstances that
indicates that the basis of the Trust's property may not be recoverable the
Trust's policy is to assess any impairment in value by making a comparison
of the current and projected operating cash flows (excluding interest and
income taxes) of the property over its remaining useful life, on an
undiscounted basis, to the carrying amount of the property. Such carrying
amounts would be adjusted, if necessary, to reflect an impairment in the
value of the property.
The Trust records sales when, among other criteria, the parties are
bound by the terms of a contract, all consideration has been exchanged and
all conditions precedent to closing have been performed. These conditions
are usually met at the time of closing. The cost and related accumulated
depreciation of assets sold are removed from the respective accounts and
any gain or loss is recognized in income.
New Accounting Standards: During 1997, the Financial Accounting
Standards Board issued Statements of Financial Accounting Standards: (i)
No. 128 "Earnings Per Share" ("SFAS 128"), which will be effective for
financial statements for both interim and annual periods ending after
December 15, 1997, (ii) No. 129 "Disclosure of Information About Capital
Structure" ("SFAS 129"), which is effective for financial statements for
periods ending after December 15, 1997, (iii) No. 130 "Reporting
Comprehensive Income" ("SFAS 130"), which is effective for fiscal years
beginning after December 15, 1997, and (iv) No. 131 "Disclosures About
Segments of an Enterprise and Related Information" ("SFAS 131"), which is
effective for fiscal years beginning after December 15, 1997. Management
believes that the implementation of SFAS 128, 129 and 130 will not have a
material impact on the Trust's financial statements. The Trust has yet to
determine the impact of SFAS 131.
Cash Equivalents: Cash equivalents consist of short-term, highly
liquid debt instruments with original maturities of three months or less.
Items classified as cash equivalents include insured bank certificates of
deposit and commercial paper. At times cash balances at a limited number
of banks may exceed insurable amounts. The Trust believes it mitigates its
risk by investing in or through major financial institutions.
Recoverability of investments is dependent upon the performance of the
issuer.
Revenue Recognition: Lease agreements between the Trust and retail
tenants generally provide for additional rentals based on such factors as
percentage of tenants' sales in excess of specified volumes, increases in
real estate taxes, increases in Consumer Price Indices and common area
maintenance charges. These additional rentals are generally included in
income when reported to the Trust or when billed to tenants.
The Trust recognizes rental income from leases with scheduled rent
increases on a straight-line basis over the lease term. Deferred rent
receivable, included in trade and notes receivable, represents the
difference between the straight-line rent and amounts currently due.
Concentration of Credit Risk: No tenant or single property accounts
for more than 5.0% of the Trust's revenues.
Net Income Per Share of Beneficial Interest: Net income per share of
beneficial interest is calculated using a weighted average number of shares
outstanding during each year: 1997 - 58,461,056 shares; 1996 - 56,483,827
shares; 1995 - 52,894,355 shares.
Estimates: The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets,
liabilities, revenues and expenses and the disclosure of contingent assets
and liabilities. Actual results could differ from those estimates. The
most significant estimates relate to depreciation and valuation of real
estate.
Internal Software Costs: Any costs associated with modifying computer
software for the year 2000 are expensed as incurred. Management does not
believe these costs will be material.
Note B - Marketable Securities
The Trust has classified all investments in debt and equity securities
as available-for-sale. All investments are recorded at current market
value with an offsetting adjustment to shareholders' equity.
July 31, 1997 1996
- ---------------------------------------------------------------------------
Equity Equity Debt
Amortized cost/cost basis $ 977,061 $ 977,061 $ 475,279
Unrealized holdings gains 1,057,538 643,141 --
Unrealized holdings losses -- -- --
---------- -----------------------------
Fair value $2,034,599 $ 1,620,202 $ 475,279
The net increase in unrealized holding gains that has been included as
a separate component of shareholders' equity is $414,396 for 1997. The
weighted average method is used to determine realized gain or loss on
securities sold. The market value of marketable securities is based on
quoted market prices as of July 31, 1997 and 1996.
<PAGE>
Note C - Mortgages & Notes Receivable
Mortgages and Notes Receivable are collateralized principally by real
property and consist of the following:
July 31, 1997 1996
- ---------------------------------------------------------------------------
10% purchase money first mortgage, due
August 31, 1998 $ 5,180,000 $ 5,420,000
9.38% purchase money first mortgage, due
July 25, 1998 4,205,000
4,610,000
9.375% purchase money first mortgage, due
July 27, 2002 10,350,000
10,350,000
12% leasehold mortgage, due June 1, 2011 890,273
913,999
10.5% second mortgage due February 1, 1999 - 500,000
11.5% note, due April 30, 2004 236,860 258,843
8.75% purchase money first mortgage, due
July 23, 1998 794,500 794,500
7.2% purchase money first mortgage, due
May 9, 2001 750,000 750,000
8.75% purchase money first mortgage, due
July 23, 2001 700,000 -
------------ -----------
$ 23,106,633 $23,597,342
- ---------------------------------------------------------------------------
Note D - Other Receivables
July 31, 1997 1996
Interest and dividends $ 599,314 $ 312,733
Notes receivable 338,250 282,055
Due from officers, trustees and employees (1) 496,564 488,271
Miscellaneous receivables 29,815 26,105
------------ -----------
$ 1,463,943 $ 1,109,164
- ---------------------------------------------------------------------------
(1) Amounts, which are interest bearing, are either due on demand or have
scheduled maturities.
Note E - Mortgages and Credit Facility
Mortgages are collateralized by real property with a carrying value of
$182,443,000 before accumulated depreciation and amortization. As of July
31, 1997, mortgages payable bear interest at rates ranging from 4.30% to
10.75%, having a weighted average rate of 7.79% per annum and mature from
1998 to 2010.
Scheduled principal payments during each of the next five fiscal years
and thereafter are approximately as follows:
Year Ending July 31, Amount
- ---------------------------------------------------------------------------
1998 $ 2,895,014
1999 10,427,652
2000 17,789,006
2001 6,962,917
2002 10,034,539
Thereafter 17,463,755
------------
Total $ 65,572,883
The Trust has an unsecured revolving credit facility which provides
for up to $50 million of borrowings until October 28, 1997. At July 31,
1997 there were no amounts outstanding under this facility. At the time of
borrowing, the Trust can choose from three interest rate options. There
are restrictive covenants that place a ceiling on total indebtedness of the
lesser of 65% of tangible net worth or $350,000,000, a ceiling on mortgage
indebtedness of $105,000,000, a minimum interest coverage ratio of 2.5 to 1
and a minimum tangible net worth of $400,000,000.
The Trust has outstanding approximately $1.4 million of letters
of credit as of July 31, 1997.
Interest costs capitalized for the years ended July 31, 1997, 1996,
and 1995 were approximately $868,000, $203,000, and $1,161,000,
respectively.
Note F - Notes Payable
Notes Payable consists of the following:
Face Amount
Description ($ in millions) Due Date 1997 1996
- ----------- --------------- -------- ---- ----
7.75% Senior unsecured
notes effective
interest rate 7.95%, net
of unamortized discount:
1997 - $1,132,255;
1996 - $1,236,986 $100 4/6/2005 $98,867,745 $98,763,014
6.80% Senior unsecured
notes, effective interest
rate 6.87% net of
unamortized discount:
1997 - 233,789;
1996 - $272,741 81 5/15/2002 80,766,211 80,727,259
7.97% unsecured notes 10 8/14/2026 10,000,000 10,000,000
Variable rate unsecured
notes 49 8/3/99 49,000,000
Variable rate unsecured
notes 10 8/3/98 10,000,000
5.95% unsecured notes 49 11/2/26 49,000,000
7.65% unsecured notes 25 11/2/26 25,000,000
7.68% unsecured notes 20 11/2/26 20,000,000
Variable rate unsecured notes 40 5/15/00 40,000,000
7.35% unsecured notes 30 6/15/07 30,000,000
------------ ------------
Total $412,633,956 $189,490,273
- ---------------------------------------------------------------------------
The Notes are subordinate to mortgages payable and rank equally with
borrowings under the revolving credit facility. Where applicable, the
discount is being amortized over the life of the respective Notes using the
effective interest method. Interest is payable semi-annually or quarterly
and the principal is due at maturity. Among other restrictive covenants,
there is a restrictive covenant that limits the amount of total
indebtedness to 65% of total assets. For the year ended July 31, 1997,
$342,412 of amortized discount and issuing costs were included in interest
expense.
Note G - Other Liabilities
July 31, 1997 1996
- ---------------------------------------------------------------------------
Accounts payable $ 2,095,888 $ 2,750,313
Real estate taxes payable 6,920,090 4,769,689
State and local taxes payable 2,369,004 3,906,163
Interest payable 7,779,381 3,633,896
Amounts due seller of property 1,466,713 970,104
Professional fees and costs 1,665,753 728,628
Accrued construction costs 4,871,656 --
Acquisition costs 1,884,419 2,574,000
Other 2,968,748 5,332,891
Deferred advance rent expense 1,337,513 318,450
------------ -----------
$ 33,359,165 $24,984,134
- ---------------------------------------------------------------------------
Note H - Shareholders Equity
The Series A Cumulative Preferred Shares are redeemable at the option
of the Trust on or after June 15, 2007 at the liquidation preference of
$500 a share. The preferred shares pay dividends quarterly at the rate of
7.8% of the liquidation preference per annum through September 15, 2012 and
at the rate of 9.8% of the liquidation preference per annum thereafter. In
connection with the issuance of the Series A Cumulative Preferred Shares,
1,500,000 depositary shares, each representing a 1/10 fractional interest
in a share of cumulative preferred, were sold to the public.
The Trust has the following stock option plans (the "Plans") pursuant
to which the Trust has granted (and in one instance, may continue to grant)
options to purchase Shares of Beneficial Interest of the Trust (the
"Shares") to officers, trustees and certain key employees of the Trust: (i)
the 1985 Incentive Stock Option Plan (the "1985 Plan"), (ii) the March 1991
Stock Option Plan (the "March 1991 Plan"), (iii) the Non-Qualified Stock
Option Plan (the "Non-Qualified Plan"), and (iv) the 1991 Stock Option Plan
(the "1991 Plan"). The exercise price of a Share pursuant to each of the
Plans is or was required (as the case may be) to be no less than the fair
market value of a Share on the date of grant. Under the 1985 Plan, the
1991 Plan (with the exception of certain option grants of 10,000 Shares or
more, as discussed below) and the Non-Qualified Plan, options are
exercisable 20% per year commencing one year from the date of grant. In
the case of certain option grants of 10,000 Shares or more under the 1991
Plan, such option grants are exercisable 10% after the first anniversary of
the date of grant, 25% after the second anniversary of the date of grant,
45% after the third anniversary of the date of grant, 70% after the fourth
anniversary of the date of grant and 100% after the fifth anniversary of the
date of grant. In the case of the March 1991 Plan, 30% of the options
granted are exercisable on the third anniversary of the date of grant and,
thereafter, an additional 10% of the granted options are exercisable on a
yearly basis. Future option grants can be made only under the 1991 Plan.
The following table shows the activity and balances for each stock
option plan during the fiscal years indicated.
Non- March
1985 Qualified 1991 1991
Options Plan Plan Plan Plan
- ---------------------------------------------------------------------------
Outstanding July 31, 1994 345,500 5,000 1,300,000 179,000
Exercised (1,200) -- -- --
Cancelled (17,700) -- -- (6,000)
Granted 25,000 -- -- 249,250
------- ------- --------- --------
Outstanding July 31, 1995 351,600 5,000 1,300,000 422,250
Exercised (5,000) -- -- (4,000)
Cancelled (800) -- -- (20,500)
Granted 3,200 -- -- 31,300
------- ------- --------- --------
Outstanding July 31, 1996 349,000 5,000 1,300,000 429,050
Exercised (72,700) -- -- (42,100)
Cancelled -- -- -- (26,800)
Granted -- -- -- 571,750
------- ------- --------- --------
Outstanding July 31, 1997 276,300 5,000 1,300,000 931,900
- ---------------------------------------------------------------------------
Options exercisable at
July 31, 1997 232,480 4,000 910,000 173,660
Average outstanding option
price, which was the market
price of the shares on
the dates of grant $ 21.75 $ 21.88 $ 18.88 $ 21.71
Average price of options
exercised during fiscal 1997 $ 21.72 -- -- $ 20.82
- ---------------------------------------------------------------------------
The Trust has adopted the disclosure-only provision of Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" ("SFAS 123"). Accordingly, no compensation expense has been
recognized for the options described above which were granted on or after
August 1, 1995. Had compensation cost for these options been determined
based on the fair value on the grant date consistent with the provisions of
SFAS 123, the Trust's net earnings and earnings per share of beneficial
interest would have been changed to the following pro forma amounts:
Net Income
Per Share of
Beneficial
Net Income Interest
(in thousands)
--------------- --------------
Year ended July 31, 1997 $76,465 $1.31
Year ended July 31, 1996 70,510 1.25
The Trust has a Dividend Reinvestment and Share Purchase Plan (the
"Plan") whereby shareholders may invest cash distributions and make
optional cash payments to purchase Shares of the Trust without payment of
any brokerage commission or service charge. The price per share of the
additional shares to be purchased with invested cash distributions is the
midpoint between the day's high and low sales prices on the New York Stock
Exchange, less 5%.
The Trust has made loans to officers, trustees and employees primarily
for the purpose of purchasing its Shares. These loans are demand and term
notes bearing interest at rates ranging from 5% to 9.75%. Interest is
payable quarterly.
Note I - Lease Agreements
The Trust has entered into leases, as lessee, in connection with
ground leases for shopping centers which it operates, an office building
which it sublets and administrative office space for the Trust. These
leases are accounted for as operating leases. The minimum annual rental
commitments during the next five fiscal years and thereafter are
approximately as follows (000's omitted):
Year Ending July 31, Amount
- ---------------------------------------------------------------------------
1998 $1,045
1999 1,050
2000 1,049
2001 1,052
2002 1,183
Thereafter 20,332
------
Total $25,711
- ---------------------------------------------------------------------------
For the years ended July 31, 1996 and 1995, the lease for office space
included contingent rentals for real estate tax escalations and operating
expense in the amount of $100,000, and $111,000, respectively. There were
no contingent rentals for the year ended July 31, 1997. In addition,
ground leases provide for fixed rent escalations and renewal options.
Note J - Rental Income Under Operating Leases
Minimum future rentals to be received during the next five fiscal
years and thereafter with initial or remaining noncancellable lease terms
in excess of one year are approximately as follows (000's omitted):
Year Ending July 31, Amount
- ---------------------------------------------------------------------------
1998 $118,157
1999 106,241
2000 90,243
2001 75,217
2002 63,790
Thereafter 385,975
--------
Total $839,623
- ---------------------------------------------------------------------------
The above table assumes that all leases which expire are not renewed,
therefore neither renewal rentals nor rentals from replacement tenants are
included.
Minimum future rentals do not include contingent rentals, which may be
received under certain leases on the basis of percentage of reported
tenants' sales volume, increases in Consumer Price Indices, common area
maintenance charges and real estate tax reimbursements. Contingent rentals
included in income for the years ended July 31, 1997, 1996 and 1995
amounted to approximately $28,933,000, $26,173,000, and $19,388,000,
respectively.
Note K - Pro Forma Financial Information (Unaudited)
The Trust acquired 16 shopping centers and 13 apartment complexes
during the year ended July 31, 1997. The pro forma financial information
for the years ended July 31, 1997 and 1996 shown below is based on the
historical statements of the Trust after giving effect to the acquisitions
as if such acquisitions took place on August 1, 1996 and 1995,
respectively. The $280,814,000 aggregate acquisition cost included
existing mortgages and $259,914,000 in cash.
The pro forma financial information is presented for informational
purposes only and may not be indicative of results that would have actually
occurred had the acquisitions taken place at the dates indicated or of what
may occur in the future.
(Amounts In Thousands, Except Share Data)
Year Ended July 31, 1997 1996
- ---------------------------------------------------------------------------
Pro forma total revenues $ 228,038 $ 209,212
Pro forma net income $ 79,322 $ 73,900
Pro forma earnings per share of
beneficial interest $ 1.36 $ 1.31
- ---------------------------------------------------------------------------
Note L - Quarterly Financial Information (Unaudited)
(Amounts In Thousands, Except Share Data)
Income Before
Gain on Sale
Year Ended of Property Net Earnings
July 31, Revenue and Securities Income Per Share
- ---------------------------------------------------------------------------
1997
- ---------------------------------------------------------------------------
First $ 47,783 $ 19,076 $ 19,076 $ .33
Second 51,147 19,023 19,092 .33
Third 52,066 19,224 19,088 .32
Fourth 55,825 19,716 19,781 .33
- ---------------------------------------------------------------------------
1996
- ---------------------------------------------------------------------------
First $ 37,795 $ 16,273 $ 16,274 $ .31
Second 41,523 17,230 18,012 .31
Third 43,353 17,799 17,297 .30
Fourth 44,935 18,820 18,938 .33
- ---------------------------------------------------------------------------
Note M - Supplemental Cash Flow Information
The Trust entered into the following non-cash investing and financing
activities:
Year Ended July 31, 1997 1996
- ---------------------------------------------------------------------------
Mortgages payable assumed in the acquisition
of properties $ 17,500,000 $ 32,538,000
Mortgages receivable in connection with
the sale of properties $ 700,000 $ 1,544,500
State and local income taxes paid for the year ended July 31, 1997
were $872,000. No state and local income taxes were paid by the Trust for
the year ended July 31, 1996. Interest paid for the years ended July 31,
1997 and 1996 was $24,642,000 and $17,085,000, respectively.
- ---------------------------------------------------------------------------
Note N - Retirement Savings Plan
The Trust has a Retirement Savings Plan (the "Savings Plan").
Participants in the Savings Plan may elect to contribute a portion of their
earnings to the Savings Plan and the Trust may, at the discretion of the
Board of Trustees, make a voluntary contribution to the Savings Plan. For
the years ended July 31, 1997, 1996 and 1995, the Trust's expense for the
Savings Plan was $250,000, $228,000 and $191,000, respectively.
- ---------------------------------------------------------------------------
Note O - Financial Instruments
The estimated fair values of the Trust's financial instruments are as
follows (000's omitted)
At July 31, 1997 1996
- ---------------------------------------------------------------------------
Corres-
Carrying Fair Carrying Fair ponding
Value Value Value Value Footnote
-------- ----- -------- ----- --------
Assets:
Cash and cash
equivalents $ 42,781 $ 42,781 $ 4,300 $ 4,300 A
Marketable securities 2,035 2,035 2,095 2,095 B
Mortgages and notes
receivable 23,107 24,200 23,597 (1) C
Other receivables 1,464 1,464 1,109 (1) D
Liabilities:
Mortgages payable 65,573 67,500 48,935 (2) E
Notes payable 412,634 429,200 189,490 (2) F
Other liabilities 35,359 35,359 24,984 24,984 G
The following methods and assumptions were used to estimate the fair
value of each class of financial instruments for which it is practicable:
Cash and cash equivalents: The carrying amount approximates fair
value because of the short maturity of those instruments.
Marketable securities: Fair value is based on quoted market prices in
accordance with SFAS 115.
(1) Mortgages and notes receivable: The fair value approximates
the carrying value and is estimated based on discounting the
future cash flows at a year-end risk adjusted lending rate
that the Trust would utilize for loans of similar risk and
duration.
(2) Mortgages payable and Notes payable: The fair value
approximates the carrying value and is estimated based on
discounting future cash flows at a year-end adjusted
borrowing rate which reflects the risks associated with
mortgages and notes of similar risk and duration.
- ---------------------------------------------------------------------------
Note P - Subsequent Events
Subsequent to July 31, 1997 the Trust purchased one apartment complex
containing 184 units and three shopping centers containing an aggregate of
approximately 479,000 gross leasable square feet. The properties are
located in New York, North Carolina and Florida. The aggregate purchase
price for such properties was approximately $28.7 million.
On August 28, 1997 the Trustees declared a cash distribution to
shareholders of record of the shares of beneficial interest as of September
18, 1997 in the amount of $.365 per share (approximately $21.5 million)
payable on October 7, 1997.
On August 21, 1997 the Trustees declared a cash distribution to
shareholders of record of the Series A Cumulative Preferred Shares as of
September 1, 1997 in the amount of $8.125 per share ($.8125 per depositary
share, approximately $1,220,000) payable on September 15, 1997.
<PAGE>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
SCHEDULE II
Additions
Charged
Balance at to Costs Credited Balance
Beginning and to Other at End
Description of Period Expenses Revenues Deductions of Period
- ----------- ---------- -------- -------- ---------- ---------
Year Ended
July 31, 1997
- -------------
Allowance for
doubtful
accounts $ 3,976,500 $ 3,282,871 -- $ 1,678,371(1) $ 5,581,000
Year Ended
July 31, 1996
- -------------
Allowance for
doubtful
accounts $ 2,922,500 $ 1,966,715 - $ 912,715(1) $ 3,976,500
Year Ended
July 31, 1995
- -------------
Allowance for
doubtful
accounts $ 2,331,500 $ 993,710 -- $ 402,710(1) $ 2,922,500
- -------------------
(1) Trade receivables charged to the reserve.
<PAGE>
<TABLE>
<CAPTION>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
July 31, 1997
COLUMN A COLUMN B COLUMN C COLUMN D
____________ _____________ ______________________________ ________________
Cost Capitalized
Subsequent to
Initial Cost to Company Acquisition
______________________________ ________________
Building &
Description Encumbrances Land Improvements Improvements
___________ ____________ ___________ _____________ ________________
<S> <C> <C> <C> <C>
Apartments
**************************
BRECKENRIDGE APARTMENTS 604,487 2,411,462 193,861
BIRMINGHAM AL
COURTS AT WILDWOOD 1,119,320 4,477,301 310,955
BIRMINGHAM AL
DEVONSHIRE PLACE 1,245,728 4,982,914 1,112,479
BIRMINGHAM AL
THE CLUB APARTMENTS 6,145,000 1,709,558 6,838,233 280,275
BIRMINGHAM AL
HILLCREST APARTMENTS 1,252,632 249,734 3,317,904
MOBILE AL
KNOLLWOOD APARTMENTS 6,147,218 4,377,501 17,027,203 23,982
MOBILE AL
MAISON DE VILLE APTS 4,625,000 1,971,014 7,897,056 38,546
MOBILE AL
MAISON IMPERIAL APTS 1,750,000 672,368 2,702,471 20,720
MOBILE AL
PLANTATION APARTMENTS 1,000,000 440,866 1,773,465 9,992
MOBILE AL
MAYFAIR APARTMENTS 240,000 962,217 464,446
DOVER DE
RODNEY APARTMENTS 769,188 1,612,614 1,238,692
DOVER DE
LAKE PARK APARTMENTS 833,000 1,822,039 2,584,476
LAKE PARK FL
CAMBRIDGE APARTMENTS 878,593 3,514,373 37,044
ATHENS GA
TARA APARTMENTS 3,541,345 1,192,545 4,792,179 43,190
ATHENS GA
REGENCY CLUB APARTMENTS 1,179,910 4,719,639 31,774
EVANSVILLE IN
HAWTHORNE HEIGHTS APTS 1,669,304 6,698,215 59,570
INDIANAPOLIS IN
JAMESTOWN APARTMENTS 518,646 2,075,236 696,220
LEXINGTON KY
SADDLEBROOK APARTMENTS 1,939,164 7,756,655 238,724
LEXINGTON KY
CHARLESTOWN @ DOUGLASS HILLS 1,306,230 5,231,914 288,619
LOUISVILLE KY
LA FONTENAY APARTMENTS 1,176,550 4,706,200 707,222
LOUISVILLE KY
POPLAR LEVEL APARTMENTS 284,793 1,139,174 91,639
LOUISVILLE KY
RIVERCHASE APARTMENTS 807,302 3,229,206 26,673
NEWPORT KY
FORESTWOOD APARTMENTS 2,070,811 8,283,242 53,478
BATON ROUGE LA
SHERWOOD ACRES APARTMENTS 3,906,900 15,627,597 30,765
BATON ROUGE LA
WILLOW BEND LAKE APARTMENTS 2,930,484 11,721,937 27,388
BATON ROUGE LA
DEERHORN VILLAGE APARTMENTS 1,292,778 5,171,112 144,766
KANSAS CITY MO
MEADOW EAST APARTMENTS 86,407 1,467,282 451,518
POTSDAM NY
MOHAWK GARDEN APARTMENTS 163,235 1,135,660 1,657,938
ROME NY
SPRING CREEK APARTMENTS 1,451,271 9,067,552
COLUMBUS OH
ARLINGTON VILLAGE APARTMENTS 1,065,284 4,269,138 114,478
FAIRBORN OH
CHESTERFIELD APARTMENTS 179,109 1,449,156 314,834
MAUMEE OH
GOLDCREST APARTMENTS 1,133,355 4,533,416 23,845
SHARONVILLE OH
CAMBRIDGE PARK APTS 1,223,582 4,894,326 45,725
UNION TWP-CINN OH
GOVERNOUR'S PLACE APARTMENTS 626,807 2,507,226 83,167
HARRISBURG PA
HARBOUR LANDING APARTMENTS 1,141,954 4,567,815 120,213
COLUMBIA SC
SEDGEFIELD APARTMENTS 1,550,734 6,211,936 170,808
FLORENCE SC
TURTLE CREEK APARTMENTS 984,565 3,954,261 29,178
GREENVILLE SC
HICKORY LAKE APARTMENTS 1,369,251 5,483,004 650,345
ANTIOCH TN
COURTS @ WATERFORD PLACE 10,100,000 2,745,404 10,982,373 47,797
CHATTANOOGA TN
ASHFORD PLACE APARTMENTS 1,150,270 4,611,080 580,759
CLARKSVILLE TN
CEDAR VILLAGE APARTMENTS 806,355 3,230,420 92,692
CLARKSVILLE TN
PADDOCK PLACE APARTMENTS 1,358,400 5,437,602 65,837
CLARKSVILLE TN
THE PINES APARTMENTS 918,769 3,679,074 83,523
CLARKSVILLE TN
LANDMARK ESTATES APARTMENTS 476,624 1,906,284 41,699
EAST RIDGE TN
MILLER CREST APARTMENTS 747,155 3,025,619 55,683
JOHNSON CITY TN
CEDAR BLUFF APARTMENTS 1,312,383 5,269,532 32,553
KNOXVILLE TN
COUNTRY PLACE APARTMENTS 1,896,828 7,587,313 51,393
NASHVILLE TN
WOODBRIDGE APARTMENTS 1,594,214 6,376,854 47,184
NASHVILLE TN
Factory Outlets
**************************
BARSTOW FACTORY OUTLET 9,899,696 5,730,337 22,936,349 12,667,955
BARSTOW CA
ST AUGUSTINE OUTLET CENTER 71,835 4,488,742 14,426,139 9,686,447
ST AUGUSTINE FL
BRANSON FACTORY OUTLET 17,669 22,312,120 11,757,215
BRANSON MO
OSAGE FACTORY OUTLET VILLAGE 6,978,714 27,259,675 7,282,030
OSAGE BEACH MO
SIX FLAGS FACTORY OUTLET CENTER 794,941 20,578,120
JACKSON NJ
FT CHISWELL FACTORY OUTLET 411,023 1,644,017 944,759
MAX MEADOWS VA
Miscellaneous
**************************
PIZZA HUT - PAD 40,065 225,958
GREENVILLE NC
HARDEES - PAD 400,000
HANOVER PA
PIZZA HUT - PAD 427,500
HARRISONBURG VA
Office Building
**************************
INSTITUTE FOR DEFENSE ANALYSES 1,389,460
PRINCETON NJ
Shopping Centers
**************************
CLOVERDALE VILLAGE 634,152 2,536,606 7,304
FLORENCE AL
DOVERAMA @ RODNEY VILLAGE 50,755 311,781
DOVER DE
RODNEY VILLAGE 1,202,551 2,082,918 2,088,160
DOVER DE
REGENCY PARK SHOPPING CENTER 3,884,925 15,539,701
JACKSONVILLE FL
PRESIDENTIAL PLAZA 1,308,956 2,440,917 17,400
NORTH LAUDERDALE FL
PRESIDENTIAL PLAZA WEST 437,485 812,473 5,256
NORTH LAUDERDALE FL
RUTLAND PLAZA 1,443,294 5,773,176
ST PETERSBURG FL
ALBANY PLAZA 696,447 2,799,786 92,201
ALBANY GA
SOUTHGATE PLAZA - ALBANY 231,517 970,811 27,442
ALBANY GA
EASTGATE PLAZA - AMERICUS 221,637 1,036,331 10,052
AMERICUS GA
PERLIS PLAZA 774,966 5,301,644 244,079
AMERICUS GA
ROGERS PLAZA 291,014 688,590 84,343
ASHBURN GA
SWEETWATER VILLAGE 707,938 2,831,750
AUSTELL GA
CEDAR PLAZA 928,302 3,713,207 24,999
CEDARTOWN GA
CEDARTOWN SHOPPING CENTER 745,006 3,266,424 84,289
CEDARTOWN GA
CORDELE SQUARE 864,335 3,457,337 299,068
CORDELE GA
MR B'S 166,047 154,140 6,718
CORDELE GA
SOUTHGATE PLAZA - CORDELE 202,682 958,998 59,768
CORDELE GA
HABERSHAM VILLAGE 1,301,643 4,340,422 699,985
CORNELIA GA
MIDWAY VILLAGE SHOPPING CENTER 1,551,580 2,881,506
DOUGLASVILLE GA
WESTGATE - DUBLIN 699,174 5,834,809 103,582
DUBLIN GA
NEW CHASTAIN CORNERS SHOPPING CENTER 2,452,946 5,723,542
MARIETTA GA
CREEKWOOD SHOPPING CENTER 1,158,203 3,474,608
REX GA
EISENHOWER SQUARE SHOPPING CENTER 1,026,000 4,104,000
SAVANNAH GA
VICTORY SQUARE 1,206,181 4,824,725 45,726
SAVANNAH GA
TIFT-TOWN 271,444 1,325,238 173,785
TIFTON GA
WESTGATE - TIFTON 156,269 304,705
TIFTON GA
HAYMARKET MALL 1,230,252 5,031,799 119,315
DES MOINES IA
HAYMARKET SQUARE 2,056,172 8,224,688 261,955
DES MOINES IA
SOUTHFIELD PLAZA SHOPPING CENTER 3,188,496 3,897,167 5,666
BRIDGEVIEW IL
WESTRIDGE COURT SHOPPING CENTER 9,765,195 39,060,786
NAPERVILLE IL
TINLEY PARK PLAZA 2,607,702 10,430,808 162,520
TINLEY PARK IL
COLUMBUS CENTER 1,196,269 3,608,315 2,411,081
COLUMBUS IN
JASPER MANOR 1,319,937 7,110,063 10,766
JASPER IN
TOWN FAIR SHOPPING CENTER 1,104,876 3,759,503
PRINCETON IN
WABASH CROSSING 1,614,878 6,470,511 27,744
WABASH IN
JACKSON VILLAGE 284,815 3,115,586 579,110
JACKSON KY
J*TOWN CENTER 1,331,074 4,121,997 593,420
JEFFERSONTOWN KY
NEW LOUISA PLAZA 469,014 1,998,752 161,683
LOUISA KY
PICCADILLY SQUARE 355,000 1,588,409 290,032
LOUISVILLE KY
EASTGATE SHOPPING CENTER 1,945,679 7,792,717 195,167
MIDDLETOWN KY
LIBERTY PLAZA 2,075,809 8,303,237 115,702
RANDALLSTOWN MD
SHOPPING CENTER - SALISBURY 312,650 1,833,330 46,741
SALISBURY MD
MAPLE VILLAGE SHOPPING CENTER 1,625,580 6,514,322 264,178
ANN ARBOR MI
FARMINGTON CROSSROADS 1,092,200 4,368,800 26,831
FARMINGTON MI
DELTA CENTER 2,405,200 9,620,800 165,179
LANSING MI
HAMPTON VILLAGE CENTRE 21,040,157 8,638,500 34,541,500 172,079
ROCHESTER HILLS MI
FASHION CORNERS 2,244,800 8,799,200 9,900
SAGINAW MI
HALL ROAD CROSSING 2,595,500 10,382,000 131,542
SHELBY MI
DELCO PLAZA 1,277,504 5,109,367
STERLING HEIGHTS MI
WASHTENAW FOUNTAIN PLAZA 1,530,281 6,121,123 351,094
YPSILANTI MI
SHOPPING CENTER - GOLDSBORO 181,998 1,014,432 55,222
GOLDSBORO NC
SHOPPING CENTER - WILSON 315,000 1,780,370 61,682
WILSON NC
LAUREL SQUARE 3,261,701 9,283,302 529,934
BRICKTOWN NJ
HAMILTON PLAZA 1,124,415 4,513,658 215,779
HAMILTON NJ
BENNETTS MILLS PLAZA 1,794,122 6,399,888 28,315
JACKSON NJ
MIDDLETOWN PLAZA 1,204,829 1,479,487 3,561,728
MIDDLETOWN NJ
RENAISSANCE CENTER EAST 2,543,856 10,175,427 23,065
LAS VEGAS NV
UNIVERSITY MALL 115,079 1,009,902 756,101
CANTON NY
CORTLANDVILLE 236,846 1,439,000 420,708
CORTLAND NY
KMART PLAZA 942,257 3,769,027 116,884
DEWITT NY
D & F PLAZA 730,512 2,156,542 1,082,391
DUNKIRK NY
SHOPPING CENTER - ELMIRA 110,116 891,205
ELMIRA NY
PYRAMID MALL 2,175,221 8,700,884 109,499
GENEVA NY
SHOPPING CENTER - GLOVERSVILLE 139,429 524,517 104,564
GLOVERSVILLE NY
MCKINLEY PLAZA 1,246,680 4,986,720 93,023
HAMBURG NY
CAYUGA PLAZA 1,397,708 5,591,832 417,505
ITHACA NY
SHOPS @ SENECA MALL 1,545,838 6,183,353 351,767
LIVERPOOL NY
TRANSIT ROAD PLAZA 424,634 1,698,537 186,630
LOCKPORT NY
SHOPPING CENTER - MARCY 400,000 2,231,817 94,207
MARCY NY
WALLKILL PLAZA 2,445,200 8,580,800 62,992
MIDDLETOWN NY
ROCKLAND PLAZA 3,990,842 3,570,410 5,177,066
NANUET NY
SOUTH PLAZA 508,013 1,051,638 1,539,333
NORWICH NY
WESTGATE PLAZA - ONEONTA 142,821 1,192,103 249,069
ONEONTA NY
OSWEGO PLAZA 250,000 1,168,027 2,483,385
OSWEGO NY
MOHAWK ACRES 241,606 1,268,890 1,495,180
ROME NY
MONTGOMERY WARD 93,341 483,405 231,437
ROME NY
PRICE CHOPPER PLAZA 933,792 3,735,170
ROME NY
WESTGATE MANOR PLAZA - ROME 77,208 391,982 439,016
ROME NY
NORTHLAND 16,182 255,557 790,160
WATERTOWN NY
HARBOR PLAZA 388,997 1,456,108 244,999
ASHTABULA OH
BELPRE PLAZA 2,066,121 134,189
BELPRE OH
SOUTHWOOD PLAZA 707,073 1,537,519 637,042
BOWLING GREEN OH
BRENTWOOD PLAZA 2,050,969 8,222,875 204,224
CINCINNATI OH
DELHI SHOPPING CENTER 2,300,029 9,218,117
CINCINNATI OH
WESTERN VILLAGE SHOPPING CENTER 1,321,484 5,300,935 101,028
CINCINNATI OH
SOUTH TOWNE CENTRE 4,737,368 9,636,943 1,466,988
DAYTON OH
HERITAGE SQUARE 1,749,182 7,011,927 59,707
DOVER OH
MIDWAY CROSSING 1,944,200 7,776,800
ELYRIA OH
FAIRFIELD MALL 1,287,649 1,685,919 83,779
FAIRFIELD OH
SILVER BRIDGE PLAZA 919,022 3,197,673 1,452,608
GALLIPOLIS OH
SHOPPING CENTER - GENOA 96,001 1,016,349
GENOA OH
PARKWAY PLAZA 950,667 2,069,921 388,291
MAUMEE OH
NEW BOSTON SHOPPING CENTER 2,102,371 9,176,918 93,574
NEW BOSTON OH
MARKET PLACE 597,923 3,738,164 361,385
PIQUA OH
CENTRAL AVE MARKET PLACE 1,046,480 1,769,207 363,682
TOLEDO OH
BETHEL PARK PLAZA 861,539 9,907,694 43,781
BETHEL PARK PA
DILLSBURG SHOPPING CENTER 1,166,376 4,665,505
DILLSBURG PA
NEW GARDEN SHOPPING CENTER 907,130 3,141,296
KENNETT SQUARE PA
STONEMILL PLAZA 1,407,975 5,650,901 31,885
LANCASTER PA
CROSSROADS PLAZA 384,882 1,040,668 305,825
MT. PLEASANT PA
IVYRIDGE SHOPPING CENTER 1,504,080 6,026,320 263,077
PHILADELPHIA PA
ROOSEVELT MALL ANNEX 159,703 91,798 1,074,786
PHILADELPHIA PA
ROOSEVELT MALL NE 2,602,635 6,385,817
PHILADELPHIA PA
STRAWBRIDGE'S 605,607 3,923,050
PHILADELPHIA PA
ST MARY'S PLAZA 977,711 3,910,842 102,304
ST MARY'S PA
NORTHLAND CENTER 1,198,947 4,824,500 58,058
STATE COLLEGE PA
SHOPS AT PROSPECT 741,941 2,967,765 12,058
WEST HEMPFIELD PA
YORK MARKETPLACE 3,199,353 12,797,412 359,172
YORK PA
CONGRESS CROSSING 1,098,351 6,747,013 69,993
ATHENS TN
GREENEVILLE COMMONS 1,075,200 7,884,800 23,156
GREENEVILLE TN
KINGS GIANT SHOPPING CENTER 2,500,633 192,845
KINGSPORT TN
GEORGETOWN SQUARE 1,166,924 4,674,698 201,633
MURFREESBORO TN
SHOPPING CENTER - COLONIAL HTS 290,000 792,441
COLONIAL HEIGHTS VA
HANOVER SQUARE SHOPPING CENTER 1,778,701 7,114,805 194,278
MECHANICSVILLE VA
VICTORIAN SQUARE 3,548,432 14,208,727 84,833
MIDLOTHIAN VA
CAVE SPRING CORNERS SHOPPING CENTER 1,059,798 4,239,192
ROANOKE VA
SHOPPING CENTER - SPOTSYLVANIA 250,000 1,363,880 231,472
SPOTSYLVANIA VA
RIDGEVIEW CENTRE 2,707,679 4,417,792 476,393
WISE VA
MOUNDSVILLE PLAZA 228,283 1,989,798 4,728,584
MOUNDSVILLE WV
GRAND CENTRAL PLAZA 4,358,333 153,150
PARKERSBURG WV
KMART PLAZA 664,121 2,656,483 40,122
VIENNA WV
Vacant Land
**************************
1 NORTH CENTRAL AVENUE 17,197
HARTSDALE NY
------------ ------------ ------------ ------------
$65,572,883 $232,501,644 $917,362,983 $127,910,413
============= ============ ============ ============
</TABLE>
(1) Aggregate cost is the same for Federal income tax purposes
<PAGE>
<TABLE>
<CAPTION>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
July 31, 1995
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
___________ ___________________________________________ ________ ___________ ________ ________
Gross Amount at Which Carried at the
Close of the Period
___________________________________________
Life
on Which
Depreci-
ated
in Latest
Building & Accumulated Date of Date Income
Description Land Improvements Total(1) Depreciation Construction Acquired Statement
___________ ----------- ------------- --------------- -------------- ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Apartments
**************************
BRECKENRIDGE APARTMENTS 604,487 2,605,323 3,209,810 370,420 1979 Feb 92 40 Years
BIRMINGHAM AL
COURTS AT WILDWOOD 1,119,320 4,788,256 5,907,576 513,057 1969 Jul 93 40 Years
BIRMINGHAM AL
DEVONSHIRE PLACE 1,245,728 6,095,393 7,341,121 846,177 1971 Feb 92 40 Years
BIRMINGHAM AL
THE CLUB APARTMENTS 1,709,558 7,118,508 8,828,066 400,871 1969-1974 May 95 40 Years
BIRMINGHAM AL
HILLCREST APARTMENTS 249,734 3,317,904 3,567,638 3,456 1977 Jun 97 40 Years
MOBILE AL
KNOLLWOOD APARTMENTS 4,377,501 17,051,185 21,428,686 53,617 1978-1982 May 97 40 Years
MOBILE AL
MAISON DE VILLE APTS 1,971,014 7,935,602 9,906,616 190,933 1963,71-73 Jul 96 40 Years
MOBILE AL
MAISON IMPERIAL APTS 672,368 2,723,191 3,395,559 65,918 1969-73 Jul 96 40 Years
MOBILE AL
PLANTATION APARTMENTS 440,866 1,783,457 2,224,323 42,773 1977 Jul 96 40 Years
MOBILE AL
MAYFAIR APARTMENTS 240,000 1,426,663 1,666,663 712,109 1971 Jan 81 40 Years
DOVER DE
RODNEY APARTMENTS 769,188 2,851,306 3,620,494 2,235,211 1963-1965 Jan 69 40 Years
DOVER DE
LAKE PARK APARTMENTS 833,000 4,406,515 5,239,515 2,271,741 1965 Feb 76 40 Years
LAKE PARK FL
CAMBRIDGE APARTMENTS 878,593 3,551,417 4,430,010 109,404 1972,1982 May 96 40 Years
ATHENS GA
TARA APARTMENTS 1,192,545 4,835,369 6,027,914 137,398 1970 Jun 96 40 Years
ATHENS GA
REGENCY CLUB APARTMENTS 1,179,910 4,751,413 5,931,323 94,496 1980 Sep 96 40 Years
EVANSVILLE IN
HAWTHORNE HEIGHTS APTS 1,669,304 6,757,785 8,427,089 191,302 1965 Jun 96 40 Years
INDIANAPOLIS IN
JAMESTOWN APARTMENTS 518,646 2,771,456 3,290,102 531,803 1967 Sep 91 40 Years
LEXINGTON KY
SADDLEBROOK APARTMENTS 1,939,164 7,995,379 9,934,543 469,866 1969 May 95 40 Years
LEXINGTON KY
CHARLESTOWN @ DOUGLASS HILLS 1,306,230 5,520,533 6,826,763 555,402 1974 Sep 93 40 Years
LOUISVILLE KY
LA FONTENAY APARTMENTS 1,176,550 5,413,422 6,589,972 721,393 1970 Jul 92 40 Years
LOUISVILLE KY
POPLAR LEVEL APARTMENTS 284,793 1,230,813 1,515,606 211,915 1974 Jan 91 40 Years
LOUISVILLE KY
RIVERCHASE APARTMENTS 807,302 3,255,879 4,063,181 64,999 1968 Aug 96 40 Years
NEWPORT KY
FORESTWOOD APARTMENTS 2,070,811 8,336,720 10,407,531 130,787 1985 Oct 96 40 Years
BATON ROUGE LA
SHERWOOD ACRES APARTMENTS 3,906,900 15,658,362 19,565,262 278,033 1978-1979 Oct 96 40 Years
BATON ROUGE LA
WILLOW BEND LAKE APARTMENTS 2,930,484 11,749,325 14,679,809 184,017 1986 Oct 96 40 Years
BATON ROUGE LA
DEERHORN VILLAGE APARTMENTS 1,292,778 5,315,878 6,608,656 281,170 1974 Jul 95 40 Years
KANSAS CITY MO
MEADOW EAST APARTMENTS 86,407 1,918,800 2,005,207 668,977 1964-1971 Sep 83 40 Years
POTSDAM NY
MOHAWK GARDEN APARTMENTS 163,235 2,793,598 2,956,833 1,103,739 1947 Nov 85 40 Years
ROME NY
SPRING CREEK APARTMENTS 1,451,271 9,067,552 10,518,823 9,445 1985 Jun 97 40 Years
COLUMBUS OH
ARLINGTON VILLAGE APARTMENTS 1,065,284 4,383,616 5,448,900 331,219 1966 Aug 94 40 Years
FAIRBORN OH
CHESTERFIELD APARTMENTS 179,109 1,763,990 1,943,099 283,447 1979-1984 Feb 91 40 Years
MAUMEE OH
GOLDCREST APARTMENTS 1,133,355 4,557,261 5,690,616 90,835 1968 Aug 96 40 Years
SHARONVILLE OH
CAMBRIDGE PARK APTS 1,223,582 4,940,051 6,163,633 98,642 1973 Aug 96 40 Years
UNION TWP-CINN OH
GOVERNOUR'S PLACE APARTMENTS 626,807 2,590,393 3,217,200 148,699 1974 Apr 95 40 Years
HARRISBURG PA
HARBOUR LANDING APARTMENTS 1,141,954 4,688,028 5,829,982 225,176 1974 Sep 95 40 Years
COLUMBIA SC
SEDGEFIELD APARTMENTS 1,550,734 6,382,744 7,933,478 496,863 1972,74,79 Jul 94 40 Years
FLORENCE SC
TURTLE CREEK APARTMENTS 984,565 3,983,439 4,968,004 112,903 1976 Jun 96 40 Years
GREENVILLE SC
HICKORY LAKE APARTMENTS 1,369,251 6,133,349 7,502,600 582,438 1974 Dec 93 40 Years
ANTIOCH TN
COURTS @ WATERFORD PLACE 2,745,404 11,030,170 13,775,574 172,527 1988,89 Dec 96 40 Years
CHATTANOOGA TN
ASHFORD PLACE APARTMENTS 1,150,270 5,191,839 6,342,109 517,950 1972-1974 Oct 93 40 Years
CLARKSVILLE TN
CEDAR VILLAGE APARTMENTS 806,355 3,323,112 4,129,467 256,928 1982 Jul 94 40 Years
CLARKSVILLE TN
PADDOCK PLACE APARTMENTS 1,358,400 5,503,439 6,861,839 417,546 1989 Jul 94 40 Years
CLARKSVILLE TN
THE PINES APARTMENTS 918,769 3,762,597 4,681,366 290,817 1986 Jul 94 40 Years
CLARKSVILLE TN
LANDMARK ESTATES APARTMENTS 476,624 1,947,983 2,424,607 39,370 1971 Aug 96 40 Years
EAST RIDGE TN
MILLER CREST APARTMENTS 747,155 3,081,302 3,828,457 86,989 1973 Jun 96 40 Years
JOHNSON CITY TN
CEDAR BLUFF APARTMENTS 1,312,383 5,302,085 6,614,468 161,332 1980 May 96 40 Years
KNOXVILLE TN
COUNTRY PLACE APARTMENTS 1,896,828 7,638,706 9,535,534 249,399 1979 Apr 96 40 Years
NASHVILLE TN
WOODBRIDGE APARTMENTS 1,594,214 6,424,038 8,018,252 128,790 1980 Aug 96 40 Years
NASHVILLE TN
Factory Outlets
**************************
BARSTOW FACTORY OUTLET 5,730,337 35,604,304 41,334,641 3,241,746 1989 Nov 93 40 Years
BARSTOW CA
ST AUGUSTINE OUTLET CENTER 4,488,742 24,112,586 28,601,328 3,166,557 1991 Mar 92 40 Years
ST AUGUSTINE FL
BRANSON FACTORY OUTLET 17,669 34,069,335 34,087,004 3,004,139 1988 Nov 93 40 Years
BRANSON MO
OSAGE FACTORY OUTLET VILLAGE 6,978,714 34,541,705 41,520,419 3,832,597 1987 Jan 93 40 Years
OSAGE BEACH MO
SIX FLAGS FACTORY OUTLET CENTER 794,941 20,578,120 21,373,061 108,578 1997 Apr 97 40 Years
JACKSON NJ
FT CHISWELL FACTORY OUTLET 411,023 2,588,776 2,999,799 671,308 1989 Nov 93 40 Years
MAX MEADOWS VA
Miscellaneous
**************************
PIZZA HUT - PAD 40,065 225,958 266,023 83,906 1973 May 86 35 Years
GREENVILLE NC
HARDEES - PAD 400,000 400,000 417 1971 Jul 97 35 Years
HANOVER PA
PIZZA HUT - PAD 427,500 427,500 12,214 1969 Jul 96 35 Years
HARRISONBURG VA
Office Building
**************************
INSTITUTE FOR DEFENSE ANALYSES 1,389,460 1,389,460 653,404 1982 May 74 35 Years
PRINCETON NJ
Shopping Centers
**************************
CLOVERDALE VILLAGE 634,152 2,543,910 3,178,062 177,953 1986 Oct 94 40 Years
FLORENCE AL
DOVERAMA @ RODNEY VILLAGE 50,755 311,781 362,536 67,906 1969 Oct 88 40 Years
DOVER DE
RODNEY VILLAGE 1,202,551 4,171,078 5,373,629 3,130,285 1959 Jan 69 40 Years
DOVER DE
REGENCY PARK SHOPPING CENTER 3,884,925 15,539,701 19,424,626 16,187 1985 Jun 97 40 Years
JACKSONVILLE FL
PRESIDENTIAL PLAZA 1,308,956 2,458,317 3,767,273 18,645 1977 Apr 97 40 Years
NORTH LAUDERDALE FL
PRESIDENTIAL PLAZA WEST 437,485 817,729 1,255,214 5,924 1977 Apr 97 40 Years
NORTH LAUDERDALE FL
RUTLAND PLAZA 1,443,294 5,773,176 7,216,470 102,178 1964 Nov 96 40 Years
ST PETERSBURG FL
ALBANY PLAZA 696,447 2,891,987 3,588,434 230,576 1968 May 94 40 Years
ALBANY GA
SOUTHGATE PLAZA - ALBANY 231,517 998,253 1,229,770 172,379 1969 Jul 90 40 Years
ALBANY GA
EASTGATE PLAZA - AMERICUS 221,637 1,046,383 1,268,020 183,436 1980 Jul 90 40 Years
AMERICUS GA
PERLIS PLAZA 774,966 5,545,723 6,320,689 996,768 1972 Jul 90 40 Years
AMERICUS GA
ROGERS PLAZA 291,014 772,933 1,063,947 151,166 1974 Jul 90 40 Years
ASHBURN GA
SWEETWATER VILLAGE 707,938 2,831,750 3,539,688 197,912 1985 Oct 94 40 Years
AUSTELL GA
CEDAR PLAZA 928,302 3,738,206 4,666,508 260,350 1994 Oct 94 40 Years
CEDARTOWN GA
CEDARTOWN SHOPPING CENTER 745,006 3,350,713 4,095,719 212,960 1989 Jan 95 40 Years
CEDARTOWN GA
CORDELE SQUARE 864,335 3,756,405 4,620,740 687,834 1968 Jul 90 40 Years
CORDELE GA
MR B'S 166,047 160,858 326,905 28,540 1968 Jul 90 40 Years
CORDELE GA
SOUTHGATE PLAZA - CORDELE 202,682 1,018,766 1,221,448 171,199 1969 Jul 90 40 Years
CORDELE GA
HABERSHAM VILLAGE 1,301,643 5,040,407 6,342,050 668,483 1985 May 92 40 Years
CORNELIA GA
MIDWAY VILLAGE SHOPPING CENTER 1,551,580 2,881,506 4,433,086 9,005 1989 May 97 40 Years
DOUGLASVILLE GA
WESTGATE - DUBLIN 699,174 5,938,391 6,637,565 1,036,006 1974 Jul 90 40 Years
DUBLIN GA
NEW CHASTAIN CORNERS SHOPPING CENTE 2,452,946 5,723,542 8,176,488 5,962 1990 Jul 97 40 Years
MARIETTA GA
CREEKWOOD SHOPPING CENTER 1,158,203 3,474,608 4,632,811 10,858 1990 May 97 40 Years
REX GA
EISENHOWER SQUARE SHOPPING CENTER 1,026,000 4,104,000 5,130,000 4,275 1985 Jul 97 40 Years
SAVANNAH GA
VICTORY SQUARE 1,206,181 4,870,451 6,076,632 614,097 1986 Jul 92 40 Years
SAVANNAH GA
TIFT-TOWN 271,444 1,499,023 1,770,467 254,504 1965 Jul 90 40 Years
TIFTON GA
WESTGATE - TIFTON 156,269 304,705 460,974 53,672 1980 Jul 90 40 Years
TIFTON GA
HAYMARKET MALL 1,230,252 5,151,114 6,381,366 274,867 1968-1979 May 95 40 Years
DES MOINES IA
HAYMARKET SQUARE 2,056,172 8,486,643 10,542,815 456,066 1971-1979 May 95 40 Years
DES MOINES IA
SOUTHFIELD PLAZA SHOPPING CENTER 3,188,496 3,902,833 7,091,329 52,943 1958,72 Dec 96 40 Years
BRIDGEVIEW IL
WESTRIDGE COURT SHOPPING CENTER 9,765,195 39,060,786 48,825,981 40,697 1990 Jul 97 40 Years
NAPERVILLE IL
TINLEY PARK PLAZA 2,607,702 10,593,328 13,201,030 499,961 1973 Sep 95 40 Years
TINLEY PARK IL
COLUMBUS CENTER 1,196,269 6,019,396 7,215,665 1,366,383 1964 Dec 88 40 Years
COLUMBUS IN
JASPER MANOR 1,319,937 7,120,829 8,440,766 974,190 1990 Feb 92 40 Years
JASPER IN
TOWN FAIR SHOPPING CENTER 1,104,876 3,759,503 4,864,379 419,248 1991 Feb 93 40 Years
PRINCETON IN
WABASH CROSSING 1,614,878 6,498,255 8,113,133 588,886 1988 Dec 93 40 Years
WABASH IN
JACKSON VILLAGE 284,815 3,694,696 3,979,511 713,687 1983 Dec 88 40 Years
JACKSON KY
J*TOWN CENTER 1,331,074 4,715,417 6,046,491 1,025,246 1959 Oct 88 40 Years
JEFFERSONTOWN KY
NEW LOUISA PLAZA 469,014 2,160,435 2,629,449 638,290 1978 Feb 88 40 Years
LOUISA KY
PICCADILLY SQUARE 355,000 1,878,441 2,233,441 387,386 1973 Apr 89 40 Years
LOUISVILLE KY
EASTGATE SHOPPING CENTER 1,945,679 7,987,884 9,933,563 757,026 1987 Nov 93 40 Years
MIDDLETOWN KY
LIBERTY PLAZA 2,075,809 8,418,939 10,494,748 466,171 1962 May 95 40 Years
RANDALLSTOWN MD
SHOPPING CENTER - SALISBURY 312,650 1,880,071 2,192,721 599,300 1973 May 86 35 Years
SALISBURY MD
MAPLE VILLAGE SHOPPING CENTER 1,625,580 6,778,500 8,404,080 471,644 1965 Oct 94 40 Years
ANN ARBOR MI
FARMINGTON CROSSROADS 1,092,200 4,395,631 5,487,831 170,322 1986 Dec 95 40 Years
FARMINGTON MI
DELTA CENTER 2,405,200 9,785,979 12,191,179 371,823 1985 Dec 95 40 Years
LANSING MI
HAMPTON VILLAGE CENTRE 8,638,500 34,713,579 43,352,079 1,342,463 1990 Dec 95 40 Years
ROCHESTER HILLS MI
FASHION CORNERS 2,244,800 8,809,100 11,053,900 340,960 1986 Dec 95 40 Years
SAGINAW MI
HALL ROAD CROSSING 2,595,500 10,513,542 13,109,042 406,627 1985 Dec 95 40 Years
SHELBY MI
DELCO PLAZA 1,277,504 5,109,367 6,386,871 79,770 1970,73 Nov 96 40 Years
STERLING HEIGHTS MI
WASHTENAW FOUNTAIN PLAZA 1,530,281 6,472,217 8,002,498 782,956 1989 Oct 92 40 Years
YPSILANTI MI
SHOPPING CENTER - GOLDSBORO 181,998 1,069,654 1,251,652 330,563 1973 May 86 35 Years
GOLDSBORO NC
SHOPPING CENTER - WILSON 315,000 1,842,052 2,157,052 578,647 1973 May 86 35 Years
WILSON NC
LAUREL SQUARE 3,261,701 9,813,236 13,074,937 1,249,278 1973 Jul 92 40 Years
BRICKTOWN NJ
HAMILTON PLAZA 1,124,415 4,729,437 5,853,852 379,814 1972 May 94 40 Years
HAMILTON NJ
BENNETTS MILLS PLAZA 1,794,122 6,428,203 8,222,325 462,109 1988 Sep 94 40 Years
JACKSON NJ
MIDDLETOWN PLAZA 1,204,829 5,041,215 6,246,044 1,776,020 1972 Jan 75 40 Years
MIDDLETOWN NJ
RENAISSANCE CENTER EAST 2,543,856 10,198,492 12,742,348 201,955 1981 Oct 96 40 Years
LAS VEGAS NV
UNIVERSITY MALL 115,079 1,766,003 1,881,082 896,918 1967 Jan 76 40 Years
CANTON NY
CORTLANDVILLE 236,846 1,859,708 2,096,554 407,486 1984 Aug 87 35 Years
CORTLAND NY
KMART PLAZA 942,257 3,885,911 4,828,168 382,619 1970 Aug 93 40 Years
DEWITT NY
D & F PLAZA 730,512 3,238,933 3,969,445 925,009 1967 Jan 86 40 Years
DUNKIRK NY
SHOPPING CENTER - ELMIRA 110,116 891,205 1,001,321 188,453 1976 Feb 89 40 Years
ELMIRA NY
PYRAMID MALL 2,175,221 8,810,383 10,985,604 867,285 1973 Aug 93 40 Years
GENEVA NY
SHOPPING CENTER - GLOVERSVILLE 139,429 629,081 768,510 130,368 1974 Dec 88 40 Years
GLOVERSVILLE NY
MCKINLEY PLAZA 1,246,680 5,079,743 6,326,423 707,955 1991 Jun 92 40 Years
HAMBURG NY
CAYUGA PLAZA 1,397,708 6,009,337 7,407,045 1,208,666 1969 May 89 40 Years
ITHACA NY
SHOPS @ SENECA MALL 1,545,838 6,535,120 8,080,958 633,061 1971 Aug 93 40 Years
LIVERPOOL NY
TRANSIT ROAD PLAZA 424,634 1,885,167 2,309,801 178,279 1971 Aug 93 40 Years
LOCKPORT NY
SHOPPING CENTER - MARCY 400,000 2,326,024 2,726,024 744,201 1971 May 86 35 Years
MARCY NY
WALLKILL PLAZA 2,445,200 8,643,792 11,088,992 333,776 1986 Dec 95 40 Years
MIDDLETOWN NY
ROCKLAND PLAZA 3,990,842 8,747,476 12,738,318 3,134,331 1963 Jan 83 40 Years
NANUET NY
SOUTH PLAZA 508,013 2,590,971 3,098,984 1,003,554 1967 Apr 83 40 Years
NORWICH NY
WESTGATE PLAZA - ONEONTA 142,821 1,441,172 1,583,993 522,468 1967 Jan 84 40 Years
ONEONTA NY
OSWEGO PLAZA 250,000 3,651,412 3,901,412 1,219,684 1966 Jan 77 40 Years
OSWEGO NY
MOHAWK ACRES 241,606 2,764,070 3,005,676 820,374 1965 Feb 84 40 Years
ROME NY
MONTGOMERY WARD 93,341 714,842 808,183 248,249 1965 Jan 84 40 Years
ROME NY
PRICE CHOPPER PLAZA 933,792 3,735,170 4,668,962 369,964 1988 Aug 93 40 Years
ROME NY
WESTGATE MANOR PLAZA - ROME 77,208 830,998 908,206 234,634 1961 Jan 86 40 Years
ROME NY
NORTHLAND 16,182 1,045,717 1,061,899 289,033 1962 Jan 73 40 Years
WATERTOWN NY
HARBOR PLAZA 388,997 1,701,107 2,090,104 282,162 1988 Feb 91 40 Years
ASHTABULA OH
BELPRE PLAZA 2,200,310 2,200,310 484,545 1969 Jun 88 40 Years
BELPRE OH
SOUTHWOOD PLAZA 707,073 2,174,561 2,881,634 570,241 1961 May 90 40 Years
BOWLING GREEN OH
BRENTWOOD PLAZA 2,050,969 8,427,099 10,478,068 673,922 1957 May 94 40 Years
CINCINNATI OH
DELHI SHOPPING CENTER 2,300,029 9,218,117 11,518,146 259,810 1973,85,87 May 96 40 Years
CINCINNATI OH
WESTERN VILLAGE SHOPPING CENTER 1,321,484 5,401,963 6,723,447 430,829 1960 May 94 40 Years
CINCINNATI OH
SOUTH TOWNE CENTRE 4,737,368 11,103,931 15,841,299 1,524,737 1972 Mar 92 40 Years
DAYTON OH
HERITAGE SQUARE 1,749,182 7,071,634 8,820,816 725,931 1959 Aug 93 40 Years
DOVER OH
MIDWAY CROSSING 1,944,200 7,776,800 9,721,000 300,556 1986 Dec 95 40 Years
ELYRIA OH
FAIRFIELD MALL 1,287,649 1,769,698 3,057,347 323,648 1978 May 90 40 Years
FAIRFIELD OH
SILVER BRIDGE PLAZA 919,022 4,650,281 5,569,303 1,519,649 1972 Dec 86 40 Years
GALLIPOLIS OH
SHOPPING CENTER - GENOA 96,001 1,016,349 1,112,350 162,159 1987 Mar 91 40 Years
GENOA OH
PARKWAY PLAZA 950,667 2,458,212 3,408,879 449,746 1955 Sep 89 40 Years
MAUMEE OH
NEW BOSTON SHOPPING CENTER 2,102,371 9,270,492 11,372,863 1,029,537 1991 Feb 93 40 Years
NEW BOSTON OH
MARKET PLACE 597,923 4,099,549 4,697,472 634,857 1972 Nov 91 40 Years
PIQUA OH
CENTRAL AVE MARKET PLACE 1,046,480 2,132,889 3,179,369 355,838 1968 Aug 90 40 Years
TOLEDO OH
BETHEL PARK PLAZA 861,539 9,951,475 10,813,014 31,098 1965 May 97 40 Years
BETHEL PARK PA
DILLSBURG SHOPPING CENTER 1,166,376 4,665,505 5,831,881 92,286 1994 Oct 96 40 Years
DILLSBURG PA
NEW GARDEN SHOPPING CENTER 907,130 3,141,296 4,048,426 17,340 1979 Apr 97 40 Years
KENNETT SQUARE PA
STONEMILL PLAZA 1,407,975 5,682,786 7,090,761 501,352 1988 Jan 94 40 Years
LANCASTER PA
CROSSROADS PLAZA 384,882 1,346,493 1,731,375 288,844 1975 Nov 88 40 Years
MT. PLEASANT PA
IVYRIDGE SHOPPING CENTER 1,504,080 6,289,397 7,793,477 302,764 1963 Aug 95 40 Years
PHILADELPHIA PA
ROOSEVELT MALL ANNEX 159,703 1,166,584 1,326,287 560,764 1958 Apr 74 40 Years
PHILADELPHIA PA
ROOSEVELT MALL NE 8,988,452 8,988,452 4,282,633 1964 Jan 64 40 Years
PHILADELPHIA PA
STRAWBRIDGE'S 605,607 3,923,050 4,528,657 3,923,050 1964 Jan 64 35 Years
PHILADELPHIA PA
ST MARY'S PLAZA 977,711 4,013,146 4,990,857 277,305 1970 Dec 94 40 Years
ST MARY'S PA
NORTHLAND CENTER 1,198,947 4,882,558 6,081,505 645,204 1988 Jun 92 40 Years
STATE COLLEGE PA
SHOPS AT PROSPECT 741,941 2,979,823 3,721,764 148,082 1994 Jul 95 40 Years
WEST HEMPFIELD PA
YORK MARKETPLACE 3,199,353 13,156,584 16,355,937 727,224 1955 May 95 40 Years
YORK PA
CONGRESS CROSSING 1,098,351 6,817,006 7,915,357 923,779 1990 Mar 92 40 Years
ATHENS TN
GREENEVILLE COMMONS 1,075,200 7,907,956 8,983,156 1,073,128 1990 Mar 92 40 Years
GREENEVILLE TN
KINGS GIANT SHOPPING CENTER 2,693,478 2,693,478 348,423 1970 Sep 92 40 Years
KINGSPORT TN
GEORGETOWN SQUARE 1,166,924 4,876,331 6,043,255 527,474 1986 Sep 93 40 Years
MURFREESBORO TN
SHOPPING CENTER - COLONIAL HTS 290,000 792,441 1,082,441 254,713 1972 May 86 35 Years
COLONIAL HEIGHTS VA
HANOVER SQUARE SHOPPING CENTER 1,778,701 7,309,083 9,087,784 882,224 1991 Jan 93 40 Years
MECHANICSVILLE VA
VICTORIAN SQUARE 3,548,432 14,293,560 17,841,992 1,198,697 1991 Mar 94 40 Years
MIDLOTHIAN VA
CAVE SPRING CORNERS SHOPPING CENTER 1,059,798 4,239,192 5,298,990 13,247 1969 Jun 97 40 Years
ROANOKE VA
SHOPPING CENTER - SPOTSYLVANIA 250,000 1,595,352 1,845,352 454,512 1970 May 86 35 Years
SPOTSYLVANIA VA
RIDGEVIEW CENTRE 2,707,679 4,894,185 7,601,864 617,486 1990 Jul 92 40 Years
WISE VA
MOUNDSVILLE PLAZA 228,283 6,718,382 6,946,665 716,558 1961 Dec 88 40 Years
MOUNDSVILLE WV
GRAND CENTRAL PLAZA 4,511,483 4,511,483 991,379 1986 Jun 88 40 Years
PARKERSBURG WV
KMART PLAZA 664,121 2,696,605 3,360,726 300,757 1975 Feb 93 40 Years
VIENNA WV
Vacant Land
**************************
1 NORTH CENTRAL AVENUE 17,197 17,197 Jul 72
HARTSDALE NY
------------ -------------- -------------- ------------
$232,501,644 $1,045,273,396 $1,277,775,040 $105,866,380
============ ============== ============== ============
</TABLE>
(1) Aggregate cost is the same for Federal income tax purposes
<PAGE>
NEW PLAN REALTY TRUST
REAL ESTATE AND ACCUMULATED DEPRECIATION
SCHEDULE III
JULY 31, 1997
(continued)
Reconciliation of "Real Estate and Accumulated Depreciation":
1997 1996 1995
---- ---- ----
INVESTMENT IN REAL ESTATE
Balance at beginning
of period $ 977,941,507 $ 765,080,457 $ 621,342,318
Additions during the
period:
Land 58,502,501 40,640,504 23,964,530
Buildings and
improvements 246,887,815 177,887,917 120,636,110
-------------- ------------- -------------
1,283,331,823 983,608,878 765,942,958
Less:
Costs of assets sold
and written-off 5,556,779 5,667,371 862,501
-------------- ------------- -------------
Balance at end of period $1,277,775,044 $ 977,941,507 $ 765,080,457
============== ============= =============
ACCUMULATED DEPRECIATION
Balance at beginning
of period $82,523,169 $64,006,509 $ 49,101,916
Additions charged to
operating expenses 24,620,418 19,724,387 14,968,266
-------------- ------------- -------------
107,143,587 83,730,896 64,070,182
Less:
Accumulated depreciation
on assets sold and
written-off 1,277,207 1,207,727 63,673
-------------- ------------- -------------
Balance at end of period $ 105,866,380 $ 82,523,169 $ 64,006,509
============== ============= =============
<PAGE>
<TABLE>
<CAPTION>
NEW PLAN REALTY TRUST AND SUBSIDIARIES
MORTGAGE LOANS ON REAL ESTATE
SCHEDULE IV
July 31, 1997
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E COLUMN F COLUMN G
-------- -------- ---------- -------- -------- -------- --------
Final Face Face Carrying
Interest Maturity Periodic Amount of Amount of
Description Rate Date Payment Terms Prior Liens Mortgages Mortgages
----------- -------- ---------- ---------------- ----------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Purchase money first mortgage, Interest payable
collateralized by a shopping monthly, balance
center in Connellsville, PA 10% 8/31/98 at maturity $5,420,000 $5,180,000
Purchase money first mortgage, Interest payable
collateralized by a shopping monthly, $45,000
center in Whitesboro, NY 9.38% 7/25/98 principal per 4,610,000 4,205,000
month for 17
months, balance
at maturity
Leasehold mortgage Interest and
collateralized principal payable
by a tenant lease 11.5% 4/30/2004 monthly 258,843 236,860
Purchase money first mortgage $100,000 interest
collateralized by a shopping center and principal
in New City, NY 9.375% 7/27/2002 payable monthly, 10,350,000 10,350,000
balance at
maturity
Leasehold mortgage Interest and
collateralized principal payable
by a Tenant lease 12% 6/1/2001 monthly 1,000,000 890,273
Purchase money first mortgage Interest payable
collateralized by a shopping monthly, balance
center in Harrisonburg, VA 8.75% 7/23/98 at maturity 794,500 794,500
Purchase money first mortgage Interest payable
collateralized by shopping quarterly and
center in New Bern, NC 7.2% 5/9/2001 principal payable 750,000 750,000
at maturity
Purchase money first mortgage Interest payable
collateralized by shopping center monthly and
in Hanover, PA 8.75% 7/23/2001 principal payable 700,000 700,000
at maturity ------- -------
Note--Column H is not applicable $23,883,343 $23,106,633
=========== ===========
</TABLE> <PAGE>
Year Ended July 31,
1997 1996 1995
Balance, beginning of period $23,597,342 $22,873,504 $22,909,676
Additions during period:
New mortgage loans 700,000 1,544,500 --
Reductions during period:
Collection of principal (1,190,709) (820,662) (36,172)
------------ ----------- -----------
Balance, end of period $23,106,633 $23,597,342 $22,873,504
=========== =========== ===========
<PAGE>
EXHIBIT INDEX
Page Number in Signed
Exhibit No. Description Registration Statement
*3.1 Amended and Restated Declaration of Trust of New Plan
Realty Trust filed as Exhibit 99.3 to the Registrant's Form
8-K dated May 24, 1996.
4.1 Specimen Certificate for Shares of Beneficial Interest.
*4.2 Certificate of Designation Supplementing the Amended and Restated
Declaration of Trust of New Plan Realty Trust filed as Exhibit 4.1 to
the Registrant's Form 8-K dated July 2, 1997.
4.3 Deposit Agreement dated as of July 3, 1997, among New Plan Realty
Trust and BankBoston N.A.
4.4 Specimen Certificate for 7.80% Series A Cumulative Step-Up Premium
Rate Preferred Shares.
4.5 Specimen Depositary Receipt.
*9.1 Agreement dated February 26, 1979 among William Newman, Joseph Newman
and Melvin Newman filed as Exhibit 9 to Registration Statement No. 2-
63669.
*9.2 Purchase Agreement dated December 18, 1990 between New Plan Realty
Trust and Beleggingsmaatschappij Midas B.V. (presently known as
Stichting Pensioenfonds) filed as Exhibit 9.5 to the Registrant's
Form 10-K for the fiscal year ended July 31, 1994.
*9.3 Termination of Purchase Agreement dated December 17, 1981 between New
Plan Realty Trust and Merchant Navy Officers Pension Fund Trustees
Limited (presently known as MNOPF Trustees Limited) filed as Exhibit
9.6 to the Registrant's Form 10-K for the fiscal year ended July 31,
1995.
10.1 Credit Agreement by and among New Plan Realty Trust, the Lenders
party thereto and The Bank of New York, as agent, dated as of October
29, 1996.
*10.2 Senior Securities Indenture between New Plan Realty Trust and The
First National Bank of Boston, as Trustee, dated as of March 29, 1995
filed as Exhibit 4.2 to Registration Statement No. 33-60045.
*10.3 7.75% Senior Note Due April 6, 2005 filed as Exhibit 10.7 to the
Registrant's Form 10-K for the fiscal year ended July 31, 1995.
*10.4 6.8% Senior Note Due May 15, 2002 filed as Exhibit 10.8 to the
Registrant's Form 10-K for the fiscal year ended July 31, 1995.
*10.5 Distribution Agreement dated May 24, 1996 by and among New Plan
Realty Trust, Lehman Brothers, Lehman Brothers Inc., Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated and Smith Barney Inc., filed as Exhibit 1
to the Registrant's Form 8-K dated May 24, 1996.
*10.6 Form of Medium Term Note (Fixed Rate) filed as Exhibit 99.1 to the
Registrant's Form 8-K dated May 24, 1996.
*10.7 Form of Medium Term Note (Floating Rate) filed as Exhibit 99.2 to the
Registrant's Form 8-K dated May 24, 1996.
*10.8 Distribution Agreement dated December 6, 1996 by and among New Plan
Realty Trust, Lehman Brothers, Lehman Brothers Inc., Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated, Salomon Brothers Inc and Smith Barney
Inc., filed as Exhibit 1 to the Registrant's Form 8-K dated December
12, 1996.
*10.9 Form of Medium Term Note (Fixed Rate) filed as Exhibit 4.1 to the
Registrant's Form 8-K dated December 12, 1996.
*10.10 Form of Medium Term Note (Floating Rate) filed as Exhibit 4.2 to the
Registrant's Form 8-K dated December 12, 1996.
11 Statement of Computation of Earnings Per Share for the Twelve Months
Ended July 31, 1997.
12 Ratio of Earnings to Fixed Charges.
21 Subsidiaries of the Registrant.
23 Consent of Coopers & Lybrand L.L.P. dated October 9,
1997.
27(1) Financial Data Schedule.
*Incorporated herein by reference as above indicated.
(1) Filed as exhibit to electronic filing only.
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| Number |
| |
| UM |
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PROVISIONS RELATING TO REDEMPTION AND PROHIBITION OF TRANSFER OF SHARES
Subsequent to the Trust first becoming qualified for certain tax
benefits under the Internal Revenue Code, if necessary to effect compliance
by the Trust with certain requirements of the Internal Revenue Code, the
Shares represented by this Certificate are subject to redemption by the vote
of two-thirds (2/3) of the Trustees of the Trust and the transfer thereof may
be prohibited upon the terms and conditions set forth in the Declaration of
Trust. The Trust will furnish a copy of such terms and conditions to the
registered holder of this Certificate upon request and without charge.
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| Shares |
| |
| |
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New Plan Realty Trust
A BUSINESS TRUST ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS
Certificate for Shares
of Beneficial Interest.
This Certificate is
CUSIP 648059 10 3 transferable in
SEE REVERSE FOR CERTAIN DEFINITIONS Boston, Massachusetts
and in
New York, New York
Fully paid and non-assessable shares
of beneficial interest of no par value.
This Certifies that
is the Owner of
New Plan Realty Trust is established as a Massachusetts business trust
(hereinafter called the "Trust") under a Declaration of Trust made July 31,
1972, as amended from time to time. The holder and every transferee or
assignee of this Certificate or of the Shares represented hereby or any
interest therein accepts and agrees to be bound by the provisions of such
Declaration of Trust and all amendments thereto (copies of which are filed
with the Secretary of the Commonwealth of Massachusetts and recorded in the
office of the City Clerk, City of Boston, Suffolk County, Commonwealth of
Massachusetts) and such By-Laws of the Trust as may from time to time be
adopted by the Trustees (copies of which will be on file at the principal
office of the Trust), all of which provisions are hereby incorporated by
reference as fully as if set forth herein in their entirety. The Declaration
of Trust provides that obligations thereunder are not personally binding upon
the Trustees, and that no Trustee, shareholder, officer, employee or agent of
the Trust shall be held to any personal liability, nor shall resort be had to
the private property of any Trustee, shareholder, officer, employee or agent
of the Trust. This Certificate and the Shares represented hereby are
transferable on the books of the Trust by the registered holder hereof in
person or by duly authorized attorney upon surrender of this Certificate
properly endorsed. This Certificate is issued by the Trustees of New Plan
Realty Trust, acting not individually but as such Trustees, and is not valid
until countersigned by the Transfer Agent and registered by the Registrar.
Witness the seal of the Trust and the signatures of its duly authorized
officers.
Countersigned and Registered:
Dated: The First National Bank of Boston
Transfer Agent and Registrar
by
Treasurer Chief Executive Officer Authorized Signature
<PAGE>
NEW PLAN REALTY TRUST
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ...........Custodian...........
(Cust) (Minor)
under Uniform Gifts to Minors
Act...............................................
(State)
Additional abbreviations may also be used though not in the above list.
For Value received, __________________ hereby sell, assign and transfer
unto _______________________________________________________________________
Please Insert Social Security or
Other Identifying Number of Assignee
____________________________________________________________________________
____________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
____________________________________________________________________________
____________________________________________________________________________
_____________________ Shares of Beneficial Interest represented by the
within certificate and do hereby irrevocably constitute and appoint
_________________ Attorney to transfer the same on the books of the within-
named Trust with full power of substitution in the premises.
Dated, ________________
(SIGN HERE)
_________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of July 3, 1997, among NEW PLAN REALTY
TRUST, a Massachusetts business trust (the "Company") and BankBoston N.A., a
national banking association, as Depositary, and all holders from time to
time of Receipts (as hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of the Company's Preferred Shares (as
hereinafter defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Shares
deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises contained herein,
it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in
the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
SECTION 1.1 "Certificate of Designation" shall mean the
Certificate of Designation supplementing the Declaration of Trust of the
Company authorized by resolution of the Board of Trustees of the Company on
June 30, 1997 and to be filed with the office of the Secretary of State of
the Commonwealth of Massachusetts establishing the Preferred Shares as a
series of preferred shares of the Company.
SECTION 1.2 "Company" shall mean New Plan Realty Trust, a
Massachusetts business trust, and its successors.
SECTION 1.3 "Corporate Office" shall mean the corporate office
of the Depositary at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at
the date of this Deposit Agreement is located at 150 Royall Street, Canton,
Massachusetts 02021 and c/o Securities Transfer & Reporting Services, Inc.,
55 Broadway, 3rd Floor, New York, New York 10006.
SECTION 1.4 "Declaration of Trust" shall mean the Amended and
Restated Declaration of Trust, as amended from time to time, of the Company.
SECTION 1.5 "Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.6 "Depositary" shall mean BankBoston N.A., a company
having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000, and any successor as depositary
hereunder.
SECTION 1.7 "Depositary Share" shall mean a fractional interest
of 1/10 of a Preferred Share deposited with the Depositary hereunder and the
same proportionate interest in any and all other property received by the
Depositary in respect of such Preferred Share and held under this Deposit
Agreement, as all evidenced by the Receipts issued hereunder. Subject to the
terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of
the Preferred Share represented by such Depositary Share, including, if any,
the dividend, voting, redemption, conversion and liquidation rights contained
in the Certificate of Designation.
SECTION 1.8 "Depositary's Agent" shall mean an agent appointed
by the Depositary as provided, and for the purposes specified, in Section
7.5.
SECTION 1.9 "Preferred Shares" shall mean the Company's 7.80%
Series A Cumulative Step-Up Premium Rate Preferred Shares, $1.00 par value
per share.
SECTION 1.10 "Receipt" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form as set forth as Exhibit A hereto.
SECTION 1.11 "record date" shall mean the date fixed pursuant to
Section 4.4.
SECTION 1.12 "record holder" or "holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the books
maintained by the Depositary for such purpose.
SECTION 1.13 "Registrar" shall mean BankBoston N.A. or any bank
or trust company appointed to register ownership and transfers of Receipts or
the deposited Preferred Shares, as the case may be, as herein provided.
SECTION 1.14 "Securities Act" shall mean the Securities Act of
1933, as amended.
SECTION 1.15 "Transfer Agent" shall mean BankBoston N.A. or any
bank or trust company appointed to transfer the Receipts or the deposited
Preferred Shares, as the case may be, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transferability of Receipts. Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form set forth
in Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company, delivered in compliance with Section 2.2, shall execute and
deliver temporary Receipts which may be printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive
Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of
such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at the Corporate Office or such other offices, if any, as the
Depositary may designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense
and without any charge therefor. Until so exchanged, the temporary Receipts
shall in all respects be entitled to the same benefits under this Deposit
Agreement, and with respect to the Preferred Shares deposited, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary,
provided that if a Registrar (other than the Depositary) shall have been
appointed then such Receipts shall also be countersigned by manual signature
of a duly authorized signatory of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed as provided in
the preceding sentence. The Depositary shall record on its books each
Receipt executed as provided above and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be
in denominations of any number of whole Depositary Shares. All Receipts
shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulation or with the rules
and regulations of any securities exchange upon which the Preferred Shares,
the Depositary Shares or the Receipts may be listed or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt), that is properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement shall be transferable by
delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until a Receipt shall be transferred on the books of
the Depositary as provided in Section 2.4, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder thereof
at such time as the absolute owner thereof for the purpose of determining the
person entitled to distribution of dividends or other distributions, the
exercise of any conversion rights or to any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Preferred Shares; Execution and Delivery
of Receipts in Respect Thereof. Upon consummation of the public offering,
pursuant to which the Depositary Shares are expected to be sold, the Company
shall deliver to the Depositary a certificate or certificates, registered in
the name of the Depositary and evidencing up to 150,000 Preferred Shares,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with (i) all such certifications as may be required by
the Depositary in accordance with the provisions of this Deposit Agreement
and (ii) a written order of the Company directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the Depositary Shares representing such
deposited Preferred Shares. At such time, the Depositary shall acknowledge
receipt of the deposited Preferred Shares and related documentation and
agrees to hold such deposited Preferred Shares in an account to be
established by the Depositary at the Corporate Office or at such other office
as the Depositary shall determine. The Company hereby appoints the
Depositary as the Registrar and Transfer Agent for Preferred Shares deposited
hereunder and the Depositary hereby accepts such appointment and, as such,
will reflect changes in the number of shares (including any fractional
shares) of deposited Preferred Shares held by it by notation, book-entry or
other appropriate method.
If required by the Depositary, Preferred Shares presented for
deposit by the Company at any time, whether or not the register of
shareholders of the Company is closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
that will provide for the prompt transfer to the Depositary or its nominee of
any dividend or right to subscribe for additional Preferred Shares or to
receive other property that any person in whose name the Preferred Shares is
or has been registered may thereafter receive upon or in respect of such
deposited Preferred Shares, or in lieu thereof such agreement of indemnity or
other agreements as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Shares deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Shares in the name of
the Depositary, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver to, or upon the order of, the
person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.2, a Receipt or Receipts
for the number of whole Depositary Shares representing the Preferred Shares
so deposited and registered in such name or names as may be requested by such
person or persons. The Depositary shall execute and deliver such Receipt or
Receipts at the Corporate Office, except that, at the request, risk and
expense of any person requesting such delivery, such delivery may be made at
such other place as may be designated by such person.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares, or in the case of dividends
or other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred
Shares as set forth in the Certificate of Designation, as such may be
amended.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Deposit Agreement.
SECTION 2.3 Optional Redemption of Preferred Shares for Cash.
Whenever the Company shall elect to redeem deposited Preferred Shares for
cash in accordance with the provisions of the Certificate of Designation, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 40 days' prior written notice of the date of such
proposed redemption and of the number of such Preferred Shares held by the
Depositary to be redeemed and the applicable redemption price, as set forth
in the Certificate of Designation, including the amount, if any, of accrued
and unpaid dividends to the date of such redemption. The Depositary shall
mail, first-class postage prepaid, notice of the redemption of Preferred
Shares and the proposed simultaneous redemption of the Depositary Shares
representing the Preferred Shares to be redeemed, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such Preferred
Shares and Depositary Shares (the "cash redemption date"), to the holders of
record on the record date fixed for such redemption pursuant to Section 4.4
hereof of the Receipts evidencing the Depositary Shares to be so redeemed, at
the addresses of such holders as the same appears on the records of the
Depositary, but neither failure to mail any such notice to one or more of
such holders nor any defect in any such notice shall affect the sufficiency
of the proceedings for redemption as to other holders. The Company shall
provide the Depositary with such notice, and each such notice shall state:
the cash redemption date; the cash redemption price; the number of deposited
Preferred Shares and Depositary Shares to be redeemed; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; the place or places
where Receipts evidencing Depositary Shares to be redeemed are to be
surrendered for payment of the cash redemption price; and that from and after
the cash redemption date dividends in respect of the Preferred Shares
represented by the Depositary Shares to be redeemed will cease to accrue. If
fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected pro rata (as nearly as may
be practicable without creating fractional Depositary Shares) or by any other
equitable method determined by the Company. The Company shall also cause
notice of redemption to be published in a newspaper of general circulation in
The City of New York at least once a week for two successive weeks commencing
not less than 30 nor more than 60 days prior to the cash redemption date.
In the event that notice of redemption has been made as described
in the immediately preceding paragraph and the Company shall then have paid
in full to the Depositary the cash redemption price (determined pursuant to
the Certificate of Designation) of the Preferred Shares deposited with the
Depositary to be redeemed (including any accrued and unpaid dividends to the
date of redemption), the Depositary shall redeem the number of Depositary
Shares representing such Preferred Shares so called for redemption by the
Company and from and after the cash redemption date (unless the Company shall
have failed to redeem the Preferred Shares to be redeemed by it as set forth
in the Company's notice provided for in the preceding paragraph) all
dividends in respect of the Preferred Shares called for redemption shall
cease to accrue, the Depositary Shares called for redemption shall be deemed
no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the cash
redemption price and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with
said notice of the Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed at a cash redemption price of $50.00 per
Depositary Share plus 1/10 of any other money and other property payable in
respect of such Preferred Shares. The foregoing shall be further subject to
the terms and conditions of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with payment of the
cash redemption price for and all other amounts payable in respect of the
Depositary Shares called for redemption, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption.
SECTION 2.4 Registration of Transfer of Receipts. The Company
hereby appoints the Depositary as the Registrar and Transfer Agent for the
Receipts and the Depositary hereby accepts such appointment and, as such,
shall register on its books from time to time transfers of Receipts upon, any
surrender thereof by the holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, together with evidence of the payment of any
transfer taxes as may be required by law. Upon such surrender, the
Depositary shall execute a new Receipt or Receipts and deliver the same to or
upon the order of the person entitled thereto evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.5 Combinations and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office or such other
office as the Depositary may designate for the purpose of effecting a split-
up or combination of Receipts, subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts in the authorized denominations requested evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
SECTION 2.6 Surrender of Receipts and Withdrawal of Preferred
Shares. Any holder of a Receipt or Receipts may withdraw any or all of the
deposited Preferred Shares represented by the Depositary Shares evidenced by
such Receipt or Receipts and all money and other property, if any,
represented by such Depositary Shares by surrendering such Receipt or
Receipts at the Corporate Office or at such other office as the Depositary
may designate for such withdrawals, provided that a holder of a Receipt or
Receipts may not withdraw such Preferred Shares (or money and other property,
if any, represented thereby) which has previously been called for redemption.
After such surrender, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder
as hereinafter provided, the number of whole or fractional shares of such
Preferred Shares and all such money and other property, if any, represented
by the Depositary Shares evidenced by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole or fractional Preferred Shares will
not thereafter be entitled to deposit such Preferred Shares hereunder or to
receive Depositary Shares therefor. If the Receipt or Receipts delivered by
the holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited
Preferred Shares to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole or fractional Preferred Shares and such
money and other property, if any, to be withdrawn, deliver to such holder, or
(subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing
such excess number of Depositary Shares. Delivery of such Preferred Shares
and such money and other property being withdrawn may be made by the delivery
of such certificates, documents of title and other instruments as the
Depositary may deemed appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Shares and the money and other property
being withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for withdrawal of
Preferred Shares, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder or withdrawal of such
Preferred Shares be properly endorsed in blank or accompanied by a properly
executed instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Shares and the
money and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate Office,
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery
may be made at such other place as may be designated by such holder.
SECTION 2.7 Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) payment
to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the reimbursement to
it) of any tax or other governmental charge with respect thereto (including
any such tax or charge with respect to the Preferred Shares being deposited
or withdrawn); (ii) the production of proof satisfactory to it as to the
identity and genuineness of any signature (or the authority of any
signature); and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions of
this Deposit Agreement as may be required by any securities exchange upon
which the deposited Preferred Shares, the Depositary Shares or the Receipts
may be included for quotation or listed.
The deposit of Preferred Shares may be refused, the delivery of
Receipts against Preferred Shares may be suspended, the transfer of Receipts
may be refused, and the transfer, split-up, combination, surrender, exchange
or redemption of outstanding Receipts may be suspended (i) during any period
when the register of shareholders of the Company is closed or (ii) if any
such action is deemed reasonably necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from time to
time because of any requirement of law or of any government or governmental
body or commission, or under any provisions of this Deposit Agreement.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, provided that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.9 Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy such
Receipts so cancelled.
SECTION 2.10 Preferred Shares and Depositary Shares Constituting
Excess Shares. For all purposes of Section 8.3 of the Company's Declaration
of Trust, the holders of Depositary Receipts evidencing Depositary Shares
shall be deemed to own that number and value of the Preferred Shares
represented by the Depositary Shares evidenced by such Receipts, and the
provisions of such Section 8.3 shall apply to such holders, Depositary
Receipts and Depositary Shares as if (i) the holder owned Preferred Shares,
(ii) the Depositary Receipts evidenced Preferred Shares, and (iii) the
Depositary Shares were Preferred Shares, mutatis mutandis. The Depositary
and the Company will cooperate in good faith to carry out the terms of this
Section 2.10, subject to the other terms and provisions of this Deposit
Agreement.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Preferred Shares for deposit or any holder of a Receipt
may be required from time to time to file such proof of residence or other
information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary
or proper. The Depositary or the Company may withhold or delay the delivery
of any Receipt, the transfer, redemption or exchange of any Receipt, the
withdrawal of the deposited Preferred Shares represented by the Depositary
Shares evidenced by any Receipt, the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof, until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.2 Payment of Fees and Expenses. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.7, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid.
Until such payment is made, transfer of any Receipt or any withdrawal of the
Preferred Shares or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution may be withheld, and any part or all of the Preferred
Shares or other property represented by the Depositary Shares evidenced by
such Receipt may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder a reasonable number of
days prior to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.3 Representations and Warranties as to Preferred
Shares. In the case of the initial deposit of the Preferred Shares
hereunder, the Company and, in the case of subsequent deposits thereof, each
person so depositing Preferred Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Preferred Shares and each
certificate therefor are valid and that the person making such deposit is
duly authorized to do so. The Company hereby further represents and warrants
that such Preferred Shares, when issued, will be validly issued, fully paid
and nonassessable. Such representations and warranties shall survive the
deposit of the Preferred Shares and the issuance of Receipts.
SECTION 3.4 Representation and Warranty as to Receipts and
Depositary Shares. The Company hereby represents and warrants that the
Receipts, when issued, will evidence legal and valid interests in the
Depositary Shares and each Depositary Share will represent a legal and valid
1/10 fractional interest in a deposited Preferred Share. Such representation
and warranty shall survive the deposit of the Preferred Shares and the
issuance of Receipts evidencing the Depositary Shares.
ARTICLE IV
THE PREFERRED SHARES; NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the deposited
Preferred Shares, including any cash received upon redemption of any
Preferred Shares pursuant to Section 2.3, the Depositary shall, subject to
Section 3.2, distribute to record holders of Receipts on the record date
fixed pursuant to Section 4.4 such amounts of such sums as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in
case the Company or the Depositary shall be required to and shall withhold
from any cash dividend or other cash distribution in respect of the Preferred
Shares represented by the Receipts held by any holder an amount on account of
taxes, the amount made available for distribution or distributed in respect
of Depositary Shares represented by such Receipts subject to such withholding
shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Receipts a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.2 Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash on the deposited
Preferred Shares, the Depositary shall, subject to Section 3.2, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.4
such amounts of the securities or property received by it as are, as nearly
as practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner, that the
Depositary and the Company may deem equitable and practicable for
accomplishing such distribution. If, in the opinion of the Depositary after
consultation with the Company, such distribution cannot be made
proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an
amount on account of taxes), the Depositary deems, after consultation with
the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received
or any part thereof, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to Section
3.2, be distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts as provided by Section 4.1 in
the case of a distribution received in cash. The Company shall not make any
distribution of such securities or property to the holders of Receipts unless
the Company shall have provided to the Depositary an opinion of counsel
stating that such securities or property have been registered under the
Securities Act or do not need to be registered.
SECTION 4.3 Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose names deposited Preferred Shares are registered on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner
as the Company shall instruct (including by the issue to such record holders
of warrants representing such rights, preferences or privileges); provided,
however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines upon advice of its legal
counsel that it is not lawful or feasible to make such rights, preferences or
privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Receipts who
do not desire to exercise such rights, preferences or privileges, the
Depositary shall then, if so instructed by the Company, and if applicable
laws or the terms of such rights, preferences or privileges so permit, sell
such rights, preferences or privileges of such holders at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Section 3.1 and Section 3.2,
be distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.1 in the case of a distribution received in
cash. The Company shall not make any distribution of such rights,
preferences or privileges, unless the Company shall have provided to the
Depositary an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not need to be
registered.
If registration under the Securities Act of the securities to which
any rights, preference or privileges relate is required in order for holders
of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees that it will promptly
file a registration statement pursuant to the Securities Act with respect to
such rights, preferences or privileges and securities and use its best
efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise
such rights, preferences or privileges. In no event shall the Depositary
make available to the holders of Receipts any right, preference or privilege
to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective or unless the offering and
sale of such securities to such holders are exempt from registration under
the provisions of the Securities Act and the Company shall have provided to
the Depositary an opinion of counsel to such effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required
in order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees to use its best efforts to take such
action or obtain such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
SECTION 4.4 Notice of Dividends; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable, any distribution other than cash shall be made, or any
rights, preferences or privileges shall at any time be offered, with respect
to the deposited Preferred Shares, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of such Preferred Shares are
entitled to vote or of which holders of such Preferred Shares are entitled to
notice or (ii) any election on the part of the Company to redeem any such
Preferred Shares, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the Company
with respect to the Preferred Shares) for the determination of the holders of
Receipts who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, to
give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or whose Depositary Shares are to be so
redeemed.
SECTION 4.5 Voting Rights. Upon receipt of notice of any
meeting at which the holders of deposited Preferred Shares are entitled to
vote, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall be provided by the Company
and which shall contain (i) such information as is contained in such notice
of meeting, (ii) a statement that the holders of Receipts at the close of
business on a specified record date fixed pursuant to Section 4.4 will be
entitled, subject to any applicable provision of law, to instruct the
Depositary as to the exercise of the voting rights pertaining to the amount
of Preferred Shares represented by their respective Depositary Shares and
(iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of a Receipt on such record
date, the Depositary shall vote or cause to be voted the amount of Preferred
Shares represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. To the extent
such instructions request the voting of a fractional interest of a share of
deposited Preferred Shares, the Depositary shall aggregate such interest with
all other fractional interests resulting from requests with the same voting
instructions and shall vote the number of whole votes resulting from such
aggregation in accordance with the instructions received in such requests.
Each Preferred Share is entitled to 10 votes and, accordingly, each
Depositary Share is entitled to one vote. The Company hereby agrees to take
all reasonable action that may be deemed necessary by the Depositary in order
to enable the Depositary to vote such Preferred Shares or cause such
Preferred Shares to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will abstain from voting to the
extent of the Preferred Shares represented by the Depositary Shares evidenced
by such Receipt. The Depositary shall not be required to exercise discretion
in voting any Preferred Shares represented by the Depositary Shares evidenced
by such Receipt.
SECTION 4.6 Changes Affecting Preferred Shares and
Reclassifications, Recapitalization, etc. Upon any change in the liquidation
preference or upon any split-up, combination or any other reclassification of
Preferred Shares, or upon any recapitalization, reorganization, merger or
consolidation affecting the Company or to which it is a party or sale of all
or substantially all of the Company's assets, the Depositary shall, upon the
instructions of the Company; (i) make such adjustments in (a) the fraction of
an interest represented by one Depositary Share in one Preferred Share and
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a Preferred Share, in each case as may be required to fully reflect
the effects of such change in liquidation preference, split-up, combination
of other reclassification of Preferred Shares, or of such recapitalization,
reorganization, merger, consolidation or sale and (ii) treat any shares or
other securities or property (including cash) that shall be received by the
Depositary in exchange for or upon conversion of or in respect of the
Preferred Shares as new deposited property under this Deposit Agreement, and
Receipts then outstanding shall thenceforth represent the proportionate
interests of holders thereof in the new deposited property so received in
exchange for or upon conversion or in respect of such Preferred Shares. In
any such case the Depositary may, in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited property. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right
from and after the effective date of any such change in the liquidation
preference, split-up, combination or other reclassification of the Preferred
Shares or any such recapitalization, reorganization, merger or consolidation
or sale of all or substantially all the assets of the Company, to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Preferred Shares represented thereby only into or for, as the
case may be, the kind and amount of shares and other securities and property
and cash into which the deposited Preferred Shares evidenced by such Receipts
might have been converted or for which such Preferred Shares might have been
exchanged or surrendered immediately prior to the effective date of such
transaction. The Company shall cause effective provision to be made in the
governing instrument of the resulting or surviving business entity (if other
than the Company) for protection of such rights as may be applicable upon
exchange of the deposited Preferred Shares for securities or property or cash
or the surviving business entity in connection with the transactions set
forth above. The Company shall cause any such surviving business entity (if
other than the Company) expressly to assume the obligations of the Company
hereunder.
SECTION 4.7 Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office and
at such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that
are both received by the Depositary as the holder of deposited Preferred
Shares and made generally available to the holders of the Preferred Shares.
In addition, the Depositary shall transmit certain notices and reports to the
holders of Receipts as provided in Section 5.5.
SECTION 4.8 List of Holders of Receipts. Promptly upon request
from time to time by the Company, the Depositary shall furnish to the Company
a list, as of a recent date specified by the Company, of the names, addresses
and holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION 4.9 Tax and Regulatory Compliance. The Depositary shall
be responsible for (i) preparation and mailing of Internal Revenue Service
Forms 1099 for all open and closed accounts, (ii) foreign tax withholding,
(iii) back-up withholding (or any withholding as may be required at the then
applicable rate) on dividends paid to eligible holders of Receipts, (iv)
mailing Internal Revenue Service Forms W-9 to new holders of Receipts without
a certified taxpayer identification number, (v) processing certified Internal
Revenue Service Forms W-9, (vi) preparation and filing of state information
returns and (vii) escheatment services.
SECTION 4.10 Withholding. Notwithstanding any other provisions
of this Deposit Agreement, in the event that the Depositary determines that
any distribution in property is subject to any tax which the Depositary is
obligated by law to withhold, the Depositary may dispose of all or a portion
of such property in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes, by public or private sale, and
the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the holders of
Receipts entitled thereto in proportion to the number of Depositary Shares
held by them respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books
by the Depositary and the Registrar. The Depositary shall maintain at the
Corporate Office facilities for the execution and delivery, transfer,
surrender and exchange, split-up, combination and redemption of Receipts and
deposit and withdrawal of Preferred Shares and at the offices of the
Depositary's Agents, if any, facilities for the delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit
and withdrawal of Preferred Shares, all in accordance with the provisions of
this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary may close such books at any time or from time
to time, when deemed expedient by it in connection with the performance of
its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Shares represented by such Depositary Shares shall be listed in the
New York Stock Exchange, Inc. on any other stock exchange, the Depositary
may, with the approval of the Company, appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with the requirements of such exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange) may be
removed and a substitute registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts, such
Depositary Shares or such Preferred Shares are listed on one or more other
stock exchanges, the Depositary will, at the request and expense of the
Company, arrange such facilities for the delivery, transfer surrender,
redemption and exchange of such Receipts, such Depositary Shares or such
Preferred Shares as may be required by law or applicable stock exchange
regulations.
SECTION 5.2 Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither
the Depositary, any Depositary's Agent, any Registrar nor the Company shall
incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in the case of
the Depositary, the Depositary's Agent or the Registrar, by reason of any
provision, present or future, of the Declaration of Trust or the Certificate
of Designation or, in the case of the Company, the Depositary, the
Depositary's Agent or the Registrar, by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary,
any Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, any Registrar or the Company incur any
liability to any holder of a Receipt by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of this Deposit Agreement provide shall or may be done or performed, or
by reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement.
SECTION 5.3 Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary, any
Depositary's Agent, any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement or any Receipt
to holders of Receipts other than from acts or omissions arising out of
conduct constituting bad faith, negligence (in the case of any action or
inaction with respect to the voting of the deposited Preferred Shares), gross
negligence or willful misconduct in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding with respect to the deposited Preferred
Shares, Depositary Shares or Receipts that in its reasonable opinion may
involve it in expense or liability unless indemnity reasonably satisfactory
to it against all expense and liability be furnished as often as may be
required.
Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information provided by any person presenting Preferred Shares for deposit,
any holder of a Receipt or any other person believed by it in good faith to
be competent to give such information. The Depositary, any Depositary's
Agent, any Registrar and the Company may each rely and shall each be
protected in acting upon any written notice, request, direction or other
document believed by it in good faith to be genuine and to have been signed
or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any holders of Receipts, on the one hand, and
the Company, on the other hand, the Depositary shall be entitled to act on
such claims, requests or instructions received from the Company and shall be
entitled to the full indemnification set forth in Section 5.6 hereof in
connection with any action so taken.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the deposited Preferred Shares or for the
manner or effect of any such vote made, as long as any such action or non-
action is in good faith and does not result from negligence or willful
misconduct of the Depositary. The Depositary undertakes, and any Registrar
shall be required to undertake, to perform such duties and only such duties
as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Depositary or any Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any
Depositary's Agent, and any Registrar may own, buy, sell or deal in any class
of securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the
Company or its affiliates may be interested or contract with or lend money to
or otherwise act as fully or as freely as if it were not the Depositary or
the Depositary's Agent hereunder. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates
or act in any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are
acting only in a ministerial capacity as Depositary for the deposited
Preferred Shares; provided, however, that the Depositary agrees to comply
with all information reporting and withholding requirements applicable to it
under law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
deposited Preferred Shares, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to herein or therein,
or as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement and for the validity of any action taken or required to be
taken by the Depositary in connection with this Deposit Agreement.
The Company agrees that it will register the Depositary Shares in
accordance with the applicable securities laws.
SECTION 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign
as Depositary hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company having its principal
office in the United States of America and having a combined capital and
surplus of at least $50,000,000. If a successor depositary shall not have
been appointed in 60 days, the resigning Depositary may petition a court of
competent jurisdiction to appoint a successor depositary. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
and for all purposes shall be the Depositary under this Deposit Agreement,
and such predecessor, upon payment of all sums due it and on the written
request of the Company, shall promptly execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all rights, title and
interest in the deposited Preferred Shares and any moneys or property held
hereunder to such successor and shall deliver to such successor a list of the
record holders of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without
the execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.5 Notices, Reports and Documents. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly
after receipt thereof, transmit to the record holders of Receipts, in each
case at the address recorded in the Depositary's books, copies of all notices
and reports (including financial statements) required by law, by the rules of
any national securities exchange upon which the Preferred Shares, the
Depositary Shares or the Receipts are included for quotation or listed or by
the Declaration of Trust and the Certificate of Designation to be furnished
by the Company to holders of the deposited Preferred Shares and, if requested
by the holder of any Receipt, a copy of this Deposit Agreement, the form of
Receipt, the Certificate of Designation and the form of Preferred Shares.
Such transmission will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit
to the record holders of Receipts at the Company's expense such other
documents as may be requested by the Company.
SECTION 5.6 Indemnification by the Company. The Company agrees
to indemnify the Depositary, and Depositary's Agent and any Registrar
against, and hold each of them harmless from, any liability, costs and
expenses (including reasonable attorneys' fees) that may arise out of, or in
connection with, its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of the willful misconduct, gross negligence, negligence
(in the case of any action or inaction with respect to the voting of the
deposited Preferred Shares) or bad faith on the part of any such person or
persons. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent or
termination of this Deposit Agreement.
SECTION 5.7 Fees, Charges and Expenses. No charges and expenses
of the Depositary or any Depositary's Agent hereunder shall be payable by any
person, except as provided in this Section 5.7. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the
Preferred Shares and the initial issuance of the Depositary Shares evidenced
by the Receipts, and redemption of the Preferred Shares at the option of the
Company and all withdrawals of the Preferred Shares by holders of Depositary
Shares. If a holder of Receipts requests the Depositary to perform duties
not required under this Deposit Agreement, the Depositary shall notify the
holder of the cost of the performance of such duties prior to the performance
thereof. Such holder will be liable for the charges and expenses related to
such performance. All other fees and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be promptly paid as previously agreed between the
Depositary and the Company. The Depositary shall present its statement for
fees and expenses to the Company every month or at such other intervals as
the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
that they may deem necessary or desirable; provided, however, that no such
amendment (other than any change in the fees of any Depositary, Registrar or
Transfer Agent) which (i) shall materially and adversely alter the rights of
the holders of Receipts or (ii) would be materially and adversely
inconsistent with the rights granted to the holders of the Preferred Shares
pursuant to the Certificate of Designation shall be effective unless such
amendment shall have been approved by the holders of at least a majority of
the Depositary Shares then outstanding. In no event shall any amendment
impair the right, subject to the provisions of Section 2.6 and Section 2.7
and Article III, of any holder of any Depositary Shares to surrender the
Receipt evidencing such Depositary Shares with instructions to the Depositary
to deliver to the holder the deposited Preferred Shares and all money and
other property, if any, represented thereby, except in order to comply with
mandatory provisions of applicable law. Every holder of an outstanding
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and
to be bound by this Deposit Agreement as amended thereby.
SECTION 6.2 Termination. This Deposit Agreement may be
terminated by the Company upon not less than 30 days' prior written notice to
the Depositary if (i) such termination is necessary to preserve the Company's
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (or any successor provisions) or (ii) the holders of two-
thirds of the Preferred Shares consents to such termination, whereupon the
Depositary shall deliver or make available to each holder of a Receipt, upon
surrender of the Receipt held by such holder, such number of whole or
fractional shares of deposited Preferred Shares as are represented by the
Depositary Shares evidenced by such Depositary Receipt, together with any
other property held by the Depositary in respect of such Receipt. In the
event that this Deposit Agreement is terminated pursuant to clause (i) of the
immediately preceding sentence, the Company hereby agrees to use its best
efforts to list the Preferred Shares issued upon surrender of the Receipt
evidencing the Depositary Shares represented thereby on a national securities
exchange. This Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section
2.3 or (ii) there shall have been made a final distribution in respect of the
deposited Preferred Shares in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed
to the holders of Receipts entitled thereto.
This Deposit Agreement may also be terminated by the Company upon
not less than 30 days' prior written notice to the Depositary if the Company,
in its sole discretion, causes (i) a stock split of the Preferred Shares so
that each holder of Depositary Receipts evidencing Depositary Shares would be
able to own that number of Preferred Shares equal to the number of Depositary
Shares owned by each such holder immediately prior to such stock split, (ii)
each Depositary Share to represent one Preferred Share and to no longer
represent 1/10 of a Preferred Share and (iii) Preferred Shares to be issued
in exchange for all of the then outstanding Depositary Shares on a one-for-
one basis. In such event, Section 4.6 shall not apply.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary, any Depositary's Agent and any Registrar
under Section 5.6 and Section 5.7 and, if applicable, its obligation to
implement the issuance of Preferred Shares described in clause (iii) of the
immediately preceding paragraph.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Deposit Agreement by
telecopier shall be effective as delivery of a manually executed counterpart
of this Deposit Agreement. Copies of this Deposit Agreement shall be filed
with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.2 Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.3 Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.4 Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by certified
mail, return receipt requested, addressed to the Company at:
NEW PLAN REALTY TRUST
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein
Telephone No.: (212) 869-3000
or at any other address of which the Company shall have notified the
Depositary in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by certified mail, return receipt requested,
addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by certified mail, return receipt
requested, addressed to such record holder at the address of such record
holder as it appears on the books of the Depositary or, if such holder shall
have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by certified mail, return receipt
requested, shall be deemed to be effected at the time when a duly addressed
letter containing the same is deposited, postage prepaid, in a post office
letter box.
SECTION 7.5 Depositary's Agents. The Depositary may from time
to time appoint Depositary's Agents to act in any respect for the Depositary
for the purposes of this Deposit Agreement and may at any time appoint
additional Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary will notify the Company of any such
action.
SECTION 7.6 Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.7 Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of
the State of Massachusetts applicable to agreements made and to be performed
in said State.
SECTION 7.8 Inspection of Deposit Agreement and Certificate of
Designation. Copies of this Deposit Agreement and the Certificate of
Designation shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Corporate Office
and the respective offices of the Depositary's Agents, if any, by any holder
of any Receipt.
SECTION 7.9 Headings. The headings of articles and sections in
this Deposit Agreement and in the from of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
SECTION 7.10 Limited Recourse Obligations. This Deposit
Agreement and all documents, agreements, understandings and arrangements
relating to this agreement have been negotiated, executed and delivered on
behalf of the Company by the trustees or officers thereof in their
representative capacity under the Declaration of Trust, and not individually,
and bind only the trust estate of the Company, and no trustee, officer,
employee, agent or shareholder of the Company shall be bound or held to any
personal liability or responsibility in connection with the agreements,
obligations and undertakings of the Company hereunder, and any person or
entity dealing with the Company in connection therewith shall look only to
the trust estate for the payment of any claim or for the performance of any
agreement, obligation or undertaking thereunder. The Depositary and all
holders of Receipts issued from time to time hereunder hereby acknowledge and
agree that each agreement and other document executed by the Company in
accordance with or in respect of this transaction shall be deemed and treated
to include in all respects and for all purposes the foregoing exculpatory
provision.
IN WITNESS WHEREOF, New Plan Realty Trust and BankBoston N.A. have
duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the
terms hereof.
NEW PLAN REALTY TRUST
By:/s/ Dean Bernstein
________________________________
Attest: Authorized Officer
BANKBOSTON N.A.
By:/s/ Michael J. Lapolla
________________________________
Attest: Authorized Signatory
<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
The Depositary Shares evidenced by this Depositary Receipt are subject
to redemption at any time at the option of the Trust on or after June 15,
2007 at a redemption price of $50.00 per Depositary Share, plus accrued and
unpaid dividends, if any, thereon. If necessary, in the opinion of the
Trustees of the Trust, to effect compliance by the Trust with certain
requirements of the Internal Revenue Code, the Shares evidenced by this
Depositary Receipt are subject to redemption by the Trust and the transfer
thereof may be prohibited upon the terms and conditions set forth in the
Deposit Agreement (as defined below), the Amended and Restated Declaration of
Trust and the Certificate of Designation Supplementing the Amended and
Restated Declaration of Trust for the 7.80% Series A Cumulative Step-Up
Premium Rate Preferred Shares, $1.00 par value per share. In addition,
ownership by any person of more than 7.5% in number or value of all of the
Trust's Shares, including the Depositary Shares represented by this
Depositary Receipt is restricted as set forth in said documents. The Trust
will furnish a copy of such terms and conditions to the registered holder of
this Receipt upon request and without charge. The Amended and Restated
Declaration of Trust provides that obligations thereunder are not personally
binding upon the Trustees and that no Trustee, shareholder, officer, employee
or agent of the Trust shall be held to any personal liability nor shall
resort be had to the private property of any Trustee, shareholder, officer,
employee or agent of the Trust.
DR ___
CUSIP 648059 30 1
CERTIFICATE FOR NOT MORE THAN 1,500,000 DEPOSITARY SHARES
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/10 OF A 7.80% SERIES A CUMULATIVE STEP-UP PREMIUM RATE
PREFERRED SHARE (PAR VALUE $1.00 PER SHARE)
(LIQUIDATION PREFERENCE EQUIVALENT TO $50.00 PER
DEPOSITARY SHARE) OF
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
BankBoston N.A., as Depositary (the "Depositary"), hereby certifies that
______________________ is the registered owner of ________________ DEPOSITARY
SHARES ("Depositary Shares"), each Depositary Share representing a 1/10
fractional interest in a 7.80% Series A Cumulative Step-Up Premium Rate
Preferred Share, $1.00 par value per share, of New Plan Realty Trust, a
Massachusetts business trust (the "Company"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of July 3, 1997 (the "Deposit Agreement") among the Company, the
Depositary and the holders from time to time of Receipts for Depositary
Shares. By accepting this Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Receipt shall not be valid or obligatory for any purpose or entitled to
any benefits under the Deposit Agreement unless it shall have been executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer or, if a Registrar in respect of the Receipts (other than the
Depositary) shall have been appointed, by the manual signature of a duly
authorized officer of such Registrar.
Dated:
Countersigned: ___________________________________
By:________________________________ By:________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF RECEIPT]
NEW PLAN REALTY TRUST
NEW PLAN REALTY TRUST WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE CERTIFICATE OF DESIGNATION WITH RESPECT TO THE 7.80% SERIES
A CUMULATIVE STEP-UP PREMIUM RATE PREFERRED SHARES OF NEW PLAN REALTY TRUST.
ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF
THIS RECEIPT.
________________________________
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ...........Custodian...........
(Cust) (Minor)
under Uniform Gifts to Minors
Act...............................................
(State)
Additional abbreviations may also be used though not in the above list.
For Value received, __________________ hereby sell(s), assign(s) and
transfer(s) unto
ASSIGNMENT
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
________________________________________________________
________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
________________________________________________________
_____________ Depositary Shares represented by the within Receipt, and do
hereby irrevocably constitute and appoint ___________ Attorney to transfer
the said Depositary Shares on the books of the within named Depositary with
full power of substitution in the premises.
Dated, ________________
_________________________________________________________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the certificate
in every particular, without alteration or enlargement or
any change whatever.
--------
| Number |
| |
| PA |
--------
PROVISIONS RELATING TO REDEMPTION AND PROHIBITION OF TRANSFER OF SHARES
The Shares evidenced by this Certificate are subject to redemption at
any time at the option of the Trust on or after June 15, 2007 at a redemption
price of $500.00 per Share, plus accrued and unpaid dividends, if any,
thereon. If necessary, in the opinion of the Trustees of the Trust, to
effect compliance by the Trust with certain requirements of the Internal
Revenue Code, the Shares represented by this Certificate are subject to
redemption by the Trust and the transfer thereof may be prohibited upon the
terms and conditions set forth in the Amended and Restated Declaration of
Trust and the Certificate of Designation Supplementing the Amended and
Restated Declaration of Trust for the 7.80% Series A Cumulative Step-Up
Premium Rate Preferred Shares. In addition, ownership by any person of more
than 7.5% in number or value of all of the Trust's Shares, including the
Shares represented by this Certificate is restricted as set forth in said
documents. The Trust will furnish a copy of such terms and conditions to the
registered holder of this Certificate upon request and without charge.
--------
| Shares |
| |
| |
--------
New Plan Realty Trust
A BUSINESS TRUST ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS
Certificate for 7.80% Series A Cumulative
Step-Up Premium Rate Preferred Shares.
This Certificate is
CUSIP 648059 20 2 transferable in
SEE REVERSE FOR CERTAIN DEFINITIONS Boston, Massachusetts
and in
New York, New York
Fully paid and non-assessable preferred shares,
par value $1.00 per share.
This Certifies that
is the Owner of shares.
New Plan Realty Trust is established as a Massachusetts business trust
(hereinafter called the "Trust") under an Amended and Restated Declaration of
Trust made January 15, 1996, as amended from time to time. The holder and
every transferee or assignee of this Certificate or of the Shares represented
hereby or any interest therein accepts and agrees to be bound by the
provisions of such Amended and Restated Declaration of Trust and the
Certificate of Designation Supplementing the Amended and Restated Declaration
of Trust and all amendments thereto (copies of which are filed with the
Secretary of the Commonwealth of Massachusetts) and such By-Laws of the Trust
as may from time to time be adopted by the Trustees of the Trust (copies of
which will be on file at the principal office of the Trust), all of which
provisions are hereby incorporated by reference as fully as if set forth
herein in their entirety. The Amended and Restated Declaration of Trust
provides that obligations thereunder are not personally binding upon the
Trustees and that no Trustee, shareholder, officer, employee or agent of the
Trust shall be held to any personal liability nor shall resort be had to the
private property of any Trustee, shareholder, officer, employee or agent of
the Trust. This Certificate and the Shares represented hereby are
transferable on the books of the Trust by the registered holder hereof in
person or by duly authorized attorney upon surrender of this Certificate
properly endorsed. This Certificate is issued by the Trustees of New Plan
Realty Trust, acting not individually but as such Trustees, and is not valid
until countersigned by the Transfer Agent and registered by the Registrar.
Witness the seal of the Trust and the signatures of its duly authorized
officers.
Countersigned and Registered:
Dated: BankBoston N.A.
Transfer Agent and Registrar
by
Secretary President Authorized Signature
<PAGE>
NEW PLAN REALTY TRUST
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ...........Custodian...........
(Cust) (Minor)
under Uniform Gifts to Minors
Act...............................................
(State)
Additional abbreviations may also be used though not in the above list.
For Value received, __________________ hereby sell, assign and transfer
unto _______________________________________________________________________
Please Insert Social Security or
Other Identifying Number of Assignee
____________________________________________________________________________
____________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
____________________________________________________________________________
____________________________________________________________________________
_____________________ ______ shares of 7.80% Series A Cumulative Step-Up
Premium Rate Preferred Shares represented by the within certificate and do
hereby irrevocably constitute and appoint _________________ Attorney to
transfer the same on the books of the within-named Trust with full power of
substitution in the premises.
Dated, ________________
(SIGN HERE)
_________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
--------
| Number |
| |
| DR |
--------
TEMPORARY CERTIFICATE-EXCHANGEABLE FOR DEFINITIVE ENGRAVED CERTIFICATE WHEN
READY FOR DELIVERY
The Depositary Shares evidenced by this Depositary Receipt are subject
to redemption at any time at the option of the Trust on or after June 15,
2007 at a redemption price of $50.00 per Depositary Share, plus accrued and
unpaid dividends, if any, thereon. If necessary, in the opinion of the
Trustees of the Trust, to effect compliance by the Trust with certain
requirements of the Internal Revenue Code, the Shares evidenced by this
Depositary Receipt are subject to redemption by the Trust and the transfer
thereof may be prohibited upon the terms and conditions set forth in the
Deposit Agreement, the Amended and Restated Declaration of Trust of the
Trust, as amended (the "Declaration of Trust") and the Certificate of
Designation Supplementing the Declaration of Trust for the 7.80% Series A
Cumulative Step-Up Premium Rate Preferred Shares, $1.00 par value per share.
In addition, ownership by any person of more than 7.5% in number or value of
all of the Trust's Shares, including the Depositary Shares represented by
this Depositary Receipt, is restricted as set forth in said documents. The
Trust will furnish a copy of said documents to the registered holder of this
receipt upon request and without charge. The Amended and Restated
Declaration of Trust provides that obligations thereunder are not personally
binding upon the Trustees and that no Trustee, shareholder, officer, employee
or agent of the Trust shall be held to any personal liability nor shall
resort be had to the private property of any Trustee, shareholder, officer,
employee or agent of the Trust.
--------
| Number |
| of |
| Shares |
--------
Certificate for not more than 1,500,000 Depositary Shares
Receipt for Depositary Shares,
Each Representing 1/10 of a 7.80% Series A Cumulative Step-Up Premium Rate
Preferred Share (Par Value $1.00 Per Share)
(Liquidation Preference Equivalent to $50.00 Per Depositary Share)
of
New Plan Realty Trust
(a Massachusetts business trust)
This Certificate is
CUSIP 648059 30 1 transferable in
SEE REVERSE FOR CERTAIN DEFINITIONS Boston, Massachusetts
and in New York, New York
BankBoston, N.A., as Depositary (the "Depositary"), hereby certifies that
is the registered owner of
Fully paid and non-assessable Depositary Shares
("Depositary Shares"), each Depositary Share representing a 1/10 fractional
interest tin a 7.80% Series A Cumulative Step-Up Premium Rate Preferred
Share, $1.00 par value per share, of New Plan Realty Trust, a Massachusetts
business trust (the "Trust"), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement dated as of July
3, 1997 (the "Deposit Agreement") among the Trust, the Depositary and the
holders from time to time of Receipts for Depositary Shares. By accepting
this Receipt, the holder hereof becomes a party to and agrees to be bound by
all the terms and conditions of the Deposit Agreement. This Receipt shall
not be valid or obligatory for any purpose or entitled to any benefits under
the Deposit Agreement unless it shall have been executed by the Depositary by
the manual or facsimile signature of a duly authorized officer or, if a
Registrar in respect of the Receipts (other than the Depositary) shall have
been appointed, by the manual signature of a duly authorized officer of such
Registrar.
Dated:
Countersigned:
BankBoston, N.A. TREASURER
Transfer Agent and Registrar
By:
Authorized Signature CHIEF EXECUTIVE OFFICER
<PAGE>
NEW PLAN REALTY TRUST
NEW PLAN REALTY TRUST WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER
OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE
CERTIFICATE OF DESIGNATION WITH RESPECT TO THE 7.80% SERIES A CUMULATIVE
STEP-UP PREMIUM RATE PREFERRED SHARES OF NEW PLAN REALTY TRUST. ANY SUCH
REQUEST SHALL BE ADDRESSED TO THE SECRETARY OF THE TRUST, 1120 AVENUE OF THE
AMERICAS, NEW YORK, NEW YORK 10036.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ...........Custodian...........
(Cust) (Minor)
under Uniform Gifts to Minors
Act...............................................
(State)
Additional abbreviations may also be used though not in the above list.
For Value received, __________________ 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 of Assignee)
____________________________________________________________________________
____________________________________________________________________________
_____________________ Depositary Shares represented by the within Receipt,
and do hereby irrevocably constitute and appoint _________________ Attorney
to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution in the premises.
Dated, ________________
_________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
______________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
============================================================================
CREDIT AGREEMENT
by and among
NEW PLAN REALTY TRUST
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS AGENT
________________
$50,000,000
________________
Dated as of October 29, 1996
=============================================================================
=
<PAGE>
CREDIT AGREEMENT, dated as of October 29, 1996, by and among NEW PLAN
REALTY TRUST a Massachusetts business trust (the "Borrower"), each lender
party hereto or which becomes a "Lender" pursuant to the provisions of
Sections 2.20 or 11.7 (each a "Lender" and, collectively, the "Lenders"), and
THE BANK OF NEW YORK, as agent (in such capacity, the "Agent").
I. DEFINITIONS
A. Defined Terms.
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following
meanings:
"ABR Advances": the Loans (or any portions thereof) at such time as
they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Accountants": Coopers & Lybrand (or any successor thereto), or
such other firm of certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the Required
Lenders.
"Advance": an ABR Advance, a Eurodollar Advance or a Competitive
Bid Advance, as the case may be.
"Affected Advance": as defined in Section 2.10.
"Affected Principal Amount": in the event that (i) the Borrower
shall fail for any reason to borrow or convert after it shall have notified
the Agent of its intent to do so in any instance in which it shall have
requested a Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall have
accepted one or more offers of Competitive Bid Advances under Section 2.5, an
amount equal to the principal amount of such Eurodollar Advance or
Competitive Bid Advance; (ii) a Eurodollar Advance or Competitive Bid Advance
shall terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such Euro-
dollar Advance or Competitive Bid Advance; and (iii) the Borrower shall
prepay or repay all or any part of the principal amount of a Eurodollar
Advance or Competitive Bid Advance prior to the last day of the Interest
Period applicable thereto, an amount equal to the principal amount of such
Eurodollar Advance or Competitive Bid Advance so prepaid or repaid.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, control of a Person
shall mean the power, direct or indirect, (i) to vote 5% or more of the secu-
rities having ordinary voting power for the election of directors of such
Person or (ii) to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Aggregate Commitments": on any date, the sum of the Commitments of
all Lenders on such date.
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Rate in effect on such date plus
1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Applicable Commitment Fee Percentage": with respect to the
Commitment Fee, at all times during which the applicable Pricing Level set
forth below is in effect, the applicable commitment fee percentage set forth
below next to such Pricing Level:
Applicable
Pricing Level Commitment Fee Percentage
Pricing Level I 0.125%
Pricing Level II 0.150%
Pricing Level III 0.175%
Pricing Level IV 0.250%
Pricing Level V 0.300%
Pricing Level VI 0.375%.
Changes in the Applicable Commitment Fee Percentage resulting from
a change in a Pricing Level shall become effective as of the opening of
business upon the date of any change in the Borrower's Senior Debt Rating,
as determined by S&P or Moody's, as the case may, which would affect the ap-
plicable Pricing Level.
"Applicable Lending Office": in respect of any Lender, (i) in the
case of such Lender's ABR Advances and Competitive Bid Advances, its Domestic
Lending Office and (ii) in the case of such Lender's Eurodollar Advances, its
Eurodollar Lending Office.
"Applicable Margin": with respect to the unpaid principal balance
of Eurodollar Advances, at all times during which the applicable Pricing
Level set forth below is in effect, the number of basis points set forth
below next to such Pricing Level:
Applicable Margin
Pricing Level (Basis Points)
Pricing Level I 45.0
Pricing Level II 50.0
Pricing Level III 60.0
Pricing Level IV 72.5
Pricing Level V 87.5
Pricing Level VI 125.0
Changes in the Applicable Margin resulting from a change in a
Pricing Level shall become effective as of the opening of business upon the
date of any change in the Senior Debt Rating of the Borrower, as determined
by S&P or Moody's, as the case may, which would affect the applicable Pricing
Level.
"Assignment and Acceptance Agreement": an assignment and acceptance
agreement executed by an assignor and an assignee pursuant to which such
assignor assigns to such assignee all or any portion of such assignor's Note
and Commitment, substantially in the form of Exhibit A.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": the chairman of the board, the president,
any vice president, the chief financial officer or any other duly authorized
officer (acceptable to the Agent) of the Borrower.
"Available Commitment Amount": on any day during the Revolving
Credit Period, an amount equal to the Total Commitment Amount at such time
minus the total Loans outstanding on such date.
"Benefited Lender": as defined in Section 11.9.
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically
(without notice) on the effective date of any change in such publicly
announced rate.
"Borrowing Date": any Business Day specified in a Borrowing Request
delivered pursuant to Section 2.4 or 2.5, as the case may be, as a date on
which the Borrower requests the Lenders to make Loans.
"Borrowing Request": a Conventional Borrowing Request or a
Competitive Bid Borrowing Request, as the case may be.
"Business Day": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law
or other governmental action to close and (ii) with respect to all notices
and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, any day which is a Business Day described in clause (i)
above and which is also a day on which dealings in foreign currency and
exchange and Eurodollar funding between banks may be carried on in London,
England.
"Capital Leases": leases which have been, or under GAAP are
required to be, capitalized.
"Change of Control": the occurrence of any one of the following
events:
(a) any Person becomes the owner of 20% or more of the Borrower's
common shares and thereafter individuals who were not trustees of the
Borrower on the date of execution of this Agreement are elected as trustees
pursuant to an arrangement or understanding with, or upon the request of or
nomination by, such Person and constitute at least two of the trustees of the
Borrower; or
(b) there occurs a change of control of the Borrower of a nature
that would be required to be reported in response to Item 1a of Form 8-K
filed pursuant to Section 13 or 15 under the Securities Exchange Act of 1934,
or in any other filing by the Borrower with the Securities and Exchange Com-
mission; or
(c) there occurs any solicitation of proxies by or on behalf of
any Person other than the trustees of the Borrower and thereafter individuals
who were not trustees of the Borrower prior to the commencement of such
solicitation are elected as trustees of the Borrower pursuant to an
arrangement or understanding with, or upon the request of or nomination by,
such Person and constitute at least two of the trustees of the Borrower; or
(d) the Borrower consolidates with, is acquired by, or merges into
or with any Person (other than a merger of a Subsidiary into the Borrower
where the Borrower is the surviving entity).
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's undertaking
during the Revolving Credit Period to make Revolving Credit Loans to the Bor-
rower, and as of the end of the Revolving Credit Period, such Lender's un-
dertaking to convert the outstanding principal amount of such Lender's Re-
volving Credit Loans on such date to a Term Loan of such Lender, in each case
subject to the terms and conditions hereof, in an aggregate outstanding
principal amount not exceeding such Lender's Commitment Amount.
"Commitment Amount": the amount set forth next to the name of such
Lender in Exhibit B under the heading "Commitments", as the same may be
reduced pursuant to Section 2.6 or increased pursuant to Section 2.20
"Commitment Fee": as defined in Section 3.1.
"Commitment Percentage": on any day, and as to any Lender, (i)
prior to the conversion of the Revolving Credit Loans to Term Loans, the
percentage determined on such day equal to such Lender's Commitment Amount
divided by the Total Commitment Amount, and (ii) after the conversion of the
Revolving Credit Loans to Term Loans, the percentage determined on such day
equal to the outstanding principal balance of such Lender's Term Loan on such
day divided by the aggregate outstanding principal balance of the Term Loans
of all Lenders on such day.
"Competitive Bid Advance": a Revolving Credit Loan advanced
pursuant to the provisions of Section 2.5
"Competitive Bid Borrowing": a borrowing pursuant to section 2.5
consisting of simultaneous Competitive Bid Advances from each Lender whose
offer to make a Competitive Bid Advance as part of such borrowing has been
accepted by the Borrower under the auction bidding procedure set forth in
section 2.5
"Competitive Bid Borrowing Request": a borrowing request in the
form of Exhibit C.
"Competitive Bid Ceiling": at any time, the difference between (i)
$25,000,000, and (ii) the principal balance of all Competitive Bid Advances
then outstanding.
"Compliance Certificate": a certificate substantially in the form
of Exhibit D.
"Consenting Lender": defined in Section 2.19
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidated EBIT": at any time of determination, the EBIT of the
Borrower and its Subsidiaries on a Consolidated basis, determined in
accordance with GAAP, for the immediately preceding four fiscal quarters of
the Borrower, or, in the event that the date of determination is a fiscal
quarter ending date, the fiscal quarter then ended and the immediately
preceding three fiscal quarters.
"Consolidated Indebtedness": at any time of determination, the
Indebtedness of the Borrower and its Subsidiaries at such time on a
Consolidated basis, determined in accordance with GAAP.
"Consolidating": the Borrower and its Subsidiaries taken
separately.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
whether arising from partnership or keep-well agreements, including, without
limitation, any obligation of such Person, whether contingent or not con-
tingent (a) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain net worth, solvency or other financial statement
condition of the primary obligor, (c) to purchase Property, securities or
services primarily for the purpose of assuring the beneficiary of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure, protect from loss or
hold harmless the beneficiary of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include the endorsement of instruments for deposit or collection in the
ordinary course of business. The term Contingent Obligation shall also
include the liability of a general partner in respect of the liabilities of
the partnership in which it is a general partner. The amount of any
Contingent Obligation of a Person shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as determined
by such Person in good faith.
"Conventional Advance": an ABR Advance and/or a Eurodollar Advance.
"Conventional Borrowing Request": a borrowing request in the form
of Exhibit E.
"Conversion Date": the date on which a Eurodollar Advance is
converted to an ABR Advance, or the date on which an ABR Advance is converted
to a Eurodollar Advance, or the date on which a Eurodollar Advance is
converted to a new Eurodollar Advance, all in accordance with Section 2.8
"Declaration of Trust": the Amended and Restated Declaration of
Trust of New Plan Realty Trust, dated as of January 15, 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, as the same may be amended from
time to time.
"Default": any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"Defaulted Portion": defined in Section 2.21.
"Dollars" and "$": lawful currency of the United States of America.
"Domestic Lending Office": in respect of any Lender, initially, the
office or offices of such Lender designated as such on Schedule I;
thereafter, such other office of such Lender, through which it shall be
making or maintaining ABR Advances or Competitive Bid Advances, as reported
by such Lender to the Agent and the Borrower.
"EBIT": at any time of determination, in respect of any Person, for
any period, net income (or loss), calculated after deduction for income
taxes, determined in accordance with GAAP; plus the sum of, without
duplication: (i) interest expense (as determined in accordance with GAAP),
(ii) provision for income taxes. EBIT shall be adjusted on a consistent
basis to reflect the acquisition, sale, exchange and disposition of Property
during such period.
"Effective Date": October ___, 1996.
"Environmental Laws": any and all federal, state and local laws re-
lating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials
or pollutants or industrial hygiene and including, without limitation, (i)
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA Section9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976, as amended, 42 USCA Section6901 et seq.; (iii) the
Toxic Substance Control Act, as amended, 15 USCA Section2601 et seq.; (iv)
the Water Pollution Control Act, as amended, 33 USCA Section1251 et seq.; (v)
the Clean Air Act, as amended, 42 USCA Section7401 et seq.; (vi) the
Hazardous Material Transportation Act, as amended, 49 USCA Section1801 et
seq. and (viii) all rules, regulations judgments decrees injunctions and
restrictions thereunder and any analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate": any Person which is a member of any group of
organizations (i) described in Section 414(b) or (c) of the Code of which the
Borrower is a member, or (ii) solely for purposes of potential liability
under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the
Lien created under Section 302(f) of ERISA and Section 412(n) of the Code,
described in Section 414(m) or (o) of the Code of which the Borrower is a
member.
"ERISA Liabilities": without duplication, the aggregate of all
unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advances": collectively, the Loans (or any portions
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Lending Office": in respect of any Lender, initially,
the office, branch or affiliate of such Lender designated as such on Sched-
ule I (or, if no such office branch or affiliate is specified, its Domestic
Lending Office); thereafter, such other office, branch or affiliate of such
Lender through which it shall be making or maintaining Eurodollar Advances,
as reported by such Lender to the Agent and the Borrower.
"Eurodollar Rate": with respect to any Interest Period applicable
to any Eurodollar Advance, a rate of interest per annum, as determined by the
Agent, obtained by dividing (and then rounding to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(a) the rate, as reported by BNY to the Agent, quoted by BNY
to leading banks in the London interbank eurodollar market as the rate at
which BNY is offering Dollar deposits in an amount equal approximately to the
Eurodollar Advance of BNY to which such Interest Period shall apply for a
period equal to such Interest Period, as quoted at approximately 11:00 a.m.
two Business Days prior to the first day of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of
the Federal Reserve System and any other banking authority to which BNY and
other major United States money center banks are subject, in respect of
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System). Such
reserve requirements shall include, without limitation, those imposed under
such Regulation D. Eurodollar Advances shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed to be subject to such
reserve requirements without benefit of credits for proration, exceptions or
offsets which may be available from time to time to any Lender under such
Regulation D. The Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in any such reserve requirement.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time or
any other condition has been satisfied.
"Exclusions": shall mean in the case of any sale or other
disposition of any Property of the Borrower, all sales and other commissions
and reasonable fees and expenses of professionals incurred in connection with
such sale or disposition and transfer taxes.
"Existing Credit Agreement" shall mean that certain Revolving
Credit Agreement dated as of December 30, 1993 among the Borrower, The Bank
of New York, as Agent, and the other Lenders signatory thereto, as the same
has been amended.
"Extension Request": defined in Section 2.19
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%),
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided that (i) if the
day for which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding
Business Day, and (ii) if such rate is not so published for any day, the
Federal Funds Rate for such day shall be the average of the quotations for
such day on such transactions received by BNY as determined by BNY and
reported to the Agent.
"Financial Statements": as defined in Section 4.13.
"Fixed Rate Advance": A Eurodollar Advance or a Competitive Bid
Advance.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government and any court or arbitrator.
"Hazardous Substance": any hazardous or toxic substance, material
or waste, including, but not limited to, (i) those substances, materials, and
wastes listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or material defined
as, or designated in, any Environmental Law as a "hazardous substance,"
"toxic substance," "hazardous material," "hazardous waste," "restricted
hazardous waste," "pollutant," "toxic pollutant" or words of similar import.
"Highest Lawful Rate": with respect to any Lender, the maximum rate
of interest, if any, that at any time or from time to time may be contracted
for, taken, charged or received by such Lender on its Note or which may be
owing to such Lender pursuant to this Agreement under the laws applicable to
such Lender and this Agreement.
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (a) indebtedness for borrowed money
(including, without limitation, indebtedness under this Agreement and the
Notes) or the deferred purchase price of Property (other than trade payables
incurred in the ordinary course of business), (b) indebtedness evidenced by
notes, bonds, debentures or similar instruments, (c) obligations with respect
to any conditional sale or title retention agreement, (d) indebtedness aris-
ing under acceptance facilities and the amount available to be drawn under
all letters of credit issued for the account of such Person and, without du-
plication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer's payment of such drafts,
(e) all liabilities secured by any Lien on any Property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof (other than carriers', warehousemen's, mechanics',
repairmen's or other like non-consensual statutory Liens arising in the
ordinary course of business), (f) obligations under Capital Leases, (g)
Contingent Obligations and (h) ERISA Liabilities.
"Indemnified Person": as defined in Section 11.11.
"Intangible Assets": as of any date of determination thereof, the
net book value of all assets of the Borrower and its Subsidiaries on a
Consolidated basis (to the extent reflected in the Consolidated Balance Sheet
of the Borrower at such date) which would be treated as intangibles under
GAAP, including, without limitation, goodwill (whether representing the
excess cost over book value of assets acquired or otherwise), patents,
trademarks, trade names, franchises, copyrights, licenses, service marks,
rights with respect to the foregoing and deferred charges (including, without
limitation, unamortized debt discount and expense, organization costs and
research and development costs).
"Intellectual Property": all copyrights, trademarks, patents, trade
names and service names.
"Interest Coverage Ratio": at any time, the ratio of (i)
Consolidated EBIT to (ii) Interest Expense.
"Interest Expense": the sum of all interest (as determined in
accordance with GAAP) on Consolidated Indebtedness, for, as applicable, the
immediately preceding four fiscal quarters of the Borrower, or, in the event
that the date of determination is a fiscal quarter ending date, the fiscal
quarter then ended and the immediately preceding three fiscal quarters.
"Interest Payment Date": (i) as to any ABR Advance, the first day
of each month commencing on the first such day to occur after such ABR Ad-
vance is made or any Eurodollar Advance is converted to an ABR Advance, (ii)
as to any Eurodollar Advance in respect of which the Borrower has selected an
Interest Period of one, two or three months, the last day of such Interest
Period, (iii) as to any Eurodollar Advance in respect of which the Borrower
has selected an Interest Period of six months, the day which is three months
after the first day of such Interest Period and the last day of such Interest
Period, and (iv) as to any Competitive Bid Advance, the last day of the
Interest Period applicable thereto.
"Interest Period": (i) with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or Conversion Date with respect to such Eurodollar Advance and
ending one, two, three or six months thereafter, as selected by the Borrower
in its irrevocable Borrowing Request as provided in Section 2.4 or its
irrevocable notice of conversion as provided in Section 2.8, and (ii) with
respect to any Competitive Bid Advance, the period commencing on the
Borrowing Date with respect to such Competitive Bid Advance and ending on the
maturity date thereof specified in the Competitive Bid Borrowing Request with
respect thereto given pursuant to Section 2.5; provided, however, that all of
the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period pertaining to a Eurodollar Advance
would otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) if, with respect to the borrowing of any Loan or the
conversion of one Advance to another, the Borrower shall fail to give due
notice as provided in Section 2.4, 2.5 or 2.8, as the case may be, the
Borrower shall be deemed to have elected that such Loan or Advance shall be
made as an ABR Advance;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corre-
sponding day in the calendar month at the end of such Interest Period) shall
end on the last Business Day of a calendar month;
(iv) with respect to any Interest Period applicable to a
Eurodollar Advance (i) selected during the Revolving Credit Period no such
Interest Period shall end after the Revolving Credit Termination Date, and
(ii) selected after any such election of the Term Loan, no such Interest
Period shall end after the Maturity Date;
(v) with respect to any Interest Period applicable to a
Competitive Bid Advance no such Interest Period shall end after the Revolving
Credit Termination Date.
(vi) the Borrower shall select Interest Periods so as not to
have more than seven different Interest Periods outstanding at any one time
with respect to Eurodollar Advances and three different Interest Periods out-
standing at any one time with respect to Competitive Bid Advances; and
(viii) no Interest Period pertaining to a Competitive Bid
Advance shall be shorter than 7 days or longer than 180 days.
"Investments": as defined in Section 8.5.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan" and "Loans": Revolving Loan (or Loans) or Term Loan (or
Loans), as the case may be.
"Loan Documents": collectively, this Agreement and the Notes.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
financial condition, operations or business, prospects or Property of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents
or (iii) the ability of the Agent and the Lenders to enforce the Loan Docu-
ments.
"Material Adverse Effect": a material adverse effect on (i) the
financial condition, operations or business, prospects or Property of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents
or (iii) the ability of the Agent and the Lenders to enforce the Loan Docu-
ments.
"Maturity Date": (i) if the Term Loan is not elected pursuant to
Section 2.2, the earlier of the Revolving Credit Termination Date or the date
on which the Notes shall become due and payable, whether by acceleration or
otherwise, and (ii) if the Term Loan is so elected, the earlier of the date
that is 364 days after the last day of the Revolving Credit Termination Date
or the date on which the Notes shall become due and payable, whether by
acceleration or otherwise.
"Moody's": Moody's Investors Services, Inc.
"Multiemployer Plan": a plan defined as such Section 3(37) of ERISA
to which contributions have been made by the Borrower or any ERISA Affiliate
and which is covered by Title IV of ERISA.
"Net Proceeds": shall mean in the case of any sale or other
disposition of any Property of the Borrower after a Threshold Event, the
excess of:
(x) the sum of all gross cash proceeds from such sale or
disposition and all sales or dispositions of the Borrower's
Property giving rise to such Threshold Event, whether paid directly
or indirectly, less the applicable Exclusions in connection there-
with, over
(y) the Threshold Amount.
"Net Proceeds Event": any sale or other disposition of any
Property of the Borrower, which, in any case, results in Net Proceeds,
provided that "Net Proceeds Event" shall not include the issuance of Stock or
debt or the sale of Stock or instruments convertible into Stock.
"Net Worth": as of any date of determination thereof, the Net
Worth of the Borrower and its Subsidiaries on a Consolidated basis, as
determined in accordance with GAAP.
"Nonconsenting Lender": defined in Section 2.19.
"Nonconsenting Lender Termination Date": defined in Section
2.19(c).
"Note" and "Notes": defined in Section 2.3.
"Participating Lender": defined in Section 2.5.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": an individual, a partnership, a corporation, a business
trust, a joint stock company, a trust, an unincorporated association, a joint
venture, a Governmental Authority or any other entity of whatever nature.
"Plan": any employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and which is covered by or
subject to the minimum funding standards of Title IV of ERISA, other than a
Multiemployer Plan.
"Pricing Level": Pricing Level I, Pricing Level II, Pricing Level
III, Pricing Level IV, Pricing Level V or Pricing Level VI, as applicable.
"Pricing Level I": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is greater than or equal to AA- by S&P or
Aa3 by Moody's;
"Pricing Level II": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A by S&P or
A2 by Moody's and Pricing Level I is not applicable;
"Pricing Level III": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A- by S&P
or A3 by Moody's and Pricing Levels I and II are not applicable;
"Pricing Level IV": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to BBB by S&P
or Baa2 by Moody's and Pricing Levels I, II and III are not applicable;
"Pricing Level V": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is equal to BBB- by S&P and Baa3 by Moody's
and Pricing Levels I, II, III and IV are not applicable; and
"Pricing Level VI": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is less than or equal to BB+ by S&P or
Ba1 by Moody's and Pricing Levels I, II, III, IV and V are not applicable;
provided that during any period that the Borrower has no Senior Debt Rating,
Pricing Level IV would be the applicable Pricing Level.
"Property": all types of real, personal, tangible, intangible or
mixed Property.
"Proposed Bid Rate": as applied to any Remaining Interest Period
with respect to a Lender's Competitive Bid Advance, the rate per annum that
such Lender in good faith would have quoted to the Borrower had the Borrower
requested that such Lender offer to make a Competitive Bid Advance on the
first day of such Remaining Interest Period, assuming no Default or Event of
Default existed on such day and that the Borrower had the right to borrow
hereunder on such day; such rate to be determined by such Lender in good
faith in its sole discretion.
"Real Property": all real Property, and all interests in real
Property, owned, leased or held by the Borrower or any Subsidiary.
"Reallocated Commitment Percentage": defined in Section 2.19.
"REIT": a Person qualifying as a Real Estate Investment Trust
under sections 856-859 of the Code and the regulations and rulings of the
Internal Revenue Service issued thereunder.
"REIT Guidelines": collectively, the NASAA Statement of Policy
Regarding Real Estate Investment Trusts, as adopted by the North American
Securities Administrators Association, Inc., and all amendments thereto, and
all Federal and state laws and guidelines, including without, limitation all
"blue sky" laws, which regulate the business, operation and reporting
requirements of REITs generally and which are applicable to the Borrower.
"Remaining Interest Period": (i) in the event that the Borrower
shall fail for any reason to borrow a Loan in respect of which it shall have
requested a Eurodollar Advance or convert an Advance to a Eurodollar Advance
after it shall have notified the Agent of its intent to do so pursuant to
Section 2.4 or 2.8 or accepted one or more offers of Competitive Bid Advances
under Section 2.5, a period equal to the Interest Period that the Borrower
elected in respect of such Eurodollar Advance or Competitive Bid Advance; or
(ii) in the event that a Eurodollar Advance or Competitive Bid Advance shall
terminate for any reason prior to the last day of the Interest Period
applicable thereto, a period equal to the remaining portion of such Interest
Period if such Interest Period had not been so terminated; or (iii) in the
event that the Borrower shall prepay or repay all or any part of the
principal amount of a Eurodollar Advance or Competitive Bid Advance
(including any mandatory prepayment thereof) prior to the last day of the
Interest Period applicable thereto, a period equal to the period from and in-
cluding the date of such prepayment or repayment to but excluding the last
day of such Interest Period.
"Required Lenders": at any time when no Loans are outstanding or
there are Loans comprised of both Conventional Advances and Competitive Bid
Advances outstanding, Lenders having Commitments equal to at least 51% of the
Aggregate Commitments. At any time when Loans comprised of Conventional
Advances only are outstanding, Lenders holding Notes having an unpaid
principal balance equal to at least 51% of the aggregate Loans outstanding.
At any time when Loans comprised of Competitive Bid Advances only are out-
standing, Lenders having Commitments equal to at least 51% of the Aggregate
Commitments (whether used or unused).
"Revolving Credit Period": the period from the Effective Date
through the day preceding the Revolving Credit Expiration Date.
"Revolving Credit Expiration Date": the earlier of the Maturity
Date or the Revolving Credit Termination Date.
"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in Section 2.1.
"Revolving Credit Termination Date": the date that is 364 days
from the Effective Date, subject to extensions in accordance with Section
2.19.
"Senior Debt Rating": the senior unsecured non-credit-enhanced
debt rating of the Borrower as determined by S&P and/or Moody's from time to
time.
"Shareholder": as defined in the Declaration of Trust.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel
to BNY.
"S&P": Standard & Poor's Ratings Group.
"Stock": any and all shares, rights, interests, participations,
warrants or other equivalents (however designated) of corporate stock,
including, without limitation, so-called "phantom stock".
"Subsidiary": as to any Person, any corporation, association,
partnership, joint venture or other business entity of which such Person or
any Subsidiary of such Person, directly or indirectly, either (i) in respect
of a corporation, owns or controls more than 50% of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors or
similar managing body, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any contingency, or
(ii) in respect of an association, partnership, joint venture or other busi-
ness entity, is entitled to share in more than 50% of the profits and losses,
however determined.
"Substitute Lender": a Consenting Lender, one or more Affiliates
of a Consenting Lender or any other bank, insurance company, pension fund,
mutual fund or other financial institution.
"Tangible Net Worth": as of any date of determination thereof,
the remainder of (i) Net Worth, less (ii) Intangible Assets.
"Taxes": any present or future income, stamp or other taxes,
levies, imposts, duties, fees, assessments, deductions, withholdings, or
other charges of whatever nature, now or hereafter imposed, levied,
collected, withheld, or assessed by any Governmental Authority.
"Term Loan" and "Term Loans": as defined in Section 2.2.
"Term Loan Conversion Notice": a notice to the Agent in the
form of Exhibit F.
"Threshold Event": any sale or disposition of Property of the
Borrower which, when combined with all other such sales or dispositions
occurring during any fiscal year of the Borrower after the Effective Date,
results in gross cash proceeds for all such sales or dispositions for such
fiscal year, less applicable Exclusions in such fiscal year, over
$100,000,000 (the "Threshold Amount"). For purposes of this definition, the
term "gross cash proceeds" means all cash sales proceeds received from each
such sale or disposition, whether direct or indirect, of such Property.
"Total Capital" shall mean, on any date, the sum of (i) all long
term debt of the Borrower (inclusive of medium term notes) on such date, (ii)
the stockholders' equity in the Borrower on such date, as determined in
accordance with GAAP, (iii) the value of issued and outstanding preferred
stock of the Borrower on such date, and (iv) all Loans outstanding on such
date.
"Total Commitment Amount": on any day, the sum of the
Commitment Amounts of all Lenders on such day.
"Trust": as defined in the Declaration of Trust.
"Trustee": as defined in the Declaration of Trust.
"Trust Property": as defined in the Declaration of Trust.
"Undepreciated Real Estate Assets": as of any date the amount of
real estate assets of the Borrower and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis in
accordance with GAAP.
B. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the meanings
given such terms herein when used in the Loan Documents or any certificate,
opinion or other document made or delivered pursuant hereto or thereto,
unless otherwise defined therein.
(b) As used in the Loan Documents and in any certificate,
opinion or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in Section 1.1, and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
schedule and exhibit references contained herein shall refer to Sections
hereof or schedules or exhibits hereto unless otherwise expressly provided
herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to the
contrary, references to time shall refer to New York City time.
II. AMOUNT AND TERMS OF LOANS.
A. Revolving Credit Loans.
Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans (each a "Revolving Credit
Loan" and, as the context may require, collectively with all Revolving Credit
Loans of such Lender and with the Revolving Credit Loans of all other Lend-
ers, the "Revolving Credit Loans") to the Borrower from time to time during
the Revolving Credit Period, in an aggregate outstanding principal amount at
any one time outstanding not to exceed such Lender's Commitment. At no time
shall the aggregate outstanding principal amount of the Revolving Credit
Loans of all Lenders exceed the Total Commitment Amount. During the
Revolving Credit Period, the Borrower may borrow, prepay in whole or in part
and reborrow under the Commitments, all in accordance with the terms and
conditions of this Agreement. Subject to the provisions of Sections 2.4, 2.5
and 2.8, Revolving Credit Loans may be (a) ABR Advances, (b) Eurodollar
Advances, (c) Competitive Bid Advances or (d) any combination thereof.
B. Term Loans.
(a) Subject to the terms and conditions hereof (including,
without limitation, the terms and conditions of Section 2.19(e)), the
Borrower may elect to convert all Revolving Credit Loans of all Lenders
outstanding under this Agreement as of the Revolving Credit Termination Date
to Term Loans of such Lenders. Such election shall be made by the Borrower's
delivery to the Agent of a Term Loan Conversion Notice on any date that is at
least 3, but not more than 14, Business Days prior to the Revolving Credit
Termination Date. Upon receipt of such notice, the Agent shall promptly
deliver a copy of the notice to each Lender. Provided that no Event of
Default shall have occurred and be continuing on the Revolving Credit
Termination Date, the outstanding principal amount of each Lender's Revolving
Credit Loans shall be converted to a Term Loan of such Lender as of such date
and the Commitment of each Lender to make Revolving Credit Loans shall
expire.
(b) The Term Loans shall be due and payable on the Maturity
Date.
C. Notes.
The Loans made by each Lender shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit G, with ap-
propriate insertions therein as to date and principal amount (each, as en-
dorsed or modified from time to time, a "Note" and, collectively with the
Notes of all other Lenders, the "Notes"), payable to the order of such Lender
for the account of its Applicable Lending Office and representing the obliga-
tion of the Borrower to pay the lesser of (a) the original amount of the
Commitment of such Lender and (b) the aggregate unpaid principal balance of
all Loans made by such Lender (including Term Loans of the Lenders, if the
Borrower makes an election to convert the Revolving Credit Loans pursuant to
Section 2.2), with interest thereon as prescribed in Section 2.9. Each Note
shall bear interest from the date thereof on the unpaid principal balance
thereof at the applicable interest rate or rates per annum determined as pro-
vided in Section 2.9 and shall be stated to mature on the Maturity Date. The
(i) date and amount of each Loan made by a Lender, (ii) its character as an
ABR Advance, a Eurodollar Advance, a Competitive Bid Advance, or a combina-
tion thereof, (iii) the interest rate and Interest Period applicable to Eu-
rodollar Advances and Competitive Bid Advances, and (iv) each payment and
prepayment of the principal thereof, shall be recorded by such Lender on its
books and, prior to any transfer of its Note, endorsed by such Lender on the
schedule attached thereto or any continuation thereof, provided that the
failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make payment when due of any amount
owing under the Loan Documents. Interest on each Note shall be payable as
specified in Section 2.9. Upon receipt of each Lender's Note pursuant to Sec-
tion 5, the Agent shall mail such Note to such Lender.
D. Procedure for Revolving Credit Loan Borrowings Other than
Competitive Bid Borrowings.
(a) Except for Revolving Credit Loans which the Borrower
requests to be made as Competitive Bid Advances (as to which the provisions
of Section 2.5 shall control), the Borrower may borrow under the Commitments
on any Business Day during the Revolving Credit Period, provided, however,
that the Borrower shall notify the Agent (by telephone or telecopy) no later
than: 11:00 A.M., three Business Days prior to the requested Borrowing Date,
in the case of Eurodollar Advances, and 11:00 A.M., one Business Day prior to
the requested Borrowing Date, in the case of ABR Advances, specifying (A) the
aggregate principal amount to be borrowed under the Commitments, (B) the
requested Borrowing Date, (C) whether the borrowing is to consist of
Eurodollar Advances, ABR Advances, or a combination thereof, and (D) if the
borrowing is to consist of Eurodollar Advances, the length of the Interest
Period or Periods for such Eurodollar Advances (subject to the provisions of
the definition of Interest Period). Each such notice shall be irrevocable
and confirmed immediately by delivery to the Agent of a Borrowing Request.
Each borrowing of (i) ABR Advances shall be in an aggregate principal amount
equal to $1,000,000 or such amount plus a whole multiple of $100,000 in
excess thereof, or, if less, the Available Commitment Amount and (ii) Euro-
dollar Advances shall be in an aggregate principal amount equal to $1,000,000
or such amount plus a whole multiple of $100,000 in excess thereof. Upon
receipt of each notice of borrowing from the Borrower, the Agent shall
promptly notify each Lender of the contents thereof. Subject to its receipt
of the notice referred to in the preceding sentence, each Lender will make
the amount of its Commitment Percentage of each borrowing of Revolving Credit
Loans available to the Agent for the account of the Borrower at the office of
the Agent set forth in Section 11.2 not later than 11:30 A.M. on the relevant
Borrowing Date requested by the Borrower, in funds immediately available to
the Agent at such office. The amounts so made available to the Agent on such
Borrowing Date will then, subject to the satisfaction of the terms and condi-
tions of this Agreement, as determined by the Agent, be made available on
such date to the Borrower by the Agent at the office of the Agent specified
in Section 11.2 by crediting the account of the Borrower on the books of such
office with the aggregate of said amounts received by the Agent.
(b) Unless the Agent shall have received prior notice from a
Lender (by telephone or otherwise, such notice to be promptly confirmed by
telecopy or other writing) that such Lender will not make available to the
Agent such Lender's pro rata share of the Revolving Credit Loans requested by
the Borrower, the Agent may assume that such Lender has made such share
available to the Agent on the Borrowing Date in accordance with this Section,
provided that such Lender received notice of the proposed borrowing from the
Agent, and the Agent may, in reliance upon such assumption, make available to
the Borrower on the Borrowing Date a corresponding amount. If and to the
extent such Lender shall not have so made such pro rata share available to
the Agent, such Lender and the Borrower severally agree to pay to the Agent
forthwith on demand such corresponding amount (to the extent not previously
paid by the other), together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
paid to the Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 2.9 for ABR Advances or
Eurodollar Advances, as set forth in the applicable Conventional Borrowing
Request, and, in the case of such Lender, the Federal Funds Rate in effect on
each such day (as determined by the Agent). Such payment by the Borrower,
however, shall be without prejudice to its rights against such Lender. If
such Lender shall pay to the Agent such corresponding amount, such amount so
paid shall constitute such Lender's Revolving Credit Loan as part of the
Revolving Credit Loans for purposes of this Agreement, which Revolving Credit
Loan shall be deemed to have been made by such Lender on the Borrowing Date
applicable to such Revolving Credit Loans, but without prejudice to the
Borrower's rights against such Lender.
E. Competitive Bid Advances During the Revolving Credit Period, and
Procedure for Competitive Bid Borrowings.
(a) Subject to the terms and conditions of this Agreement, each
Lender severally agrees that the Borrower may effect Competitive Bid
Borrowings under this section 2.5 from time to time on any Business Day dur-
ing the Revolving Credit Period in the manner set forth below, provided,
however, that at no time shall the outstanding principal balance of Com-
petitive Bid Advances outstanding hereunder exceed the lesser of (i) the
Competitive Bid Ceiling, and (ii) the Aggregate Commitments less the
outstanding principal balance of all Conventional Advances:
(i) The Borrower may request a Competitive Bid Borrowing under
this section 2.5 during the Revolving Credit Period by giving to the
Agent, not later than 10:00 a.m. at least three Business Days prior
to the date of the proposed Competitive Bid Borrowing, a Competitive
Bid Borrowing Request specifying the proposed date and aggregate
amount (which shall not be less than $5,000,000 or such amount plus a
whole multiple $100,000) of the proposed Competitive Bid Borrowing,
the proposed Interest Period for the Competitive Bid Advances to be
made as part of such Competitive Bid Borrowing (which Interest Period
shall not be later than the Revolving Credit Termination Date and
shall otherwise comply with the applicable provisions of the
definition of "Interest Period"), and such other terms to be
applicable to such Competitive Bid Borrowing as the Borrower may
specify. The Agent shall promptly notify (by telephone or otherwise,
to be promptly confirmed by telecopy or other writing) each Lender of
each Competitive Bid Borrowing Request received by it and the terms
contained in such Competitive Bid Borrowing Request.
(ii) Each Lender may, if, in its sole discretion, it elects so
to do, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at
a rate or rates of interest specified by such Lender in its sole
discretion, by notifying (by telephone or otherwise, to be promptly
confirmed by telecopy or other writing) the Agent, before 10:00 a.m.
two Business Days before the Borrowing Date of such proposed
Competitive Bid Borrowing of the minimum amount and maximum amount of
each Competitive Bid Advance which such Lender would be willing to
make as part of such proposed Competitive Bid Borrowing (which
amounts may, subject to the proviso to the first sentence of this
Section 2.5, exceed such Lender's Commitment), the rate or rates of
interest therefor and such Lender's applicable Lending Office with
respect to such Competitive Bid Advance. The Agent shall notify the
Borrower of all such offers before 10:30 a.m. two Business Days
before such proposed Borrowing Date, provided that if BNY in its ca-
pacity as a Lender shall in its sole discretion elect to make any
such offer, it shall notify the Borrower of such offer before 9:30
a.m. two Business Days before such proposed Borrowing Date. If any
Lender other than BNY shall fail to notify the Agent before 10:00
a.m., and if BNY in its capacity as a Lender shall fail to notify the
Borrower before 9:30 a.m. two Business Days before the proposed
Borrowing Date, that it elects to make such an offer, such Lender
shall be deemed to have elected not to make such an offer and such
Lender shall not be obligated to, and shall not, make any Competitive
Bid Advance as part of such Competitive Bid Borrowing. Any offer
submitted after the time required above shall be disregarded by the
Agent unless such offer is submitted to correct a manifest error in a
prior offer.
(iii) The Borrower shall, before 12:00 noon two Business Days
before the date of such proposed Competitive Bid Borrowing, either
(A) cancel such Competitive Bid Borrowing Request by notice
to the Agent to that effect, or
(B) in its sole discretion, irrevocably accept one or more
of the offers made by any Lender or Lenders pursuant to (ii) above,
in ascending order of the rates offered therefor, by giving notice to
the Agent of the amount of each Competitive Bid Advance (which amount
shall be equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to the Borrower by the Agent
on behalf of such Lender for such Competitive Bid Advance pursuant to
(ii) above) to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders pursuant
to (ii) above, by giving the Agent notice to that effect, provided,
however, that the aggregate amount of such offers accepted by the
Borrower shall be equal at least to $5,000,000. If offers for Com-
petitive Bid Advances at the same interest rate are made by two or
more Lenders for a greater aggregate minimum principal amount than
the amount in respect of which offers for Competitive Bid Advances
are accepted by the Borrower at such interest rate, the principal
amount of Competitive Bid Advances accepted at such interest rate
shall be allocated by the Borrower among such Lenders as nearly as
possible in proportion to the respective minimum principal amounts
offered by such Lenders. No such Lender shall be obligated to make
such Competitive Bid Advance in a principal amount less than the
minimum amount offered by such Lender without consenting to such
lesser amount. If any Lender declines to make a Competitive Bid
Advance at such lesser amount, the Borrower shall be entitled in its
sole discretion to determine which of such offers at the same
interest rate it shall accept.
(iv) If the Borrower notifies the Agent that a Competitive Bid
Borrowing Request is cancelled pursuant to (iii)(A) above, the Agent
shall give prompt notice (by telephone or otherwise, to be promptly
confirmed by telecopy or other writing) thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to clause (iii)(B) above, the Agent
shall, as promptly as practicable on the second Business Day before
such proposed Borrowing Date, notify (A) each Lender that has made an
offer as described in clause (ii) above, of the date and aggregate
amount of such Competitive Bid Borrowing and whether any offer or
offers made by such Lender pursuant to clause (ii) above have been
accepted by the Borrower and (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing (a
"Participating Lender" with respect to such Competitive Bid
Borrowing), of the amount of each Loan to be made by such Lender as
part of such Competitive Bid Borrowing, together with a specification
of the interest rate and Interest Payment Date or Dates in respect of
each such Competitive Bid Advance. Each such Participating Lender
shall, before 11:30 A.M. on the date of such Competitive Bid
Borrowing make available for the account of its applicable Lending
Office to the Agent at its address specified in section 11.2 such
Lender's portion of such Competitive Bid Borrowing, in funds im-
mediately available to the Agent at such office. Upon satisfaction
of the applicable terms and conditions of this Agreement and after
receipt by the Agent of such amount from each such Participating
Lender, the Agent will make such amount available on such date to the
Borrower at the office of the Agent specified in section 11.2 by
crediting the account of the Borrower on the books of such office
with the aggregate of such amounts, in like funds as received by the
Agent. After each Competitive Bid Borrowing, if requested by any
Lender, the Agent shall within a reasonable time furnish to such
Lender such information in respect of such Competitive Bid Borrowing
as such Lender shall reasonably request. Unless the Agent shall have
received prior notice from a Participating Lender (by telephone or
otherwise, such notice to be promptly confirmed by telecopy or other
writing) that such Participating Lender will not make available such
Participating Lender's Competitive Bid Advance, the Agent may assume
that such Participating Lender has made such Participating Lender's
portion of such Competitive Bid Borrowing available to the Agent on
such Borrowing Date in accordance with this section, and the Agent
may, in reliance upon such assumption, make available to the Borrower
on such Borrowing Date a corresponding amount. If and to the extent
such Participating Lender shall not have made such portion available
to the Agent, such Participating Lender and the Borrower severally
agree to pay to the Agent forthwith on demand such corresponding
amount with interest thereon for each day from the date such amount
is made available to the Borrower until the date such amount is paid
to the Agent at a rate per annum equal to, in the case of the
Borrower, the rate of interest for such Competitive Bid Advance
accepted by the Borrower in its notice to the Agent under Section
2.5(a)(iii)(B), and, in the case of such Lender, the Federal Funds
Rate in effect on such day (as determined by the Agent). Such payment
by the Borrower, however, shall be without prejudice to its rights
against such Participating Lender. If such Participating Lender shall
pay to the Agent such corresponding amount, such amount so paid shall
constitute such Lender's Competitive Bid Advance as a part of such
Competitive Bid Advances for purposes of this Agreement, which
Competitive Bid Advance shall be deemed to have been made by such
Participating Lender on the Borrowing Date applicable thereto, but
without prejudice to the Borrower's rights against such Participating
Lender.
(b) Within the limits and on the conditions set forth in this
section 2.5, the Borrower may from time to time borrow under this section
2.5, repay pursuant to clause (c) below, and reborrow under this section 2.5.
(c) The Borrower shall repay to the Agent for the account of
each Participating Lender which has made a Competitive Bid Advance on the
last day of the Interest Period for such Competitive Bid Advance (such
Interest Period being that specified by the Borrower in the related Com-
petitive Bid Borrowing Request delivered pursuant to (a)(i), above) the then
unpaid principal amount of such Competitive Bid Advance.
(d) The Borrower shall pay interest on the unpaid principal
balance of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Participating Lender making such Competitive Bid Advance in
its notice with respect thereto delivered pursuant to (a)(ii) above payable
on the Interest Payment Date specified by the Borrower for such Competitive
Bid Advance in the related Competitive Bid Borrowing Request delivered pur-
suant to (a)(i), above.
(e) Each Competitive Bid Advance shall be subject to all of the
provisions of this Agreement generally, provided, however, that a Competitive
Bid Advance shall not reduce a Lender's obligation to fund its Commitment
Percentage of any ABR Advance or Eurodollar Advance.
(f) The provisions of this Section 2.5 shall be applicable only
if as of the date of a Competitive Bid Borrowing Request there is more than
one Lender.
(g) The Borrower shall pay to Agent for its own account a fee
of $400 at the time each Competitive Bid Borrowing Request is made.
F. Termination or Reduction of Aggregate Commitments.
(a) Voluntary Reductions. The Borrower shall have the right,
upon at least three Business Days' prior written notice to the Agent, at any
time to terminate the Aggregate Commitments or from time to time to perma-
nently reduce the Aggregate Commitments to an amount not less than the sum of
the aggregate principal balance of the Loans then outstanding (after giving
effect to any contemporaneous prepayment thereof), provided, however, that
any such reduction shall be in the amount of $1,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof.
(b) In General. Reductions of the Aggregate Commitments shall
be applied pro rata according to the Commitment of each Lender. Simulta-
neously with each reduction of the Aggregate Commitments under this Section,
the Borrower shall pay the Commitment Fee accrued on the amount by which the
Aggregate Commitments have been reduced and prepay the Loans by the amount,
if any, by which the aggregate unpaid principal balance of the Loans exceeds
the amount of the Aggregate Commitments as so reduced. If any prepayment is
made under this Section with respect to any Fixed Rate Advances, in whole or
in part, prior to the last day of the applicable Interest Period, the Bor-
rower agrees to indemnify the Lenders in accordance with Section 2.14.
G. Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the ABR Advances and Eurodollar Advances, in whole or in part, without
premium or penalty (other than any indemnification amounts, as provided for
in Section 2.14) at any time and from time to time by notifying the Agent in
writing at least one Business Day prior to the proposed prepayment date in
the case of Loans consisting of ABR Advances and at least three Business Days
prior to the proposed prepayment date in the case of Loans consisting of
Eurodollar Advances, specifying the Loans to be prepaid consisting of ABR
Advances, Eurodollar Advances or a combination thereof, the amount to be
prepaid and the date of prepayment. Such notice shall be irrevocable and the
amount specified in such notice shall be due and payable on the date
specified, together with accrued interest to the date of such payment on the
amount prepaid. Upon receipt of such notice, the Agent shall promptly notify
each Lender in respect thereof. Partial prepayments of the such ABR Advances
and/or Eurodollar Advances shall be in an aggregate principal amount of
$1,000,000 or such amount plus a whole multiple of $100,000 in excess
thereof, or, if less, the outstanding principal balance of thereof. After
giving effect to any partial prepayment with respect to Eurodollar Advances
which were made (whether as the result of a borrowing or a conversion) on the
same date and which had the same Interest Period, the outstanding principal
amount of such Eurodollar Advances shall exceed (subject to Section 2.8)
$1,000,000 or such amount plus a whole multiple of $100,000 in excess
thereof. Voluntary prepayments of Competitive Bid Advances are not
permitted.
(ba Mandatory Prepayments. Upon the occurrence of any Net
Proceeds Event, the Borrower shall promptly prepay the Loans by an amount
equal to the Net Proceeds from such Net Proceeds Event. Unless designated
otherwise in a notice to the Agent accompanying such prepayment, the Net
Proceeds shall be applied first to ABR Advances, next to Eurodollar Advances
(first to such Eurodollar Advances having the Interest Period next to occur)
and last to Competitive Bid Advances.
(c) In General. If any prepayment is made in respect of any
Fixed Rate Advance, in whole or in part, prior to the last day of the ap-
plicable Interest Period, the Borrower agrees to indemnify the Lenders in ac-
cordance with Section 2.14.
H. Conversions.
(a) The Borrower may elect from time to time to convert
Eurodollar Advances to ABR Advances by giving the Agent at least one Business
Day's prior irrevocable notice of such election, specifying the amount to be
so converted, provided, that any such conversion of Eurodollar Advances shall
only be made on the last day of the Interest Period applicable thereto. In
addition, the Borrower may elect from time to time to convert ABR Advances to
Eurodollar Advances or to convert Eurodollar Advances to new Eurodollar
Advances by giving the Agent at least three Business Days' prior irrevocable
notice of such election, specifying the amount to be so converted and the
initial Interest Period relating thereto, provided that any such conversion
of ABR Advances to Eurodollar Advances shall only be made on a Business Day
and any such conversion of Eurodollar Advances to new Eurodollar Advances
shall only be made on the last day of the Interest Period applicable to the
Eurodollar Advances which are to be converted to such new Eurodollar
Advances. The Agent shall promptly provide the Lenders with notice of any
such election. ABR Advances and Eurodollar Advances may be converted
pursuant to this Section in whole or in part, provided that conversions of
ABR Advances to Eurodollar Advances, or Eurodollar Advances to new Eurodollar
Advances, shall be in an aggregate principal amount of $1,000,000 or such
amount plus a whole multiple of $100,000 in excess thereof.
(b) Notwithstanding anything in this Section to the contrary,
no ABR Advance may be converted to a Eurodollar Advance, and no Eurodollar
Advance may be converted to a new Eurodollar Advance, if a Default or Event
of Default has occurred and is continuing either (i) at the time the Borrower
shall notify the Agent of its election to convert or (ii) on the requested
Conversion Date. In such event, such ABR Advance shall be automatically
continued as an ABR Advance or such Eurodollar Advance shall be automatically
converted to an ABR Advance on the last day of the Interest Period applicable
to such Eurodollar Advance. If an Event of Default shall have occurred and
be continuing, the Agent shall, at the request of the Required Lenders,
notify the Borrower (by telephone or otherwise) that all, or such lesser
amount as the Required Lenders shall designate, of the outstanding Eurodollar
Advances shall be automatically converted to ABR Advances, in which event
such Eurodollar Advances shall be automatically converted to ABR Advances on
the date such notice is given.
(c) Each conversion shall be effected by each Lender by
applying the proceeds of its new ABR Advance or Eurodollar Advance, as the
case may be, to its Advances (or portion thereof) being converted (it being
understood that such conversion shall not constitute a borrowing for purposes
of Sections 4, 5 or 6).
I. Interest Rate and Payment Dates.
(a) Prior to Maturity. Except as otherwise provided in Section
2.9(b), prior to maturity, the Loans shall bear interest on the outstanding
principal balance thereof at the applicable interest rate or rates per annum
set forth below:
ADVANCES RATE
Each ABR Advance Alternate Base Rate.
Each Eurodollar Eurodollar Rate for the
Advance applicable Interest Period plus the
Applicable Margin.
Competitive Bid the rate for the applicable
Advance Competitive Bid Advance determined pursuant
to Section 2.5.
(b) Event of Default. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of the
Loans shall bear interest at a rate per annum equal to 2% plus the rate which
would otherwise be applicable under Section 2.9(a), and any overdue interest
or other amount payable under the Loan Documents shall bear interest, whether
before or after the entry of any judgment thereon, at a rate per annum equal
to the Alternate Base Rate plus 2%. All such interest shall be payable on
demand.
(c) General. Interest on (i) ABR Advances to the extent based
on the BNY Rate shall be calculated on the basis of a 365 or 366-day year (as
the case may be), and (ii) ABR Advances to the extent based on the Federal
Funds Rate, Eurodollar Advances and Competitive Bid Advances shall be calcu-
lated on the basis of a 360-day year, in each case for the actual number of
days elapsed, including the first day but excluding the last. Except as
otherwise provided in Section 2.9(b), interest shall be payable in arrears on
each Interest Payment Date and upon payment (including prepayment) of the
Loans. Any change in the interest rate on the Loans resulting from a change
in the Alternate Base Rate or a Pricing Level shall become effective as of
the opening of business on the day on which such change shall become effec-
tive. The Agent shall, as soon as practicable, notify the Borrower and the
Lenders of the effective date and the amount of each such change in the
Alternate Base Rate or a Pricing Level, but any failure to so notify shall
not in any manner affect the obligation of the Borrower to pay interest on
the Loans in the amounts and on the dates required. Each determination of
the Alternate Base Rate, a Eurodollar Rate or a Pricing Level by the Agent
pursuant to this Agreement shall be conclusive and binding on the Borrower
and the Lenders absent manifest error. At no time shall the interest rate
payable on the Loans of any Lender, together with the Commitment Fee and all
other amounts payable under the Loan Documents, to the extent the same are
construed to constitute interest, exceed the Highest Lawful Rate. If
interest payable to a Lender on any date would exceed the maximum amount
permitted by the Highest Lawful Rate, such interest payment shall auto-
matically be reduced to such maximum permitted amount, and interest for any
subsequent period, to the extent less than the maximum amount permitted for
such period by the Highest Lawful Rate, shall be increased by the unpaid
amount of such reduction. Any interest actually received for any period in
excess of such maximum allowable amount for such period shall be deemed to
have been applied as a prepayment of the Loans. The Borrower acknowledges
that to the extent interest payable on ABR Advances is based on the BNY Rate,
such Rate is only one of the bases for computing interest on loans made by
the Lenders, and by basing interest payable on ABR Advances on the BNY Rate,
the Lenders have not committed to charge, and the Borrower has not in any way
bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.
J. Substituted Interest Rate.
In the event that (i) the Agent shall have reasonably determined
(which determination shall be conclusive and binding upon the Borrower) that
by reason of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate applicable pursuant to Section 2.9 or (ii) the Required Lenders shall
have notified the Agent that they have reasonably determined (which de-
termination shall be conclusive and binding on the Borrower) that the
applicable Eurodollar Rate will not adequately and fairly reflect the cost to
such Lenders of maintaining or funding loans bearing interest based on such
Eurodollar Rate, with respect to any portion of the Loans that the Borrower
has requested be made as Eurodollar Advances or Eurodollar Advances that will
result from the requested conversion of any portion of the Advances into
Eurodollar Advances (each, an "Affected Advance"), the Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise, to be
promptly confirmed in writing) of such determination, on or, to the extent
practicable, prior to the requested Borrowing Date or Conversion Date for
such Affected Advances. If the Agent shall give such notice, (a) any
Affected Advances shall be made as ABR Advances, (b) the Advances (or any
portion thereof) that were to have been converted to Affected Advances shall
be converted to or continued as ABR Advances and (c) any outstanding Affected
Advances shall be converted, on the last day of the then current Interest
Period with respect thereto, to ABR Advances. Until any notice under clauses
(i) or (ii), as the case may be, of this Section has been withdrawn by the
Agent (by notice to the Borrower promptly upon either (x) the Agent having
determined that such circumstances affecting the interbank eurodollar market
no longer exist and that adequate and reasonable means do exist for determin-
ing the Eurodollar Rate pursuant to Section 2.9 or (y) the Agent having been
notified by such Required Lenders that circumstances no longer render the
Advances (or any portion thereof) Affected Advances), no further Eurodollar
Advances shall be required to be made by the Lenders nor shall the Borrower
have the right to convert all or any portion of the Loans to Eurodollar Ad-
vances.
K. Taxes; Net Payments.
(a) All payments made by the Borrower under the Loan Documents
shall be made free and clear of, and without reduction for or on account of,
any taxes required by law to be withheld from any amounts payable under the
Loan Documents. A statement setting forth the calculations of any amounts
payable pursuant to this paragraph submitted by a Lender to the Borrower
shall be conclusive absent manifest error. The obligations of the Borrower
under this Section shall survive the termination of the Agreement and the
Aggregate Commitments and the payment of the Notes and all other amounts pay-
able under the Loan Documents.
(b) Each Lender which is a foreign corporation within the
meaning of Section 1442 of the Code shall deliver to the Borrower such
certificates, documents or other evidence as the Borrower may reasonably
require from time to time as are necessary to establish that such Lender is
not subject to withholding under Section 1441 or 1442 of the Code or as may
be necessary to establish, under any law imposing upon the Borrower
hereafter, an obligation to withhold any portion of the payments made by the
Borrower under the Loan Documents, that payments to the Agent on behalf of
such Lender are not subject to withholding.
L. Illegality.
Notwithstanding any other provisions herein, if any law,
regulation, treaty or directive, or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Lender
to make or maintain its Eurodollar Advances as contemplated by this
Agreement, (i) the commitment of such Lender hereunder to make Eurodollar
Advances or convert ABR Advances to Eurodollar Advances shall forthwith be
suspended and (ii) such Lender's Loans then outstanding as Eurodollar
Advances affected hereby, if any, shall be converted automatically to ABR
Advances on the last day of the then current Interest Period applicable
thereto or within such earlier period as required by law. If the commitment
of any Lender with respect to Eurodollar Advances is suspended pursuant to
this Section and thereafter it is once again legal for such Lender to make or
maintain Eurodollar Advances, such Lender's commitment to make or maintain
Eurodollar Advances shall be reinstated and such Lender shall notify the
Agent and the Borrower of such event.
M. Increased Costs.
In the event that any law, regulation, treaty or directive
hereafter enacted, promulgated, approved or issued or any change in any
presently existing law, regulation, treaty or directive therein or in the
interpretation or application thereof by any Governmental Authority charged
with the administration thereof or compliance by any Lender (or any
corporation directly or indirectly owning or controlling such Lender) with
any request or directive from any central bank or other Governmental
Authority, agency or instrumentality:
(a) does or shall subject any Lender to any Taxes of any kind
whatsoever with respect to any Eurodollar Advances or its obligations under
this Agreement to make Eurodollar Advances, or change the basis of taxation
of payments to any Lender of principal, interest or any other amount payable
hereunder in respect of its Eurodollar Advances, including any Taxes required
to be withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, tax on the overall net income of
such Lender or its Applicable Lending Office for any of such Advances by the
jurisdiction in which such Lender is incorporated or has its principal office
or such Applicable Lending Office, including, in the case of Lenders
incorporated in any State of the United States such tax imposed by the United
States); or
(b) does or shall impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or
similar requirement against assets held by, or deposits of, or advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Lender in respect of its Eurodollar Advances which is not
otherwise included in the determination of the Eurodollar Rate;
and the result of any of the foregoing is to increase the cost to such Lender
of making, renewing, converting or maintaining its Eurodollar Advances or its
commitment to make such Eurodollar Advances, or to reduce any amount re-
ceivable hereunder in respect of its Eurodollar Advances, then, in any such
case, the Borrower shall pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such additional cost or
reduction in such amount receivable which such Lender deems to be material as
determined by such Lender; provided, however, that nothing in this Section
shall require the Borrower to indemnify the Lenders with respect to with-
holding Taxes for which the Borrower has no obligation under Section 2.11.
No failure by any Lender to demand compensation for any increased cost during
any Interest Period shall constitute a waiver of such Lender's right to
demand such compensation at any time. A statement setting forth the calcula-
tions of any additional amounts payable pursuant to the foregoing sentence
submitted by a Lender to the Borrower shall be conclusive absent manifest
error. The obligations of the Borrower under this Section shall survive the
termination of the Agreement and the Aggregate Commitments and the payment of
the Notes and all other amounts payable under the Loan Documents. To the
extent that any increased costs of the type referred to in this Section are
being incurred by a Lender and such costs can be eliminated or reduced by the
transfer of such Lender's Loans or Commitment to another of its branches, and
to the extent that such transfer is not inconsistent with such Lender's
internal policies of general application and only if, as determined by such
Lender in its sole discretion, the transfer of such Loan or Commitment, as
the case may be, would not otherwise adversely affect such Loan or such
Lender, the Borrower may request, and such Lender shall use reasonable
efforts to effect, such transfer.
N. Indemnification for Loss Relating to Eurodollar Advances.
Notwithstanding anything contained herein to the contrary, if
the Borrower shall fail to borrow or convert on a Borrowing Date or
Conversion Date after it shall have given notice to do so in which it shall
have requested a Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall
have accepted one or more offers of Competitive Bid Advances under Sec-
tion 2.5 or if a Eurodollar Advance or Competitive Bid Advance shall be
terminated for any reason prior to the last day of the Interest Period ap-
plicable thereto, or if, while a Eurodollar Advance or Competitive Bid
Advance is outstanding, any repayment or prepayment of such Eurodollar
Advance or Competitive Bid Advance is made for any reason (including, without
limitation, as a result of acceleration or illegality) on a date which is
prior to the last day of the Interest Period applicable thereto, the Borrower
agrees to indemnify each Lender against, and to pay on demand directly to
such Lender, any loss or expense suffered by such Lender as a result of such
failure to borrow or convert, termination or repayment, including, without
limitation, an amount, if greater than zero, equal to:
A x (B-C) x D
360
where:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate or rate which such Competitive Bid Advance
bears (in each case expressed as a decimal) to such Loan;
"C" equals the applicable Eurodollar Rate or Proposed Bid Rate (in each case
expressed as a decimal), as the case may be, in effect on or about the first
day of the applicable Remaining Interest Period, based on the applicable
rates offered or bid, as the case may be, on or about such date, for deposits
(or in the case of a Proposed Bid Rate, based on the rate such Lender would
have quoted) in an amount equal approximately to such Lender's pro rata share
of the Affected Principal Amount with an Interest Period equal approximately
to the applicable Remaining Interest Period, as determined by such Lender;
"D" equals the number of days from and including the first day of the
applicable Remaining Interest Period to but excluding the last day of such
Remaining Interest Period;
and any other out-of-pocket loss or expense (including any internal
processing charge customarily charged by such Lender) suffered by such Lender
in connection with such Eurodollar Advance or Competitive Bid Advance,
including, without limitation, in liquidating or employing deposits acquired
to fund or maintain the funding of its pro rata share of the Affected
Principal Amount, or redeploying funds prepaid or repaid, in amounts which
correspond to its pro rata share of the Affected Principal Amount. Each
determination by the Agent or a Lender pursuant to this Section shall be
conclusive and binding on the Borrower absent manifest error. The
obligations of the Borrower under this Section shall survive the termination
of the Agreement and the Aggregate Commitments and the payment of the Notes
and all other amounts payable under the Loan Documents.
O. Option to Fund.
Each Lender has indicated that, if the Borrower elects to borrow
or convert to Eurodollar Advances, or obtain a Competitive Bid Advance, such
Lender may wish to purchase one or more deposits in order to fund or maintain
its funding of such Loan during the Interest Period in question; it being
understood that the provisions of this Agreement relating to such funding are
included only for the purpose of determining the rate of interest to be paid
on such Loan. Each Lender shall be entitled to fund and maintain its funding
of all or any part of each Eurodollar Advance or Competitive Bid Advance made
by it in any manner it sees fit, but all determinations under Section 2.14
shall be made as if such Lender had actually funded and maintained its
funding of such Loan during the applicable Interest Period through the
purchase of deposits in an amount equal to such Loan and having a maturity
corresponding to such Interest Period. The obligations of the Borrower under
Sections 2.10, 2.11, 2.13 and 2.14 shall survive the termination of the
Agreement and the Aggregate Commitments and the payment of the Notes and all
other amounts payable under the Loan Documents.
P. Use of Proceeds.
The proceeds of Loans shall be used solely for general business
purposes, and such use shall conform to the provisions of Section 4.11.
Q. Capital Adequacy.
If (i) the enactment or promulgation of, or any change or
phasing in of, any United States or foreign law or regulation or in the
interpretation thereof by any Governmental Authority charged with the admin-
istration thereof, (ii) compliance with any directive or guideline from any
central bank or United States or foreign Governmental Authority (whether
having the force of law) promulgated or made after the date hereof, or (iii)
compliance with the Risk-Based Capital Guidelines of the Board of Governors
of the Federal Reserve System as set forth in 12 CFR Parts 208 and 225, or of
the Comptroller of the Currency, Department of the Treasury, as set forth in
12 CFR Part 3, or similar legislation, rules, guidelines, directives or
regulations under any applicable United States or foreign Governmental
Authority affects or would affect the amount of capital required to be
maintained by a Lender (or any lending office of such Lender) or any cor-
poration directly or indirectly owning or controlling such Lender or imposes
any restriction on or otherwise adversely affects such Lender (or any lending
office of such Lender) or any corporation directly or indirectly owning or
controlling such Lender and such Lender shall have reasonably determined that
such enactment, promulgation, change or compliance has the effect of reducing
the rate of return on such Lender's capital or the asset value to such Lender
of any Loan made by such Lender as a consequence, directly or indirectly, of
its obligations to make and maintain the funding of its Loans at a level
below that which such Lender could have achieved but for such enactment,
promulgation, change or compliance (after taking into account such Lender's
policies regarding capital adequacy) by an amount deemed by such Lender to be
material, then, upon demand by such Lender, the Borrower shall promptly pay
to such Lender such additional amount or amounts as shall be sufficient to
compensate such Lender for such reduction in such rate of return or asset
value. A certificate in reasonable detail as to such amounts submitted to
the Borrower and the Agent setting forth the determination of such amount or
amounts that will compensate such Lender for such reductions shall be
presumed correct absent manifest error. No failure by any Lender to demand
compensation for such amounts hereunder shall constitute a waiver of such
Lender's right to demand such compensation at any time. Such Lender shall,
however, use reasonable efforts to notify the Borrower of such claim within
90 days after the officer of such Lender having primary responsibility for
this Agreement has obtained knowledge of the events giving rise to such
claim. The obligations of the Borrower under this Section shall survive the
termination of the Agreement and the Aggregate Commitments and the payment of
the Notes and all other amounts payable under the Loan Documents.
R. Agent's Records.
The Agent's records with respect to the Loans, the interest
rates applicable thereto, each payment by the Borrower of principal and
interest on the Loans, and fees, expenses and any other amounts due and
payable in connection with this Agreement shall be presumptively correct
absent manifest error as to the amount of the Loans, and the amount of
principal and interest paid by the Borrower in respect of such Loans and as
to the other information relating to the Loans, and amounts paid and payable
by the Borrower hereunder and under the Notes. The Agent will when requested
by the Borrower advise the Borrower of the principal and interest outstanding
under the Loans as of the date of such request and the dates on which such
payments are due.
S. Extension of Revolving Credit Termination Date.
(a) Provided that no Default or Event of Default exists during
the periods set forth below, the Borrower may request one or more extensions
of the Revolving Credit Termination Date, each such extension to be for a
period of 364-days, by giving written notice of each such request (each, an
"Extension Request") to the Agent and each Lender during the period which is
not less than 45 nor more than 60 days prior to the then current Revolving
Credit Termination Date. Any extension of the Revolving Credit Termination
Date requested in accordance with the foregoing procedure shall be determined
as follows:
(i) If the Required Lenders do not consent to an Extension Request
within 30, but not less than 15, days from the date of such
Extension Request (by giving written notice thereof to the Bor-
rower and the Agent), the Revolving Credit Termination Date
shall not be extended.
(ii) If each Lender consents to an Extension Request within 30, but
not less than 15, days from the date of such Extension Request,
(by giving written notice thereof to the Borrower and the Agent)
the Revolving Credit Termination Date shall be amended such that
it shall end 364 days from the date of the then-current
Revolving Credit Termination Date. Upon receipt of such con-
sents from each Lender, the Agent will notify the Lenders of its
receipt of all such consents and the new Revolving Credit
Termination Date.
(iii) If Lenders (each a "Nonconsenting Lender" and collectively, the
Nonconsenting Lenders") having Commitments equal to 49% or less
of the Aggregate Commitments do not consent to an Extension
Request within 30, but not less than 15, days from the date of
such Extension Request, (by giving written notice thereof to the
Borrower and the Agent), the Borrower may elect to (i) withdraw
such Extension Request, (ii) effect an assignment of all or part
of the Nonconsenting Lenders' rights and obligations under the
Loan Documents, subject to, and in accordance with, the
provisions of Section 2.19(c), or (iii) terminate the Commitment
of each Nonconsenting Lender effective on the then current
Revolving Credit Termination Date with respect to such Non-
consenting Lender, and, on such date, pay to the Agent for dis-
tribution to such Nonconsenting Lender the outstanding principal
balance, if any, of the Note of such Nonconsenting Lender, to-
gether with any accrued and unpaid interest thereon to the date
of such payment, any accrued and unpaid Commitment Fee due to
such Lender, and any other amount due to such Lender under this
Agreement, whereupon (y) the then current Revolving Credit
Termination Date shall be extended as to all Lenders from whom
the Agent has received such consent (the "Consenting Lenders"),
and the terms of clause (ii) of this Section 2.19(a) shall apply
to such extension, and (z) each Nonconsenting Lender shall cease
to be a "Lender" for all purposes of this Agreement after the
then current Revolving Credit Termination Date applicable to
such Nonconsenting Lender (except with respect to its rights
hereunder to be reimbursed for costs and expenses, and to in-
demnification with respect to, matters attributable to events,
acts or conditions occurring prior to such assumption and pur-
chase) and shall no longer have any obligations hereunder.
(b) In the event the Borrower elects to terminate the Commitment
of the Nonconsenting Lender under Section 2.19(a)(iii) above, the Agent is
authorized and directed to amend Exhibit B, effective on the then current
Revolving Credit Termination Date, and promptly distribute a copy thereof to
the Borrower and the Consenting Lenders reflecting the new Commitment Amount
of each Consenting Lender. The new Commitment Percentage of each Consenting
Lender based on such new Commitment Amount (after giving effect to the ter-
mination of each Nonconsenting Lender's Commitment) is sometimes hereinafter
referred to as the "Reallocated Commitment Percentage." The Consenting
Lenders agree (subject to their receipt of any mandatory prepayment referred
to below), effective on the then current Revolving Credit Termination Date,
to assume their Reallocated Commitment Percentages of the Revolving Credit
Loans, provided, that if, after giving effect to such assumption, the out-
standing principal balance of the Consenting Lenders' Revolving Credit Loans
would exceed the Aggregate Commitments or any Lender's Commitment, then the
Borrower will pay to the Agent on the then current Revolving Credit Termi-
nation Date for distribution to the Consenting Lenders, an amount sufficient
to reduce the outstanding principal balance of the Revolving Credit Loans to
an amount which does not exceed the Aggregate Commitments and each Consenting
Lender's Commitment.
(c) In the event the Borrower elects to effect an assignment of
all or part of the Nonconsenting Lenders' rights and obligations under the
Loan Documents in accordance with clause (ii) of Section 2.19(a)(iii) above,
then, provided that there shall not exist and be continuing any Default or
Event of Default, the Borrower may, subject to the terms of this Section
2.19(c), obtain the agreement of a Substitute Lender to accept such an
assignment, and one or more Nonconsenting Lenders designated by the Borrower
(as hereinafter set forth) shall, subject to the terms of this Section
2.19(c), assign all or part of their rights and obligations in the Loan Docu-
ments to such Substitute Lender. The Borrower shall at least 15 days prior
to the Revolving Credit Termination Date on which the Commitments of such
Nonconsenting Lenders shall terminate (a "Nonconsenting Lender Termination
Date") notify the Agent and one or more of the Nonconsenting Lenders of a
Substitute Lender's agreement to accept such assignment from such
Nonconsenting Lenders. Such notice shall set forth (i) the name of the
Nonconsenting Lenders whose rights and obligations are to be assigned to said
Substitute Lender, (ii) the percentage interest of the Nonconsenting Lenders'
Commitments to be assigned to said Substitute Lender, and (iii) the amount of
the Revolving Credit Loans to be so assigned and their type (i.e. ABR
Advances, Eurodollar Advances and/or Competitive Bid Advances). Upon the
Agent's consent to such assignment (which consent or denial shall be given by
the Agent to the Borrower and applicable Nonconsenting Lenders within 5 days
after the Agent's receipt of the foregoing notice from the Borrower) such
Nonconsenting Lenders and the Substitute Lender shall enter into an
Assignment and Assumption Agreement substantially in the form of Exhibit A.
Upon such execution, delivery, acceptance and recording by the Agent, from
and after the effective date specified in such Assignment and Assumption
Agreement (which date shall not be later than the Nonconsenting Lender Termi-
nation Date), the Substitute Lender shall be a party hereto. The Commitment
of the Substitute Lender acquired pursuant to such Assignment and Assumption
Agreement shall be coterminous with the Commitments of each Consenting
Lender. The Borrower agrees upon written request of the Agent, and at the
Borrower's expense, to execute and deliver to such Substitute Lender a Note,
dated the effective date of such Assignment and Assumption Agreement, in an
aggregate principal amount equal to the Revolving Credit Loans assigned to,
and Commitments assumed by, the Substitute Lender, and the Agent shall amend
Exhibit B, effective on such date to reflect the Reallocated Commitment
Percentage of each Consenting Lender and such Substitute Lender and shall
promptly distribute a copy thereof to the Borrower, each Consenting Lender
and such Substitute Lender. At the request of the Borrower, the
Nonconsenting Lender whose Commitment has been assigned shall promptly after
the later to occur of such effective date and payment in full of all amounts
hereunder and under the Note return to the Borrower its Note or other
evidence that such Nonconsenting Lender has received full payment of such
amounts. The purchase price paid under each Assignment and Assumption
Agreement delivered pursuant to this Section 2.19(c) shall be the principal
amount of the Revolving Credit Loans assigned thereunder. On the effective
date of such Assignment and Assumption Agreement, the Borrower, the Substi-
tute Lender and the Nonconsenting Lender shall make appropriate adjustments
in the payment of interest, Commitment Fees and other amounts with respect to
the assigned Revolving Credit Loans, it being understood, however, that the
Nonconsenting Lender may require, as a condition to its execution and
delivery of the Assignment and Assumption Agreement, that it receive all ac-
crued and unpaid interest, Commitment Fees and other amounts due to it
(whether or not the same are then payable) on the effective date of such
Assignment and Assumption Agreement. To the extent that the Borrower does
not purchase all of the rights and obligations of the Nonconsenting Lenders
under the Loan Documents, then the Borrower will make the payment described
in clause (iii) of Section 2.19(a)(iii) with respect to the Revolving Credit
Loans and the interest, Commitment Fees and other amounts appurtenant thereto
which are not the subject of such Assignment and Assumption Agreement. Each
Nonconsenting Lender shall cease to be a "Lender" for all purposes of this
Agreement after the Nonconsenting Lender Termination Date applicable to such
Nonconsenting Lender (except with respect to its rights hereunder to be reim-
bursed for costs and expenses, and to indemnification with respect to,
matters attributable to events, acts or conditions occurring prior to such
assumption and purchase) and shall no longer have any obligations hereunder.
The Borrower agrees to hold each Nonconsenting Lender harmless from any loss
liability or claim incurred by or made against such Nonconsenting Lender in
connection with any assignment made by it pursuant to this Section 2.19(c)
(the obligations of the Borrower under the foregoing indemnity shall survive
the termination of the Agreement and the Aggregate Commitments and the pay-
ment of the Notes and all other amounts payable under the Loan Documents).
(d) Each Lender will use its best efforts to respond promptly
to any request for an extension of the Revolving Credit Termination Date,
provided that no Lender's failure to so respond shall create any claim
against it or have the effect of extending the Revolving Credit Termination
Date of such Lender's Commitment.
(e) At any time prior to the then existing Revolving Credit
Termination Date, the Borrower may withdraw its Extension Request (i) elect
to convert the outstanding principal balance of all Revolving Credit Loans to
the Term Loans on such Revolving Credit Termination Date, subject to the
provisions of Section 2.2, or (ii) allow the Commitments to terminate on such
Revolving Credit Termination Date, in which case the Lenders shall thereafter
have no further obligations to the Borrower under this Agreement and all
Loans must be paid in full, together with all accrued and unpaid interest,
Commitment Fees and other amounts due hereunder. During any period that an
Extension Request has been made and not withdrawn by the Borrower, the
Borrower shall not be entitled to convert the Revolving Credit Loans to Term
Loans.
T. Commitment Increases.
(a) At any time and from time to time after the Effective Date
and during the Revolving Credit Period, subject to the prior written consent
of the Agent (which consent shall not be unreasonably withheld), and provided
that no Default shall have occurred and is continuing, the Total Commitment
Amount may be increased either by new Lenders establishing Commitments or by
one or more then existing Lenders increasing their Commitments (each such in-
crease by either means, a "Commitment Increase", and each new Lender or each
Lender increasing its Commitment, an "Additional Commitment Lender") provided
that no Commitment Increase shall become effective unless and until (i) the
Borrower, the Agent and the Additional Commitment Lender shall have executed
and delivered an agreement substantially in the form of Exhibit H (a "Com-
mitment Increase Supplement") with respect to such Commitment Increase, and
(ii) if, after giving effect thereto, the aggregate amount of the Commitments
would exceed $100,000,000, such Commitment Increase shall have been consented
to in writing by each of the other Lenders. On the effective date of any such
Commitment Increase (each an "Increase Effective Date"), the Additional
Commitment Lender shall pay to each other Lender the purchase price, as
determined in accordance with subsection (b) below, for an assignment of a
portion of such other Lender's advances outstanding at such time that, after
giving effect to such assignments, the aggregate amount of Revolving Credit
Loans of each Lender (including the Additional Commitment Lender) shall be
proportional. Upon payment of such purchase price, each other Lender shall
be deemed to have sold and made such an assignment to such Additional
Commitment Lender, and such Additional Commitment Lender shall be deemed to
have purchased and assumed such an assignment from each other Lender, on the
terms set forth in subsection (b) below. Upon the effectiveness of any
Commitment Increase, the Borrower shall issue a Note to the Additional
Commitment Lender (against surrender of its existing Note in the case of an
existing Lender), and to the existing Lenders if necessary, in the amount of
such Additional Commitment Lender's Commitment after giving effect to such
Commitment Increase. The Agent is hereby directed to amend Exhibit B hereto
on each Increase Effective Date to reflect the Total Commitment Amount and
the Commitment of each Lender as of such Increase Effective Date. As of the
Increase Effective Date, each Additional Commitment Lender shall be a
"Lender" hereunder, and shall have all of the rights and obligations of a
Lender hereunder.
(b) Each assignment of Revolving Credit Loans by any Lender (an
"Assigning Lender") to an Additional Commitment Lender pursuant to subsection
(a) of this Agreement shall be made on the following terms:
(i) The purchase price for the assignment shall be equal
to the aggregate principal amount of the Revolving Credit Loans assigned plus
the amount of accrued and unpaid interest thereon on the date of the
assignment. The purchase price shall be payable, not later than 12:00 noon
(New York City time) on the effective date of the applicable Commitment In-
crease, in U.S. Dollars in funds immediately available to the Assigning
Lender at such office of the Assigning Lender (or a commercial bank
designated by it) located in the United States as the Assigning Lender shall
specify to the Assignee.
(ii) The assignment shall consist of an equal percentage of
all Revolving Credit Loans of the Assigning Lender outstanding and shall
include all of the Assigning Lender's rights under this Agreement in respect
of the portion of the Revolving Credit Loans of the Assigning Lender as-
signed, including accrued interest thereon.
(iii) The assignment shall be without recourse to the
Assigning Lender. The Assigning Lender shall not be deemed to have made any
representation or warranty or to have assumed any responsibility with respect
to (a) any statements, warranties or representations made in or in connection
with the Agreement or any other instrument or document furnished pursuant
thereto or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement or any other instrument or document
furnished pursuant thereto, other than as set forth in clause (iv) below, or
(b) the financial condition of the Borrower or any of its Subsidiaries, or
the performance or observance by the Borrower or any of its Subsidiaries of
any of their respective obligations under the Agreement or any other
instrument or document furnished pursuant thereto.
(iv) The Assigning Lender shall, at the time of the as-
signment, be deemed to have represented and warranted that (a) it has full
power, authority and legal right to make the assignment and (b) it is the
legal and beneficial owner of the rights assigned and such rights are free
and clear of any lien or adverse claim, including any participation.
(v) The Additional Commitment Lender which is the assignee
of the Assigning Lender's interest shall, at the time of the assignment, be
deemed to have (a) represented and warranted that it has full power,
authority and legal right to purchase and assume the Assignment; (b)
confirmed that it has received a copy of this Agreement, together with copies
of the most recent financial statements and reports delivered pursuant to
Section 7.1 (a), (b) and (c) of this Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to purchase and assume the assignment; and (c) agreed that it will,
independently and without reliance upon the Assigning Lender, the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement.
(c) The Agent shall not require payment of a fee in connection
with any Commitment Increase.
U. Failure to Fund; Commitment Fee.
In the event that a Lender (i) shall fail or refuse to advance
its Commitment Percentage of each borrowing of Loans as required by the
provisions of either Sections 2.4 or 2.5, and (ii) shall not have notified
either the Agent or the Borrower (either orally or in writing) that it has
determined (which determination shall be made by such Lender reasonably and
in good faith) that it is not obligated by the terms of this Agreement to
make such advance (for example, by reason of the occurrence of a Default or
the failure of the Borrower to satisfy any other condition to such borrowing)
(such Lender's Commitment Percentage of such borrowing being the "Defaulted
Portion"), then for the period that such failure or refusal shall continue,
and such notice is not provided, the Commitment Fee shall not accrue on that
portion of such Lender's Commitment equal to the Defaulted Portion. Any such
reduction in the aggregate Commitment Fee shall reduce only the portion of
such aggregate Commitment Fee payable to the Lender who gave rise to such
Defaulted Portion, and shall not reduce the share of the Commitment Fee
payable to any other Lenders.
III. FEES; PAYMENTS
A. Commitment Fee.
Subject to the terms of Section 2.20, the Borrower agrees to pay
to the Agent, for the account of the Lenders in accordance with each Lender's
Commitment Percentage, a fee (the "Commitment Fee"), during the Revolving
Credit Period, equal to the Applicable Commitment Fee Percentage of the av-
erage daily Available Commitment Amount (including any increase thereto
pursuant to Section 2.20). The Commitment Fee shall be payable quarterly in
arrears on the last day of each March, June, September and December of each
year, commencing on the first such day following the Effective Date, and on
each optional reduction of the Total Commitment Amount, and ending on the
date that the Commitments shall expire or otherwise terminate. The Commit-
ment Fee (and the applicable Commitment Fee Percentage) shall be calculated
on the basis of a 360 day year for the actual number of days elapsed. Loans
which are Competitive Bid Rate Advances would not be deemed to be usage for
purposes of calculating the Commitment Fee.
ed Pro Rata Treatment and Application of Principal Payments.
Each payment, including each prepayment, of principal and
interest on the Loans and of the Commitment Fee shall be made by the Borrower
to the Agent at its office set forth in Section 11.2 in funds immediately
available to the Agent at such office by 12:00 noon on the due date for such
payment. Promptly upon receipt thereof by the Agent, the Agent shall remit,
in like funds as received, (i) to the Lenders who maintain any of their Loans
as ABR Advances or Eurodollar Advances, each such Lender's pro rata share of
such payments which are in respect of principal or interest due on such ABR
Advances or Eurodollar Advances; (ii) to the Lenders who maintain any of
their Revolving Credit Loans as Competitive Bid Advances, each such Lender's
pro rata share of such payments which are in respect principal or interest
due on such Competitive Bid Advances in accordance with Sections 2.5(c) and
(d) and (iii) in the case of Commitment Fees, to all Lenders pro rata accord-
ing each Lender's Commitment Percentage thereof (except as otherwise provided
in Section 2.21). The failure of the Borrower to make any such payment by
such time shall not constitute a default hereunder, provided that such
payment is made on such due date, but any such payment made after 12:00 noon
on such due date shall be deemed to have been made on the next Business Day
for the purpose of calculating interest on amounts outstanding on the Loans.
If any payment hereunder or under the Notes shall be due and payable on a day
which is not a Business Day, the due date thereof (except as otherwise pro-
vided in the definition of Interest Period) shall be extended to the next
Business Day and (except with respect to payments in respect of the
Commitment Fee) interest shall be payable at the applicable rate specified
herein during such extension. If any payment is made with respect to any
Eurodollar Advance or Competitive Bid Advance prior to the last day of the
applicable Interest Period, the Borrower shall indemnify each Lender in ac-
cordance with Section 2.14.
IV. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Agent and each Lender:
A. Subsidiaries.
The Borrower has only the Subsidiaries set forth on Schedule
4.1. The shares of each corporate Subsidiary are duly authorized, validly
issued, fully paid and nonassessable and are owned free and clear of any
Liens. The interest of the Borrower in each non-corporate Subsidiary is
owned free and clear of any Liens.
B. Existence and Power; Declaration of Trust.
(a) Each of the Borrower and its Subsidiaries is duly organized
or formed and validly existing in good standing under the laws of the
jurisdiction of its formation, has all requisite power and authority to own
its Property and to carry on its business as now conducted, and each is in
good standing and authorized to do business in each jurisdiction in which the
nature of the business conducted therein or the Property owned therein make
such qualification necessary, except where such failure to qualify could not
reasonably be expected to have a Material Adverse Effect.
(b) The Declaration of Trust is in full force and effect in
accordance with the terms thereof. As of the date hereof, there have been no
amendments to the Declaration of Trust.
C. Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents and to make the
borrowings contemplated thereby, to execute, deliver and carry out the terms
of the Notes and to incur the obligations provided for herein and therein,
all of which have been duly authorized by all proper and necessary action and
are in full compliance with the Declaration of Trust.
D. Binding Agreement.
(a) The Loan Documents constitute the valid and legally binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally.
(b) No provision of any applicable statute, law (including,
without limitation, any applicable usury or similar law), rule or regulation
of any Governmental Body will prevent the execution, delivery or performance
of, or affect the validity of, the Loan Documents.
E. Litigation.
(a) There are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority (whether or not purportedly
on behalf of the Borrower or any Subsidiary) pending or, to the knowledge of
the Borrower, threatened against the Borrower or any Subsidiary or any of
their respective Properties or rights, which (i) if adversely determined,
could reasonably be expected to have a Material Adverse Effect, (ii) call
into question the validity or enforceability of any of the Loan Documents, or
(iii) could reasonably be expected to result in the rescission, termination
or cancellation of any of the following (to the extent the same is material):
any franchise, right, license, permit or similar authorization held by the
Borrower or any Subsidiary.
(b) Schedule 4.5 sets forth all actions, suits or proceedings
at law or in equity or by or before any Governmental Authority (whether or
not purportedly on behalf of the Borrower or any Subsidiary) pending or, to
the knowledge of the Borrower, threatened against the Borrower, any
Subsidiary or any of their respective Properties or rights, which, if
adversely determined, could have a Material Adverse Effect.
F. Required Consents.
No consent, authorization or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Authority or any other
Person not obtained is required to authorize, or is required in connection
with the execution, delivery and performance of the Loan Documents or is
required as a condition to the validity or enforceability of the Loan
Documents.
G. No Conflicting Agreements.
Neither the Borrower nor any Subsidiary is in default under any
mortgage, indenture, contract or agreement to which it is a party or by which
it or any of its Property is bound, the effect of which default could
reasonably be expected to have a Material Adverse Effect. The execution, de-
livery or carrying out of the terms of the Loan Documents will not constitute
a default under, or result in the creation or imposition of, or obligation to
create, any Lien upon any Property of the Borrower or any Subsidiary pursuant
to the terms of any such mortgage, indenture, contract or agreement.
H. Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect. The Borrower and each Subsidiary is complying in
all material respects with all statutes, regulations, rules and orders
applicable to Borrower or such Subsidiary of all Governmental Authorities,
including, without limitation, Environmental Laws and ERISA, a violation of
which could reasonably be expected to have a Material Adverse Effect.
I. Taxes.
Each of the Borrower and its Subsidiaries has filed or caused to
be filed all tax returns required to be filed and has paid, or has filed
appropriate extensions and has made adequate provision for the payment of,
all taxes shown to be due and payable on said returns or in any assessments
made against it (other than those being contested as required under Section
7.4) which would be material to the Borrower or any Subsidiary, and no tax
Liens have been filed with respect thereto. The charges, accruals and re-
serves on the books of the Borrower and each Subsidiary with respect to all
federal, state, local and other taxes are, to the best knowledge of the
Borrower, adequate for the payment of all such taxes, and the Borrower knows
of no unpaid assessment which is due and payable against it or any Subsidiary
or any claims being asserted which could reasonably be expected to have a
Material Adverse Effect The Federal income tax returns of the Borrower and
each of its Subsidiaries consolidated in such returns have been examined by
and settled with the Internal Revenue Service, or, the statute of limitations
with respect thereto have run, for all years through July 31, 1989.
J. Governmental Regulations.
Neither the Borrower nor any Subsidiary is subject to regulation
under the Public Utility Holding Company Act of 1935, as amended, the Federal
Power Act or the Investment Company Act of 1940, as amended, and neither the
Borrower nor any Subsidiary is subject to any statute or regulation which
prohibits or restricts the incurrence of Indebtedness under the Loan
Documents, including, without limitation, statutes or regulations relative to
common or contract carriers or to the sale of electricity, gas, steam, water,
telephone, telegraph or other public utility services.
K. Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Subsidiary is engaged principally,
or as one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying any Margin Stock. No part of the
proceeds of the Loans will be used, directly or indirectly, for a purpose
which violates any law, rule or regulation of any Governmental Authority,
including, without limitation, the provisions of Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System, as amended. No part of
the proceeds of the Loans will be used, directly or indirectly, to purchase
or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock.
L. Plans; Multiemployer Plans.
Each of the Borrower and its ERISA Affiliates maintains or makes
contributions only to the Plans and Multiemployer Plans listed on Schedule
4.12. Each Plan, and, to the best knowledge of the Borrower, each
Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other applicable Federal or state law,
and no event or condition is occurring or exists concerning which the
Borrower would be under an obligation to furnish a report to the Agent and
each Lender as required by Section 7.2(d). As of December 31, 1992, each
Plan was "fully funded", which for purposes of this Section means that the
fair market value of the assets of such Plan is not less than the present
value of the accrued benefits of all participants in the Plan, computed on a
plan termination basis. To the best knowledge of the Borrower, no Plan has
ceased being fully funded.
M. Financial Statements.
The Borrower has heretofore delivered to the Agent and the
Lenders copies of the (i) audited Consolidated and Consolidating Balance
Sheet of the Borrower as of July 31, 1995, and the related Consolidated and
Consolidating Statements of Operations, Stockholders' Equity and Cash Flows
for the fiscal years of the Borrower then ended and (ii) the unaudited
Consolidated and Consolidating Balance Sheets of the Borrower as of October
31, 1995, January 31, 1996 and April 30, 1996 and the related Consolidated
and Consolidating Statements of Operations, Stockholders' Equity and Cash
Flows for the fiscal quarters then ended (with the related notes and
schedules, the "Financial Statements"). The Financial Statements fairly pre-
sent the Consolidated and Consolidating financial condition and results of
the operations of the Borrower and its Subsidiaries as of the dates and for
the periods indicated therein (subject, in the case of such unaudited
statements, to normal year-end adjustments) and have been prepared in
conformity with GAAP. Except as reflected in the Financial Statements or in
the notes thereto, neither the Borrower nor any Subsidiary has any obligation
or liability of any kind (whether fixed, accrued, contingent, unmatured or
otherwise) which, in accordance with GAAP, should have been shown on the
Financial Statements and was not. Since the date of the Financial
Statements, the Borrower and each Subsidiary has conducted its business only
in the ordinary course and there has been no Material Adverse Change.
N. Property.
Each of the Borrower and its Subsidiaries has good and
marketable title to all of its Property, title to which is material to the
Borrower or such Subsidiary, subject to no Liens, except Permitted Liens.
O. Franchises, Intellectual Property, Etc.
Each of the Borrower and its Subsidiaries possesses or has the
right to use all franchises, Intellectual Property, licenses and other rights
as are material and necessary for the conduct of its business, and with
respect to which it is in compliance, with no known conflict with the valid
rights of others which could reasonably be expected to have a Material
Adverse Effect. No event has occurred which permits or, to the best
knowledge of the Borrower, after notice or the lapse of time or both, or any
other condition, could reasonably be expected to permit, the revocation or
termination of any such franchise, Intellectual Property, license or other
right and which revocation or termination could reasonably be expected to
have a Material Adverse Effect.
P. Environmental Matters.
(a) The Borrower and each Subsidiary is in compliance in all
material respects with the requirements of all applicable Environmental Laws.
(b) No Hazardous Substances have been (i) generated or
manufactured on, transported to or from, treated at, stored at or discharged
from any Real Property in violation of any Environmental Laws; (ii)
discharged into subsurface waters under any Real Property in violation of any
Environmental Laws; or (iii) discharged from any Real Property on or into
property or waters (including subsurface waters) adjacent to any Real
Property in violation of any Environmental Laws, which such violation, in the
case of either (i), (ii) or (iii) could have, either individually or in the
aggregate, a Material Adverse Effect.
(c) Neither the Borrower nor any Subsidiary (i) has received
notice (written or oral) or otherwise learned of any claim, demand, suit,
action, proceeding, event, condition, report, directive, lien, violation,
non-compliance or investigation indicating or concerning any potential or
actual liability (including, without limitation, potential liability for
enforcement, investigatory costs, cleanup costs, government response costs,
removal costs, remedial costs, natural resources damages, property damages,
personal injuries or penalties) arising in connection with: (x) any
non-compliance with or violation of the requirements of any applicable Envi-
ronmental Laws, or (y) the presence of any Hazardous Substance on any Real
Property (or any Real Property previously owned by the Borrower or any
Subsidiary) or the release or threatened release of any Hazardous Substance
into the environment which could have, either individually or in the
aggregate, a Material Adverse Effect, (ii) has any threatened or actual li-
ability in connection with the presence of any Hazardous Substance on any
Real Property (or any Real Property previously owned by the Borrower or any
Subsidiary) or the release or threatened release of any Hazardous Substance
into the environment which could have, either individually or in the ag-
gregate, a Material Adverse Effect, (iii) has received notice of any federal
or state investigation evaluating whether any remedial action is needed to
respond to the presence of any Hazardous Substance on any Real Property (or
any Real Property previously owned by the Borrower or any Subsidiary) or a
release or threatened release of any Hazardous Substance into the environment
for which the Borrower or any Subsidiary is or may be liable the results of
which could have, either individually or in the aggregate, a Material Adverse
Effect, or (iv) has received notice that the Borrower or any Subsidiary is or
may be liable to any Person under any Environmental Law which liability could
have, either individually or in the aggregate, a Material Adverse Effect.
(d) To the best of the Borrower's knowledge, no Real Property
is located in an area identified by the Secretary of Housing and Urban
Development as an area having special flood hazards.
Q. Labor Relations.
Neither the Borrower nor any Subsidiary is a party to any
collective bargaining agreement, other than the collective bargaining
agreement covering fewer than 10 employees at the Roosevelt Mall Shopping
Center in Philadelphia, Pennsylvania, and, to the best knowledge of the
Borrower, no petition has been filed or proceedings instituted by any
employee or group of employees with any labor relations board seeking rec-
ognition of a bargaining representative with respect to the Borrower or such
Subsidiary. There are no material controversies pending between the Borrower
or any Subsidiary and any of their respective employees, which could
reasonably be expected to have a Material Adverse Effect.
R. Burdensome Obligations.
Neither the Borrower nor any Subsidiary is a party to or bound
by any franchise, agreement, deed, lease or other instrument, or subject to
any corporate restriction which, in the opinion of the management of the
Borrower or such Subsidiary, is so unusual or burdensome, in the context of
its business, as in the foreseeable future might materially and adversely
affect or impair the revenue or cash flow of the Borrower or such Subsidiary
or the ability of the Borrower or such Subsidiary to perform its obligations
under the Loan Documents. The Borrower does not presently anticipate that
future expenditures by the Borrower or any Subsidiary needed to meet the
provisions of federal or state statutes, orders, rules or regulations will be
so burdensome as to result in a Material Adverse Effect.
S. REIT Status.
(a) The Borrower (i) has made an election pursuant to Section
856 of the Code to qualify as a REIT, (ii) has satisfied and continues to
satisfy all of the requirements under SectionSection 856-859 of the Code and
the regulations and rulings issued thereunder which must be satisfied for the
Borrower to maintain its status as a REIT, and (iii) is in full compliance
with all Code sections applicable to REITs generally and the regulations and
rulings issued thereunder.
(b) The Borrower is in compliance with all REIT Guidelines.
T. No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary in connection with the transactions contemplated hereby, contains
or will contain a mis statement of material fact, or, to the best knowledge
of the Borrower, omits or will omit to state a material fact required to be
stated in order to make the statements herein or therein contained not
misleading in the light of the circumstances under which made.
V. CONDITIONS TO FIRST LOANS
In addition to the conditions precedent set forth in Section 6,
the obligation of each Lender to make its first Loan shall be subject to the
fulfillment of the following conditions precedent:
A. Evidence of Action.
(a) The Agent shall have received a certificate, dated the
first Borrowing Date, of the Secretary or Assistant Secretary of the Borrower
(i) attaching a true and complete copy of the resolutions of its Trustees and
of all documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Agent) taken by it to authorize the Loan
Documents and the transactions contemplated thereby, (ii) attaching a true
and complete copy of its Declaration of Trust, (iii) setting forth the
incumbency of its officer or officers who may sign the Loan Documents,
including therein a signature specimen of such officer or officers, and (iv)
attaching a certificate of said Secretary or Assistant Secretary to the ef-
fect that the Declaration of Trust is a true and complete copy thereof, is in
full force and effect and has not been amended or modified.
(b) The Agent shall have received certificates of good standing
from the Secretaries of State for the Commonwealth of Massachusetts, and each
other jurisdiction in which the Borrower is qualified to do business,
provided that such Secretaries issue such certificates with respect to the
Borrower.
B. This Agreement.
The Agent shall have received counterparts of this Agreement
signed by each of the parties hereto (or receipt by the Agent from a party
hereto of a facsimile signature page signed by such party which shall have
agreed to promptly provide the Agent with originally executed counterparts
hereof).
C. Notes.
The Agent shall have received the Notes, duly executed by an
Authorized Signatory of the Borrower.
D. Litigation.
There shall be no injunction, writ, preliminary restraining
order or other order of any nature issued by any Governmental Authority in
any respect affecting the transactions provided for herein and no action or
proceeding by or before any Governmental Authority shall have been commenced
and be pending or, to the knowledge of the Borrower, threatened, seeking to
prevent or delay the transactions contemplated by the Loan Documents or chal-
lenging any other terms and provisions hereof or thereof or seeking any
damages in connection therewith and the Agent shall have received a cer-
tificate of an Authorized Signatory of the Borrower to the foregoing effects.
E. Opinion of Counsel to the Borrower.
The Agent shall have received an opinion of (i) Hofheimer,
Gartlir & Gross, outside counsel to the Borrower, and (ii) Steven F. Siegel,
in-house counsel to the Borrower, each addressed to the Agent, the Lenders
and Special Counsel, and each dated the first Borrowing Date, in the form of
Exhibit I.
F. Opinion of Special Counsel.
The Agent shall have received an opinion of Special Counsel,
addressed to the Agent and the Lenders and dated the first Borrowing Date and
substantially in the form of Exhibit J.
G. Fees.
The Commitment Fee and all fees payable to the Agent shall have
been paid.
H. Fees and Expenses of Special Counsel.
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been
paid.
I. Termination of Existing Loan Agreement.
On the Effective Date, all loans outstanding under the Existing
Loan Agreement, together with all interest, fees, breakage costs and other
amounts outstanding thereunder, shall have been paid to the lenders
thereunder in full and the obligations of such lenders under the Existing
Loan Agreement shall have been terminated.
VI. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Revolving Credit Loan or
convert its Revolving Credit Loans to Term Loans is subject to the satisfac-
tion of the following conditions precedent as of the date of such Loan:
A. Compliance.
On each Borrowing Date and after giving effect to the Loans to
be made or created (a) the Borrower shall be in compliance with all of the
terms, covenants and conditions thereof, (b) there shall exist no Default or
Event of Default, (c) the representations and warranties contained in the
Loan Documents shall be true and correct with the same effect as though such
representations and warranties had been made on such Borrowing Date and (d)
the aggregate outstanding principal balance of the Loans will not exceed the
Aggregate Commitments. Each borrowing by the Borrower shall constitute a
certification by the Borrower as of the date of such borrowing that each of
the foregoing matters is true and correct in all respects.
B. Loan Closings.
All documents required by the provisions of the Loan Documents
to be executed or delivered to the Agent on or before the applicable
Borrowing Date shall have been executed and shall have been delivered at the
office of the Agent set forth in Section 11.2 on or before such Borrowing
Date.
C. Borrowing Request; Term Loan Conversion Notice.
With respect to each borrowing of a Revolving Credit Loan, the
Agent shall have received a Conventional Borrowing Request or a Competitive
Rate Borrowing Request, as the case may be, duly executed by an Authorized
Signatory of the Borrower. With respect to the conversion of Revolving
Credit Loans to Term Loans pursuant to Section 2.2, the Agent shall have
timely received a Term Loan Conversion Notice from the Borrower.
D. Documentation and Proceedings.
All Trust matters and legal proceedings and all documents and
papers in connection with the transactions contemplated by the Loan Documents
shall be reasonably satisfactory in form and substance to the Agent and the
Agent shall have received all information and copies of all documents which
the Agent or the Required Lenders may reasonably have requested in connection
therewith, such documents (where appropriate) to be certified by an
Authorized Signatory of the Borrower or proper Governmental Authorities.
E. Required Acts and Conditions.
All acts, conditions and things (including, without limitation,
the obtaining of any necessary regulatory approvals and the making of any
filings, recordings or registrations) required to be done, performed and to
have happened on or prior to such Borrowing Date and which are necessary for
the continued effectiveness of the Loan Documents, shall have been done and
performed and shall have happened in due compliance with all applicable laws.
F. Approval of Special Counsel.
All legal matters in connection with the making of each Loan
shall be reasonably satisfactory to Special Counsel.
G. Supplemental Opinions.
If reasonably requested by the Agent with respect to the ap-
plicable Borrowing Date, there shall have been delivered to the Agent
favorable supplementary opinions of counsel to the Borrower, addressed to the
Agent and the Lenders and dated such Borrowing Date, covering such matters
incident to the transactions contemplated herein as the Agent may reasonably
request.
H. Other Documents.
The Agent shall have received such other documents as the Agent
or the Lenders shall reasonably request.
VII. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender or the Agent, the Borrower shall:
A. Financial Statements.
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Agent and each Lender:
(a) As soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of its Consolidated
and Consolidating Balance Sheet[s] as at the end of such fiscal year,
together with the related Consolidated and Consolidating Statements of Opera-
tions, Stockholders' Equity and Cash Flows as of and through the end of such
fiscal year, setting forth in each case in comparative form the figures for
the preceding fiscal year. The Consolidated Balance Sheets and Consolidated
Statements of Operations, Stockholders' Equity and Cash Flows shall be au-
dited and certified without qualification by the Accountants, which cer-
tification shall (i) state that the examination by such Accountants in
connection with such Consolidated financial statements has been made in
accordance with generally accepted auditing standards and, accordingly,
includes the examination, on a test basis, of evidence supporting the amounts
and disclosures in such financial statements, and (ii) include the opinion of
such Accountants that such Consolidated financial statements present fairly,
in all material respects, the Consolidated financial position of the Borrower
and its Subsidiaries, as of the date of such financial statements, and the
Consolidated results of their operations and their cash flows for each of the
years identified therein in conformity with GAAP (subject to any change in
the requirements of GAAP).
(b) As soon as available, but in any event within 60 days
after the end of the first three fiscal quarters of the Borrower a copy of
the Consolidated and Consolidating balance sheet[s] of the Borrower as at the
end of each such quarterly period, together with the related Consolidated and
Consolidating Statements of Operations and Cash Flows for the elapsed portion
of the fiscal year through such date, setting forth in each case in
comparative form the figures for the corresponding periods of the preceding
fiscal year, certified by the Chief Financial Officer of the Borrower (or
such other officer acceptable to the Agent), as being complete and correct in
all material respects and as presenting fairly the Consolidated and
Consolidating financial condition and the Consolidated and Consolidating
results of operations of the Borrower and its Subsidiaries.
(c) Within 60 days after the end of each of the first
three fiscal quarters of the Borrower (120 days after the end of the last
fiscal quarter of the Borrower), a Compliance Certificate, certified by the
Chief Financial Officer of the Borrower (or such other officer as shall be
acceptable to the Agent) setting forth in reasonable detail the computations
demonstrating the Borrower's compliance with the provisions of Sections
8.4(e), 8.14, 8.15, 8.16 and 8.17.
(d) Such other information as the Agent or any Lender may
reasonably request from time to time.
B. Certificates; Other Information.
Furnish to the Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any Subsidiary is declared or shall become due and payable prior
to its stated maturity, or called and not paid when due, or (ii) a default
shall have occurred under any note (other than the Notes) or the holder of
any such note, or other evidence of Indebtedness, certificate or security
evidencing any such Indebtedness or any obligee with respect to any other
Indebtedness of the Borrower or any Subsidiary has the right to declare any
such Indebtedness due and payable prior to its stated maturity, and, in the
case of either (i) or (ii), the Indebtedness that is the subject of (i) or
(ii) is, in the aggregate, $100,000 or more;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other document naming the Borrower or any
Subsidiary a party to any proceeding before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect or which calls
into question the validity or enforceability of any of the Loan Documents,
and include with such notice a copy of such citation, summons, subpoena,
order to show cause or other document, (ii) any lapse or other termination of
any material Intellectual Property, license, permit, franchise or other
authorization issued to the Borrower or any Subsidiary by any Person or
Governmental Authority, and (iii) any refusal by any Person or Governmental
Authority to renew or extend any such material Intellectual Property,
license, permit, franchise or other authorization, which lapse, termination,
refusal or dispute could reasonably be expected to have a Material Adverse
Effect;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material which the
Borrower or any Subsidiary may now or hereafter be required to file with or
deliver to any securities exchange or the Securities and Exchange Commission,
or any other Governmental Authority succeeding to the functions thereof and
(ii) material news releases by the Borrower and annual reports relating to
the Borrower or any Subsidiary (including any annual reports required
pursuant to the REIT Guidelines;
(d) As soon as possible, and in any event within ten days
after the Borrower knows or has reason to know that any of the events or
conditions enumerated below with respect to any Plan or Multiemployer Plan
has occurred or exists, a statement signed by the Chief Financial Officer of
the Borrower (or such other officer as shall be acceptable to the Agent),
setting forth details respecting such event or condition and the action, if
any, which the Borrower or an ERISA Affiliate proposes to take with respect
thereto; provided, however, that if such event or condition is required to be
reported or noticed to the PBGC, such statement, together with a copy of the
relevant report or notice to the PBGC, shall be furnished promptly and in any
event not later than ten days after it is reported or noticed to the PBGC:
(i) any reportable event, as defined in Section 4043(b) of
ERISA with respect to a Plan, as to which the PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty days of the occurrence of such event (provided that a failure to meet
the minimum funding standard of Section 412 of the Code or of Section 302 of
ERISA, including, without limitation, the failure to make, on or before its
due date, a required installment under Section 412(m) of the Code or Section
302(e) of ERISA or the disqualification of such Plan for purposes of Section
4043(b)(1) of ERISA, shall be a reportable event regardless of the issuance
of any waivers in accordance with Section 412(d) of the Code) and any request
for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by the Borrower or
any ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or the receipt by the Borrower or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that results in
liability under Section 4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of a purchaser default) or the
receipt of the Borrower or any ERISA Affiliate of notice from a Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has terminated under Section
4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed with thirty days from
its commencement;
(vi) the adoption of an amendment to any Plan pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA that would result in
the loss of the tax-exempt status of the trust of which such Plan is a part
or the Borrower or any ERISA Affiliate fails to timely provide security to
such Plan in accordance with the provisions of said Sections; and
(vii) any event or circumstance exists which may reasonably
be expected to constitute grounds for the incurrence of liability by the
Borrower or any ERISA Affiliate under Title IV of ERISA or under Sections
412(c)(11) or 412(n) of the Code with respect to any employee benefit plan;
(e) Promptly after the request of the Agent or any Lender
therefor, copies of each annual report filed pursuant to Section 104 of ERISA
with respect to each Plan (including, to the extent required by Section 104
of ERISA, the related financial and actuarial statements and opinions and
other supporting statements, certifications, schedules and information
referred to in Section 103 of ERISA) and each annual report filed with
respect to each Plan under Section 4065 of ERISA; provided, however, that in
the case of a Multiemployer Plan, such annual reports shall be furnished only
if they are available to the Borrower or any ERISA Affiliate;
(f) Prompt written notice of any order, notice, claim or
proceeding received by, or brought against, the Borrower or any Subsidiary,
or with respect to any of the Real Property, under any Environmental Law;
(g) Promptly after the scheduling of any Net Proceeds
Event, notice of the date on which said Net Proceeds Event is scheduled to
occur, together with a statement identifying the Property which is the
subject of said Net Proceeds Event and setting forth the gross proceeds in
connection with said Net Proceeds Event and the items and amounts deducted
from such gross proceeds in determining the Net Proceeds, and such other
information as the Agent or any Lender shall reasonably request with respect
to such Net Proceeds Event;
(h) Promptly after becoming aware of any change in any of
the information delivered pursuant to Section 7.2(g), notice of such change,
together with a statement describing in reasonable detail the changes and the
reasons therefor;
(i) In the event that the Agent shall have a reasonable
basis for believing that Hazardous Substances may be on, at, under or around
any Real Property in violation of any applicable Environmental Law which
individually or in the aggregate could have a Material Adverse Effect,
conduct and complete (at the Borrower's expense) all investigations, studies,
samplings and testings relative to such Hazardous Substances as the Agent may
reasonably request;
(j) Promptly after the same are received by the Borrower,
copies of all management letters and similar reports provided to the Borrower
by the Accountants;
(k) Prompt written notice if there shall occur and be con-
tinuing a Default or an Event of Default; and
(l) Such other information as the Agent or any Lender
shall reasonably request from time to time.
C. Legal Existence.
Maintain its status as a Massachusetts business trust in good
standing in the Commonwealth of Massachusetts and in each other jurisdiction
in which the failure so to do could reasonably be expected to have a Material
Adverse Effect.
D. Taxes.
Pay and discharge when due, and cause each Subsidiary so to do,
all Taxes, assessments and governmental charges, license fees and levies
upon, or with respect to the Borrower or such Subsidiary and all Taxes upon
the income, profits and Property of the Borrower and its Subsidiaries, which
if unpaid, could reasonably be expected to have a Material Adverse Effect or
become a Lien on the Property of the Borrower or such Subsidiary (other than
a Permitted Lien), unless and to the extent only that such Taxes, as-
sessments, charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and provided that the Borrower shall give the Agent prompt notice
of such contest and that such reserve or other appropriate provision as shall
be required by the Accountants in accordance with GAAP shall have been made
therefor.
E. Insurance.
(a) Maintain, and cause each Subsidiary to maintain, insurance
on its Property against such risks and in such amounts as is customarily
maintained by Persons engaged in similar businesses and owning similar Prop-
erties in the same general areas in which the Borrower or the relevant
Subsidiary operates, and file with the Agent within 10 days after request
therefor a detailed list of such insurance then in effect, stating the names
of the carriers thereof, the policy numbers, the insureds thereunder, the
amounts of insurance, dates of expiration thereof, and the Property and risks
covered thereby, together with a certificate of the Chief Financial Officer
(or such other officer as shall be acceptable to the Agent) of the Borrower
certifying that in the opinion of such officer such insurance is adequate in
nature and amount, complies with the obligations of the Borrower under this
Section, and is in full force and effect.
(b) Concurrent Insurance. Neither the Borrower nor any
Subsidiary shall take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained pur-
suant to subsection (a) above unless the Agent has approved the carrier and
the form and content of the insurance policy, including, without limitation,
naming the Agent as an additional insured and sole loss payee thereunder.
F. Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary to pay and
discharge, all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise which, if unpaid, might (i) have a
Material Adverse Effect, or (ii) become a Lien upon Property of the Borrower
or any Subsidiary other than a Permitted Lien, unless and to the extent only
that the validity of such Indebtedness, obligation or claim shall be con-
tested in good faith and by appropriate proceedings diligently conducted by
it, and provided that the Borrower shall give the Agent prompt notice of any
such contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
G. Condition of Property.
In all material respects, at all times, maintain, protect and
keep in good repair, working order and condition (ordinary wear and tear
excepted), and cause each Subsidiary so to do, all Property necessary to the
operation of the Borrower's or such Subsidiary's business.
H. Observance of Legal Requirements.
Observe and comply in all respects, and cause each Subsidiary so
to do, with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be ap-
plicable to it, including, without limitation, ERISA and all Environmental
Laws, a violation of which could reasonably be expected to have a Material
Adverse Effect, except such thereof as shall be contested in good faith and
by appropriate proceedings diligently conducted by it, provided that the Bor-
rower shall give the Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required by the Ac-
countants in accordance with GAAP shall have been made therefor.
I. Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities and permit representatives of the Agent and any Lender during
normal business hours and on reasonable prior notice to visit its offices, to
inspect any of its Property and to examine and make copies or abstracts from
any of its books and records as often as may reasonably be desired, and to
discuss the business, operations, prospects, licenses, Property and financial
condition of the Borrower or and its Subsidiaries with the officers thereof
and the Accountants.
J. Licenses, Intellectual Property.
Maintain, and cause each Subsidiary to maintain, in full force
and effect, all material licenses, franchises, Intellectual Property,
permits, licenses, authorizations and other rights as are necessary for the
conduct of its business.
K. REIT Status.
Maintain its status under the Code and the REIT Guidelines as a
REIT.
VIII. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender or the Agent, the Borrower shall not, directly or
indirectly:
A. Liens.
Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, or permit any
Subsidiary so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent
or which are being contested in accordance with Section 7.4, provided that
enforcement of such Liens is stayed pending such contest, (ii) Liens in con-
nection with workers' compensation, unemployment insurance or other social
security obligations (but not ERISA), (iii) deposits or pledges to secure
bids, tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds and other obligations
of like nature arising in the ordinary course of business, (iv) zoning
ordinances, easements, rights of way, minor defects, irregularities, and
other similar restrictions affecting real Property which do not adversely af-
fect the value of such real Property or the financial condition of the
Borrower or such Subsidiary or impair its use for the operation of the
business of the Borrower or such Subsidiary, (v) statutory Liens arising by
operation of law such as mechanics', materialmen's, carriers', warehousemen's
liens incurred in the ordinary course of business which are not delinquent or
which are being contested in accordance with Section 7.4, provided that
enforcement of such Liens is stayed pending such contest, (vi) Liens arising
out of judgments or decrees which are being contested in accordance with
Section 7.4, provided that enforcement of such Liens is stayed pending such
contest, (vii) mortgages on Real Property of the Borrower, provided that the
existence of such mortgages, and the indebtedness secured thereby, does not
violate any other provision of this Agreement), (viii) Liens on other
Property of the Borrower not included in clauses (i) through (viii) of this
Section which do not in the aggregate exceed $2,000,000.
B. Merger, Consolidation and Certain Dispositions of Property.
(a) Consolidate with, be acquired by, or merge into or with any
Person, or sell, lease or otherwise dispose of all or substantially all of
its Property, or permit any Subsidiary so to do (other than a merger of a
Subsidiary into the Borrower where the Borrower is the surviving entity), or
(b) Sell, lease or dispose of any of its Property except in an
arm's length transaction in the ordinary course of its business for the fair
market value thereof.
C. Contingent Obligations.
Assume, guarantee, endorse, contingently agree to purchase or
perform, or otherwise become liable upon any Contingent Obligation or permit
any Subsidiary so to do, other than a guarantee by the Borrower of an
obligation of a Subsidiary of the Borrower (but only to the extent that if
the Borrower had entered into such obligation directly, the Borrower would
not be in violation of any of the terms of this Agreement), except the
Contingent Obligations of the Borrower or any Subsidiary existing on the date
hereof as set forth on Schedule 8.3.
D. Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or
advance to, or enter into any arrangement for the purpose of providing funds
or credit to, or make any other investment, whether by way of capital
contribution, time deposit or otherwise, in or with any Person, or permit any
Subsidiary so to do, (all of which are sometimes referred to herein as
"Investments") except:
(a) Investments in short-term domestic and eurodollar time
deposits with any Lender, or any other commercial bank, trust company or
national banking association incorporated under the laws of the United States
or any State thereof and having undivided capital, surplus and undivided
profits exceeding $500,000,000 and a long term debt rating of A or A2, as
determined, respectively, by S&P and Moody's;
(b) Investments in short-term direct obligations of the
United States of America or agencies thereof whose obligations are guaranteed
by the United States of America;
(c) Investments existing on the date hereof as set forth
on Schedule 8.4;
(d) normal business banking accounts and short-term
certificates of deposit and time deposits in, or issued by, federally insured
institutions in amounts not exceeding the limits of such insurance;
(e) Investments consisting of loans to employees of the
Borrower, provided that all such loans in the aggregate do not at any time
exceed $6,200,000 in the aggregate; and
(f) Investments permitted under Section 856-859 of the
Code.
E. Business and Name Changes.
Change the nature of the business of the Borrower as conducted
on the Effective Date, or alter or modify its name, structure or status.
F. Subsidiaries.
Create or acquire any other Subsidiary, or permit any Subsidiary
so to do, except in the ordinary course of business (as conducted on the
Effective Date).
G. Declaration of Trust.
Amend or otherwise modify its Declaration of Trust in any way
which would adversely affect the interests of the Agent and the Lenders under
any of the Loan Documents, or permit any Subsidiary to amend its
organizational documents in a manner which could have the same result.
H. ERISA.
Adopt or become obligated to contribute to any Plan or
Multiemployer Plan, or permit any ERISA Affiliate so to do, other than those
set forth on Schedule 4.12.
I. Prepayments of Indebtedness.
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness or permit any Subsidiary so to do except (i) Indebtedness under
the Loan Documents (unless such prepayment is restricted by the Loan
Documents), and (ii) Indebtedness secured by a mortgage on Real Property,
provided that (x) such prepayment does not otherwise result in a Default
under this Agreement and (y) the Borrower complies with the provisions of
Section 2.7(b) in connection with such prepayment, if applicable.
J. Sale and Leaseback.
Enter into any arrangement with any Person providing for the
leasing by it of Property which has been or is to be sold or transferred by
it to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property or its rental
obligations, or permit any Subsidiary so to do.
K. Fiscal Year.
Change its fiscal year from that in effect on the Effective
Date, or permit any Subsidiary so to do.
L. Transactions with Affiliates.
Become a party to any transaction with an Affiliate unless its
Board of Directors shall have determined that the terms and conditions
relating thereto are as favorable to it as those which would be obtainable at
the time in a comparable arms-length transaction with a Person other than an
Affiliate, or permit any Subsidiary so to do.
M. Issuance of Additional Capital Stock by Subsidiaries.
Permit any Subsidiary to issue any additional Stock or other
equity interest of such Subsidiary.
N. Interest Coverage Ratio.
Permit the Interest Coverage Ratio to be less than 2.0:1.0 at
any time.
O. Minimum Tangible Net Worth.
Permit the Tangible Net Worth of the Borrower and its
Subsidiaries on a Consolidated basis at any time to be less than
$550,000,000.
P. Maximum Total Indebtedness.
Permit either (i) the total indebtedness of the Borrower, as
determined in accordance with GAAP, at any time to be more than 50% of Total
Capital at such time, or (ii) the indebtedness of the Borrower secured by
mortgages on Real Property owned by the Borrower at any time to exceed 40% of
Total Capital at such time.
Q. Minimum Unencumbered Assets.
Permit the Undepreciated Real Estate Assets at any time to be
less than the total of all unsecured Indebtedness of the Borrower at such
time.
IX. DEFAULT
A. Events of Default.
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of the Borrower to pay any installment of
principal on any Note on the date when due and payable; or
(b) The failure of the Borrower to pay any installment of
interest or any other fees or expenses payable under any Loan Document within
five Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner
inconsistent with or in violation of Section 2.16; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Sections 7.3, 7.11 or 8; or
(e) The failure to observe or perform any other term,
covenant, or agreement contained in any Loan Document and such failure shall
have continued unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
(f) Any representation or warranty of the Borrower (or of
any officer of the Borrower on its behalf) made in any Loan Document to which
it is a party or in any certificate, report, opinion (other than an opinion
of counsel) or other document delivered or to be delivered pursuant thereto,
shall prove to have been incorrect or misleading (whether because of mis-
statement or omission) in any material respect when made; or
(g) Any obligation of the Borrower (other than its
obligations under the Notes) or any Subsidiary, whether as principal, guaran-
tor, surety or other obligor, for the payment of any Indebtedness shall (i)
become or shall be declared to be due and payable prior to the expressed
maturity thereof, or (ii) shall not be paid when due or within any grace
period for the payment thereof, or (iii) shall be subject, by the holder of
the obligation evidencing such Indebtedness, to acceleration prior to the
expressed maturity thereof, and the sum of all such Indebtedness which is the
subject of clauses (i) - (iii) inclusive exceeds $4,000,000;
(h) The Borrower or any Subsidiary shall be in default
under any other material agreement and the applicable grace period or cure
period, if any, with respect thereto shall have expired; or
(i) The Borrower or any Subsidiary shall (i) suspend or
discontinue its business, (ii) make an assignment for the benefit of
creditors, (iii) generally not be paying its debts as such debts become due,
(iv) admit in writing its inability to pay its debts as they become due, (v)
file a voluntary petition in bankruptcy, (vi) become insolvent (however such
insolvency shall be evidenced), (vii) file any petition or answer seeking for
itself any reorganization, arrangement, composition, readjustment of debt,
liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, (viii) petition or apply to
any tribunal for any receiver, custodian or any trustee for any substantial
part of its Property, (ix) be the subject of any such proceeding filed
against it which remains undismissed for a period of 60 days, (x) file any
answer admitting or not contesting the material allegations of any such
petition filed against it or any order, judgment or decree approving such
petition in any such proceeding, (xi) seek, approve, consent to, or acquiesce
in any such proceeding, or in the appointment of any trustee, receiver,
custodian, liquidator, or fiscal agent for it, or any substantial part of its
Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains in effect for 60
days, (xii) take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dissolution of the Borrower or
such Subsidiary; or
(j) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any Subsidiary bankrupt or insol-
vent, (ii) approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of the
Borrower or any Subsidiary under the United States bankruptcy laws or any
other applicable Federal or state law, (iii) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Borrower or any Subsidiary or of any substantial part of the
Property thereof, (iv) ordering the winding up or liquidation of the affairs
of the Borrower or any Subsidiary, and any such decree or order continues un-
stayed and in effect for a period of 60 days; or
(k) Judgments or decrees against the Borrower or any
Subsidiary aggregating in excess of $500,000 shall remain unpaid, unstayed on
appeal, undischarged, unbonded or undismissed for a period of 30 days; or
(l) Any Loan Document shall cease, for any reason, to be
in full force and effect, or the Borrower shall so assert in writing or shall
disavow any of its obligations thereunder; or
(m) An event or condition specified in Section 7.2(d)
shall occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Borrower shall be reasonably likely to incur a liability to a
Plan, a Multiemployer Plan, the PBGC, or any combination thereof which would
constitute, in the reasonable opinion of the Required Lenders, a Material
Adverse Effect; or
(n) There shall occur a Material Adverse Change; or
(o) There shall occur a Change in Control.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified in clause (i) or (j) above, the Aggregate Commitments shall
immediately and automatically terminate and the Loans, all accrued and unpaid
interest thereon, and all other amounts owing under the Loan Documents shall
immediately become due and payable, and the Agent may, and upon the direction
of the Required Lenders shall, exercise any and all remedies and other rights
provided in the Loan Documents, and (b) if such event is any other Event of
Default, any or all of the following actions may be taken: (i) with the con-
sent of the Required Lenders, the Agent may, and upon the direction of the
Required Lenders shall, by notice to the Borrower, declare the Aggregate Com-
mitments to be terminated forthwith, whereupon the Aggregate Commitments
shall immediately terminate, and (ii) with the consent of the Required
Lenders, the Agent may, and upon the direction of the Required Lenders shall,
by notice of default to the Borrower, declare the Loans, all accrued and
unpaid interest thereon and all other amounts owing under the Loan Documents
to be due and payable forthwith, whereupon the same shall immediately become
due and payable, and the Agent may, and upon the direction of the Required
Lenders shall, exercise any and all remedies and other rights provided pursu-
ant to the Loan Documents. Except as otherwise provided in this Section,
presentment, demand, protest and all other notices of any kind are hereby ex-
pressly waived. The Borrower hereby further expressly waives and covenants
not to assert any appraisement, valuation, stay, extension, redemption or
similar laws, now or at any time hereafter in force which might delay,
prevent or otherwise impede the performance or enforcement of any Loan Docu-
ment.
In the event that the Aggregate Commitments shall have been
terminated or the Notes shall have been declared due and payable pursuant to
the provisions of this Section, any funds received by the Agent and the
Lenders from or on behalf of the Borrower shall be applied by the Agent and
the Lenders in liquidation of the Loans and the obligations of the Borrower
under the Loan Documents in the following manner and order: (i) first, to the
payment of interest on and then the principal portion of any Loans which the
Agent may have advanced on behalf of any Lender for which the Agent has not
then been reimbursed by such Lender or the Borrower; (ii) second, to the
payment of any fees or expenses due the Agent from the Borrower, (iii) third,
to reimburse the Agent and the Lenders for any expenses (to the extent not
paid pursuant to clause (ii) due from the Borrower pursuant to the provisions
of Section 11.5; (iv) fourth, to the payment of accrued Commitment Fees, and
all other fees, expenses and amounts due under the Loan Documents (other than
principal and interest on the Notes); (v) fifth, to the payment of interest
due on the Notes; (vi) sixth, to the payment of principal outstanding on the
Notes; and (vii) seventh, to the payment of any other amounts owing to the
Agent and the Lenders under any Loan Document.
X. THE AGENT
A. Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Agent of such Lender under the Loan Documents and each such Lender hereby
irrevocably authorizes BNY, as the Agent for such Lender, to take such action
on its behalf under the provisions of the Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in any Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the
Loan Documents or otherwise exist against the Agent.
B. Delegation of Duties.
The Agent may execute any of its duties under the Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to rely upon
the advice of counsel concerning all matters pertaining to such duties.
C. Exculpatory Provisions.
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except for its own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by the
Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, the Loan Documents
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any of the Loan Documents or for any failure of the Borrower
or any other Person to perform its obligations thereunder. The Agent shall
not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, the Loan Documents, or to inspect the properties, books or
records of the Borrower. The Agent shall not be under any liability or re-
sponsibility whatsoever, as Agent, to the Borrower or any other Person as a
consequence of any failure or delay in performance, or any breach, by any
Lender of any of its obligations under any of the Loan Documents.
D. Reliance by Agent.
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent may treat
each Lender, or the Person designated in the last notice filed with it under
this Section, as the holder of all of the interests of such Lender in its
Loans and in its Note until written notice of transfer, signed by such Lender
(or the Person designated in the last notice filed with the Agent) and by the
Person designated in such written notice of transfer, in form and substance
satisfactory to the Agent, shall have been filed with the Agent. The Agent
shall not be under any duty to examine or pass upon the validity,
effectiveness or genuineness of the Loan Documents or any instrument,
document or communication furnished pursuant thereto or in connection there-
with, and the Agent shall be entitled to assume that the same are valid, ef-
fective and genuine, have been signed or sent by the proper parties and are
what they purport to be. The Agent shall be fully justified in failing or
refusing to take any action under the Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems ap-
propriate. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance with a request
or direction of the Required Lenders, and such request or direction and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
E. Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agent has received
written notice thereof from a Lender or the Borrower. In the event that the
Agent receives such a notice, the Agent shall promptly give notice thereof to
the Lenders. The Agent shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem to be in the best interests of the Lenders.
F. Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Agent nor
any of its respective officers, directors, employees, agents, attorneys-
in-fact or affiliates has made any representations or warranties to it and
that no act by the Agent hereinafter, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Agent to any Lender. Each Lender represents to the Agent that it has, in-
dependently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made
its own evaluation of and investigation into the business, operations,
Property, financial and other condition and creditworthiness of the Borrower
and made its own decision to enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action under any Loan
Document, and to make such investigation as it deems necessary to inform
itself as to the business, operations, Property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, Property, financial and other condition or creditwor-
thiness of the Borrower which may come into the possession of the Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
G. Indemnification.
Each Lender agrees to indemnify and reimburse the Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), pro rata according
to its Commitment, from and against any and all liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever including, without
limitation, any amounts paid to the Lenders (through the Agent) by the
Borrower pursuant to the terms of the Loan Documents, that are subsequently
rescinded or avoided, or must otherwise be restored or returned) which may at
any time (including, without limitation, at any time following the payment of
the Notes) be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of the Loan Documents or any other documents
contemplated by or referred to therein or the transactions contemplated
thereby or any action taken or omitted to be taken by the Agent under or in
connection with any of the foregoing; provided, however, that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting solely from the gross negligence or
willful misconduct of the Agent. The agreements in this Section shall
survive the payment of all amounts payable under the Loan Documents.
H. Agent in Its Individual Capacity.
BNY and its respective affiliates may make loans to, accept
deposits from, issue letters of credit for the account of, and generally en-
gage in any kind of business with, the Borrower as though BNY was not Agent
hereunder. With respect to the Commitment made or renewed by BNY and the
Note issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it was not the
Agent, and the terms "Lender" and "Lenders" shall in each case include BNY.
I. Successor Agent.
If at any time the Agent deems it advisable, in its sole
discretion, it may submit to each of the Lenders a written notice of its
resignation as Agent under this Agreement, such resignation to be effective
upon the earlier of (i) the written acceptance of the duties of the Agent
under the Loan Documents by a successor Agent and (ii) on the 30th day after
the date of such notice. Upon any such resignation, the Required Lenders
shall have the right to appoint from among the Lenders a successor Agent. If
no successor Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 30 days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which successor Agent shall
be a commercial bank organized under the laws of the United States of America
or any State thereof and having a combined capital and surplus of at least
$100,000,000. The Borrower shall have the right to approve any such
successor Agent, which approval shall not be unreasonably withheld or
delayed. Upon the acceptance of any appointment as Agent hereunder by a suc-
cessor Agent and the approval of such successor Agent by the Borrower in
accordance with the terms of this Section, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent's rights,
powers, privileges and duties as Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as
shall be necessary to effect such appointment. After any retiring Agent's
resignation hereunder as Agent, the provisions of the Loan Documents shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under the Loan Documents. If at any time hereunder there
shall not be a duly appointed and acting Agent, the Borrower agrees to make
each payment due under the Loan Documents directly to the Lenders entitled
thereto during such time.
XI. OTHER PROVISIONS.
A. Amendments and Waivers.
With the written consent of the Required Lenders, the Agent and
the Borrower may, from time to time, enter into written amendments,
supplements or modifications of the Loan Documents and, with the consent of
the Required Lenders, the Agent on behalf of the Lenders may execute and
deliver to any such parties a written instrument waiving or a consent to a
departure from, on such terms and conditions as the Agent may specify in such
instrument, any of the requirements of the Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such
amendment, supplement, modification, waiver or consent shall (i) change the
Commitments of any Lender or the Total Commitment Amount, (ii) extend the
Revolving Credit Termination Date (other than as provided for in Section
2.19); (iii) decrease the rate, or extend the time of payment, of interest
of, or change or forgive the principal amount of, or change the requirement
that payments and prepayments of principal of, and payments of interest on,
the Notes be made pro rata to the Lenders on the basis of the outstanding
principal amount of the Loans, (iv) amend the definition of "Required
Lender"), or (v) change the provisions of Sections 2.9, 2.12, 2.13, 2.14,
2.19, 2.20, 3.1 or 11.1 without the consent of all of the Lenders; and pro-
vided further that no such amendment, supplement, modification, waiver or
consent shall amend, modify, waive or consent to a departure from any provi-
sion of Section 10 or otherwise change any of the rights or obligations of
the Agent under the Loan Documents without the written consent of the Agent.
Any such amendment, supplement, modification, waiver or consent shall apply
equally to each of the Lenders and shall be binding upon the parties to the
applicable agreement, the Lenders, the Agent and all future holders of the
Notes. In the case of any waiver, the parties to the applicable agreement,
the Lenders and the Agent shall be restored to their former position and
rights under the Loan Documents, and any Default or Event of Default waived
shall not extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
B. Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made
when delivered by hand, or if sent by certified mail (return receipt
requested), when the return receipt is signed on behalf of the party to whom
such notice is given, or in the case of telecopier notice, when sent, or if
sent by overnight nationwide commercial courier, when deposited with said
courier, and in any case addressed as follows in the case of the Borrower or
the Agent, and at the Domestic Lending Office in the case of each Lender, or
to such other addresses as to which the Agent may be hereafter notified by
the respective parties hereto or any future holders of the Notes:
The Borrower:
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein,
Vice President
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
with a copy to:
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq.,
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
and an additional copy to:
Hofheimer, Gartlir, & Gross
633 Third Avenue
New York, New York 10017
Attention: Donald M. Weisberg, Esq.
Telephone: (212) 818-9000
Telecopy: (212) 661-3132
The Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Patricia Clancy
Agency Function Administrator
Telephone: (212) 635-4695
Telecopy: (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
One Wall Street
New York, New York 10286
Attention: Andrea Stuart,
Vice President
Telephone: (212) 635-4672
Telecopy: (212) 635-7904,
except that any notice, request or demand by the Borrower to or upon the
Agent or the Lenders pursuant to Sections 2.4, 2.5 or 2.8 shall not be
effective until received. Any party to a Loan Document may rely on
signatures of the parties thereto which are transmitted by telecopier or
other electronic means as fully as if originally signed.
C. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege under any Loan Document preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges under the Loan Documents are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
D. Survival of Representations and Warranties.
All representations and warranties made under the Loan Documents
and in any document, certificate or statement delivered pursuant hereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents. After the termination of this Agreement in accordance with its
terms, without any extension thereof, the payment in full of all obligations
of the Borrower under the Loan Documents and the expiration of any
obligations of the Borrower hereunder which survive the termination of this
Agreement, the Borrower shall have no liability to the Lenders under such
representations and warranties, except that the foregoing shall not apply
with respect to any claim, action or proceeding made or brought under any
such representations or warranties prior to such termination or payment.
E. Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made (i) to pay or reimburse the
Agent for all its out-of-pocket costs and expenses reasonably incurred in
connection with the development, preparation and execution of, the Loan
Documents, the syndication of the loan transaction evidenced by this
Agreement (whether or not such syndication is completed) and any amendment,
supplement or modification hereto (whether or not executed), any documents
prepared in connection therewith and the consummation of the transactions
contemplated thereby, including, without limitation, the reasonable fees and
disbursements of Special Counsel, (ii) to pay or reimburse the Agent and the
Lenders for all of their respective costs and expenses, including, without
limitation, reasonable fees and disbursements of counsel, incurred in con-
nection with (x) any Default or Event of Default and any enforcement or
collection proceedings resulting therefrom or in connection with the ne-
gotiation of any restructuring or "work-out" (whether consummated or not) of
the obligations of the Borrower under any of the Loan Documents and (y) the
enforcement of this Section, (iii) to pay, indemnify, and hold each Lender
and the Agent harmless from and against, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under
or in respect of, the Loan Documents and any such other documents, and (iv)
to pay, indemnify and hold each Lender and the Agent and each of their
respective officers, directors, employees, affiliates, agents, controlling
persons and attorneys (as used in this Section, each an "indemnified person")
harmless from and against any and all other liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without
limitation, reasonable counsel fees and disbursements) with respect to any
claim, investigation or proceeding relating to this Agreement or the Loan
documents, including the enforcement and performance of the Loan Documents
and the use of the proceeds of the Loans (all the foregoing, collectively,
the "indemnified liabilities"), whether or not any such indemnified person is
a party to this Agreement or the Loan Documents, and to reimburse each
indemnified person for all legal and other expenses incurred in connection
with investigating or defending any indemnified liabilities, and, if and to
the extent that the foregoing indemnity may be unenforceable for any reason,
the Borrower agrees to make the maximum payment permitted or not prohibited
under applicable law; provided, however, that the Borrower shall have no
obligation hereunder to pay indemnified liabilities to the Agent or any
Lender arising from (A) the gross negligence or willful misconduct of the
Agent or such Lender or (B) disputes solely between the Lenders and which are
not related to any act or failure to act on the part of the Borrower or the
failure of the Borrower to perform any of its obligations under this
Agreement or the Loan Documents.
Notwithstanding the foregoing, the fees and expenses referred to in
clause (iv) of the preceding paragraph would not be payable by the Borrower
if (x) any such enforcement action brought by the Agent or a Lender were dis-
missed, with prejudice, on the pleadings or pursuant to a motion made by the
Borrower for summary judgment, and (y) if the Agent or such Lender, as the
case may be, appealed such dismissal, such dismissal were affirmed and the
time for any further appeals had expired. The obligations of the Borrower
under this Section shall survive the termination of the Agreement and the Ag-
gregate Commitments and the payment of the Notes and all other amounts pay-
able under the Loan Documents.
F. Lending Offices.
Each Lender shall have the right at any time and from time to
time to transfer its Loans to a different office, provided that such Lender
shall promptly notify the Agent and the Borrower of any such change of of-
fice. Such office shall thereupon become such Lender's Domestic Lending Of-
fice or Eurodollar Lending Office, as the case may be, provided, however,
that no such Lender shall be entitled to receive any greater amount under
Sections 2.11, 2.13 or 2.14 as a result of a transfer of any such Loans to a
different office of such Lender than it would be entitled to immediately
prior thereto unless such claim would have arisen even if such transfer had
not occurred.
G. Successors and Assigns.
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agent, all future holders of the
Notes and their respective successors and assigns, except that the Borrower
may not assign, delegate or transfer any of its rights or obligations under
the Loan Documents without the prior written consent of the Agent and each
Lender.
(b) Each Lender shall have the right at any time, upon written
notice to the Agent of its intent to do so, to sell, assign, transfer or
negotiate all or any part of such Lender's rights and/or obligations under
the Loan Documents to one or more of its Affiliates, to one or more of the
other Lenders (or to Affiliates of such other Lenders) or, with the prior
written consent of the Borrower and the Agent (which consent, from either of
them, shall not be unreasonably withheld and shall not be required from the
Borrower upon the occurrence and during the continuance of an Event of
Default), to sell, assign, transfer or negotiate all or any part of such
Lender's rights and obligations under the Loan Documents to any other bank,
insurance company, pension fund, mutual fund or other financial institution,
provided that there shall be paid to the Agent by the assigning Lender a fee
(the "Assignment Fee") of $2,500. For each assignment, the parties to such
assignment shall execute and deliver to the Agent for its acceptance and
recording an Assignment and Acceptance Agreement. Upon such execution,
delivery, acceptance and recording by the Agent, from and after the effective
date specified in such Assignment and Acceptance Agreement, the assignee
thereunder shall be a party hereto and, to the extent provided in such As-
signment and Acceptance Agreement, the assignor Lender thereunder shall be
released from its obligations under the Loan Documents. The Borrower agrees
upon written request of the Agent and at the Borrower's expense to execute
and deliver (1) to such assignee, a Note, dated the effective date of such
Assignment and Acceptance Agreement, in an aggregate principal amount equal
to the Loans assigned to, and Commitments assumed by, such assignee and (2)
to such assignor Lender, a Note, dated the effective date of such Assignment
and Acceptance Agreement, in an aggregate principal amount equal to the bal-
ance of such assignor Lender's Loans and Commitment, if any, and each as-
signor Lender shall cancel and return to the Borrower its existing Note.
Upon any such sale, assignment or other transfer, the Commitment Amounts set
forth in Exhibit B shall be adjusted accordingly by the Agent and a new
Exhibit B shall be distributed by the Agent to the Borrower and each Lender.
(c) Each Lender may grant participations in all or any part of
its Loans, its Note and its Commitment to one or more banks, insurance com-
panies, financial institutions, pension funds or mutual funds, provided that
(i) such Lender's obligations under the Loan Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties to the Loan Documents for the performance of such obligations, (iii)
the Borrower, the Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents, (iv) no sub-participations shall be
permitted and (v) the voting rights of any holder of any participation shall
be limited to decisions that only do any of the following: (A) subject the
participant to any additional obligation, (B) reduce the principal of, or
interest on the Notes or any fees or other amounts payable hereunder, and (C)
postpone any date fixed for the payment of principal of, or interest on the
Notes or any fees or other amounts payable hereunder. The Borrower ac-
knowledges and agrees that any such participant shall for purposes of
Sections 2.10, 2.11, 2.12, 2.13, 2.14, 2.15 and 2.17 be deemed to be a
"Lender"; provided, however, the Borrower shall not, at any time, be
obligated to pay any participant in any interest of any Lender hereunder any
sum in excess of the sum which the Borrower would have been obligated to pay
to such Lender in respect of such interest had such Lender not sold such
participation.
(d) If any (i) assignment is made pursuant to subsection (b) or
(ii) any participation is granted pursuant to subsection (c), shall be made
to any Person that is organized under the laws of any jurisdiction other than
the United States of America or any State thereof, such Person shall furnish
such certificates, documents or other evidence to the Borrower and the Agent,
in the case of clause (i) and to the Borrower and the Lender which sold such
participation in the case of clause (ii), as shall be required by Section
2.11(b) to evidence such Person's exemption from U.S. withholding taxes with
respect to any payments under or pursuant to the Loan Documents because such
Person is eligible for the benefits of a tax treaty which provides for a zero
% rate of tax on any payments under the Loan Documents or because any such
payments to such Person are effectively connected with the conduct by such
Person of a trade or business in the United States.
(e) No Lender shall, as between and among the Borrower, the
Agent and such Lender, be relieved of any of its obligations under the Loan
Documents as a result of any sale, assignment, transfer or negotiation of, or
granting of participations in, all or any part of its Loans, its Commitment
or its Note, except that a Lender shall be relieved of its obligations to the
extent of any such sale, assignment, transfer, or negotiation of all or any
part of its Loans, its Commitment or its Note pursuant to subsection (b)
above.
(f) Notwithstanding anything to the contrary contained in this
Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
H. Counterparts.
Each Loan Document (other than the Notes) may be executed by one
or more of the parties thereto on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same document. It shall not be necessary in making proof of any Loan
Document to produce or account for more than one counterpart signed by the
party to be charged. A telecopied counterpart of any Loan Document or to any
document evidencing, and of any an amendment, modification, consent or waiver
to or of any Loan Document shall be deemed to be an originally executed
counterpart. A set of the copies of the Loan Documents signed by all the
parties thereto shall be deposited with each of the Borrower and the Agent.
Any party to a Loan Document may rely upon the signatures of any other party
thereto which are transmitted by telecopier or other electronic means to the
same extent as if originally signed.
I. Adjustments; Set-off.
(a) If any Lender (a "Benefited Lender") shall at any time
receive any payment of all or any part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involun-
tarily, by set-off, pursuant to events or proceedings of the nature referred
to in Section 9.1 (i) or (j), or otherwise) in a greater proportion than any
such payment to and collateral received by any other Lender in respect of
such other Lender's Loans, or interest thereon, such Benefited Lender shall
purchase for cash from each of the other Lenders such portion of each such
other Lender's Loans, and shall provide each of such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders,
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefited Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans may exercise all
rights of payment (including, without limitation, rights of set-off, to the
extent not prohibited by law) with respect to such portion as fully as if
such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the
acceleration of the obligations owing in connection with the Loan Documents,
or at any time upon the occurrence and during the continuance of an Event of
Default, under Section 9.1(a) or (b), each Lender shall have the right,
without prior notice to the Borrower, any such notice being expressly waived
by the Borrower to the extent not prohibited by applicable law, to set-off
and apply against any indebtedness, whether matured or unmatured, of the
Borrower to such Lender, any amount owing from such Lender to the Borrower,
at, or at any time after, the happening of any of the above-mentioned events.
To the extent not prohibited by applicable law, the aforesaid right of set-
off may be exercised by such Lender against the Borrower or against any
trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor
of the Borrower, or against anyone else claiming through or against the
Borrower or such trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receivers, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off
shall not have been exercised by such Lender prior to the making, filing or
issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or war-
rant. Each Lender agrees promptly to notify the Borrower and the Agent after
any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
J. Lenders' Representations.
Each Lender represents to the Agent that, in acquiring its Note,
it is acquiring the same for its own account for the purpose of investment
and not with a view to selling the same in connection with any distribution
thereof, provided that the disposition of each Lender's own Property shall at
all times be and remain within its control.
K. Indemnity.
The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and their respective affiliates, directors, officers, employees,
affiliates, agents, controlling persons and attorneys (each an "Indemnified
Person") from and against any loss, cost, liability, damage or expense (in-
cluding the reasonable fees and disbursements of counsel of such Indemnified
Person, including all local counsel hired by any such counsel) incurred by
such Indemnified Person in investigating, preparing for, defending against,
or providing evidence, producing documents or taking any other action in re-
spect of, any commenced or threatened litigation, administrative proceeding
or investigation under any federal securities or tax laws or any other
statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon (i) any untrue
statement of any material fact by the Borrower in any document or schedule
executed or filed with any Governmental Authority by or on behalf of the
Borrower; (ii) any omission to state any material fact required to be stated
in such document or schedule, or necessary to make the statements made
therein, in light of the circumstances under which made, not misleading; or
(iii) any acts, practices or omissions of the Borrower or its agents relating
to the use of the proceeds of any or all borrowings made by the Borrower
which are alleged to be in violation of Section 2.16, or in violation of any
federal securities or tax laws or of any other statute, regulation or other
law of any jurisdiction applicable thereto, whether such Indemnified Person
is a party thereto. The indemnity set forth herein shall be in addition to
any other obligations, liabilities or other indemnifications of the Borrower
to each Indemnified Person under the Loan Documents or at common law or
otherwise, and shall survive any termination of the Loan Documents, the
expiration of the Commitments and the payment of all indebtedness of the
Borrower under the Loan Documents, provided that the Borrower shall have no
obligation under this Section to an Indemnified Person with respect to any of
the foregoing to the extent found in a final judgment of a court having
jurisdiction to have resulted primarily out of the gross negligence or wilful
misconduct of such Indemnified Person or arising solely from claims between
one such Indemnified Person and another such Indemnified Person.
L. Governing Law.
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York, without regard to
principles of conflict of laws.
M. Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
N. Severability.
Every provision of the Loan Documents is intended to be sever-
able, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of
the remaining provisions thereof shall not be affected or impaired thereby,
and any invalidity, illegality or unenforceability in any jurisdiction shall
not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.
O. Integration.
All exhibits to a Loan Document shall be deemed to be a part
thereof. The Loan Documents embody the entire agreement and understanding
among the Borrower, the Agent and the Lenders with respect to the subject
matter thereof and supersede all prior agreements and understandings among
the Borrower, the Agent and the Lenders with respect to the subject matter
thereof.
P. Consent to Jurisdiction.
The Borrower hereby irrevocably submits to the jurisdiction of
any New York State or Federal court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents.
The Borrower hereby irrevocably waives, to the fullest extent permitted or
not prohibited by law, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding brought in
such a court and any claim that any such suit, action or proceeding brought
in such a court has been brought in an inconvenient forum. The Borrower
hereby agrees that a final judgment in any such suit, action or proceeding
brought in such a court, after all appropriate appeals, shall be conclusive
and binding upon it.
Q. Service of Process.
The Borrower hereby agrees that process may be served against it
in any suit, action or proceeding referred to in Section 11.16 by sending the
same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower. The Borrower hereby
agrees that any such service (i) shall be deemed in every respect effective
service of process upon it in any such suit, action, or proceeding, and (ii)
shall to the fullest extent enforceable by law, be taken and held to be valid
personal service upon and personal delivery to it.
R. No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of the Agent or any
Lender to serve process in any manner permitted by law or limit the right of
the Agent or any Lender to bring proceedings against the Borrower in the
courts of any jurisdiction or jurisdictions in which the Borrower may be
served.
S. WAIVER OF TRIAL BY JURY.
THE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE
BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE AGENT, OR
THE LENDERS, OR COUNSEL TO THE AGENT OR THE LENDERS, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT
OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THE BORROWER ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF
THIS SECTION.
T. Termination
After the termination of this agreement in accordance with its
terms, without any extension thereof, and the payment in full of all
obligations of the Borrower under the Loan Documents (including without
limitation, all principal, interest, Commitment Fees and other amounts
payable hereunder and under the Notes), the obligations of the Borrower
hereunder (other than those which are stated herein to survive any
termination of this Agreement) shall terminate, except that the foregoing
shall not apply with respect to any claim, action or proceeding made or
brought under any other provision of the Loan Documents prior to such
termination or payment. At the request of the Borrower, the Lender whose
obligations under the Notes have been fully paid shall promptly return to the
Borrower its Note or other evidence that such Lender has received full
payment of such obligations.
U. Limited Recourse Obligations
This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed and
delivered on behalf of the Borrower by the trustees or officers thereof in
their representative capacity under the Declaration of Trust, and not indi-
vidually, and bind only the trust estate of the Borrower, and no trustee,
officer, employee, agent or shareholder of the Borrower shall be bound or
held to any personal liability or responsibility in connection with the
agreements, obligations and undertakings of the Borrower hereunder, and any
person or entity dealing with the Borrower in connection therewith shall look
only to the trust estate for the payment of any claim or for the performance
of any agreement, obligation or undertaking thereunder. The Agent and each
Lender hereby acknowledge and agree that each agreement and other document
executed by the Borrower in accordance with or in respect of this transaction
shall be deemed and treated to include in all respects and for all purposes
the foregoing exculpatory provision.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
NEW PLAN REALTY TRUST
By:/s/ Dean Bernstein
______________________________
Dean Bernstein
Vice President
THE BANK OF NEW YORK,
as Agent and a Lender
By:/s/ Andrea H. Stuart
_______________________________
Andrea H. Stuart
Vice President
FLEET NATIONAL BANK
as a Lender
By:/s/ Claudia Piper Pynchon
_________________________________
Claudia Piper Pynchon
Vice President
CORESTATES BANK NA
as a Lender
By:/s/ Mark A. Duffy
________________________________
Mark A. Duffy
Vice President
EXHIBIT 11
Statement of Computation of Earnings Per Share of Beneficial Interest
for the Twelve Months Ended July 31, 1997
(000's omitted except for per share amounts)
Fully
Primary EPS Diluted EPS
----------- -----------
1. Proceeds Upon Exercise of
Options $51,021 $51,021
2. Market Price of Shares:
Closing $ 21.75
Average $22.688
3. Treasury Shares that Could be
Repurchased 2,249 2,346
4. Option Shares Outstanding 2,513 2,513
5. Common Stock Equivalents 264 167
6. Average Number of Shares
Outstanding 58,461 58,461
7. Total of Common and Common
Equivalent Shares 58,725 58,628
8. Net Income for the Period After
Preferred Dividend Requirements 76,576 76,576
9. Earnings Per Share of Beneficial Interest 1.30 1.31
10. Reported Earnings Per Share of
Beneficial Interest $ 1.31 N/A
EXHIBIT 12
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
and preferred stock dividend requirements for the periods indicated:
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
23.6 17.0 8.1 4.9 3.5
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges (excluding capitalized interest) to income before
extraordinary items. Fixed charges consist of interest costs, whether
expensed or capitalized, preferred stock dividend requirements, the interest
component of rental expense, if any, and amortization of debt discounts and
issue costs, whether expensed or capitalized.
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
YEAR ENDED JULY 31, 1997
(DOLLAR AMOUNTS IN THOUSANDS)
EARNINGS:
Net income $ 77,037
Interest expense 28,256
Other adjustments 494
--------
$105,787
========
FIXED CHARGES:
Interest expense $ 28,256
Capitalized interest 868
Preferred Stock Dividends 461
Other adjustments 327
--------
$ 29,912
========
RATIO OF EARNINGS TO FIXED CHARGES 3.5
EXHIBIT 21
SUBSIDIARIES OF THE REGISTRANT
New Plan Realty Trust, the Registrant.
New Plan Securities Corp., a New York corporation.
New Plan Realty of Alabama, Inc., an Alabama corporation.
Avion Service Corp., a Pennsylvania corporation.
New Plan Realty of Kingsport, Inc., a Tennessee corporation.
New Plan Factory Malls, Inc., a Delaware Corporation
New Plan of Tara, Inc., a Delaware Corporation
New Plan of Fashion Corners, Inc., a Delaware Corporation
New Plan Disbursing Corp., a Delaware Corporation
New Plan Realty of Louisiana, Inc., a Delaware Corporation
New Plan of Tennessee, Inc., a Delaware Corporation
New Plan Realty of Louisiana, L.P., a Delaware limited partnership
New Plan of Waterford Place, L.P., a Delaware limited partnership
New Plan of Tennessee, L.P., a Delaware limited partnership
New Plan of New Garden, Inc., a Delaware corporation
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statements
of New Plan Realty Trust on Forms S-3 (File Nos. 33-58596, 33-60315 and 333-
15635) and on Forms S-8 (File Nos. 33-57946 and 33-59077), of our report
dated September 9, 1997, on our audits of the consolidated financial
statements and financial statement schedules of New Plan Realty Trust and
Subsidiaries, as of July 31, 1997 and 1996 and for the years ended July 31,
1997, 1996 and 1995, which report is included in this Annual Report on Form
10-K.
COOPERS & LYBRAND L.L.P.
New York, New York
October 9, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> This Schedule contains summary financial information extracted from
the consolidated balance sheets and consolidated statements of operation and
is qualified in its entirety by reference to such financial statements (000's
are omitted).
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JUL-31-1997
<PERIOD-END> JUL-31-1997
<CASH> 42,781
<SECURITIES> 2,035
<RECEIVABLES> 12,035
<ALLOWANCES> 5,581
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 1,277,775
<DEPRECIATION> 105,866
<TOTAL-ASSETS> 1,261,144
<CURRENT-LIABILITIES> 0
<BONDS> 478,207
<COMMON> 735,196
0
72,775
<OTHER-SE> (63,016)
<TOTAL-LIABILITY-AND-EQUITY> 1,261,144
<SALES> 0
<TOTAL-REVENUES> 206,821
<CGS> 0
<TOTAL-COSTS> 96,039
<OTHER-EXPENSES> 2,203
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 28,256
<INCOME-PRETAX> 77,037
<INCOME-TAX> 0
<INCOME-CONTINUING> 77,037
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 77,037
<EPS-PRIMARY> 1.31
<EPS-DILUTED> 1.31
</TABLE>
