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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) July 2, 1997
(June 30, 1997)
NEW PLAN REALTY TRUST
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(Exact Name of Registrant as Specified in Charter)
Massachusetts 0-7532 13-1995781
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1120 Avenue of the Americas, New York, New York 10036
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 869-3000
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(Former Name or Former Address, if Changed Since Last Report)
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<PAGE>
Item 5. Other Events.
New Plan Realty Trust, a Massachusetts business trust (the "Company"), is
offering to the public 1,500,000 depositary shares (the "Depositary Shares"),
each representing a 1/10th fractional interest in a 7.80% Series A Cumulative
Step-Up Premium Rate Preferred Share, par value $1.00 per share (a "Preferred
Share"), liquidation preference $500.00 per Preferred Share (equivalent to
$50.00 per Depositary Share). The Depositary Shares and Preferred Shares were
registered as part of the Company's Registration Statement on Form S-3 (No.
333-15635), which was declared effective by the Securities and Exchange
Commission on November 12, 1996. On June 30, 1997, the Company entered into an
Underwriting Agreement and Terms Agreement with Merrill Lynch, Pierce, Fenner &
Smith Incorporated (the "Underwriter") covering the sale by the Company of the
Depositary Shares. The Depositary Shares are to be issued under a Deposit
Agreement to be entered into among the Company, BankBoston N.A., as depositary,
and the holders from time to time of Depositary Receipts evidencing the
Depositary Shares.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Businesses Acquired.
None
(b) Pro Forma Financial Information.
None
(c) Exhibits.
1.1 Underwriting Agreement, Basic Provisions for Preferred
Shares, Depositary Shares, Common Shares and Warrants
between the Company and the Underwriter dated June 30,
1997.
1.2 Terms Agreement between the Company and the Underwriter
dated June 30, 1997.
4.1 Form of Certificate of Designation Supplementing the
Amended and Restated Declaration of Trust of the Trust and
Designating the 7.80% Series A Cumulative Step-Up Premium
Rate Preferred Shares, par value $1.00 per share,
liquidation preference $500.00 per share.
4.2 Form of Preferred Shares Certificate.
4.3 Form of Deposit Agreement (including Form of Depositary
Receipt) to be entered into among the Company, BankBoston
N.A., as depositary, and the holders from time to time of
Depositary Receipts evidencing the Depositary Shares.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: July 2, 1997
NEW PLAN REALTY TRUST
By:/s/ Michael I. Brown
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Michael I. Brown
Chief Financial Officer
and Controller
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NEW PLAN REALTY TRUST
(a Massachusetts business trust)
Common Shares, Preferred Shares, Warrants
to Purchase Common Shares and Preferred Shares,
Rights to Purchase Common Shares, and Depositary Shares
UNDERWRITING AGREEMENT
June 30, 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1326
Dear Sirs:
New Plan Realty Trust, a Massachusetts business trust (the "Trust")
proposes to issue and sell shares of beneficial interest without par value (the
"Common Shares"), preferred shares of beneficial interest, par value $1.00 per
share (the "Preferred Shares"), warrants to purchase a number of Common Shares
or Preferred Shares (the "Warrants"), and/or rights to purchase Common Shares
(the "Rights"), from time to time, in one or more offerings on terms to be
determined at the time of sale. The Preferred Shares may be offered in the
form of depositary shares (the "Depositary Shares") represented by depositary
receipts (the "Depositary Receipts"). The Warrants will be issued pursuant to
a Warrant Agreement (the "Warrant Agreement") between the Trust and a warrant
agent (the "Warrant Agent"). Each series of Preferred Shares may vary as to
the specific number of shares, title, stated value, liquidation preference,
issuance price, ranking, dividend rate or rates (or method of calculation),
dividend payment dates, any redemption or sinking fund requirements, any
conversion or exchange provisions and any other variable terms as set forth in
the applicable resolutions of the Trust's Board of Trustees (each, the
"Resolutions") relating to such Preferred Shares. As used herein, "Securities"
shall mean the Common Shares, the Preferred Shares, the Warrants, the Rights,
the Depositary Shares and the Depositary Receipts; and "Warrant Securities"
shall mean the Common Shares or Preferred Shares issuable upon exercise of
Warrants. As used herein, "you" and "your", unless the context otherwise
requires, shall mean the parties to whom this Agreement is addressed together
with the other parties, if any, identified in the applicable Terms Agreement
(as hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Trust determines to make an offering of Securities through
you or through an underwriting syndicate managed by you, the Trust will enter
into an agreement (the "Terms Agreement") providing for the sale of such
Securities (the "Underwritten Securities") to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by you as have
authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters", which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate and
any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Underwritten Securities shall specify the
number of Underwritten Securities of each class or series to be initially
issued, and the number of Warrant Securities, if any (the "Initial Underwritten
Securities"), whether the Initial Underwritten Securities shall be in the form
of Depositary Shares and the fractional amount of Preferred Shares represented
by each Depositary Share, the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof), the number
of Initial Underwritten Securities which each such Underwriter severally agrees
to purchase, the names of the Underwriters acting as lead manager and co-
managers, if any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters from
the Trust, the initial public offering price, if any, the time, date and place
of delivery and payment, any delayed delivery arrangements and any other
variable terms of the Initial Underwritten Securities (including, but not
limited to, current ratings (in the case of Preferred Shares and Depositary
Shares only), designations, liquidation preferences, conversion or exchange
provisions, redemption provisions and sinking fund requirements (in the case of
Preferred Shares only) and the terms of the Warrant Securities and the terms,
prices and dates upon which such Warrant Securities may be purchased). In
addition, each Terms Agreement shall specify whether the Trust has agreed to
grant to the Underwriters an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the number of Underwritten
Securities, and the number of Warrant Securities, if any, subject to such
option (the "Option Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of the Option Securities agreed to be purchased by the Underwriters as
provided herein, if any. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Trust. Each offering of
Underwritten Securities through you or through an underwriting syndicate
managed by you will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-15635) for the
registration of the Securities (including the Underwritten Securities) and
Warrant Securities and certain of the Trust's debt securities and warrants to
purchase debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), and the Trust has filed such amendments thereto as may
have been required prior to the execution of the applicable Terms Agreement.
Such registration statement (as amended, if applicable) has been declared
effective by the Commission. Such registration statement (as amended, if
applicable), on the one hand, and the prospectus constituting a part thereof,
and each prospectus supplement relating to the offering of Underwritten
Securities provided to the Underwriters for use (whether or not such prospectus
supplement is required to be filed by the Trust pursuant to Rule 424(b) of the
1933 Act Regulations) (the "Prospectus Supplement"), on the other hand,
including in each case all documents incorporated therein by reference and the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) or
Rule 434 of the 1933 Act Regulations, as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or otherwise, are referred to herein as the "Re-
gistration Statement" and the "Prospectus", respectively; provided, however,
that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Underwritten Securities to
which it relates. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include,
without limitation, any document filed under the 1934 Act which is or is deemed
to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. If the Trust elects to rely on Rule 434 under
the 1933 Act Regulations, all references to the Prospectus shall be deemed to
include, without limitation, the form of prospectus and the abbreviated term
sheet, taken together, provided to the Underwriters by the Trust in reliance on
Rule 434 under the 1933 Act (the "Rule 434 Prospectus"). If the Trust files a
registration statement to register a portion of the Securities and Warrant
Securities and relies on Rule 462(b) for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to both the registration statement referred to above (No. 33-
61383) and the Rule 462 Registration Statement, as each such registration
statement may be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
(a) The Trust represents and warrants to you, as of the date hereof, and
to you and each other Underwriter named in the applicable Terms Agreement, as
of the date thereof (such latter date being referred to herein as a "Repre-
sentation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective, and at each time thereafter on
which the Trust filed an Annual Report on Form 10-K with the Commission,
complied, and as of the applicable Representation Date will comply, in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations; the Registration Statement, at the time the Registration
Statement (or any amendment) became effective and at each time thereafter
on which the Trust filed an Annual Report on Form 10-K with the
Commission, did not, and as of the applicable Representation Date, will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, as of the date hereof,
does not, and as of the applicable Representation Date and at Closing Time
(as hereinafter defined), will not, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Trust in
writing by or on behalf of any Underwriter through you expressly for use
in the Registration Statement or the Prospectus.
(ii) The documents, as amended, if applicable, incorporated or deemed
to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective and as
of the applicable Representation Date or Closing Time or during the period
specified in Section 3(f), did not and will not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(iii) The accountants who certified the financial statements and
supporting schedules included in, or incorporated by reference into, the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) The historical financial statements, and the related notes
therein, of the Trust, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly in all material
respects the financial position of the Trust and its consolidated
subsidiaries as at the dates indicated and the results of their operations
for the periods specified. If applicable, the historical financial
information, including the notes thereto, for properties or other assets,
included or incorporated by reference into the Registration Statement and
the Prospectus present fairly in all material respects the stated
financial information for such specific property or asset. Except as
otherwise stated in the Registration Statement and the Prospectus, said
historical financial statements of the Trust and, if applicable, of the
specific properties or other assets, have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made. The supporting
schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
information required to be stated therein; and the selected financial data
(both historical and pro forma) included or incorporated by reference in
the Registration Statement and the Prospectus present fairly in all
material respects the information shown therein and have been compiled on
a basis consistent with the related financial statements.
(v) The unaudited pro forma condensed consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
pro forma financial position of the Trust as of the dates indicated and
the results of its operations for the periods specified. The assumptions
on which such pro forma financial statements have been prepared are
reasonable and are set forth in the notes thereto, and such pro forma
financial statements have been prepared, and the pro forma adjustments set
forth therein have been applied, in accordance with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations.
Such pro forma adjustments have been properly applied to the historical
amounts in the compilation of such statements.
(vi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business or business prospects
of the Trust and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (B) no material casualty
loss or material condemnation or other material adverse event with respect
to any of the properties of the Trust has occurred, which are material
with respect to the Trust and its subsidiaries considered as one
enterprise, (C) there have been no transactions entered into or
acquisitions by the Trust or any of its subsidiaries other than those
arising in the ordinary course of business, which are material with
respect to the Trust and its subsidiaries considered as one enterprise,
and (D) except for regular quarterly dividends on the Trust's Common
Shares, or dividends declared, paid or made in accordance with the terms
of any series of the Trust's Preferred Shares, there has been no dividend
or distribution of any kind declared, paid or made by the Trust on any
class of its Common Shares or Preferred Shares.
(vii) The Trust has been duly established and is validly existing as a
voluntary association (commonly referred to as a business trust) in good
standing under the laws of the Commonwealth of Massachusetts; the
declaration of trust, as amended (the "Declaration of Trust") pursuant to
which the Trust was established, confers upon the trustees therein named,
and their successors in trust, power and authority to hold mortgages, to
own and lease real property and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement and the applicable Terms Agreement; and the Trust is duly
qualified and in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise; and the Resolutions relating to the Preferred Shares or
Depositary Shares, if applicable, will be in full force and effect as of
the applicable Representation Date.
(viii) Each subsidiary of the Trust has been duly incorporated or
organized and is validly existing as a corporation or partnership in good
standing under the laws of the jurisdiction of its incorporation or
organization, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation or partnership to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock of each
subsidiary of the Trust has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Trust free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for security interests granted in respect of indebtedness
of the Trust or any of its subsidiaries and referred to in the Prospectus.
(ix) The authorized, issued and outstanding Common Shares and
Preferred Shares, if any, of the Trust are as set forth in the Prospectus
under "Capitalization" (except for subsequent issuances, if any, pursuant
to reservations or agreements or upon the exercise of convertible
securities referred to in the Registration Statement including, without
limitation, exercise of share options, granting of share options or
issuance of shares pursuant to the dividend reinvestment plan); and such
Common Shares and Preferred Shares, if any, have been duly authorized and
validly issued and are fully paid and non-assessable, except as described
in the section "Summary of Declaration of Trust -- Shareholders' Liability
to Third Persons and Indemnification by Trust" in an exhibit to the
Trust's Form 8-A dated May 30, 1986, and are not subject to preemptive or
other similar rights.
(x) The Underwritten Securities being sold (other than Warrants)
pursuant to the applicable Terms Agreement and, if applicable, the deposit
of the Preferred Shares in accordance with the provisions of a Deposit
Agreement (each, a "Deposit Agreement"), among the Trust, the financial
institution named in the Deposit Agreement (the "Depositary") and the
holders of the Depositary Receipts issued thereunder, have been duly
authorized by the Trust and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this Agreement (and, if
applicable, the Deposit Agreement) and such Underwritten Securities, when
issued and delivered by the Trust pursuant to this Agreement (and, if
applicable, the Deposit Agreement) against payment of the consideration
set forth in the applicable Terms Agreement or any Delayed Delivery
Contract (as hereinafter defined), will be validly issued, fully paid and
non-assessable, except as described in the section "Summary of Declaration
of Trust -- Shareholders' Liability to Third Persons and Indemnification
by Trust" in an exhibit to the Trust's Form 8-A dated May 30, 1986; the
Preferred Shares, if applicable, conform to the provisions of the
Resolutions; the Underwritten Securities being sold pursuant to the
applicable Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus; and the issuance
of such Underwritten Securities is not subject to preemptive or other
similar rights. The form of share certificate used to evidence the
Underwritten Securities is in due and proper form and complies in all
material respects with all applicable legal requirements.
(xi) If applicable, the Warrants have been duly authorized and, when
issued and delivered pursuant to this Agreement and countersigned by the
Warrant Agent as provided in the Warrant Agreement, will have been duly
executed, countersigned, issued and delivered and will constitute valid
and legally binding obligations of the Trust entitled to the benefits
provided by the Warrant Agreement under which they are to be issued,
except as enforcement of such benefits may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors'
rights generally and by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
Warrants conform in all material respects to all statements relating
thereto contained in the Prospectus.
(xii) If applicable, the Common Shares issuable upon conversion of
any of the Preferred Shares or the Depositary Shares, or the Warrant
Securities, will have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary action of the
Trust and such shares, when issued upon such conversion or exercise, will
be duly authorized and validly issued and will be fully paid and non-
assessable, except as described in the section "Summary of Declaration of
Trust -- Shareholders' Liability to Third Persons and Indemnification by
Trust" in an exhibit to the Trust's Form 8-A dated May 30, 1986, and the
issuance of such shares upon such conversion or exercise will not be
subject to preemptive or other similar rights; and the Common Shares
issuable upon conversion of any of the Preferred Shares or the Depositary
Shares or the Warrant Securities, conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xiii) The applicable Warrant Agreement, if any, and the applicable
Deposit Agreement, if any, will have been duly authorized, executed and
delivered by the Trust prior to the issuance of any applicable
Underwritten Securities, and each will constitute a valid and legally
binding agreement of the Trust enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws relating to or affecting creditors' rights generally
and by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Warrant
Agreement, if any, and the Deposit Agreement, if any, each conforms in all
material respects to all statements relating thereto contained in the
Prospectus.
(xiv) If applicable, upon execution and delivery thereof pursuant to
the terms of the Deposit Agreement, the persons in whose names the
Depositary Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement, except as enforcement of
such rights may be limited by bankruptcy, insolvency or other similar laws
relating to or affecting creditors' rights generally and by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xv) The Trust is not in violation of its Declaration of Trust, and
no subsidiary of the Trust is in violation of its charter or by-laws, and
neither the Trust nor any subsidiary is in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease (other
than as disclosed in the Prospectus) or other instrument to which the
Trust or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Trust or
any of its subsidiaries is subject where the violation or default might
result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise; and the execution,
delivery and performance of this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any, or the applicable
Deposit Agreement, if any, and the consummation of the transactions
contemplated herein and therein and compliance by the Trust with its
obligations hereunder and thereunder have been duly authorized by all
necessary action on the part of the Trust, and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Trust or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Trust or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any property or assets of the Trust
or any of its subsidiaries is subject, except for any such default or
violation that could not reasonably result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise, nor will such action result in any violation of the
Declaration of Trust of the Trust or any law, administrative regulation or
administrative or court decree, except for any such default or violation
that could not reasonably result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise.
(xvi) With respect to its taxable years ended July 31, 1996, 1995,
1994, 1993 and 1992 and for all other tax periods regarding which the
Internal Revenue Service is entitled to assert any claim against the
Trust, the Trust has met the requirements for qualification as a real
estate investment trust ("REIT") under the Internal Revenue Code of 1986,
as amended (the "Code"), and the Trust's present and proposed method of
operation will enable it to meet the requirements for taxation as a REIT
under the Code and it will be so qualified as a REIT for the taxable years
(assuming no amendment to the relevant sections of the Code) in which
sales of the Underwritten Securities are to occur.
(xvii) The Trust is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act").
(xviii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Trust (for purposes of this Agreement, such
knowledge shall mean the actual knowledge of a Trust executive officer or
trustee), threatened against or affecting the Trust or any of its
subsidiaries which is required to be disclosed in the Prospectus (other
than as disclosed therein) or which might result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or business prospects of the Trust and its subsidiaries
considered as one enterprise, or which might materially and adversely
affect the properties or assets of the Trust and any of its subsidiaries
considered as one enterprise or which might materially and adversely
affect the consummation of this Agreement, the applicable Terms Agreement,
the applicable Warrant Agreement, if any, or the applicable Deposit
Agreement, if any, or the transactions contemplated herein and therein;
all pending legal or governmental proceedings to which the Trust or any of
its subsidiaries is a party or of which any property or assets of the
Trust or any of its subsidiaries is subject which are not described in or
incorporated by reference into the Prospectus, including ordinary routine
litigation incidental to the business, are, considered in the aggregate,
not material; and there are no contracts or documents of the Trust or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xix) Neither the Trust nor any of its subsidiaries is required to
own or possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by them.
(xx) No authorization, approval or consent of any governmental
authority or agency is required that has not been obtained in connection
with the consummation by the Trust of the transactions contemplated by
this Agreement, the applicable Terms Agreement, any Warrant Agreement or
any Deposit Agreement, except such as may be required under the 1933 Act
or the 1933 Act Regulations, state or foreign securities laws, real estate
syndication laws or under the rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD").
(xxi) The Trust and its subsidiaries possess adequate certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, and neither the Trust nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of the Trust and its
subsidiaries considered as one enterprise.
(xxii) The Trust has full right, power and authority to enter into
this Agreement, the applicable Terms Agreement and the Delayed Delivery
Contracts, if any, and this Agreement has been, and as of each
Representation Date, the applicable Terms Agreement and the Delayed
Delivery Contracts, if any, will have been, duly authorized, executed and
delivered by the Trust.
(xxiii) (A) The Trust and its subsidiaries have good title to all
real property and interests in real property owned by them in each case
free and clear of all liens, encumbrances, claims, security interests and
defects other than those referred to in the Prospectus or such as do not
materially and adversely affect the value of such property or interests
and do not materially interfere with the use made and proposed to be made
of such property or interests by the Trust or its subsidiaries, as the
case may be; (B) all liens, charges, encumbrances, claims, or restrictions
on or affecting the properties and assets owned by the Trust or any of its
subsidiaries which are required to be disclosed in the Prospectus are
disclosed therein; (C) except as disclosed in the Prospectus, neither the
Trust nor any of its subsidiaries has received written notice of a default
under any of the leases relating to the properties and assets of the Trust
or any of its subsidiaries, and the Trust knows of no event which, but for
the passage of time or the giving of notice, or both, would constitute a
default under any of such leases, except with respect to defaults that
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise; (D) the properties and
assets of the Trust or any of its subsidiaries comply with all applicable
codes and zoning laws and regulations, except for such failures to comply
which would not individually or in the aggregate have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business or business prospects of the Trust and its subsidiaries
considered as one enterprise; and (E) the Trust has no knowledge of any
pending or threatened condemnation, zoning change, or other proceeding or
action that will in any manner affect the size of, use of, improvements
on, construction on, or access to the properties and assets of the Trust
or any of its subsidiaries, except such proceedings or actions that would
not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise.
(xxiv) Except as disclosed in the Prospectus, the Trust has no
knowledge of (A) the unlawful presence of any substance, material or waste
which is regulated by any federal, state or local governmental or quasi-
governmental authority, including, without limitation, (i) any substance,
material or waste defined, used or listed as a "hazardous waste",
"extremely hazardous waste", "restricted hazardous waste", "hazardous
substance", "hazardous material", "toxic substance" or other similar terms
as defined or used in any Environmental Law (as hereinafter defined) and
(ii) any petroleum products, asbestos, polychlorinated biphenyls, lead-
based paint, flammable explosives or radioactive materials (collectively
with clause (i) above, "Hazardous Materials"), on any of the properties
owned by the Trust, or of (B) any unlawful spills, releases, discharges or
disposal of Hazardous Materials that have occurred or are presently
occurring at, from or onto any of such properties, which presence or
occurrence referred to in clauses (A) or (B) above would materially
adversely affect the condition, financial or otherwise, or the earnings,
business or business prospects of the Trust and its subsidiaries
considered as one enterprise. Except as disclosed in the Prospectus, in
connection with the construction on or operation and use of the properties
of the Trust or any of its subsidiaries, the Trust represents that it has
no knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the use, generation,
recycling, reuse, sale, storage, handling, transport and disposal of any
Hazardous Materials (collectively, "Environmental Laws") that would have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business or business prospects of the Trust and its
subsidiaries considered as one enterprise.
(xxv) Other than the agreement for joint advertising, marketing and
promotion of an outlet center and theme park with respect to the Six Flags
Factory Outlet Center, there are no partnership and joint venture
agreements with unaffiliated parties to which the Trust or any of its
subsidiaries is a party and which relates to real property described in
the Prospectus.
(xxvi) Neither the Trust nor any of its subsidiaries does business
with any persons or affiliate located in Cuba within the meaning of
Florida Rule 3E-900.001.
(b) Any certificate signed by any officer of the Trust and delivered to
you or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by the
Trust to each Underwriter participating in such offering as to the matters
covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
To In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the number
of Option Securities set forth therein at the same price per Option Security as
is applicable to the Initial Underwritten Securities. Such option, if granted,
will expire 30 days or such lesser number of days as may be specified in the
applicable Terms Agreement after the Representation Date relating to the
Initial Underwritten Securities, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Trust setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than three full business days and not
be earlier than two full business days after the exercise of said option,
unless otherwise agreed upon by you and the Trust. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in the applicable Terms Agreement bears to the total number of
Initial Underwritten Securities (except as otherwise provided in the applicable
Terms Agreement), subject to such adjustments as you in your discretion shall
make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the Underwritten
Securities to be purchased by the Underwriters shall be made at the offices of
Brown & Wood LLP, One World Trade Center, New York, New York 10048-0557, or at
such other place as shall be agreed upon by you and the Trust, at 10:00 A.M.,
New York City time, on the third business day (unless postponed in accordance
with the provisions of Section 10) following the date of the applicable Terms
Agreement or, if pricing takes place after 4:30 p.m., New York City time, on
the date of the applicable Terms Agreement, on the fourth business day (unless
postponed in accordance with the provisions of Section 10) following the date
of the applicable Terms Agreement or at such other time as shall be agreed upon
by you and the Trust (each such time and date of payment and delivery being
referred to herein as a "Closing Time"). In addition, in the event that any or
all of the Option Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates representing, such Option
Securities, shall be made at the above-mentioned offices of Brown & Wood LLP,
or at such other place as shall be agreed upon by you and the Trust on each
Date of Delivery as specified in the notice from you to the Trust. Unless
otherwise specified in the applicable Terms Agreement, payment shall be made to
the Trust by certified or official bank check or checks in New York Clearing
House or similar next-day funds payable to the order of the Trust against
delivery to you for the respective accounts of the Underwriters the
Underwritten Securities to be purchased by them. The Underwritten Securities
shall be in such authorized denominations and registered in such names as you
may request in writing at least two business days prior to the applicable
Closing Time or Date of Delivery, as the case may be. The Underwritten
Securities, which may be in temporary form, will be made available for
examination and packaging by you on or before the first business day prior to
the Closing Time or the Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Trust
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Trust may approve. As compensation for arranging Delayed Delivery Contracts,
the Trust will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the Closing Time, the Trust will enter into
Delayed Delivery Contracts (for not less than the minimum number of
Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters
and previously approved by the Trust as provided below, but not for an
aggregate number of Underwritten Securities in excess of that specified in the
applicable Terms Agreement. The Underwriters will not have any responsibility
for the validity or performance of Delayed Delivery Contracts.
You shall submit to the Trust, at least two business days prior to the
Closing Time, the names of any institutional investors with which it is
proposed that the Trust will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Trust will advise you, at least one business day prior to the Closing Time, of
the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Trust and the number of Underwritten Securities to
be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
you to the Trust; provided, however, that the total number of Underwritten
Securities to be purchased by all Underwriters shall be the total number of
Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Trust. The Trust covenants with you, and
with each Underwriter participating in the offering of Underwritten Securities,
as follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Trust will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection
with the offering, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Trust, the initial public offering
price, if any, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as you and the Trust deem
appropriate in connection with the offering of the Underwritten Securities; and
the Trust will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and
will furnish to the Underwriters named therein as many copies of the Prospectus
(including such Prospectus Supplement) as you shall reasonably request. If the
Trust elects to rely on Rule 434 under the 1933 Act Regulations, the Trust will
prepare an abbreviated term sheet that complies with the requirements of Rule
434 under the 1933 Act Regulations and will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such number as the Underwriters
may reasonably request, and promptly file or transmit for filing with the
Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act
Regulations in accordance with Rule 424(b) of the 1933 Act Regulations.
(b) The Trust will notify you immediately, and confirm such notice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus to be filed
pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the initia-
tion of any proceedings for that purpose; and the Trust will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Trust will give you notice of its intention to file or prepare
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise,
including any revised prospectus which the Trust proposes for use by the
Underwriters in connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement first became effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations, and will furnish you with copies of any such
amendment or supplement in a reasonable amount of time prior to such proposed
filing or use and, unless required by law, will not file or use any such
amendment or supplement or other documents in a form to which you or counsel
for the Underwriters shall reasonably object.
(d) The Trust will deliver to the lead Underwriter a signed copy of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference therein) and will also deliver to each
Underwriter upon its request a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (including documents
incorporated by reference but without exhibits).
(e) The Trust will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act in connection with sales of the Underwritten Securities, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Trust, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
at any such time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, then the Trust will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant
to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements; and the Trust will furnish to the
Underwriters a reasonable number of copies of such amendment or supplement in a
reasonable amount of time prior to such proposed filing and, unless required by
law, will not file any such amendment or supplement or other documents in a
form to which you or counsel for the Underwriters shall reasonably object.
(g) The Trust will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities, the Warrant Securities, if any, and the
Common Shares issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate. In each jurisdiction
in which the Underwritten Securities, the Warrant Securities, if any, and the
Common Shares issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, have been so qualified, the Trust will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities, the Warrant Securities, if any,
the Common Shares issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any; provided, however, that the Trust shall not be
obligated to qualify as a foreign corporation in any jurisdiction where it is
not so qualified.
(h) With respect to each sale of Underwritten Securities, the Trust will
make generally available to its security holders as soon as practicable, but
not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Trust's fiscal quarter next following the "effective date"
(as defined in such Rule 158) of the Registration Statement.
(i) The Trust will use the net proceeds received by it from each sale of
Underwritten Securities substantially in the manner specified in the applicable
Prospectus Supplement under the caption "Use of Proceeds".
(j) The Trust will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code for
the taxable year in which sales of the Underwritten Securities are to occur.
(k) The Trust, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods prescribed by the 1934 Act and the 1934 Act Regulations.
o P The Trust will not, between the date of the applicable Terms
Agreement and the termination of any trading restrictions (which will not be
greater than 90 days after the Closing Time) or the Closing Time, whichever is
later, with respect to the Underwritten Securities covered thereby, without
your prior written consent, directly or indirectly, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any securities of
the same class or series or ranking on a parity with such Underwritten
Securities (other than the Underwritten Securities which are to be sold
pursuant to such Terms Agreement), or any securities that are convertible into
or exchangeable into or exercisable for equity securities of the same class or
series or ranking on a parity with the Underwritten Securities of the Trust
(except for Common Shares issued pursuant to reservations, agreements, employee
benefit plans, dividend reinvestment plans, or employee and trustee stock
option plans), except as may otherwise be provided in the applicable Terms
Agreement or as partial or full payment for properties to be acquired by the
Trust or in connection with the acquisition by the Trust or any of its
subsidiaries of, or the merger of the Trust or any of its subsidiaries into or
with, any other entity (as long as the Trust or such subsidiary is the
successor entity).
(m) If the Preferred Shares or Depositary Shares are convertible into
Common Shares or if Warrants are issued, the Trust will reserve and keep
available at all times, free of preemptive rights or other similar rights, a
sufficient number of Common Shares or Preferred Shares, as the case may be, for
the purpose of enabling the Trust to satisfy any obligations to issue such
shares upon conversion of the Preferred Shares or the Depositary Shares, as the
case may be, or upon exercise of the Warrants.
(n) If applicable, the Trust will use its best efforts to list the Common
Shares on the New York Stock Exchange ("NYSE") or such other national exchange
on which the Common Shares are then listed.
(o) If the Preferred Shares or Depositary Shares are listed on the NYSE
and are convertible into Common Shares, the Trust will use its best efforts to
list the Common Shares issuable upon conversion of the Preferred Shares or
Depositary Shares on the NYSE or such other national exchange on which the
Trust's Common Shares are then listed.
(p) The Trust has complied and will comply with all of the provisions of
Florida H.B. 1771, Section 1, Section 17,130 of the Florida Securities and
Investors Act, and all regulations thereunder relating to issuers doing
business with Cuba.
Section 4. Payment of Expenses. The Trust will pay all expenses incident
to the performance of its obligations under this Agreement or the applicable
Terms Agreement, including (i) the reproduction and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the cost of
reproducing and distributing to the Underwriters copies of this Agreement and
the applicable Terms Agreement, (iii) the preparation, issuance and delivery of
the Underwritten Securities to the Underwriters and the Warrant Securities, if
any, (iv) the fees and disbursements of the Trust's counsel and accountants,
(v) the qualification of the Underwritten Securities, the Warrant Securities,
if any, and the Common Shares issuable upon conversion of the Preferred Shares
or the Depositary Shares, if any, under securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g), including
filing fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the reproduction and delivery to the Underwriters of copies of the
Blue Sky Survey, (vii) the reproduction and delivery to the Underwriters of
copies of the Registration Statement as originally filed and each amendment
thereto, and the printing and delivery of each of the preliminary prospectuses
and the Prospectus and any amendments or supplements thereto, including each
abbreviated term sheet delivered by the Trust pursuant to Rule 434 of the 1933
Act Regulations, (viii) the printing, reproduction and delivery to the
Underwriters of copies of the applicable Deposit Agreement, if any, and the
applicable Warrant Agreement, if any, (ix) any fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(x) the fees and expenses, if any, incurred with respect to the listing of the
Underwritten Securities, the Warrant Securities, if any, or the Common Shares
issuable upon conversion of the Preferred Shares or the Depositary Shares, if
any, on any national securities exchange, (xi) the fees and expenses, if any,
incurred with respect to any filing with the NASD, and (xii) the cost of
providing any CUSIP or other identification numbers for the Underwritten
Securities or the Common Shares issuable upon conversion of Preferred Shares or
Depositary Shares, if applicable, and (xiii) the fees and expenses of any
Depositary in connection with the Underwritten Securities.
If the applicable Terms Agreement is cancelled or terminated by you in
accordance with the provisions of Section 5, Section 9(b)(i) or 9(b)(iv), the
Trust shall reimburse the Underwriters named in such Terms Agreement for all of
their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Trust herein contained, to the accuracy
of the statements of the Trust's officers made in any certificate pursuant to
the provisions hereof, to the performance by the Trust of all of its covenants
and other obligations hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and (ii) if
Preferred Shares or
Depositary Shares are being offered, the rating assigned by any nationally
recognized statistical rating organization to any preferred shares of
beneficial interest of the Trust as of the date of the applicable Terms
Agreement shall not have been lowered since such date nor shall any such rating
organization have publicly announced that it has placed any preferred shares of
beneficial interest of the Trust on what is commonly termed a "watch list" for
possible downgrading, and (iii) there shall not have come to your attention any
facts that would reasonably cause you to believe that the Prospectus, together
with the applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
such time, not misleading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Robinson
Silverman Pearce Aronsohn & Berman LLP, counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Trust has been duly established and is validly existing
and in good standing as an unincorporated association commonly
referred to as a business trust under the laws of the Commonwealth of
Massachusetts.
(ii) The Trust has trust power to own, lease and operate its
current properties and to conduct its business as described in the
Registration Statement and possesses all licenses, permits,
authorizations, consents and orders required for the contemplated
method of operation of its business as described in the Registration
Statement, the absence of which would materially adversely affect the
condition, financial or otherwise, or the earnings, business or
business prospects of the Trust and its subsidiaries considered as
one enterprise.
(iii) The Trust is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership of property or the
conduct of its business, except where the failure to so qualify or be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business or
business prospects of the Trust and its subsidiaries considered as
one enterprise.
(iv) Each significant subsidiary of the Trust (as such term is
defined in Rule 405 under the 1933 Act) has been duly incorporated or
organized and is validly existing as a corporation or partnership in
good standing under the laws of the jurisdiction of its incorporation
or organization, has power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation or
partnership to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
on the earnings, business or business prospects of the Trust and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each such significant subsidiary has
been duly authorized, validly issued, fully paid and is non-
assessable and, to the best of such counsel's knowledge, is owned by
the Trust, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(v) The authorized, issued and outstanding Common Shares and
Preferred Shares, if any, of the Trust are as set forth in the
Prospectus under "Capitalization" (except for subsequent issuances,
if any, pursuant to reservations, agreements or the exercise of
convertible securities referred to in the Registration Statement
including, without limitation, exercise of share options, granting of
share options or issuance of shares pursuant to the dividend
reinvestment plan); and such issued and outstanding shares of
beneficial interest have been duly authorized, validly issued, fully
paid and are non-assessable, except as described in the section
"Summary of Declaration of Trust -- Shareholders' Liability to Third
Persons and Indemnification by Trust" in an exhibit to the Trust's
Form 8-A dated May 30, 1986.
(vi) The applicable Underwritten Securities being sold pursuant
to the applicable Terms Agreement and, if applicable, the deposit of
the Preferred Shares in accordance with the provisions of a Deposit
Agreement, have been duly and validly authorized by all necessary
trust action and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this Agreement and such
Underwritten Securities, when issued and delivered by the Trust
pursuant to this Agreement against payment of the consideration set
forth in the applicable Terms Agreement or any Delayed Delivery
Contracts, will be validly issued, fully paid and non-assessable
(except as described in the section "Summary of Declaration of Trust
-- Shareholders' Liability to Third Persons and Indemnification by
Trust" in an exhibit to the Trust's Form 8-A dated May 30, 1986) and
will not be subject to preemptive or other similar rights arising by
operation of law or, to the best of such counsel's knowledge,
otherwise; and the Preferred Shares, if applicable, conform to the
provisions of the Resolutions.
(vii) If applicable, the Warrants have been duly authorized and,
when issued and delivered pursuant to this Agreement and
countersigned by the Warrant Agent as provided in the Warrant
Agreement, will have been duly executed, countersigned, issued and
delivered and will constitute valid and legally binding obligations
of the Trust entitled to the benefits provided by the Warrant
Agreement under which they are to be issued, except as enforcement of
such benefits may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights generally and
by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(viii) If applicable, the Common Shares issuable upon conversion
of any of the Preferred Shares or Depositary Shares, or the Warrant
Securities, have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary action on
the part of the Trust and such shares, when issued upon such
conversion or exercise in accordance with the Declaration of Trust,
as may be amended from time to time, the Terms Agreement, the Delayed
Delivery Contract or the Warrant Agreement, as the case may be, will
be duly authorized and validly issued and will be fully paid and non-
assessable (except as described in the section "Summary of
Declaration of Trust -- Shareholders' Liability to Third Persons and
Indemnification by Trust" in an exhibit to the Trust's Form 8-A dated
May 30, 1986), and the issuance of such shares upon such conversion
or exercise will not be subject to preemptive or other similar rights
arising by operation of law or, to the best of such counsel's
knowledge, otherwise.
(ix) Each of this Agreement, the applicable Terms Agreement and
the Delayed Delivery Contracts, if any, has been duly authorized,
executed and delivered by the Trust.
(x) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, have been duly authorized,
executed and delivered by the Trust, and (assuming due authorization,
execution and delivery by the Warrant Agent in the case of the
Warrant Agreement, and the Depositary, in the case of the Deposit
Agreement) each constitutes a valid and legally binding agreement of
the Trust enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights generally and
by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Warrant
Agreement, if any, and the Deposit Agreement, if any, each conforms
in all material respects to all statements relating thereto contained
in the Prospectus.
(xi) If applicable, upon execution and delivery thereof pursuant
to the terms of the Deposit Agreement, the persons in whose names the
Depositary Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement, except as enforcement
of such rights may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights generally and
by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xii) The Registration Statement has been declared effective
under the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(xiii) The Registration Statement and the Prospectus (including
the Rule 434 Prospectus, if applicable), excluding the documents
incorporated by reference therein, as of their respective effective
or issue dates, comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; it being
understood, however, that no opinion need be rendered with respect to
the financial statements, schedules and other financial and
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus.
(xiv) Each document filed pursuant to the 1934 Act (other than
the financial statements, schedules and other financial and
statistical data included therein, as to which no opinion need be
rendered) and incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed (or as when amended and
filed prior to the Representation Date, whichever is later) as to
form in all material respects with the 1934 Act and the 1934 Act
Regulations.
(xv) If applicable, the relative rights, preferences, interests
and powers of the Preferred Shares or Depositary Shares, as the case
may be, are as set forth in the Resolutions relating thereto, and all
such provisions are valid under applicable Massachusetts law.
(xvi) The Underwritten Securities (and, if applicable, the
Warrant Securities and the Common Shares issuable upon conversion of
the Preferred Shares or Depositary Shares) conform in all material
respects to the statements relating thereto contained in the
Prospectus.
(xvii) As applicable, the forms of certificate used to evidence
the Common Shares, the Preferred Shares being represented by the
Depositary Shares and the related Depositary Receipts are in due and
proper form under applicable Massachusetts law and comply in all
material respects with all applicable statutory requirements.
(xviii) To the best of their knowledge and information, there are
no legal or governmental proceedings pending or threatened against
the Trust or any of its subsidiaries which are required to be
disclosed in the Prospectus, other than those disclosed therein, and
all pending legal or governmental proceedings to which the Trust or
any of its subsidiaries is a party or of which any property of the
Trust or any of its subsidiaries is the subject which are not des-
cribed in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material to the business of the Trust and its subsidiaries considered
as one enterprise.
(xix) To the best of their knowledge and information, there are
no contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement other than those described or referred
to therein or filed as exhibits thereto, the descriptions thereof or
references thereto are correct in all material respects and, without
independent investigation, nothing has come to their attention that
would lead them to believe that a default exists in the due perform-
ance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described, referred to
or filed which would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or business
prospects of the Trust and its subsidiaries considered as one
enterprise.
(xx) No authorization, approval or consent of any court or
governmental authority or agency is required that has not been
obtained in connection with the consummation by the Trust of the
transactions contemplated by this Agreement, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or the
applicable Warrant Agreement, if any, except such as may be required
under the 1933 Act, the 1934 Act and state securities laws or real
estate syndication laws; and without independent investigation,
nothing has come to such counsel's attention that would lead them to
believe that the execution and delivery of this Agreement, the
applicable Terms Agreement, the applicable Deposit Agreement, if any,
or the applicable Warrant Agreement, if any, and the consummation of
the transactions contemplated herein and therein and compliance by
the Trust with its obligations hereunder and thereunder will conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust or any of its subsidiaries pursuant
to any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Trust or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of
the property or assets of the Trust or any of its subsidiaries is
subject, and such action will not result in violation of the
provisions of the Declaration of Trust or by-laws or any law, and,
without independent investigation, nothing has come to such counsel's
attention that would lead them to believe that such action will
result in violation of any administrative regulation or
administrative or court order or decree.
(xxi) The Trust is not required to be registered under the 1940
Act.
(xxii) The statements set forth in the Prospectus under the
captions "Description of Preferred Shares", "Description of
Depositary Shares", "Description of Common Shares", "Description of
Warrants" and "Description of Rights" and the statements in any
description of the applicable Underwritten Securities in the
applicable Prospectus Supplement, to the extent such statements
constitute matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by them and are correct in all
material respects.
(2) The favorable opinion dated as of Closing Time, of Altheimer &
Gray, tax counsel for the Trust, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) Based on various assumptions and representations made by the
Trust, (a) the Trust was a "REIT", as defined in Section 856 of the
Code, for the taxable years ended July 31, 1992, 1993, 1994, 1995 and
1996 (b) the Trust has been organized in conformity with the
requirements for qualification as a REIT under the Code, and its
present and proposed method of operation would enable it to meet the
requirements for qualification and taxation as a "REIT" under the
Code for the taxable years (assuming no amendment to the relevant
sections of the Code) in which sales of the Underwritten Securities
occur.
(ii) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Considerations to the Trust of its REIT
Election" and in the Prospectus Supplement under the caption
"Taxation", to the extent such statements constitute matters of law,
summaries of legal matters, or legal conclusions, have been reviewed
by them and are correct in all material respects.
(3) The favorable opinion, dated as of the Closing Time, of Brown &
Wood LLP, counsel for the Underwriters, with respect to the matters set
forth in (i), (vi) to (xiii), inclusive, and (xvi) of subsection (b)(1) of
this Section.
(4) In giving their opinions required by subsections (b)(1) and
(b)(3), respectively, of this Section, Robinson Silverman Pearce Aronsohn
& Berman LLP and Brown & Wood LLP shall each additionally state that
nothing has come to their attention that would lead them to believe that
the Registration Statement (except for financial statements and schedules
and other financial and statistical data included or incorporated by
reference therein, as to which counsel need make no statement), at the
time it became effective or, if an amendment to the Registration Statement
or an Annual Report on Form 10-K has been filed by the Trust with the
Commission subsequent to the effectiveness of the Registration Statement,
then at the time such amendment becomes effective or at the time of the
most recent filing of such Annual Report, whichever is later, or at the
Representation Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that
the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial and statistical
data included or incorporated by reference therein, as to which counsel
need make no statement), at the Representation Date or at Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In giving their opinions required by subsections (b)(1), (b)(2) and
(b)(3) of this Section, Robinson Silverman Pearce Aronsohn & Berman LLP,
Altheimer & Gray and Brown & Wood LLP may rely, (1) as to matters
involving the laws of the Commonwealth of Massachusetts, upon the opinion
of Goodwin, Procter & Hoar (or other counsel reasonably satisfactory to
counsel for the Underwriters) in form and substance satisfactory to
counsel for the Underwriters, (2) as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Trust, and (3) as to the qualification and good
standing of the Trust or any of its subsidiaries to do business in any
state or jurisdiction, upon certificates of appropriate government
officials or opinions of counsel in such jurisdictions.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business or business
prospects of the Trust and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business from that set forth
in the Prospectus; no proceedings shall be pending or, to the knowledge of the
Trust, threatened against the Trust or any of its subsidiaries or any of their
properties before or by any Federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding would
materially and adversely affect the business, property, financial condition or
income of the Trust and its subsidiaries considered as one enterprise other
than as set forth in the Prospectus or incorporated therein by reference; and
you shall have received a certificate of the Chief Executive Officer, the
President or the chief financial or chief accounting officer of the Trust,
dated as of such Closing Time, to the effect that (i) there has been no such
material adverse change and (ii) the representations and warranties in Section
1 are true and correct with the same force and effect as though such Closing
Time were a Representation Date. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first used by the Underwriters to
confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement, you shall
have received from Coopers & Lybrand L.L.P. a letter dated such date, in form
and substance satisfactory to you, to the effect that (i) they are independent
accountants with respect to the Trust and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and financial statement schedules included or incorporated
by reference in the Registration Statement and the Prospectus and covered by
their opinions therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act, the 1933 Act
Regulations and the 1934 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available interim financial statements of the Trust, if applicable, a reading
of the minute books of the Trust, inquiries of officials of the Trust who have
responsibility for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, and on the basis of such
limited review and procedures (which shall include, without limitation, the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No. 71,
Interim Financial Information, with respect to the unaudited condensed
consolidated financial statements of the Trust and its subsidiaries included or
incorporated by reference in the Registration Statement), nothing has come to
their attention that caused them to believe that (A) any material modifications
should be made to the unaudited condensed consolidated financial statements of
the Trust included or incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally accepted
accounting principles, (B) the unaudited condensed consolidated financial
statements of the Trust included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations, (C) the unaudited financial data of the Trust
included or incorporated by reference in the Registration Statement and the
Prospectus under the caption "Selected Financial Data" was not determined on a
basis substantially consistent with that used in determining the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, (D)
the pro forma financial information included or incorporated by reference in
the Registration Statement and the Prospectus was not prepared in accordance
with the requirements of Rule 11-02 of Regulation S-X promulgated under the
1933 Act or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements, or (E) at a
specified date not more than five business days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock of
the Trust or any increase in the debt of the Trust or any decrease in the net
assets of the Trust, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from the date
of the most recent consolidated statement of operations included or
incorporated by reference in the Registration Statement and the Prospectus to a
specified date not more than five business days prior to the date of the
applicable Terms Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues, net
income or net income per share of the Trust, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition to the
examination referred to in their opinion and the limited procedures referred to
in clause (iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and the Prospectus and which are specified by you, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Trust and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Coopers & Lybrand
L.L.P. a letter dated as of such Closing Time to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than five business days prior to such Closing Time.
(f) If applicable, at the time of the execution of the applicable Terms
Agreement, you shall have received from Eichler, Bergsman & Co., LLP (or from
such independent accountants that have prepared historical financial statements
included in or incorporated by reference into the Registration Statement and
Prospectus which financial statements relate to properties or assets acquired
or to be acquired by the Trust) a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that (i) they are independent
public accountants with respect to the Trust and such properties or assets
acquired by the Trust within the meaning of the 1933 Act and the 1933 Act
Regulations; and (ii) it is their opinion that the historical financial
statements for such properties or assets that have been audited by them and
covered by their opinions included or incorporated by reference into the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and the
1934 Act Regulations.
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities and the Warrant Securities, if any, as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Trust in
connection with the issuance and sale of the Underwritten Securities and the
Warrant Securities, if any as herein contemplated shall be satisfactory in form
and substance to you and counsel for the Underwriters.
(h) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Trust contained herein and the statements in any certificates furnished by the
Trust hereunder shall be true and correct as of each Date of Delivery, and, at
the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the Chief
Executive Officer, the President or the chief financial or chief
accounting officer of the Trust, in their capacities as such, confirming
that the certificate delivered at Closing Time pursuant to Section 5(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Robinson Silverman Pearce Aronsohn &
Berman LLP, counsel for the Trust, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise substantially to the same effect as the
opinion required by Section 5(b)(1) hereof.
(3) The favorable opinion of Altheimer & Gray, tax counsel for the
Trust, in form and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities and
otherwise substantially to the same effect as the opinion required by
Section 5(b)(2) hereof.
(4) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(b)(3) hereof.
(5) A letter from Coopers & Lybrand L.L.P., in form and substance
satisfactory to you and dated such Date of Delivery, substantially the
same in scope and substance as the letter furnished to you pursuant to
Section 5(d) hereof, except that the "specified date" in the letter
furnished pursuant to this Section 5(h)(5) shall be a date not more than
five business days prior to such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Trust at any time at or prior to the Closing
Time or Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof.
Section 6. Indemnification. (a) The Trust agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule 430A(b) or Rule 434
of the 1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission referred to in
subsection (1) above, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Trust; and
(3) against any and all expense whatsoever (including, the fees and
disbursements of counsel chosen by you), as incurred, which was reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Trust by or on
behalf of any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any amendment or
supplement thereto); and provided further, that the Trust will not be liable to
any Underwriter or any person controlling such Underwriter with respect to any
untrue statement or omission or alleged untrue statement or omission made in
any preliminary prospectus which is corrected in the Prospectus (or any
amendment or supplement thereto) if such Underwriter sold Underwritten
Securities to the person asserting any such loss, claim, damage or liability
without sending or giving, at or prior to the written confirmation of the sale
of such Underwritten Securities to such person, a copy of the Prospectus (or
any amendment or supplement thereto), and the Trust had previously furnished
copies thereof to such Underwriter.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Trust, its trustees, each of the officers who signed the Registration Statement
and each person, if any, who controls the Trust within the meaning of Section
15 of the 1933 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Trust by or on
behalf of such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it
and approved by the indemnified parties defendant in such action, which
approval may not be unreasonably withheld, unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) For purposes of this Section 6, all references to the Registration
Statement, any preliminary prospectus or the Prospectus, or any amendment or
supplement to any of the foregoing, shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copies filed with the Commission pursuant to EDGAR.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Trust and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Trust
and one or more of the Underwriters in respect of such offering, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the applicable Prospectus Supplement in respect of such offering
bears to the initial public offering price appearing thereon and the Trust is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter,
and each trustee of the Trust, each officer of the Trust who signed the
Registration Statement, and each person, if any, who controls the Trust within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Trust. The Underwriters' obligation to contribute pursuant
to this Section 7 are several in proportion to their respective underwriting
commitments set forth in the applicable Terms Agreement and not joint. For
purposes of this Section 7, the Trust and its subsidiaries shall be deemed one
party jointly and severally liable for any obligations hereunder.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or the applicable Terms Agreement, or contained in certificates
of officers of the Trust submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this Agreement or
the applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Trust and
shall survive delivery of and payment for the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Trust or by you upon the giving of 30 days' written notice of such termination
to the other parties hereto.
(b) You may also terminate the applicable Terms Agreement, by notice to
the Trust, at any time at or prior to the Closing Time (i) if there has been,
since the date of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business or business
prospects of the Trust and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or any outbreak of hostilities or escalation thereof or other calamity
or crisis, the effect of which on the financial markets of the United States is
such as to make it, in your judgment, impracticable to market the Underwritten
Securities or enforce contracts for the sale of the Underwritten Securities, or
(iii) if trading in any of the securities of the Trust has been suspended or
limited by the Commission or the NYSE, or if trading generally on either the
NYSE or the American Stock Exchange has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order of the Commission
or any other governmental authority, or if a banking moratorium has been
declared by Federal or New York authorities, or (iv) if Preferred Shares or
Depositary Shares are being offered and the rating assigned by any nationally
recognized statistical rating organization to any preferred shares of
beneficial interest of the Trust as of the date of the applicable Terms
Agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any preferred
shares of beneficial interest of the Trust on what is commonly termed a "watch
list" for possible downgrading. As used in this Section 9(b), the term
"Prospectus" means the Prospectus in the form first used by the Underwriters to
confirm sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth in
Section 3 with respect to any offering of Underwritten Securities shall remain
in effect so long as any Underwriter owns any such Underwritten Securities
purchased from the Trust pursuant to the applicable Terms Agreement and (y) the
covenant set forth in Section 3(h) hereof, the provisions of Section 4 hereof,
the indemnity and contribution agreements set forth in Sections 6 and 7 hereof,
and the provisions of Sections 8, 13 and 14 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then you shall have the right,
within 48 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, you shall not have
completed such arrangements within such 48-hour period, then:
(a) if the total number of Defaulted Securities does not exceed 10% of
the total number of Underwritten Securities to be purchased pursuant to such
Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of the total
number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, either you or the Trust shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center, North Tower, New York, New
York 10281-1326, attention of Tjarda V.S. Clagett, Director; and notices to the
Trust shall be directed to it at 1120 Avenue of the Americas, New York, New
York 10036, attention of William Newman, Chairman.
Section 12. Parties. This Agreement and the applicable Terms Agreement
shall inure to the benefit of and be binding upon you and the Trust and any
Underwriter who becomes a party to such Terms Agreement, and their respective
successors. Nothing expressed or mentioned in this Agreement or the applicable
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or such Terms Agreement or any provision herein
or therein contained. This Agreement and the applicable Terms Agreement and
all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the parties hereto and thereto and their
respective successors and said controlling persons and officers and trustees
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. Governing Law and Time. This Agreement and the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. No Liability of Shareholders, Trustees or Officers. This
Agreement, the applicable Terms Agreement and all documents, agreements,
understandings and arrangements relating to this transaction have been executed
or entered into by an officer of the Trust in his/her capacity as an officer of
the Trust which has been formed as a Massachusetts business trust pursuant to
the Declaration of Trust, and not individually, and neither the trustees,
officers or shareholders of the Trust shall be bound or have any personal
liability hereunder or thereunder. Each party hereto shall look solely to the
assets of the Trust for satisfaction of any liability of the Trust in respect
of this Agreement, the applicable Terms Agreement and all documents,
agreements, understandings and arrangements relating to this transaction and
will not seek recourse or commence any action against any of the trustees,
officers or shareholders of the Trust or any of their personal assets for the
performance or payment of any obligation hereunder or thereunder. The
foregoing shall also apply to any future documents, agreements, understandings,
arrangements and transactions between the parties hereto.
Section 15. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust a counterpart hereof, whereupon
this instrument, along with all counterparts will become a binding agreement
between you and the Trust in accordance with its terms.
Very truly yours,
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
_________________________________
Name: Dean Bernstein
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Tjarda van S. Clagett
__________________________________
Authorized Signatory
<PAGE>
Exhibit A
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
We (the "Representative") understand that New Plan Realty Trust, a
Massachusetts business trust (the "Trust"), proposes to issue and sell the
number of its [shares of beneficial interest (the "Common Shares")] [preferred
shares of beneficial interest (the "Preferred Shares")] [ Warrants
(the "Warrants") to purchase Shares (the "Warrant Securities")]
[interests in Preferred Shares in the form of depositary shares (the
"Depositary Shares") represented by depositary receipts (the "Depositary
Receipts")] (such [Common Shares] [Preferred Shares] [Warrants] [Depositary
Shares and Depositary Receipts] being collectively hereinafter [also] referred
to as the "Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
numbers of [Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below)] [, including the respective numbers of Warrants,
if applicable,] set forth below opposite their respective names, and a
proportionate share of Option Securities (as defined in the Underwriting
Agreement referred to below) to the extent any are purchased, at the purchase
price set forth below.
Number of Shares
of Initial Number of
Underwriter Underwritten Securities Warrants
- ----------- ----------------------- --------
__________ __________
Total $ $
========== ==========
The Underwritten Securities shall have the following terms:
[Common Shares] [Preferred Shares] [Depositary Shares]
Title of Securities:
Number of Shares:
[If applicable, fractional amount of Preferred Shares represented by each
Depositary Share:]
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if
any, from , 19 .]
Purchase price per share: $ [, plus accumulated dividends, if any,
from , 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee:]
Additional co-managers, if any:
Other terms:
Closing time, date and location:
Warrants
Number of Warrants to be issued:
Warrant Agent:
Issuable jointly with _______ Shares: [Yes] [No]
[Number of Warrants issued
with each ______ Share:]
[Detachable data:]
Date from which Warrants are exercisable:
Date on which Warrants expire:
Exercise price(s) of Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
All the provisions contained in the document attached as Annex A hereto
entitled "New Plan Realty Trust-Common Shares, Preferred Shares, Warrants to
Purchase Common Shares and Preferred Shares, and Depositary Shares-Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_________________________
Acting on behalf of itself and
the other named Underwriters.
Accepted:
NEW PLAN REALTY TRUST
By:_________________________
Name:
Title:
<PAGE>
Exhibit B
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_____________, 19__
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
The undersigned hereby agrees to purchase from New Plan Realty Trust (the
"Trust"), and the Trust agrees to sell to the undersigned on __________, 19__
(the "Delivery Date"),
of the Trust's [insert title of security] (the "Securities"), offered by the
Trust's Prospectus dated __________, 19__, as supplemented by its Prospectus
Supplement dated ___________, 19__, receipt of which is hereby acknowledged, at
a purchase price of [$__________] [and, $__________ per Warrant, respectively],
on the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Trust or its order by certified or
official bank check in New York Clearing House or similar next-day funds at the
office of
, on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Trust
not less than three full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Trust, on or before __________, 19__, shall
have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated __________, 19__ between the Trust and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and
which govern such investment.
Promptly after completion of the sale to the Underwriters, the Trust will
mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Trust
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Trust that all necessary action for the due execution and delivery of this
contract and the payment for and purchase of the Securities has been taken by
it and no further authorization or approval of any governmental or other
regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Trust and mailing or delivery
of a copy as provided below, this contract will constitute a valid and binding
agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Trust will not accept Delayed Delivery Contracts
for a number of Securities in excess of ________ and that the acceptance of any
Delayed Delivery Contract is in the Trust's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the Trust, it is requested that the Trust sign
the form of acceptance on a copy hereof and mail or deliver a signed copy
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Trust and the undersigned when such copy is so
mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
_____________________________
(Name of Purchaser)
By___________________________
(Title)
_____________________________
_____________________________
(Address)
Accepted as of the date first above written.
NEW PLAN REALTY TRUST
By___________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
Telephone No.
(including
Name Area Code)
---- --------------
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
1,500,000 Depositary Shares Each Representing
a 1/10th Fractional Interest in a
7.80% Series A Cumulative Step-Up Premium Rate(sm) Preferred Share
("Series A SUPeR(sm) Preferred Shares")
(Par Value $1.00 per Series A SUPeR(sm) Preferred Share)
(Liquidation Preference Equivalent to $50 per Depositary Share)
TERMS AGREEMENT
Dated: June 30, 1997
To: New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
We understand that New Plan Realty Trust, a Massachusetts business trust
(the "Trust"), proposes to issue and sell 1,500,000 depositary shares (the
"Depositary Shares") evidenced by depositary receipts (the "Depositary
Receipts") each representing a 1/10th fractional interest in a share of the
Trust's 7.80% Series A Cumulative Step-Up Premium Rate(sm) Preferred Shares,
par value $1.00 per share (the "Series A SUPeR(sm) Preferred Shares") (such
Series A SUPeR(sm) Preferred Shares, Depositary Shares and Depositary Receipts
are hereinafter collectively referred to as the "Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, we offer to purchase 1,500,000 Depositary Shares at the purchase price
set forth below.
The Underwritten Securities shall have the following terms:
Title of Securities: Depositary Shares Each Representing a 1/10th
Fractional Interest in a
7.80% Series A SUPeR(sm) Preferred Share.
Number of Shares: 1,500,000 Depositary Shares.
Fractional interest of each Series A SUPeR(sm) Preferred Share represented
by a Depositary Share: 1/10th.
Current Ratings: Standard & Poor's Corporation - A; Moody's Investors
Service, Inc. - a3.
Dividend Rate: 7.80% of the liquidation preference per Series A SUPeR(sm)
Preferred Share per annum (or $39 per Series A SUPeR(sm)
Preferred Share) from July 3, 1997 to and including September
15, 2012; thereafter, 9.80% of the liquidation preference per
Series A SUPeR(sm) Preferred Share per annum (or $49 per Series
A SUPeR(sm) Preferred Share).
Dividend Payment Dates: March 15, June 15, September 15 and December 15 (or,
if not a business day, then the immediately succeeding
business day), commencing on September 15, 1997.
Liquidation Preference: $500 per Series A SUPeR(sm) Preferred Share (or $50
per Depositary Share).
Public offering price per Depositary Share: $50 plus accrued dividends, if any,
from the date of original issue.
Purchase price per Depositary Share: $48.75 plus accrued dividends, if any,
from the date of original issue
(payable in same-day funds).
Conversion provisions: Not convertible into any other securities of the
Trust.
Optional redemption provisions: The Series A SUPeR(sm) Preferred Shares and
the Depositary Shares representing such
Series A SUPeR(sm) Preferred Shares are not
redeemable prior to June 15, 2007. On or
after June 15, 2007, the Series A SUPeR(sm)
Preferred Shares and related Depositary
Shares may be redeemed at the option of the
Trust, in whole or in part, at a redemption
price of $500 per Series A SUPeR(sm)
Preferred Share (or $50 per Depositary
Share), plus accrued and unpaid dividends,
if any, thereon. The redemption price of
the Series A SUPeR(sm) Preferred Shares
(other than any portion thereof consisting
of accrued and unpaid dividends, if any)
shall be paid solely from the sale proceeds,
including proceeds from the Trust's
distribution reinvestment plan, of other
capital shares of beneficial interest of the
Trust and not from any other source.
Mandatory redemption provisions: None.
Sinking fund requirements: None.
Number of Option Securities, if any, that may be purchased by the
Underwriter: None.
Delayed Delivery Contracts: Not authorized.
Other material terms: None.
Closing time, date and location: 10:00 A.M., New York City time, July 3,
1997, Brown & Wood LLP, One World Trade
Center, New York, New York 10048.
All the provisions contained in the document attached as Annex A hereto
entitled "New Plan Realty Trust-Common Shares, Preferred Shares, Warrants to
Purchase Common Shares and Preferred Shares, Rights to Purchase Common Shares,
and Depositary Shares-Underwriting Agreement" are hereby incorporated by
reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein
defined.
<PAGE>
Please accept this offer no later than 7:00 P.M. (New York City time) on
June 30, 1997 by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: Tjarda van S. Clagett
_________________________________
Authorized Signatory
Accepted:
NEW PLAN REALTY TRUST
By:/s/ Dean Bernstein
_________________________
Name: Dean Bernstein
Title: Vice President
FORM OF
CERTIFICATE OF DESIGNATION
SUPPLEMENTING THE
AMENDED AND RESTATED DECLARATION OF TRUST OF
NEW PLAN REALTY TRUST
1. Pursuant to authority granted under Section 6.1.2 of the Amended and
Restated Declaration of Trust of New Plan Realty Trust (the "Trust"), the Board
of Trustees of the Trust hereby establishes a series of preferred shares
designated 7.80% Series A Step Up Premium Rate Preferred Shares (Liquidation
Preference $500.00 Per Share) (the "Series A Preferred Shares") on the
following terms:
A. Certain Definitions.
Unless the context otherwise requires, the terms defined in this
paragraph A of Section 1 shall have, for all purposes of this Certificate of
Designation, the meanings herein specified (with terms defined in the singular
having comparable meanings when used in the plural).
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Shares" shall mean the shares of beneficial interest, without
par value per share, of the Trust.
"Junior Shares" shall have the meaning set forth in subparagraph (2)
of paragraph B.
"Preferred Shares" shall mean preferred shares of the Trust having a
par value of $1.00 per share.
"Quarterly Distribution Date" shall have the meaning set forth in
subparagraph (3) of paragraph B.
"Quarterly Distribution Period" shall have the meaning set forth in
subparagraph (3) of paragraph B.
"Record Date" shall have the meaning set forth in subparagraph (3) of
paragraph B.
"REIT" shall mean a Real Estate Investment Trust under Section 856 of
the Code.
"Series A Redemption Date" shall have the meaning set forth in
subparagraph (5) of paragraph B.
"Series A Redemption Price" shall have the meaning set forth in
subparagraph (5) of paragraph B.
B. Series A Preferred Shares.
(1) Number. The maximum number of shares of the Series A Preferred
Shares shall be 150,000.
(2) Relative Seniority. In respect of rights to receive
distributions and to participate in distributions or payments in the event of
any liquidation, dissolution or winding-up of the Trust, the Series A Preferred
Shares shall rank pari passu with any other Preferred Shares of the Trust
unless the terms of such other preferred shares provide otherwise, and will
rank senior to the Common Shares and any other class or series of shares of
beneficial interest of the Trust ranking, as to distributions and upon
liquidation, dissolution or winding-up, junior (collectively, the "Junior
Shares") to the Series A Preferred Shares. The Trust may authorize or increase
any class or series of shares ranking on a parity with or junior to the Series
A Preferred Shares as to distribution rights and upon liquidation, dissolution
or winding-up, without the vote or consent of the holders of the Series A
Preferred Shares.
(3) Distributions. The holders of the then outstanding Series A
Preferred Shares shall be entitled to receive, when, as and if declared by the
Board of Trustees out of any funds legally available therefor, cumulative
distributions at the rate of $39.00 per share per year through September 15,
2012 and at the rate of $49.00 per share per year thereafter, payable in equal
amounts of $9.75 per share quarterly in cash through September 15, 2012 and in
equal amounts of $12.25 per share quarterly in cash thereafter, on the
fifteenth day, or if not a Business Day, the next succeeding Business Day, of
March, June, September and December in each year, beginning September 15, 1997
(each such day being hereinafter called a "Quarterly Distribution Date" and
each period ending on a Quarterly Distribution Date being called a "Quarterly
Distribution Period"), to shareholders of record at the close of business on
such date as shall be fixed by the Board of Trustees at the time of declaration
of the distribution (the "Record Date"), which shall not be less than 10 nor
more than 30 days preceding the Quarterly Distribution Date. The amount of any
distribution payable for the initial Distribution Period and for any other
Distribution Period shorter than a full Quarterly Distribution Period shall be
prorated and computed on the basis of a 360-day year of twelve 30-day months.
Distributions on each share of Series A Preferred Shares shall accrue and be
cumulative from and including the date of original issue thereof, whether or
not (i) the Trust has earnings, (ii) on any Quarterly Distribution Date there
shall be funds legally available for the payment of distributions or (iii) such
distributions are authorized. Distributions paid on the Series A Preferred
Shares in an amount less than the total amount of such distributions at the
time accrued and payable on such shares shall be allocated pro rata on a per
share basis among all such shares at the time outstanding. Accrued but unpaid
dividends on the Series A Preferred Shares will not bear interest and holders
of the Series A Preferred Shares will not be entitled to any dividends in
excess of full cumulative dividends as described above. Any dividend payment
on Series A Preferred Shares shall first be credited against the earliest
accrued but unpaid dividend due with respect to such shares which remains
payable.
The amount of any distributions accrued on any Series A Preferred Shares
at any Quarterly Distribution Date shall be the amount of any unpaid
distributions accumulated thereon, to and including such Quarterly Distribution
Date, whether or not earned or declared, and the amount of distributions
accrued on any Series A Preferred Shares at any date other than a Quarterly
Distribution Date shall be equal to the sum of the amount of any unpaid
distributions accumulated thereon, to and including the last preceding
Quarterly Distribution Date, whether or not earned or declared, plus an amount
calculated on the basis of the applicable annual distribution rate for the
period after such last preceding Quarterly Distribution Date to and including
the date as of which the calculation is made based on a 360-day year of twelve
30-day months.
Except as provided in this Certificate of Designation Supplementing the
Amended and Restated Declaration of Trust of the Trust (the "Certificate of
Designation"), the Series A Preferred Shares shall not be entitled to
participate in the earnings or assets of the Trust.
(4) Liquidation Rights.
(a) Upon the voluntary or involuntary dissolution, liquidation
or winding-up of the Trust, the holders of the Series A
Preferred Shares then outstanding shall be entitled to
receive and to be paid out of the assets of the Trust
legally available for distribution to its shareholders,
before any payment or distribution shall be made on any
Junior Shares, the amount of $500.00 per Series A Preferred
Share, plus accrued and unpaid distributions thereon to the
date of such dissolution, liquidation or winding-up.
(b) After the payment to the holders of the Series A Preferred
Shares of full preferential amounts provided for in this
Certificate of Designation, the holders of the Series A
Preferred Shares as such shall have no right or claim to
any of the remaining assets of the Trust.
(c) If, upon any voluntary or involuntary dissolution,
liquidation, or winding-up of the Trust, the amounts
payable with respect to the preference value of the
Series A Preferred Shares and any other shares of
beneficial interest or Preferred Shares of the Trust
ranking as to any such distribution on a parity with the
Series A Preferred Shares are not paid in full, the holders
of the Series A Preferred Shares and of such other shares
will share ratably in any such distribution of assets of
the Trust in proportion to the full respective preference
amounts to which they are entitled.
(d) Neither (i) the sale or other disposition of all or
substantially all the property or business of the Trust,
(ii) the merger or consolidation of the Trust into or with
any other entity nor (iii) the dissolution, liquidation,
winding-up or reorganization of the Trust immediately
followed by organization of another entity to which the
assets in such dissolution, liquidation or winding-up are
distributed, shall be deemed to be a dissolution,
liquidation or winding-up, voluntary or involuntary, for
the purposes of this subparagraph (4); provided that, in
each case, effective provision is made in the charter of
the resulting and surviving entity or otherwise for the
recognition, preservation, and protection of the rights of
the holders of the Series A Preferred Shares.
(5) Redemption.
(a) Optional Redemption. On and after June 15, 2007, the Trust
may, at its option, redeem in whole or in part, at any time
or from time to time, the Series A Preferred Shares at a
price per share (the "Series A Redemption Price"), of
$500.00 per Series A Preferred Share, together with all
accrued and unpaid distributions to and including the date
fixed for redemption (the "Series A Redemption Date").
(b) Procedures for Redemption.
(i) Notice of any redemption will be given by
publication in a newspaper of general circulation in The City of
New York, such publication to be made once a week for two
successive weeks commencing not less than 30 nor more than 60
days prior to the Redemption Date. A similar notice of any
redemption will be mailed by the Trust, postage prepaid, not
less than 30 nor more than 60 days prior to the Series A
Redemption Date, addressed to the holders of record of the
Series A Preferred Shares to be redeemed at their addresses as
they appear on the share transfer records of the Trust. No
failure to give such notice or any defect therein or in the
mailing thereof shall affect the validity of the proceedings for
the redemption of any Series A Preferred Shares except as to the
holder to whom the notice was defective or not given. In
addition to any information required by law or by the applicable
rules of any exchange upon which Series A Preferred Shares may
be listed or admitted to trading, such notice shall state: (a)
the Series A Redemption Date; (b) the Series A Redemption Price;
(c) the number of Series A Preferred Shares to be redeemed; (d)
the place or places where certificates representing such shares
are to be surrendered for payment of the Series A Redemption
Price; and (e) that distributions on the shares to be redeemed
will cease to accrue on the Series A Redemption Date. If fewer
than all the Series A Preferred Shares held by any holder are to
be redeemed, the notice mailed to such holder shall also specify
the number of shares to be redeemed from such holder.
(ii) If notice has been mailed in accordance with
subparagraph (5)(b)(i) above and provided that on or before the
Series A Redemption Date specified in such notice all funds
necessary for such redemption shall have been irrevocably set
aside by the Trust, separate and apart from its other funds in
trust for the pro rata benefit of the holders of the Series A
Preferred Shares so called for redemption, so as to be, and to
continue to be available therefor, then, from and after the
Series A Redemption Date, distributions on the Series A
Preferred Shares so called for redemption shall cease to accrue,
and said shares shall no longer be deemed to be outstanding and
shall not have the status of Series A Preferred Shares and all
rights of the holders thereof as shareholders of the Trust
(except the right to receive the Series A Redemption Price)
shall cease. Upon surrender, in accordance with said notice, of
the certificates for any Series A Preferred Shares so redeemed
(properly endorsed or assigned for transfer, if the Trust shall
so require and the notice shall so state), such Series A
Preferred Shares shall be redeemed by the Trust at the Series A
Redemption Price. In case fewer than all the Series A Preferred
Shares represented by any such certificate are redeemed, a new
certificate or certificates shall be issued representing the
unredeemed Series A Preferred Shares without cost to the holder
thereof.
(iii) Any funds deposited with a bank or trust
company for the purpose of redeeming Series A Preferred Shares
shall be irrevocable except that:
(A) the Trust shall be entitled to receive from
such bank or trust company the interest or
other earnings, if any, earned on any money
so deposited in trust, and the holders of
any shares redeemed shall have no claim to
such interest or other earnings; and
(B) any balance of monies so deposited by the
Trust and unclaimed by the holders of the
Series A Preferred Shares entitled thereto
at the expiration of two years from the
applicable Series A Redemption Date shall be
repaid, together with any interest or other
earnings earned thereon, to the Trust, and
after any such repayment, the holders of the
shares entitled to the funds so repaid to
the Trust shall look only to the Trust for
payment without interest or other earnings.
(iv) No Series A Preferred Shares may be redeemed
except with funds legally available for the payment of the
Series A Redemption Price. The Series A Redemption Price (other
than any portion thereof consisting of accrued and unpaid
distributions) shall be paid solely from the sales proceeds of
other capital shares of beneficial interest of the Trust and not
from any other source. For purposes of the preceding sentence,
"capital shares of beneficial interest" means any equity
securities (including common shares of beneficial interest and
preferred shares), shares, interests, participations, or other
ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(v) Unless full accumulated distributions on all
Series A Preferred Shares shall have been or contemporaneously
are declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past Distribution
Periods and the then current Distribution Period, no Series A
Preferred Shares shall be redeemed (unless all outstanding
Series A Preferred Shares are simultaneously redeemed) or
purchased or otherwise acquired directly or indirectly (except
by conversion into or exchange for capital shares of the Trust
ranking junior to the Series A Preferred Shares as to
distributions and upon liquidation); provided, however, that the
foregoing shall not prevent the redemption of Series A Preferred
Shares pursuant to Article VIII of the Amended and Restated
Declaration of Trust or the purchase or acquisition of Series A
Preferred Shares pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding shares of
Series A Preferred Shares.
(vi) If the Series A Redemption Date is after a Record
Date and before the related Quarterly Distribution Date, the
distribution payable on such Quarterly Distribution Date shall
be paid to the holder in whose name the Series A Preferred
Shares to be redeemed are registered at the close of business on
such Record Date notwithstanding the redemption thereof between
such Record Date and the related Quarterly Distribution Date or
the Trust's default in the payment of the distribution due.
(vii) In case of redemption of less than all
Series A Preferred Shares at the time outstanding, the Series A
Preferred Shares to be redeemed shall be selected pro rata from
the holders of record of such shares in proportion to the number
of Series A Preferred Shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by any
other equitable method determined by the Trust.
(6) Voting Rights. Except as expressly provided herein or as
required by law, the holders of the Series A Preferred Shares shall not be
entitled to vote at any meeting of the shareholders for election of trustees or
for any other purposes or otherwise to participate in any action taken by the
Trust or the shareholders thereof, or to receive notice of any meeting of
shareholders.
(a) In any matter in which the Series A Preferred Shares are
entitled to vote (as expressly provided herein or as may be
required by law), including any action by written consent,
each Series A Preferred Share shall be entitled to 10
votes, each of which 10 votes may be directed separately by
the holder thereof (or by any proxy or proxies of such
holder). With respect to each Series A Preferred Share, the
holder thereof may designate up to 10 proxies, with each
such proxy having the right to vote a whole number of votes
(totaling 10 votes per Series A Preferred Share).
(b) Provided the Trust's Amended and Restated Declaration of
Trust is amended to remove the provision in Section 6.1.2
thereof that prohibits Preferred Shares from having the
right to elect one or more separate Trustees, whenever
distributions on any Series A Preferred Shares shall be in
arrears for six or more quarterly periods, the holders of
the Series A Preferred Shares, voting separately as a class
with all other series of preferred shares upon which like
voting rights have been conferred and are exercisable, will
be entitled to vote for the election of two additional
Trustees of the Trust at a special meeting called by the
holders of record of at least ten percent (10%) of any
series of preferred shares so in arrears (unless such
request is received less than 90 days before the date fixed
for the next annual or special meeting of the shareholders)
or at the next annual meeting of shareholders, and at each
subsequent annual meeting until all distributions
accumulated on such Series A Preferred Shares for the past
distribution periods and the then current distribution
period shall have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment.
In such case, the entire Board of Trustees of the Trust
will be increased by two Trustees. If and when all accumu-
lated distributions on the Series A Preferred Shares have
been declared and paid or set aside for payment in full,
the holders of the Series A Preferred Shares shall be
divested of the special voting rights provided by this
subparagraph (b) of subparagraph (6). Upon termination of
such special voting rights attributable to all holders of
the Series A Preferred Shares, the term of office of each
trustee elected by the holders of the Series A Preferred
Shares and all other series of preferred shares upon which
like voting rights had been conferred (a "Preferred Shares
Trustee") pursuant to such special voting rights shall
forthwith terminate and the number of trustees constituting
the entire Board of Trustees shall be reduced by the number
of Preferred Shares Trustees. Except as provided in the
immediately preceding sentence, any Preferred Shares
Trustee may be removed only by the vote of the holders of
record of a majority of the outstanding Series A Preferred
Shares and all other series of preferred shares of the
Trust upon which like voting rights had been conferred,
voting together as a separate class, at a meeting called
for such purpose.
So long as any Series A Preferred Shares are outstanding,
the number of trustees constituting the entire Board of
Trustees of the Trust shall at all times be such that the
exercise, by the holders of the Series A Preferred Shares
and the holders of preferred shares of the Trust upon which
like voting rights have been conferred, of the right to
elect trustees under the circumstances provided above will
not contravene any provision of the Trust's Amended and
Restated Declaration of Trust restricting the number of
trustees which may constitute the entire Board of Trustees.
Any vacancy in the office of a Preferred Shares Trustee may
be filled by vote of the holders of record of a majority of
the outstanding Series A Preferred Shares and all other
series of preferred shares upon which like voting rights
have been conferred.
(c) So long as any Series A Preferred Shares remain
outstanding, the Trust will not, without the affirmative
vote or consent of the holders of at least two-thirds of
the Series A Preferred Shares outstanding at the time,
given in person or by proxy, either in writing or at a
meeting (such series voting separately as a class), (i)
authorize or create, or increase the authorized or issued
amount of, any class or series of shares of beneficial
interest ranking prior to the Series A Preferred Shares
with respect to the payment of distributions or the
distribution of assets upon liquidation, dissolution or
winding-up or reclassify any authorized shares of
beneficial interest of the Trust into such shares, or
create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any
such shares; or (ii) amend, alter or repeal the provisions
of the Trust's Amended and Restated Declaration of Trust or
this Certificate of Designation whether by merger,
consolidation or otherwise (an "Event"), so as to
materially and adversely affect any right, preference,
privilege or voting power of the Series A Preferred Shares
or the holders thereof; provided, however, with respect to
the occurrence of any of the Events set forth in (ii)
above, so long as the Series A Preferred Shares remain
outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of an Event,
the Trust may not be the surviving entity, the occurrence
of any such Event shall not be deemed to materially and
adversely affect such rights, preferences, privileges or
voting power of holders of Series A Preferred Shares and
provided further that (x) any increase in the amount of the
authorized Preferred Shares or the creation or issuance of
any other Series A Preferred Shares, or (y) any increase in
the amount of authorized Series A Preferred Shares or any
other Preferred Shares, in each case ranking on a parity
with or junior to the Series A Preferred Shares with
respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up, shall
not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding Series A Preferred Shares shall have been redeemed
or called for redemption upon proper notice and sufficient funds shall have
been irrevocably deposited in trust to effect such redemption.
(7) Conversion. The Series A Preferred Shares are not convertible
into or exchangeable for any other property or securities of the Trust.
(8) Status. The Series A Preferred Shares shall constitute Shares
as defined in Section 6.1 of the Amended and Restated Declaration of Trust,
including for the purposes of Section 8.3 thereof.
2. Exclusion of Other Rights.
Except as may otherwise be required by law, the Series A Preferred Shares
shall not have any voting powers, preferences and relative, participating,
optional or other special rights, other than those specifically set forth in
this Certificate of Designation and in the Trust's Amended and Restated
Declaration of Trust (as such Certificate of Designation or Declaration of
Trust may be amended from time to time). The Series A Preferred Shares shall
have no preemptive or subscription rights.
3. Severability of Provisions.
If any voting powers, preferences and relative, participating, optional
and other special rights of the Series A Preferred Shares and qualifications,
limitations and restrictions thereof set forth in this Certificate of
Designation (as such Certificate of Designation may be amended from time to
time) is invalid, unlawful or incapable of being enforced by reason of any rule
of law or public policy, all other voting powers, preferences and relative,
participating, optional and other special rights of Series A Preferred Shares
and qualifications, limitations and restrictions thereof set forth in this
Certificate of Designation (as so amended) which can be given effect without
the invalid, unlawful or unenforceable voting powers, preferences and relative,
participating, optional or other special rights of Series A Preferred Shares
and qualifications, limitations and restrictions thereof herein set forth shall
remain in full force and effect and shall not be deemed dependent upon any
other such voting powers, preferences and relative, participating, optional or
other special right of Series A Preferred Shares and qualifications,
limitations and restrictions thereof unless so expressed herein.
4. This Certificate of Designation has been duly adopted by the Board of
Trustees of the Trust. Shareholder action or approval is not required.
_______________ ______________
Number Shares
_______________ ______________
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. 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 at any time 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 the
Amended and Restated 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.
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
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
UNIF GIFT MIN ACT - ........Custodian...........
(Cust) (Minor)
under Uniform Gifts to Minors Act
...............................................
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
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.
FORM OF
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 by or as is consistent
with the provisions of the Certificate of Designation 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:________________________________
Attest: Authorized Officer
BANKBOSTON N.A.
By:________________________________
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. 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 at any time 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.
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 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 receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM- as tenant in common
TEN ENT- as tenant 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.
ASSIGNMENT
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 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 this Receipt in every particular,
without alteration or enlargement or any change
whatever.
