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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): SEPTEMBER 10, 1999
NEW PLAN EXCEL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
MARYLAND 1-12244 33-0160389
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)
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1120 AVENUE OF THE AMERICAS, 12TH FLOOR
NEW YORK, NEW YORK 10036
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(212) 869-3000
NOT APPLICABLE
(Former name or former address, if changed since last report)
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NEW PLAN EXCEL REALTY TRUST, INC.
ITEM 5. OTHER EVENTS
On September 10, 1999, the Company entered into an Amended and
Restated Distribution Agreement with Salomon Smith Barney Inc., Lehman Brothers
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated and Prudential Securities Incorporated, as agents, relating to the
medium-term notes program of the Company established on February 3, 1999, in
connection with which the Company initially authorized the issuance and sale up
to $500,000,000 of its debt securities entitled "Medium-Term Notes Due Nine
Months or More from Date of Issue" (the "Notes"). As of the date hereof,
$325,000,000 of the Notes currently are authorized but unissued. A copy of the
Amended and Restated Distribution Agreement is filed as an exhibit to this
report.
ITEM 7. EXHIBITS
The Exhibits listed below relate to the Registration Statement on Form
S-3 (No. 333-67511) of the Company and are filed herewith for incorporation by
reference in such Registration Statement.
1.1 Amended and Restated Distribution Agreement, dated as of September 10,
1999, by and among New Plan Excel Realty Trust, Inc. and Salomon Smith
Barney Inc., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated and Prudential
Securities Incorporated
4.1 Form of Fixed Rate Note
4.2 Form of Floating Rate Note
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SIGNATURE
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.
NEW PLAN EXCEL REALTY TRUST, INC.
Date: September 13, 1999 By:/s/ STEVEN F. SIEGEL
------------------------------------
Steven F. Siegel
Senior Vice President, General Counsel
and Secretary
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EXHIBIT INDEX
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Exhibit Document
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1.1 Amended and Restated Distribution Agreement, dated as of September 10,
1999, by and among New Plan Excel Realty Trust, Inc. and Salomon Smith
Barney Inc., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated and Prudential
Securities Incorporated
4.1 Form of Fixed Rate Note
4.2 Form of Floating Rate Note
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EXHIBIT 1.1
NEW PLAN EXCEL REALTY TRUST, INC.
(A MARYLAND CORPORATION)
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
September 10, 1999
SALOMON SMITH BARNEY INC.
7 World Trade Center
New York, New York 10048
LEHMAN BROTHERS INC.
American Express Tower
World Financial Center, 10th Floor
New York, New York 10285
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
World Financial Center, North Tower, 10th Floor
New York, New York 10281-1380
MORGAN STANLEY & CO.
INCORPORATED
1585 Broadway
New York, New York 10036-8293
PRUDENTIAL SECURITIES
INCORPORATED
One New York Plaza
New York, New York 10292
Dear Sirs:
New Plan Excel Realty Trust, Inc., a Maryland corporation (the
"Company"), confirms its agreement with Salomon Smith Barney Inc., Lehman
Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated and Prudential Securities Incorporated (each, an
"Agent", and collectively, the "Agents") with respect to the issue and sale by
the Company of a series of its debt securities entitled "Medium-Term Notes Due
Nine Months or More from Date of Issue" (the "Notes"). The Notes are to be
issued pursuant to an Indenture, dated as of February 3, 1999, as amended,
supplemented or modified from time to time (the "Indenture"), between the
Company and State Street Bank and Trust Company, as trustee (the "Trustee").
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This Agreement amends and restates in its entirety that certain
Distribution Agreement, dated February 3, 1999, by and among the Company, New
Plan Realty Trust and the Agents, which contemplated the issuance and sale of
up to U.S. $500,000,000 aggregate initial offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such
foreign or composite currencies as the Company shall designate at the time of
issuance) of Notes to or through the Agents. As of the date hereof, the
Company has remaining U.S. $325,000,000 aggregate initial offering price of
Notes authorized for issuance and sale pursuant to the terms of this Agreement.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers,
or directly to investors (as may from time to time be agreed to by the Company
and the applicable Agent), in which case such Agent will act as an agent of the
Company in soliciting purchases of Notes.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-67511) for the
registration of various securities, including the Notes, under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the SEC under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the SEC and the Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit)
and the prospectus constituting a part thereof, on the one hand, and such
prospectus and any prospectus supplement and pricing supplement relating to the
Notes, on the other hand, in each case including all documents incorporated
therein by reference, as from time to time amended or supplemented by the
filing of documents pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act"), the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations, then, unless otherwise specified herein, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use. All references in this Agreement
to financial statements and schedules and other information which are
"contained", "included", "described", "disclosed" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include,
without limitation, the filing of any document under the 1934 Act which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
It is understood that the Company may from time to time authorize the
issuance of and may register additional Notes and that such additional Notes
may be sold to or through the
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Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to (i) the terms and conditions stated
herein and (ii) the reservation by the Company of the right to sell Notes to
any broker or dealer (as principal) other than an Agent or directly on its own
behalf, upon such terms and conditions as the Company may determine from time
to time, the Company hereby agrees that Notes will be sold to or through the
Agents and will not appoint any other agents to act on its behalf, or to assist
it, in the placement of the Notes. Notwithstanding anything to the contrary
contained herein, the Company may solicit or accept offers to purchase Notes
through any broker or dealer (as agent) other than an Agent, provided that (i)
such broker or dealer is engaged on the same terms and conditions (including
the same commission schedule) as those contained in this Agreement and (ii) the
Company shall notify the Agents promptly following the acceptance of such
offer.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration
Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Company as principal, but one or more
Agents may agree from time to time to purchase Notes as principal for resale to
investors and other purchasers determined by such Agent or Agents. Any such
purchase of Notes by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit purchases of the Notes. Such Agent will communicate to
the Company, orally, each offer to purchase Notes solicited by it on an agency
basis, other than those offers rejected by such Agent. Such Agent shall have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein. The Company may accept or
reject any proposed purchase of Notes, in whole or in part. Such Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it and accepted
by the Company. Such Agent shall not have any liability to the Company in the
event that any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall (i) hold such Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) pay to such Agent any commission to which it would otherwise be entitled
absent such default.
(e) Reliance. The Company and the Agents agree that any Notes
purchased by one or more Agents as principal shall be purchased, and any Notes
the placement of which an Agent
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arranges as agent shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether to such Agent as principal or through such Agent
as agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
the Agent as principal being hereafter referred to as a "Settlement Date"), and
as of any time that the Registration Statement or the Prospectus shall be
amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date"), as follows:
(i) Due Establishment and Qualification. The Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Maryland and has
corporate power and authority to hold mortgages, to own and lease real
property and to conduct its business as described in the Prospectus;
and the Company is duly qualified and is in good standing in each
jurisdiction in which its ownership of property or its conduct of
business requires such qualification, except where the failure to so
qualify and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company
which is a significant subsidiary (each, a "Significant Subsidiary"),
as defined in Rule 405 of Regulation C of the 1933 Act Regulations,
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to hold mortgages, to own and lease
and operate property and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify and
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business or
business prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
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 Company or any of its subsidiaries
which are referred to in the Prospectus.
(iii) Registration Statement and Prospectus. The
Registration Statement, at the time the Registration Statement became
effective, complied, and the Registration Statement and the
Prospectus, as of each Representation Date, will comply, in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
SEC promulgated thereunder; the
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Registration Statement, at the time it became effective, did not, and
at each time thereafter at which any amendment to the Registration
Statement becomes effective or any Annual Report on Form 10-K is filed
by the Company with the SEC and as of each Representation Date will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of the date
hereof does not, and as of each Representation Date will not, include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Agents expressly
for use in the Registration Statement or Prospectus or to that part of
the Registration Statement consisting of the Trustee's Statement of
Eligibility on Form T-1 under the 1939 Act (the "Statement of
Eligibility").
(iv) Incorporated Documents. The documents incorporated
or deemed incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were or hereafter
are filed with the SEC, complied or when so filed will comply, as the
case may be, in all material respects with the requirements of the 1934
Act and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective, did not, and at each time thereafter at which any amendment
to the Registration Statement becomes effective or Annual Report on
Form 10-K is filed by the Company with the SEC and as of each
Representation Date will not, include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading.
(v) Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included or
incorporated by reference in the Registration Statement and the
Prospectus are independent public accountants within the meaning of the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements of
the Company and its subsidiaries included in the Registration Statement
and the Prospectus, together with the related schedules and notes, as
well as any financial statements, schedules and notes of any other
entity or property included therein, present fairly in all material
respects the financial position of the Company and its subsidiaries or
such other entity or property, as the case may be, at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its subsidiaries or such other entity or
property, as the case may be, for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved; the supporting schedules, if any, included in the
Registration Statement and the Prospectus present fairly in all
material respects in accordance with generally accepted accounting
principles the information
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required to be stated therein; the selected financial data and the
summary financial information included in the Registration Statement
and the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement and the Prospectus; and any pro forma financial
statements and the related notes thereto included in the Registration
Statement and the Prospectus present fairly in all material respects
the information shown therein, have been prepared in accordance with
the SEC's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company; the Indenture has been duly
authorized, executed and delivered by the Company; the Indenture
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with the respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by (1) requirements that a claim with respect to
any Notes payable other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (2) governmental authority to limit,
delay or prohibit the making of payments outside the United States; the
Notes have been duly authorized for issuance, offer and sale pursuant
to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor, the Notes will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by (1)
requirements that a claim with respect to any Notes payable other than
in U.S. dollars (or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the making of
payments outside the United States; and each holder of the Notes will
be entitled to the benefits of the Indenture.
(viii) Material Changes, Material Transactions or
Distributions. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as may
otherwise be stated therein, (1) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business, (2) there have been no
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transactions or acquisitions entered into by the Company or any of its
subsidiaries other than those arising in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (3) except for regular
quarterly dividends on the common stock of the Company (the "Company
Common Shares"), Company Common Shares issued pursuant to the Company's
Distribution Reinvestment and Share Purchase Plan, or dividends
declared, paid or made in accordance with the terms of any series of
preferred stock of the Company (the "Company Preferred Shares"), there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its Company Common Shares or Company
Preferred Shares.
(ix) No Defaults. The Company is not in violation of its
articles of incorporation (the "Charter") or by-laws, and no subsidiary
of the Company is in violation of its charter or by-laws (or similar
governing documents), and neither of the Company nor any subsidiary of
the Company 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 Company,
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 Company or
any of its subsidiaries is subject where the violation or default would
reasonably be expected to result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or
business prospects of the Company and its subsidiaries considered as
one enterprise; and the execution, delivery and performance of this
Agreement and the Indenture and the consummation of the transactions
contemplated herein and therein and the compliance by the Company with
its obligations hereunder and thereunder have been duly authorized by
all necessary action of the Company 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 Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company, 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 Company or any of its subsidiaries, is
subject, nor will such action result in any violation of the provisions
of the Charter or the by-laws of the Company or any law, administrative
regulation or administrative or court order or decree.
(x) Regulatory Approvals. No authorization, approval or
consent of any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement or in connection with the issuance and sale of Notes
hereunder, except such as have been obtained or rendered, as the case
may be, or as may be required under state securities laws ("Blue Sky").
(xi) Legal Proceedings. There is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company
(for purposes of this Agreement, such knowledge shall mean the actual
knowledge of either an executive officer or director of the Company)
threatened against or affecting the Company or any of its subsidiaries
which is required to be disclosed in the Prospectus (other than as
disclosed therein) or which would
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reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
business prospects of the Company and its subsidiaries considered as
one enterprise or which might materially and adversely affect the
properties or assets of the Company and its subsidiaries considered as
one enterprise or which might adversely affect the consummation of this
Agreement, the Indenture or the Notes or any transaction contemplated
hereby or thereby; and all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any
of their respective property is the subject which are not described in
the Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not reasonably expected to
result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xii) Contracts. There are no contracts or documents of
the Company or any of its subsidiaries, which are required to be filed
as exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
(xiii) Possession of Licenses and Permits. The Company and
its subsidiaries possess adequate certificates, authorities or permits
issued by the appropriate state or federal regulatory agencies or
bodies necessary to conduct the business now operated by them, and none
of the Company or any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the conduct of the business,
operations, financial condition or earnings of the Company and its
subsidiaries considered as one enterprise.
(xiv) Title to Property. Each of the Company and its
subsidiaries has good and indefeasible title in fee simple to all real
property and interests in real property owned by it in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially adversely
affect conduct of the business, operations, financial condition or
earnings of the Company and its subsidiaries considered as one
enterprise; and, except as otherwise described in the Prospectus or as
such do not materially adversely affect the conduct of the business,
operations, financial condition or earnings of the Company and its
subsidiaries considered as one enterprise; any real property and
buildings held under lease by the Company, or any of its subsidiaries
or leased by the Company or any of its subsidiaries to a third party
are held or leased by the Company or any of its subsidiaries, as the
case may be, under valid, binding and enforceable leases conforming to
the description thereof set forth in the Prospectus (to the extent
described therein), enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xv) Environmental Laws. Except as set forth in the
Prospectus, neither the Company nor any of its subsidiaries has
knowledge of (a) the unlawful presence of any
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hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the
properties owned by the Company or any of such subsidiaries, as
applicable, or of (b) any unlawful spills, releases, discharges or
disposal of Hazardous Materials that have occurred or are presently
occurring off such properties as a result of any construction on or
operation and use of such properties which presence or occurrence
would, in either case, have a material adverse effect on the
condition, financial or otherwise, or the earnings, business or
business prospects of the Company and its subsidiaries considered as
one enterprise; and in connection with the construction on or
operation and use of the properties owned by the Company or any of its
subsidiaries, the Company represents that it has no knowledge of any
failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
that would have a material adverse effect on the condition, financial
or otherwise, or the earnings, business or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xvi) Trademarks; Service Marks. Neither the Company
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 any of them.
(xvii) Internal Revenue Code. The Company is qualified
as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended (the "Code"), and will be so qualified for the
taxable year in which sales of the Notes are to occur.
(xviii) Investment Company Act. The Company is not
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xix) Commodity Exchange Act. The Notes, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or exempted under the
provisions of the Commodity Exchange Act.
(b) Additional Certifications. Any certificate signed by any
executive officer or director of the Company and delivered to one or more
Agents or to counsel for the Agents in connection with an offering of Notes to
one or more Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an Agent
and the Company, Notes shall be purchased by one or more Agents as principal in
accordance with terms agreed upon by such Agent or Agents and the Company
(which terms shall be agreed upon orally (with written confirmation prepared
promptly by such Agent or Agents and mailed promptly to the Company) and,
unless otherwise agreed, shall, to the extent applicable, include those terms
specified in Exhibit A hereto). An Agent's commitment to purchase Notes as
principal shall be
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deemed to have been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms and conditions
herein set forth. Unless the context otherwise requires, references herein to
"this Agreement" shall include the applicable agreement of one or more Agents
to purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto.
The Agents may engage the services of any other broker or dealer in connection
with the resale of the Notes purchased by them as principal and may allow all
or any portion of the discount received in connection with such purchases from
the Company to such brokers and dealers. At the time of each purchase of Notes
by one or more Agents as principal, such Agent or Agents shall specify the
requirements for the officers' certificate, opinions of counsel and comfort
letter pursuant to Sections 7(b), 7(c) and 7(d) hereof. In addition, such Agent
or Agents shall promptly notify the Company when the related Notes are no
longer held as principal pursuant hereto.
(b) Solicitations as Agent. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Company and an Agent, such Agent, as an agent of
the Company, will use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth in the Prospectus. The Agents are
not authorized to appoint sub-agents with respect to Notes sold through them as
agent. All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing
at any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend solicitation
of purchases from the Company until such time as the Company has advised such
Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as
set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate
or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Company and the
applicable Agent or Agents and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared in connection with
each sale of Notes. Except as may be otherwise specified in the applicable
Pricing Supplement, the Notes will be issued in denominations of U.S. $1,000
or any larger amount that is an integral multiple of U.S. $1,000.
Administrative procedures (the "Procedures") with respect to the sale of Notes
shall be agreed upon from time to time by the Company, the Agents and the
Trustee. The current Procedures are attached hereto as Exhibit B. The Agents
and the Company agree to perform, and the Company agrees to cause the Trustee
to agree to perform, their respective duties and obligations specifically
provided to be performed by them in the Procedures.
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SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm such notice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal to the SEC
for filing of any amendment or supplement to the Prospectus (it being
understood that only the applicable Agent(s) will receive notice and a copy of
the related pricing supplement) or any document to be filed pursuant to the
1934 Act (other than any amendment, supplement or document relating solely to
securities other than the Notes), (iii) the receipt of any comments from the
SEC with respect to the Registration Statement or the Prospectus, (iv) any
request by the SEC for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information
relating to the Notes, (v) the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose and (vi) any change in the rating assigned by
Moody's Investors Service, Inc. or Standard & Poor's Ratings Services to any
debt securities of the Company or the public announcement by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Services that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Company. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents advance notice of its intention to file any additional registration
statement with respect to the registration of additional Notes, any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes or relating solely to the
issuance and/or offering of securities other than the Notes), whether by the
filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise. In
the event of such additional registration statement, amendment or supplement,
the Company will furnish to the Agents copies thereof a reasonable time in
advance of the related proposed filing or use thereof, as the case may be, and
will not file any such additional registration statement, amendment or
supplement in a form to which the Agents or counsel for the Agents shall
reasonably object; provided, however, that, in lieu of the foregoing, in the
event that the conditions of subsection (k) of this Section have been satisfied
and the Company has notified the Agents in writing that offerings of Notes are
suspended, then the Company shall be required to deliver copies of all such
additional registration statements, amendments and supplements at least five
business days prior to the date that offerings of Notes may be resumed.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents reasonably
request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents reasonably request so
long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
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(d) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold to or through one or more Agents pursuant
to this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the SEC on the fifth business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (k) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Company, 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 the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company shall give immediate notice, confirmed in writing,
to the Agents to cease the solicitation of offers to purchase the Notes in
their capacity as agents and to cease sales of any Notes they may then own as
principal, and the Company will promptly amend the Registration Statement and
the Prospectus, whether by filing documents pursuant to the 1934 Act or the
1933 Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with such
requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (k) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information in writing to the Agents and shall cause the Prospectus to be
amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be required by the 1933 Act or the 1933
Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except
as otherwise provided in subsection (k) of this Section, on or prior to the
date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information in writing to the Agents and shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant
to the 1934 Act or the 1933 Act or otherwise, to include or incorporate by
reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be required by the 1933 Act or the 1933 Act
Regulations.
(h) Earnings Statements. The Company will make generally
available to their respective 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
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Rule 158 of the 1933 Act Regulations) covering each twelve month period
beginning, in each case, not later than the first day of the fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign entity in
any jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes for sale in
any such state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Notes, will file all documents required to be
filed with the SEC pursuant to Sections 13, 14 or 15(d) of the 1934 Act within
the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (b), (e), (f) or (g) of
this Section during any period from the time (i) the Agents shall have
suspended solicitation of purchases of the Notes in their capacity as agents
pursuant to a request from the Company and (ii) no Agent shall then hold any
Notes purchased as principal pursuant hereto, until the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or an
Agent shall subsequently purchase Notes from the Company as principal.
(l) Code Requirements. The Company will use its best efforts to
continue to meet the requirements to qualify as a "real estate investment
trust" under the Code for the taxable year in which sales of the Notes are to
occur.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the Company as
principal and to solicit offers to purchase Notes as agent of the Company, and
the obligations of any purchasers of Notes sold through an Agent as agent, will
be subject to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
directors or executive officers, made in any certificate furnished pursuant to
the provisions hereof, to the performance and observance by the Company of all
its covenants and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
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(1) Opinion of Company Counsel. The favorable opinion of Hogan &
Hartson L.L.P., counsel to the Company, to the effect set forth in Exhibit
C.
(2) Opinion of General Counsel for the Company. The favorable
opinion of the General Counsel of the Company, or other counsel satisfactory
to the Agents, to the effect that:
(i) The Company is duly qualified as a foreign entity to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ii) Each Significant Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to so qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(3) Opinion of Tax Counsel for the Company. The favorable opinion of
Altheimer & Gray, tax counsel for the Company, to the effect that:
(i) The information in the Prospectus under "Certain United
States Federal Income Tax Considerations" and "Certain Federal Income
Tax Considerations to the Company of its REIT Election", to the extent
that such information constitutes matters of law or legal conclusions,
has been reviewed by them and is correct.
(ii) At all times on or after January 1, 1995 (which such
counsel believes is the beginning of the earliest year still open
under the applicable statute of limitations (including waivers
thereof) for examination by the Internal Revenue Service), the Company
has had all legal rights, powers and authority necessary to qualify
and has qualified as a "real estate investment trust" under Section
856 through 860 of the Code.
(4) Opinion of Counsel to the Agents. The favorable opinion of
Brown & Wood LLP, counsel to the Agents, covering those matters requested by
the Agents.
(5) Disclosure Documents. In giving their opinions required by
subsection (a)(1) and (a)(4), respectively, of this Section 5, Hogan &
Hartson L.L.P. 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, 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 Company with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became effective or
at the
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<PAGE> 15
time of the most recent such filing, as the case may be) or at the
date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, at the date hereof (or, if such
opinion is being delivered in connection with the purchase of Notes
from the Company by one or more Agents as principal pursuant to
Section 7(c) hereof, at the date of any agreement by such Agent or
Agents to purchase Notes as principal and at the Settlement Date with
respect thereto, as the case may be) (included or) includes an untrue
statement of a material fact or (omitted or) omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it
being understood that counsel need not comment on the financial
statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or
the Prospectus).
In giving their opinions, the foregoing counsel may rely upon,
or assume the accuracy of, (1) as to all matters of fact, the
certificates and written statements of officers and employees of and
accountants for the Company and (2) as to the qualification and good
standing of the Company or any of its subsidiaries to do business in
any state or jurisdiction, the certificates of appropriate government
officials or opinions of counsel in such jurisdictions.
(b) Officer's Certificate. On the date hereof, the Agents shall
have received a certificate of the Chief Executive Officer, President or Vice
President and the principal financial officer or principal accounting officer
of the Company, dated as of the date hereof, to the effect that (i) since the
respective dates as of which information is given in the Prospectus or, if such
certificate is required pursuant to Section 7(b) hereof, since the date of the
agreement, if any, by one or more Agents to purchase Notes from the Company as
principal, there has not been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate and (iii) the Company has performed or
complied with all agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the date of such certificate.
As used in this Section 5(b), the term "Prospectus" means the Prospectus in the
form first provided to the applicable Agent or Agents for use in confirming
sales of the Notes.
(c) Comfort Letter of PricewaterhouseCoopers LLP On the date
hereof, the Agents shall have received a letter from PricewaterhouseCoopers
LLP, dated as of the date hereof, in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(ii) It is their opinion that the consolidated
financial statements and supporting schedules of the Company and its
subsidiaries included or incorporated by
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reference in the Registration Statement and Prospectus covered by their opinions
therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations.
(iii) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim financial
statements of the Company and its indicated subsidiaries, a reading of the
minute books of the Company and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of the Company and such
subsidiaries responsible for financial and accounting matters with respect to
the unaudited consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus and the latest available
interim unaudited financial statements of the Company and its subsidiaries, and
such other inquiries and procedures as may be specified in such letter, and on
the basis of such inquiries and procedures, nothing came to their attention that
caused them to believe that: (A) any material modifications should be made to
the unaudited consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and Prospectus for them to be in conformity with generally accepted accounting
principles in the United States, (B) the unaudited consolidated financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the 1934
Act and the 1934 Act Regulations or (C) at a specified date not more than three
days prior to the date of such letter, there was any change in the consolidated
capital stock, any increase in consolidated long-term debt or any decrease in
the consolidated net current assets or consolidated net assets of the Company
and its subsidiaries, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement and
Prospectus or, during the period from the date of such balance sheet to a
specified date not more than three days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the preceding
year, in consolidated revenues or in the total or per-share amounts of income
before extraordinary items or of net income of the Company and its subsidiaries,
except in all instances for changes, increases or decreases that the
Registration Statement and Prospectus disclose have occurred or may occur or
except for such exceptions enumerated in such letter as shall have been agreed
to by the Agents and the Company.
(iv) In addition to the audit referred to in their opinions and
the limited procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus and
which are specified by the Agents, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting, financial
and other records of the Company and its subsidiaries identified in such letter.
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(d) Comfort Letter of Applicable Accountants. On the date hereof,
the Agents shall have received, with respect to the: financial statements and
any supporting schedules for properties or entities acquired by the Company
which are included or incorporated by reference in the Registration Statement
and the Prospectus, a letter from the applicable accountants covering such
financial statements and supporting schedules, dated as of the date hereof, in
form and substance satisfactory to the Agents, to the effect that (i) they are
independent public accountants within the meaning of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations with respect to the
Company and its subsidiaries and the applicable properties or entities acquired
by the Company, (ii) it is their opinion that the financial statements and
supporting schedules of the properties or entities acquired by the Company
which are included or incorporated by reference in the Registration Statement
and the Prospectus and covered by their opinions therein, comply as to form in
all material respects with the applicable accounting requirements of the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and
(iii) with respect to any pro forma financial statements and any supporting
schedules for properties or entities acquired by the Company which are included
or incorporated by reference in the Registration Statement and the Prospectus,
they have read such pro forma financial statements, have performed an audit or
review in accordance with SAS 71 of such financial statements, have made
appropriate inquiries about the basis for the pro forma adjustments and whether
such pro forma financial statements comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X and
have proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in such pro forma adjustments, and on the
basis of such review, inquiries and procedures, nothing came to their attention
that caused them to believe that such pro forma financial statements do not
comply as to form in all material respects with the applicable requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such pro forma
financial statements.
(e) Other Documents. On the date hereof and on each Settlement
Date, counsel to the Agents shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Notes as herein contemplated
and related proceedings, or in order to evidence the accuracy and completeness
of any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated shall be
satisfactory in form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the applicable Agent or Agents by notice to the Company at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 10 hereof, the indemnity and contribution agreement
set forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery set forth in
Section 11 hereof, the termination provisions set forth in Section 12 hereof,
the provisions relating to governing law and forum set forth in Section 14, the
provisions relating to parties set forth in Section 15 hereof shall remain in
effect.
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SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds (without interest)
to such Agent.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes (whether to one
or more Agents as principal or through an Agent as agent), and each delivery of
Notes (whether to one or more Agents as principal or through an Agent as
agent), shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to the Agents pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the time of
delivery to such Agent or Agents or to the purchaser or its agent, as the case
may be, of the Note or Notes relating to such acceptance or sale, as the case
may be, as though made at and as of each such time (and it is understood that
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes or relating solely to the
issuance and/or offering of securities other than the Notes), (ii) there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating solely to the issuance
and/or offering of securities other than the Notes), (iii) (if required in
connection with the purchase of Notes from the Company by one or more Agents as
principal) the Company sells Notes to such Agent or Agents as principal or (iv)
the Company sells Notes in a form not previously certified to the Agents by the
Company, the Company shall furnish or cause to be furnished to the Agent(s),
forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form and substance reasonably
satisfactory to the Agent(s) to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were last furnished to the
Agents are true and correct at the time of such amendment, supplement, filing
or sale, as the case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(b) hereof, modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate.
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(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes, providing solely for the
inclusion of additional financial information, or relating solely to the
issuance and/or offering of securities other than the Notes), (ii) there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating solely to the issuance
and/or offering of securities other than the Notes), (iii) (if required in
connection with the purchase of Notes from the Company by one or more Agents as
principal) the Company sells Notes to such Agent or Agents as principal or (iv)
the Company sells Notes in a form not previously certified to the Agents by the
Company, the Company shall furnish or cause to be furnished forthwith to the
Agent(s) and to counsel to the Agents the written opinions of Hogan & Hartson
L.L.P., the General Counsel of the Company, and Altheimer & Gray, or other
counsel satisfactory to the Agent(s), dated the date of filing with the SEC of
such supplement or document, the date of effectiveness of such amendment, or
the date of such sale, as the case may be, in form and substance reasonably
satisfactory to the Agent(s), of the same tenor as the opinions referred to in
Section 5(a)(1), 5(a)(2) and 5(a)(3), as the case may be, hereof, but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion or, in lieu of
such opinion, counsel last furnishing such opinion to the Agents shall furnish
the Agent(s) with a letter substantially to the effect that the Agent(s) may
rely on such last opinion to the same extent as though it was dated the date of
such letter authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance); provided, however, that, with respect to (i) and (ii) above, in the
event that the conditions of Section 4(k)(i) hereof have been satisfied and the
Company has notified the Agents in writing that offerings of Notes are
suspended, then the Company shall be required to furnish or cause to be
furnished such opinions or such letters, as the case may be, only prior to the
date that offerings of Notes may be resumed. Notwithstanding the foregoing, in
the event that the Company sells Notes in a form not previously certified to
the Agents by the Company, then the Company shall cause Hogan & Hartson L.L.P.
to furnish, prior to such sale, an opinion to the effect that such Notes will
be excluded or exempted from the provisions of the Commodity Exchange Act.
(d) Subsequent Delivery of Comfort Letters. Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes), (ii) there is filed with the SEC any document incorporated by
reference into the Prospectus which contains additional financial information,
or (iii) (if required in connection with the purchase of Notes from the Company
by one or more Agents as principal) the Company sells Notes to such Agent or
Agents as principal, the Company shall cause PricewaterhouseCoopers LLP
forthwith to furnish to the Agent(s) a letter, dated the date of such filing
with the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and substance
reasonably satisfactory to the Agent(s) of the same tenor as the portions of
the letter referred to in clauses (i) and (ii) of Section 5(c) modified to
relate to the Registration Statement and Prospectus as amended and supplemented
to the date of such letter, and of the same general tenor as the portions of
the letter referred to in clauses (iii) and (iv) of said Section 5(c) with such
changes as may be necessary to reflect changes in the financial statements and
other information derived
19
<PAGE> 20
from the accounting records of the Company; provided, however, that with respect
to (i) and (ii) above, in the event that the conditions of Section 4(k)(i)
hereof have been satisfied and the Company has notified the Agents in writing
that offerings of Notes are suspended, then the Company shall be required to
furnish or cause to be furnished such letter only prior to the date that
offerings of Notes may be resumed. In addition, each time that the Registration
Statement or the Prospectus shall be amended or supplemented to include
financial statements and any supporting schedules thereto of properties or
entities acquired by the Company, the Company shall cause the applicable
accountants covering such financial statements and supporting schedules to
furnish to the Agents a letter, dated the date of such amendment or supplement
with the SEC, in form satisfactory to the Agents, of the same tenor as the
letter referred to in Section 5(e) hereof; provided, however, that in the event
that the conditions of Section 4(k)(i) hereof have been satisfied and the
Company has notified the Agents in writing that offerings of Notes are
suspended, then the Company shall be required to furnish or cause to be
furnished such letter only prior to the date that offerings of Notes may be
resumed.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the
omission, or alleged omission therefrom, of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or the
omission, or alleged omission therefrom, of a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission referred to in subsection (i) above,
or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by such Agent), as
incurred, reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
20
<PAGE> 21
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 Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or made in reliance upon the Trustee's Statement of
Eligibility incorporated by reference into the Registration Statement and the
Prospectus.
(b) Indemnification of the Company. Each Agent severally agrees
to indemnify and hold harmless the Company, and each of its directors and each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Agent expressly for use in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) General. Each indemnified party shall give notice as promptly
as is reasonably practical to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 is for
any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Agents shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and the Agents, as incurred, in such proportions that each Agent is responsible
for that portion represented by the percentage that the commission or
underwriting discount received by such Agent bears to the total sales price
from the sale of the Notes sold to or through such Agent that were the subject
of the claim for indemnification, and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person, if
any, who controls an Agent within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Agent, and each officer or
director of the Company who signed the
21
<PAGE> 22
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form;
(d) The fees and disbursements of the accountants and counsel of
the Company, of the Trustee and its counsel, and of any calculation agent or
exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the
Notes;
(h) The preparation, reproduction and delivery to the Agents of
copies of the Indenture and all amendments, supplements and modifications
thereto;
(i) Any fees charged by nationally recognized statistical rating
organizations for the rating of the Notes;
(j) The fees and expenses incurred in connection with any listing
of Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any filing with
the National Association of Securities Dealers, Inc.; and
(l) The cost of providing any CUSIP or other identification numbers
for the Notes.
22
<PAGE> 23
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Trust as principal)
may be terminated for any reason, at any time by either the Company or an
Agent, as to itself, upon the giving of 7 days' written notice of such
termination to the other parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent or Agents may terminate any agreement by such Agent or Agents
to purchase Notes from the Company as principal, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto, if (i)
there has been, since the date of such agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise whether or not arising in the ordinary course of business, or (ii)
there shall have occurred any material adverse change in the financial markets
in the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis the effect of which is such as to
make it, in the reasonable judgment of such Agent or Agents, impracticable to
market the Notes or enforce contracts for the sale of the Notes, or (iii)
trading in any securities of the Company has been suspended by the SEC or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or if
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the SEC or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York authorities
or if a banking moratorium shall have been declared by the relevant authorities
in the country or countries of origin of any foreign currency or currencies in
which the Notes are denominated or payable, or (iv) the rating assigned by
Moody's Investors Service, Inc. or Standard and Poor's Ratings Services to any
debt securities of the Company as of the date of such agreement shall have been
lowered since such date or if any such rating organization shall have publicly
announced since such date that it has under surveillance or review, with
possible negative implications, its rating of any debt securities of the
Company or (v) there shall have come to the attention of such Agent or Agents
any facts that would cause them to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of Notes, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
the time of such delivery, not misleading. As used in this Section 12(b), the
term "Prospectus" means the Prospectus in the form first provided to the
applicable Agent or Agents for use in confirming sales of the related Notes.
23
<PAGE> 24
(c) General. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) the Agents
shall be entitled to any commission earned as a result of a sale of a Note by
the Company, (ii) if at the time of termination (a) any Agent shall own any
Notes purchased by it as principal with the intention of reselling them or (b)
an offer to purchase any of the Notes has been accepted by the Company but the
time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas, 12th Floor
New York, New York 10036
Attention: President
With a copy to: General Counsel
If to the Agents:
Salomon Smith Barney Inc.
390 Greenwich Street, 4th Floor
New York, New York 10013
Attention: Frank W. Hamilton III
Telephone: (212) 723-5151
Telecopy No.: (212) 723-8853/4.
24
<PAGE> 25
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Telephone No.: (212) 526-2040
Telecopy No.: (212) 528-1718
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone No.: (212) 449-7476
Telecopy No.: (212) 449-2234
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone No.: (212) 761-4000
Telecopy No.: (212) 761-0783
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Attention: Peter Cooper - Investment Banking Information Center
Telephone No.: (212) 761-8385
Telecopy No.: (212) 761-0260
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Attention: Frank P. Sinatra
Telephone No.: (212) 778-3015
Telecopy No.: (212) 778-4456
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Forum
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against any Agent in connection
with or arising under this Agreement shall be brought solely in
25
<PAGE> 26
the state or federal court of appropriate jurisdiction located in the Borough
of Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers, directors and trustees
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Notes
shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
26
<PAGE> 27
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ DEAN BERNSTEIN
--------------------------------------
Name: Dean Bernstein
Title: Senior V.P.
Confirmed and Accepted, as of the
date first above written:
SALOMON SMITH BARNEY INC.
By: /s/ MARTHA D. BAILEY
------------------------------------------
LEHMAN BROTHERS INC.
By: /s/ MARTIN RAGDE
------------------------------------------
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ ELIZABETH ANNE CASEY
------------------------------------------
MORGAN STANLEY & CO.
INCORPORATED
By: /s/ MICHAEL FUSCO
------------------------------------------
27
<PAGE> 28
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ MICHAEL A. TURNER
------------------------------------------
28
<PAGE> 29
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
agrees to pay the applicable Agent, on a discount basis, a commission for the
sale of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
<S> <C>
From 9 months to less than 1 year . . . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . . .150
From 18 months to less than 2 years . . . . . . . . . . . .200
From 2 years to less than 3 years . . . . . . . . . . . . .250
From 3 years to less than 4 years . . . . . . . . . . . . .350
From 4 years to less than 5 years . . . . . . . . . . . . .450
From 5 years to less than 6 years . . . . . . . . . . . . .500
From 6 years to less than 7 years . . . . . . . . . . . . .550
From 7 years to less than 10 years . . . . . . . . . . . .600
From 10 years to less than 15 years . . . . . . . . . . . .625
From 15 years to less than 20 years . . . . . . . . . . . .700
From 20 years to 30 years . . . . . . . . . . . . . . . . .750
Greater than 30 years . . . . . . . . . . . . . . . . . . *
</TABLE>
- ------------------------------
* As agreed to by the Company and the applicable Agent at the time of sale.
<PAGE> 1
EXHIBIT 4.1
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. 1/
-
REGISTERED CUSIP No.: PRINCIPAL AMOUNT
No. FXR-__ $_____________
NEW PLAN EXCEL REALTY TRUST, INC.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: ____%
STATED MATURITY DATE: DEFAULT RATE: N/A
INTEREST PAYMENT DATE(S):
[ ]
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: ____% DATE:
REDUCTION: ____%
OPTIONAL REPAYMENT [ ] CHECK IF A DISCOUNT NOTE
DATE(S): Issue Price:
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples thereof
[ ] Other: [ ] Other:
- ------------------------------
1/ This paragraph applies to global Notes only.
- -
<PAGE> 2
EXCHANGE RATE AGENT:
ADDENDUM ATTACHED: OTHER/ADDITIONAL PROVISIONS:
[ ] Yes:
[ ] No
2
<PAGE> 3
New Plan Excel Realty Trust, Inc., a Maryland corporation (the
"Company", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of __________________
($_________), on the Stated Maturity Date specified above (or any Redemption
Date or Repayment Date, each as defined on the reverse hereof) (each such stated
Maturity Date, Redemption Date or Repayment Date being hereinafter referred to
as the "Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon, at the Interest Rate per annum specified above, until
the principal hereof is paid or duly made available for payment and (to the
extent that the payment of such interest shall be legally enforceable) at the
Default Rate per annum specified above on any overdue principal, premium and/or
interest. The Company will pay interest in arrears on each Interest Payment
Date, if any, specified above (each, an "Interest Payment Date"), commencing
with the first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; provided, however, that if the
Original Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the second
Interest Payment Date next succeeding the Original Issue Date to the holder of
this Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will be computed on the basis of a 360-day year of twelve
30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee not more than 15 days and not less
than 10 days prior to such Special Record Date or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note [(and a duly completed election form as
contemplated on the reverse hereof)] 2/ at the office or agency maintained by
the Company for that purpose in the Borough of Manhattan, The City of New York,
currently the office of State Street Bank and Trust Company, N.A. (the "New York
Presenting Agent") located at 61 Broadway, New York, New York 10006, or at such
other paying agency in the Borough of Manhattan, The City of New York, as the
Company may determine; provided, however, that if the Specified Currency (as
defined below) is other than United States dollars and such payment is to be
made in the Specified Currency in accordance with the provisions set forth
below, such payment will be made by wire transfer of immediately available funds
to an account with a bank designated by the holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note [(and a duly completed
- ------------------------------
2/ This text applies to certificated Notes only.
- -
3
<PAGE> 4
repayment election form)] 3/ is presented and surrendered at the aforementioned
office or agency maintained by the Company in time for the Trustee to make such
payment in such funds in accordance with its normal procedures. Payment of
interest due on any Interest Payment Date other than the Maturity Date will be
made at the aforementioned office or agency maintained by the Company or, at the
option of the Company, by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register maintained by the
Trustee; provided, however, that a holder of U.S. $10,000,000 (or, if the
Specified Currency is other than United States dollars, the equivalent thereof
in the Specified Currency) or more in aggregate principal amount of Notes
(whether having identical or different terms and provisions) will be entitled to
receive interest payments on any Interest Payment Date other than the Maturity
Date by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in The
City of New York; provided, however, that if the Specified Currency is other
than United States dollars, such day is also not a day on which commercial banks
are authorized or required by law, regulation or executive order to close in the
Principal Financial Center (as defined below) of the country issuing the
Specified Currency (or, if the Specified Currency is euros, such day is also a
day on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open).
"Principal Financial Center" means the capital city of the country
issuing the Specified Currency except that with respect to United States
dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders,
South African rand and Swiss francs, the "Principal Financial Center" shall be
The City of New York, Sydney and Melbourne, Toronto, Frankfurt, Amsterdam,
Johannesburg and Zurich, respectively.
The Company is obligated to make payments of principal, premium, if any,
and interest in respect of this Note in the Specified Currency specified above
(or, if such Specified Currency is not at the time of such payment legal tender
for the payment of public and private debts in the country issuing such
Specified Currency or, in the case of Euro, in the member states of the European
Union that have adopted the single currency in accordance with the Treaty
establishing the European Community, as amended by the Treaty on European Union,
in such other coin or currency which is then such legal tender) (the "Specified
Currency"). If the Specified Currency is other than United States dollars,
except as provided below, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar
- ------------------------------
3/ This text applies to certificated Notes only.
- -
4
<PAGE> 5
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes payable in the Specified Currency who are scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its Corporate Trust Office (or at the office of the New York
Presenting Agent in The City of New York) on or prior to the applicable Record
Date or at least 15 calendar days prior to the Maturity Date, as the case may
be. Such written request may be mailed or hand delivered or sent by cable, telex
or other form of facsimile transmission. The holder of this Note may elect to
receive all or a specified portion of all future payments in the Specified
Currency in respect of such principal, premium, if any, and/or interest and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least 15 calendar days prior to the Maturity Date, as the case
may be.
If the Specified Currency is other than United States dollars and the
holder of this Note shall have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency and if the Specified Currency
is not available due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled to
satisfy its obligations to the holder of this Note by making such payment in
United States dollars on the basis of the Market Exchange Rate (as defined
below), computed by the Exchange Rate Agent, on the second Business Day prior to
such payment date or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate, or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes (or, if
not so certified, as otherwise determined by the Federal Reserve Bank of New
York). Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Indenture) with respect to
this Note.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee or its
5
<PAGE> 6
Authenticating Agent by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
6
<PAGE> 7
IN WITNESS WHEREOF, New Plan Excel Realty Trust, Inc. has caused this
Note to be duly executed by one of its duly authorized officers.
NEW PLAN EXCEL REALTY TRUST, INC.,
as Obligor
By:
--------------------------------------
Name:
Title:
[SEAL]
Attest:
-----------------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Signatory
Dated:
7
<PAGE> 8
[REVERSE OF NOTE]
NEW PLAN EXCEL REALTY TRUST, INC.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Company issued and to be issued under an Indenture, dated
as of February 3, 1999, as amended, modified or supplemented from time to time
(the "Indenture"), between the Company and State Street Bank and Trust Company,
as Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More from Date of Issue"
(the "Notes"). All terms used but not defined in this Note or in an Addendum
hereto shall have the meanings assigned to such terms in the Indenture or on the
face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S. $1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
such other minimum Authorized Denomination (provided that any remaining
principal amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on written notice given to the holder hereof not more than 60 nor less
than 30 calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price" shall initially be the
Initial Redemption Percentage specified on the face hereof multiplied by the
unpaid principal amount of this Note to be redeemed. The Initial Redemption
Percentage shall decline at each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction, if any, specified on the face hereof
until the Redemption Price is 100% of the unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or such other
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S. $1,000 or such minimum Authorized Denomination),
at a repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, the Trustee must receive
at its Corporate Trust Office (or at the office of the New York Presenting Agent
in the Borough of Manhattan, The City of New York), referred to on the face
hereof, at least 30 days but not more than 60 days prior to the Repayment
8
<PAGE> 9
Date [such Note and the form thereon entitled "Option to Elect Repayment" duly
completed] 4/ [instructions to such effect from the holder hereof.] 5/. Exercise
of such repayment option by the holder hereof will be irrevocable. In the event
of repayment of this Note in part only, a new Note of like tenor for the
unrepaid portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the holder of this Note in the event of redemption, repayment
or acceleration of maturity of this Note will be equal to the sum of (i) the
Issue Price specified on the face hereof (increased by any accruals of the
Discount, as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (ii) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), and an assumption
that the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Company with certain provisions
of the Indenture. Furthermore, provisions in the Indenture permit the holders of
not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all of
the holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
- ------------------------------
4/ This text applies to certificated Notes only.
- -
5/ This text applies to certificated Notes only.
- -
9
<PAGE> 10
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
[and herein] 6/ set forth, the transfer of this Note is registrable in the
Security Register of the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the principal
hereof and any premium or interest hereon are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the holder hereof or by his
attorney duly, authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
[and herein] 7/ set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the holder hereof
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
- ------------------------------
6/ This text applies to global Notes only.
- -
7/ This text applies to global Notes only.
- -
10
<PAGE> 11
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - _______ Custodian ________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants in Act ____________________________
common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
-------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------------------------------------------------
this Note and all rights thereunder hereby irrevocably constituting and
appointing _________________________ Attorney to transfer this Note on the books
of the Trustee, with full power of substitution in the premises.
Dated: ___________________
--------------------------------------
--------------------------------------
Notice: The
signature(s) on this
Assignment must
correspond with the
name(s) as written
upon the face of
this Note in every
particular, without
alteration or
enlargement or any
change whatsoever.
11
<PAGE> 12
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at _____________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office (or at the office of the New York Presenting Agent in the Borough
of Manhattan, The City of New York, currently located at 61 Broadway, New York,
New York 10006), this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $______________
Date: ______________________ --------------------
Notice: The
signature(s) on this
Option to Elect
Repayment must
correspond with the
name(s) as written
upon the face of
this Note in every
particular, without
alteration or
enlargement or any
change whatsoever.]
8/
- ----------------------------
8/ This text applies to certificated Notes only.
- -
12
<PAGE> 1
EXHIBIT 4.2
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. 1/
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FLR - $___________________
NEW PLAN EXCEL REALTY TRUST, INC.
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ] LIBOR Telerate [ ] Weekly Average
Page: [ ] Monthly Average
DESIGNATED LIBOR CURRENCY: Designated CMT Maturity Index:
INDEX MATURITY: INITIAL INTEREST RATE:%
SPREAD (PLUS OR MINUS): SPREAD MULTIPLIER:
MINIMUM INTEREST RATE:% MAXIMUM INTEREST RATE:% INTEREST
PAYMENT DATE(S):
- ------------------------
1/ This paragraph applies to global Notes only.
- -
<PAGE> 2
<TABLE>
<S> <C> <C>
INITIAL REDEMPTION DATE: INITIAL REDEMPTION INITIAL INTEREST
PERCENTAGE: % RESET DATE:
OPTIONAL REPAYMENT CALCULATION AGENT: INTEREST RESET
DATE(S): DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION: ANNUAL
Regular Floating Rate Note [ ] 30/360 for the period REDEMPTION
[ ] Floating Rate/Fixed Rate Note from to PERCENTAGE
Fixed Rate Commencement [ ] Actual/360 for the period REDUCTION: %
Date: from to
Fixed Interest Rate: % Actual/Actual for the period
[ ] Inverse Floating Rate Note from to
Fixed Interest Rate: % Applicable Interest Rate Basis:
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: [ ] CHECK IF A
DISCOUNT NOTE
[ ] United States dollars [ ] $1,000 and integral multiples Issue Price:%
[ ] Other: thereof
[ ] Other:
EXCHANGE RATE AGENT:
ADDENDUM ATTACHED: OTHER/ADDITIONAL DEFAULT RATE:%
[ ] Yes PROVISIONS
[ ] No
</TABLE>
<PAGE> 3
New Plan Excel Realty Trust, Inc., a Maryland corporation (the
"Company", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of ______________ ($_________), on
the Stated Maturity Date specified above (or any Redemption Date or Repayment
Date, each as defined on the reverse hereof) (each such Stated Maturity Date,
Redemption Date or Repayment Date being hereinafter referred to as the "Maturity
Date" with respect to the principal repayable on such date) and to pay interest
thereon, at a rate per annum equal to the initial Interest Rate specified above
until the Initial Interest Reset Date specified above and thereafter at a rate
determined in accordance with the provisions specified above and on the reverse
hereof or in an Addendum hereto with respect to one or more Interest Rate Bases
specified above until the principal hereof is paid or duly made available for
payment, and (to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal, premium and/or interest. The Company will pay interest in arrears on
each Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; provided,
however, that if the Original Issue Date occurs between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date next succeeding the Original
Issue Date to the holder of this Note on the Record Date with respect to such
second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee not more than 15 days and not less
than 10 days prior to such Special Record Date or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note [(and a duly completed election form as
contemplated on the reverse hereof)] 2/ at the office or agency maintained by
the Company for that purpose in the Borough of Manhattan, The City of New York,
currently the office of State Street Bank and Trust Company, N.A. (the "New York
Presenting Agent") located at 61 Broadway, New York, New York 10006, or at such
other paying agency in the Borough of Manhattan, The City of New York, as the
Company may determine; provided, however, that if the Specified Currency (as
defined below) is other than United States dollars and such payment is to be
made in the Specified Currency in accordance with the provisions set forth
below,
- ------------------------
2/ This text applies to certificated Notes only.
- -
<PAGE> 4
such payment will be made by wire transfer of immediately available funds
to an account with a bank designated by the holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note [(and a duly completed repayment election
form)] 3/ is presented and surrendered at the aforementioned office or agency
maintained by the Company in time for the Trustee to make such payment in such
funds in accordance with its normal procedures. Payment of interest due on any
Interest Payment Date other than the Maturity Date will be made at the
aforementioned office or agency maintained by the Company or, at the option of
the Company, by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register maintained by the Trustee;
provided, however, that a holder of U.S. $10,000,000 (or, if the Specified
Currency is other than United States dollars, the equivalent thereof in the
Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive
interest payments on any Interest Payment Date other than the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after the Maturity
Date to the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in The
City of New York; provided, however, that if the Specified Currency is other
than United States dollars, such day is also not a day on which commercial banks
are authorized or required by law, regulation or executive order to close in the
Principal Financial Center (as defined below) of the country issuing the
Specified Currency (or, if the Specified Currency is euros, such day is also a
day on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open); provided, further, that if LIBOR is an
applicable Interest Rate Basis, such day is also a London Business Day (as
defined below). "London Business Day" means any day on which commercial banks
are open for business (including dealings in the Designated LIBOR Currency (as
defined below) in London).
"Principal Financial Center" means (i) the capital city of the country
issuing the Specified Currency, or (ii) the capital city of the country to which
the Designated LIBOR Currency relates, as applicable, except, in each case, that
with respect to United States dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, Portuguese escudos, South African rand and Swiss
francs, the "Principal Financial Center" shall be The City of New York, Sydney
and (solely in the case of the Specified Currency) Melbourne, Toronto,
Frankfurt, Amsterdam, London (solely in the case of the Designated LIBOR
Currency), Johannesburg and Zurich, respectively.
The Company is obligated to make payments of principal, premium, if any,
and interest in respect of this Note in the Specified Currency specified above
(or, if such Specified Currency is not at the time of such payment legal tender
for the payment of public and private debts in the country issuing such
Specified Currency or, in the case of Euro, in the member states of the European
Union
- ------------------------
3/ This text applies to certificated Notes only.
- -
<PAGE> 5
that have adopted the single currency in accordance with the Treaty establishing
the European Community, as amended by the Treaty on European Union, in such
other coin or currency which is then such legal tender) (the "Specified
Currency"). If the Specified Currency is other than United States dollars,
except as provided below, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes payable in the Specified Currency who are scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its Corporate Trust Office (or at the office of the New York
Presenting Agent in The City of New York) on or prior to the applicable Record
Date or at least 15 calendar days prior to the Maturity Date, as the case may
be. Such written request may be mailed or hand delivered or sent by cable, telex
or other form of facsimile transmission. The holder of this Note may elect to
receive all or a specified portion of all future payments in the Specified
Currency in respect of such principal, premium, if any, and/or interest and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Record Date or at least 15 calendar days prior to the Maturity Date, as the case
may be.
If the Specified Currency is other than United States dollars and the
holder of this Note shall have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency and if the Specified Currency
is not available due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled to
satisfy its obligations to the holder of this Note by making such payment in
United States dollars on the basis of the Market Exchange Rate (as defined
below), computed by the Exchange Rate Agent, on the second Business Day prior to
such payment date or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate, or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes (or, if
not so certified, as otherwise determined by the Federal Reserve Bank of New
York). Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Indenture) with respect to
this Note.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
<PAGE> 6
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee or its Authenticating Agent by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
<PAGE> 7
IN WITNESS WHEREOF, New Plan Excel Realty Trust, Inc. has caused this
Note to be duly executed by one of its duly authorized officers.
NEW PLAN EXCEL REALTY TRUST, INC.,
as Obligor
By:
-------------------------------------
Name:
Title:
[SEAL]
Attest:
----------------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Signatory
Dated:
<PAGE> 8
[REVERSE OF NOTE]
NEW PLAN EXCEL REALTY TRUST, INC.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Company issued and to be issued under an Indenture, dated
as of February 3, 1999, as amended, modified or supplemented from time to time
(the "Indenture"), between the Company and State Street Bank and Trust Company,
as Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More from Date of Issue"
(the "Notes"). All terms used but not defined in this Note or in an Addendum
hereto shall have the meanings assigned to such terms in the Indenture or on the
face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S. $1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on written notice given to the holder hereof not more than 60 nor less
than 30 calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price" shall initially be the
Initial Redemption Percentage specified on the face hereof multiplied by the
unpaid principal amount of this Note to be redeemed. The Initial Redemption
Percentage shall decline at each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction, if any, specified on the face hereof
until the Redemption Price is 100% of the unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or such other
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S. $1,000 or such other minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, the
Trustee must receive at its Corporate Trust Office (or at the office of the New
York Presenting Agent in the Borough of Manhattan, The City of New York)
referred to on the face hereof, at least 30 days but not more than 60 days prior
to the Repayment
<PAGE> 9
Date [such Note and the form thereon entitled "Option to Elect Repayment" duly
completed] 4/ [instructions to such effect from the holder hereof] 5/. Exercise
of such repayment option by the holder hereof will be irrevocable. In the event
of repayment of this Note in part only, a new Note of like tenor for the
unrepaid portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the holder of this Note in the event of redemption, repayment
or acceleration of maturity of this Note will be equal to the sum of (i) the
Issue Price specified on the face hereof (increased by any accruals of the
Discount, as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (ii) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause an assumed yield on the
Note to be constant. The assumed constant yield will be calculated using a
30-day month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
coupon rate equal to the initial coupon rate applicable to this Note and an
assumption that the maturity of this Note will not be accelerated. If the period
from the Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate
Note" or as otherwise specified as Other/Additional Provisions on the
face hereof or in an Addendum hereto, this Note shall be designated as a
"Regular Floating Rate Note" and, except as set forth below or specified
on the face hereof or in an Addendum hereto, shall bear interest at the
rate determined by reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any, in each case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each
Interest Reset Date specified on the face hereof; provided, however,
that the interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth
below or specified on the face hereof or in an Addendum hereto, this
Note shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if
any, and/or (b) multiplied by the Spread Multiplier, if any. Commencing
on the Initial Interest Reset Date, the rate at which interest on this
Note shall be payable shall be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the period,
if
- ------------------------
4/ This text applies to certificated Notes only.
- -
5/ This text applies to global Notes only.
- -
<PAGE> 10
any, from the Original Issue Date to the Initial Interest Reset Date
shall be the Initial Interest Rate and (z) the interest rate in effect
for the period commencing on the Fixed Rate Commencement Date specified
on the face hereof to the Maturity Date shall be the Fixed Interest Rate
specified on the face hereof or, if no such rate is specified, the
interest rate in effect hereon on the day immediately preceding the
Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note", then, except as set forth
below or specified on the face hereof or in an Addendum hereto, this
Note shall bear interest at the Fixed Interest Rate minus the rate
determined by reference to the applicable Interest Rate Basis or Bases
(a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any; provided, however, that, unless otherwise
specified on the face hereof or in an Addendum hereto, the interest rate
hereon shall not be less than zero. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date; provided, however, that
the interest rate in effect for the period, if any, from the Original
Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate.
Except as set forth above or specified on the face hereof or in an
Addendum hereto, the interest rate in effect on each day shall be (i) if such
day is an Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing on
the related Interest Reset Date will be determined by the Calculation Agent as
of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to the Calculation Date (as defined below), except
with respect to LIBOR and the Eleventh District Cost of Funds Rate, which will
be calculated on such Interest Determination Date. The "Interest Determination
Date" with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds Rate
shall be the last working day of the month immediately preceding the applicable
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); and the
"Interest Determination Date" with respect to LIBOR shall be the second London
Business Day immediately preceding the applicable Interest Reset Date, unless
the Designated LIBOR Currency is British pounds sterling, in which case the
"Interest Determination Date" will be the applicable Interest Reset Date. The
"Interest Determination Date" with respect to the Treasury Rate shall be the day
in the week in which the applicable Interest Reset Date falls on which day
Treasury Bills (as defined below) are normally auctioned (Treasury Bills are
normally sold at an auction held on Monday of each week, unless such Monday is a
legal holiday, in which case the auction is normally held on the immediately
succeeding Tuesday, although such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the "Interest Determination Date"
shall be such preceding Friday. If the interest rate of this Note is determined
with reference to two or more Interest Rate Bases specified on the face hereof,
the "Interest Determination Date" pertaining to this Note shall be the most
recent Business Day which is at least two Business Days prior to the applicable
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate
<PAGE> 11
Basis shall be determined as of such date, and the applicable interest rate
shall take effect on the applicable Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto,
the rate with respect to each Interest Rate Basis will be determined in
accordance with the following provisions.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published in H.15(519)
(as defined below) under the caption "CDs (secondary market)", or, if not
published by 3:00 P.M., New York City time, on the related Calculation Date, the
rate on such CD Rate Interest Determination Date for negotiable United States
dollar certificates of deposit of the Index Maturity in H.15 Daily Update (as
defined below), or such other recognized electronic source used for the purpose
of displaying such rate, under the caption "CDs (secondary market)." If such
rate is not yet published in H.15(519), H.15 Daily Update or another recognized
electronic source by 3:00 P.M., New York City time, on the related Calculation
Date, then the CD Rate on such CD Rate Interest Determination Date will be
calculated by the Calculation Agent specified on the face hereof and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York
City time, on such CD Rate Interest Determination Date, of three leading nonbank
dealers in negotiable United States dollar certificates of deposit in The City
of New York selected by the Calculation Agent for negotiable United States
dollar certificates of deposit of major United States money center banks in the
market for negotiable United States dollar certificates of deposit with a
remaining maturity closest to the Index Maturity in an amount that is
representative for a single transaction in that market at that time; provided,
however, that if the dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the CD Rate determined as of such CD Rate
Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
"H.15(519)" means the weekly statistical release designated as such, or
any successor publication, published by the Board of Governors of the Federal
Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), as available
through the world-wide-web site of the Board of Governors of the Federal Reserve
System at http://www.bog.frb.fed.us/releases/h15/update, or any successor site
or publication.
CMT Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities ... Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7051, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly average,
as specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the related CMT
Rate Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page or is not so displayed by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be
<PAGE> 12
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in H.15(519). If such information is not so provided by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT Rate on the
CMT Rate Interest Determination Date will be calculated by the Calculation Agent
and will be a yield to maturity, based on the arithmetic mean of the secondary
market offered rates as of approximately 3:30 P.M., New York City time, on such
CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers in
The City of New York (each, a "Reference Dealer") selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least U.S. $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offered rates obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain quotations for the Treasury Note with the shorter remaining term to
maturity and will use such quotations to calculate the CMT Rate as set forth
above.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc. (or any successor service) on the page specified on the face hereof (or any
other page as may replace such page on that service (or any successor service)
for the purpose of displaying Treasury Constant Maturities as reported in
H.15(519)). If no such page is specified on the face hereof, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the United States Treasury securities (either one, two, three, five, seven, 10,
20 or 30 years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the caption "Commercial
Paper-Nonfinancial" or, if not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the rate on such Commercial Paper Rate Interest
Determination Date for commercial paper having the Index Maturity as published
in H.15 Daily Update, or such other recognized electronic source used for the
purpose of displaying such rate, under the caption "Commercial
Paper-Nonfinancial." If such rate is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source by 3:00
<PAGE> 13
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate on such Commercial Paper Rate Interest Determination Date will be
calculated by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered rates at approximately 11:00 A.M., New York City
time, on such Commercial Paper Rate Interest Determination Date of three leading
dealers of United States dollar commercial paper in The City of New York
selected by the Calculation Agent for commercial paper having the Index Maturity
placed for an industrial issuer whose bond rating is "Aa," or the equivalent,
from a nationally recognized statistical rating organization; provided, however,
that if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date will be the Commercial Paper
Rate in effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the applicable Interest Reset Period.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for this
Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on the display on Bridge Telerate,
Inc. (or any successor service) on page 7058 (or any other page as may replace
such page on such service) ("Telerate Page 7058") as of 11:00 A.M., San
Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is specified
on the face hereof as the Federal Funds Rate, the Federal Funds Rate shall be
determined as of the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date") as the rate on such date for United States
dollar federal funds as published in H.15(519) under the caption "Federal Funds
(Effective)", as such rate is displayed on Bridge Telerate, Inc. (or any
successor service) on page 120 (or any other page as may replace such page on
such service) ("Telerate Page 120"), or if such rate does not appear on Telerate
Page 120 or is not so published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date for United States dollar federal funds as published in H.15 Daily Update,
or such other recognized electronic source used for the purpose of displaying
such rate, under the caption "Federal Funds (Effective)." If
<PAGE> 14
such rate does not appear on Telerate Page 120 or is not yet published in
H.15(519), H.15 Daily Update or another recognized electronic source by 3:00
P.M., New York City time, on the related Calculation Date, then the Federal
Funds Rate on such Federal Funds Interest Determination Date shall be calculated
by the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight United States dollar federal funds arranged by
three leading brokers of United States dollar federal funds transactions in The
City of New York selected by the Calculation Agent, prior to 9:00 A.M., New York
City time, on such Federal Funds Rate Interest Determination Date; provided,
however, that if the brokers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Federal Funds Rate determined as of
such Federal Funds Rate Interest Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Telerate" is specified on the face hereof or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face
hereof as the method for calculating LIBOR, the rate for deposits in the
Designated LIBOR Currency having the Index Maturity specified in such
Pricing Supplement, commencing on such Interest Reset Date, that appears
on the Designated LIBOR Page as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date, or (b) if "LIBOR Reuters" is
specified on the face hereof, the arithmetic mean of the offered rates
(unless the Designated LIBOR Page (as defined below) by its terms
provides only for a single rate, in which case such single rate will be
used) for deposits in the Designated LIBOR Currency having the Index
Maturity, commencing on the applicable Interest Reset Date, that appear
(or, if only a single rate is required as aforesaid, appears) on the
Designated LIBOR Page (as defined below) as of 11:00 A.M., London time,
on such LIBOR Interest Determination Date. If fewer than two such
offered rates appear, or if no such rate appears, as applicable, LIBOR
on such LIBOR Interest Determination Date shall be determined in
accordance with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be,
on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent shall request the principal London offices of each of
four major reference banks in the London interbank market, as selected
by the Calculation Agent, to provide the Calculation Agent with its
offered quotation for deposits in the Designated LIBOR Currency for the
period of the Index Maturity, commencing on the applicable Interest
Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for
a single transaction in the Designated LIBOR Currency in such market at
such time. If at least two such quotations are so provided, then LIBOR
on such LIBOR Interest Determination Date will be the arithmetic mean of
such quotations. If fewer than two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic
mean of the rates quoted at approximately 11:00 A.M., in the applicable
Principal Financial Center, on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to leading
European banks, having the Index Maturity and in a principal amount that
is representative for a single transaction in the Designated LIBOR
Currency in such market at such time; provided, however, that if the
banks so selected by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency specified on the face
hereof as to which
<PAGE> 15
LIBOR shall be calculated. If no such currency is specified on the face hereof,
the Designated LIBOR Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service (or any successor service)), for the
purpose of displaying the London interbank rates of major banks for the
Designated LIBOR Currency, or (b) if "LIBOR Telerate" is specified on the face
hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face
hereof as the method for calculating LIBOR, the display on Bridge Telerate, Inc.
(or any successor service) on the page specified on the face hereof (or any
other page as may replace such page on such service (or any successor service)),
for the purpose of displaying the London interbank rates of major banks for the
Designated LIBOR Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
caption "Bank Prime Loan", or, if not published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on such Prime Rate Interest
Determination Date as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, under the
caption "Bank Prime Loan." If such rate is not yet published in H.15(519), H.15
Daily Update or another recognized electronic source by 3:00 P.M., New York City
time, on the related Calculation Date, then the Prime Rate shall be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen US PRIME 1 Page (as defined below) as such bank's
prime rate or base lending rate as of 11:00 A.M., New York City time, on such
Prime Rate Interest Determination Date. If fewer than four such rates so appear
on the Reuters Screen US PRIME 1 Page for such Prime Rate Interest Determination
Date, then the Prime Rate shall be the arithmetic mean of the prime rates or
base lending rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by three major banks in The City of New York
selected by the Calculation Agent; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Prime Rate determined as of such Prime Rate Interest Determination Date will
be the Prime Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen US PRIME 1 Page" means the display designated as page
"US PRIME 1" on the Reuter Monitor Money Rates Service (or any successor
service) (or such other page as may replace the US PRIME 1 Page on such service
(or any successor service) for the purpose of displaying prime rates or base
lending rates of major United States banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity under the caption
"INVESTMENT RATE" on the display on Bridge Telerate, Inc. (or any successor
service) on page 56 (or any other page as may replace such page on such service)
("Telerate Page 56") or page 57 (or any other page as may replace such page on
such service) ("Telerate Page 57") or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the Bond Equivalent Yield (as
defined below) of the rate for such Treasury Bills as published in H.15 Daily
Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the caption "U.S. Government securities/Treasury
bills/Auction high" or if not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the Bond Equivalent Yield of the auction rate of
such Treasury Bills as announced by the United States Department of the
Treasury. In the event that the auction rate of Treasury
<PAGE> 16
Bills having the Index maturity specified on the face hereof is not so announced
by the United States Department of Treasury, or if no such Auction is held, the
Treasury Rate will be the Bond Equivalent Yield of the rate on such Treasury
Rate Interest Determination Date of Treasury Bills having the Index Maturity
specified on the face hereof as published in H.15(519) under the caption "U.S.
Government securities/Treasury bills/Secondary market" or, if not so published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Treasury Rate Interest Determination Date of such Treasury Bills as
published in H.15 Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "U.S. Government
securities/Treasury bills/Secondary market." If such rate is not yet published
in H.15(519), H.15 Daily Update or another recognized electronic source, then
the Treasury Rate shall be calculated by the Calculation Agent and will be the
Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates,
as of approximately 3:30 P.M., New York City time, on such Treasury Rate
Interest Determination Date, of three primary United States government
securities dealers selected by the Calculation Agent for the issue of Treasury
Bills with a remaining maturity closest to the Index Maturity; provided,
however, that if the dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate determined as of such
Treasury Rate Interest Determination Date will be the Treasury Rate in effect on
such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided
<PAGE> 17
in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Company with certain provisions
of the Indenture. Furthermore, provisions in the Indenture permit the holders of
not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all of
the holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
[and herein] 6/ set forth, the transfer of this Note is registrable in the
Security Register of the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the principal
hereof and any premium or interest hereon are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to, the
Company and the Security Registrar duly executed by the holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
[and herein] 7/ set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the holder hereof
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws
- ----------------------
6/ This text applies to global Notes only.
- -
7/ This text applies to global Notes only.
- -
<PAGE> 18
of the State of New York applicable to agreements made and to be performed
entirely in such State.
<PAGE> 19
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - _______ Custodian ________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants in Act _____________________________
common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
-------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------------------------------------------------
this Note and all rights thereunder hereby irrevocably constituting and
appointing _________________________ Attorney to transfer this Note on the books
of the Trustee, with full power of substitution in the premises.
Dated: _______________
------------------------------------
------------------------------------
Notice: The
signature(s) on this
Assignment must
correspond with the
name(s) as written
upon the face of
this Note in every
particular, without
alteration or
enlargement or any
change whatsoever.
<PAGE> 20
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at _____________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office (or at the office of the New York Presenting Agent in the Borough
of Manhattan, The City of New York, currently located at 61 Broadway, New York,
New York 10006), this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $______________
Date: ______________________ --------------------
Notice: The
signature(s) on this
Option to Elect
Repayment must
correspond with the
name(s) as written
upon the face of
this Note in every
particular, without
alteration or
enlargement or any
change whatsoever.]
8/
- ---------------------
8/ This text applies to certificated Notes only.
- -
