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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
DISTRIBUTION AGREEMENT
February 3, 1999
XXXXXXX XXXXX XXXXXX INC.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX BROTHERS INC.
American Express Tower
World Financial Center, 10th Floor
New York, New York 10285
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
World Financial Center, North Tower, 10th Floor
New York, New York 10281-1380
XXXXXX XXXXXXX & CO.
INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 10036-8293
PRUDENTIAL SECURITIES
INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
New Plan Excel Realty Trust, Inc., a Maryland corporation (the "Company")
and New Plan Realty Trust, a Massachusetts business trust (the "Guarantor"),
confirm their agreement with Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Brothers Inc.,
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & 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 will be unconditionally
guaranteed as to payment of principal, premium, if any, and interest (the
"Guarantee") by the Guarantor. The Notes and the Guarantee are to be issued
pursuant to an Indenture, dated as of February 2, 1999, as amended, supplemented
or modified from time to time (the "Indenture"), among the Company, the
Guarantor and State Street Bank and Trust Company, as trustee (the "Trustee").
As of the date
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hereof, the Company has authorized 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 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 and the Guarantor have 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 and the Guarantee,
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 and the Guarantor for the purpose
of registering additional Notes and the Guarantees 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 Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
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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, the Guarantor and the Agents agree that any
Notes purchased by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as agent shall be placed by such
Agent, in reliance on the representations, warranties, covenants and agreements
of the Company and the Guarantor contained herein and on the terms and
conditions and in the manner provided herein.
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SECTION 2. Representations and Warranties.
(a) Each of the Company and the Guarantor 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; the Guarantor has
been duly established and is validly existing as a voluntary association
(commonly referred to as a business trust) in good standing under the
laws of the Commonwealth of Massachusetts and has trust power and
authority to hold mortgages, to own and lease real property and to
conduct its business as described in the Prospectus; and the Company and
the Guarantor are duly qualified and are in good standing in each
jurisdiction in which their respective ownership of property or their
respective 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 or the Guarantor and its
subsidiaries, if any, considered as one enterprise, as applicable.
(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 and the Prospectus, at the time the Registration
Statement became effective, complied,
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and as of each Representation Date will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the SEC promulgated
thereunder; the Registration 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 and the Guarantor and its subsidiaries,
if any, 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, the Guarantor 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, the Guarantor 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
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principles applied on a consistent basis throughout the periods involved;
the supporting schedules, if any, included in the Registration Statement
and the Prospectus present fairly in all material respects in accordance
with generally accepted accounting principles the information required to
be stated therein; the selected financial data and the summary financial
information included in the Registration Statement and the Prospectus
present fairly in all material respects the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the
Prospectus; and any pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly in all material respects the information shown therein, have been
prepared in accordance with the SEC's rules and guidelines with respect
to pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company and the Guarantor; the Indenture
has been duly authorized, executed and delivered by the Company and the
Guarantor; the Indenture constitutes a valid and legally binding
agreement of each such party and, when Notes are issued, authenticated
and delivered pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration therefor, the obligations
of the Guarantor under the Indenture in respect of the Guarantee will be
valid and legally binding, in each case 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 (including the Guarantee).
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(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, or the Guarantor and its subsidiaries, if
any, considered as one enterprise, whether or not arising in the ordinary
course of business, (2) there have been no transactions or acquisitions
entered into by the Company or any of its subsidiaries or the Guarantor
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 or the Guarantor and its
subsidiaries, if any, considered as one enterprise, (3) with respect to
the Company, 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, a special stock dividend paid with respect to the Company
Common Shares on or about September 25, 1998, 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, and (4)
with respect to the Guarantor, except for regular quarterly dividends on
the Guarantor's shares of beneficial interest (the "Trust Common
Shares"), Trust Common Shares issued pursuant to the Guarantor's
Distribution Reinvestment and Share Purchase Plan, or dividends declared,
paid or made in accordance with the terms of any series of the
Guarantor's preferred shares of beneficial interest (the "Trust Preferred
Shares"), there has been no dividend or distribution of any kind
declared, paid or made by the Guarantor on any class of its Trust Common
Shares or Trust Preferred Shares.
(ix) No Defaults. Neither the Company nor the Guarantor
is in violation of its articles of incorporation (the "Charter" or
declaration of trust (the "Declaration of Trust"), as applicable, or
by-laws (or similar governing documents), and no subsidiary of the
Company or the Guarantor is in violation of its charter or by-laws (or
similar governing documents), and none of the Company, the Guarantor and
any subsidiary of the Company or the Guarantor 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, the Guarantor or any of their respective
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, the Guarantor or any
of their respective 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 or the Guarantor and its subsidiaries, if
any, considered as one enterprise, as applicable; and the execution,
delivery and performance of this Agreement, the Indenture and the
Guarantee and the consummation of the transactions contemplated herein
and therein and the compliance by the Company and the Guarantor with
their respective obligations hereunder and thereunder have been duly
authorized by all necessary action of the Company and the Guarantor and
will not conflict with or constitute a breach of, or default
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under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the Guarantor
or any of their respective subsidiaries, as applicable, pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company, the Guarantor or any of their respective
subsidiaries, as applicable, 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, the
Guarantor or any of their respective subsidiaries, as applicable, is
subject, nor will such action result in any violation of the provisions
of the Charter, the Declaration of Trust or the by-laws (or similar
governing documents) of the Company or the Guarantor 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 or the Guarantor of the transactions
contemplated by this Agreement or in connection with the issuance and
sale of Notes or the issuance of the Guarantee 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 or
the Guarantor (for purposes of this Agreement, such knowledge shall mean
the actual knowledge of either an executive officer or director of the
Company or an executive officer or trustee of the Guarantor, as
applicable), threatened against or affecting the Company or the Guarantor
or any of their respective subsidiaries, as applicable, which is required
to be disclosed in the Prospectus (other than as disclosed therein) or
which would 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 the Guarantor and its subsidiaries, if
any, considered as one enterprise, as applicable, or which might
materially and adversely affect the properties or assets of the Company
and its subsidiaries considered as one enterprise or the Guarantor and
its subsidiaries, if any, considered as one enterprise, as applicable, or
which might adversely affect the consummation of this Agreement, the
Indenture, the Notes or the Guarantee or any transaction contemplated
hereby or thereby; and all pending legal or governmental proceedings to
which the Company, the Guarantor or any of their respective subsidiaries,
as applicable, 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 or the Guarantor and its subsidiaries, if any, considered as
one enterprise, as applicable.
(xii) Contracts. There are no contracts or documents of
the Company, the Guarantor or any of their respective subsidiaries, as
applicable, 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.
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(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 or the Guarantor and its subsidiaries, if any, considered
as one enterprise, as applicable.
(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 or the
Guarantor and its subsidiaries, if any, 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 or the Guarantor and its subsidiaries, if
any, considered as one enterprise; any real property and buildings held
under lease by the Company, the Guarantor or any of their respective
subsidiaries or leased by the Company, the Guarantor or any of their
respective subsidiaries to a third party are held or leased by the
Company, the Guarantor or any of their respective 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, none of the Company, the Guarantor or any of their respective
subsidiaries has knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the properties owned by
the Company, the Guarantor 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 or the Guarantor and its
subsidiaries, if any, considered as one enterprise, as applicable; and in
connection with the construction on or operation and use of the
properties owned by the Company, the Guarantor or any of their respective
subsidiaries, as applicable, the Company and the Guarantor represent that
each has no knowledge of any failure to comply with all applicable local,
state and federal
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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 or the Guarantor and
its subsidiaries, if any, considered as one enterprise, as applicable.
(xvi) Trademarks; Service Marks. None of the Company, the
Guarantor or any of their respective 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. Neither the Company nor the
Guarantor is 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, trustee or director of the Company or Guarantor, as applicable, 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 or Guarantor,
as applicable, 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 deemed to have been made on the basis of the representations and warranties
of the Company and the Guarantor 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
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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 and the Guarantor, jointly and severally, agree 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.
SECTION 4. Covenants of the Company.
Each of the Company and the Guarantor covenant with the Agents as
follows:
(a) Notice of Certain Events. The Company and the Guarantor 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
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(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
and the related Guarantees, (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
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services to any
debt securities of the Company and/or the Guarantor or the public announcement
by Xxxxx'x 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 and/or the Guarantor. The Company
and the Guarantor 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 and the Guarantor
will give the Agents advance notice of its intention to file any additional
registration statement with respect to the registration of additional Notes and
the Guarantee, 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 and the Guarantor 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 and the Guarantor 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 and the Guarantor 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 and the Guarantor will furnish to the
Agents as many copies of the Prospectus (as amended or supplemented) as the
Agents reasonably request so long as the Agents are required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase the
Notes.
(d) Preparation of Pricing Supplements. The Company and the Guarantor
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 and the Guarantee 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.
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(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 or the Guarantor, 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 and the Guarantor 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 and the Guarantor 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 and/or the Guarantor 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 and/or the Guarantor,
as the case may be, 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
and/or the Guarantor, for the preceding fiscal year, the Company and/or the
Guarantor, as the case may be, 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 and the Guarantor 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 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.
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(i) Blue Sky Qualifications. The Company and the Guarantor will
endeavor, in cooperation with the Agents, to qualify the Notes and the Guarantee
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 and the Guarantee; provided, however, that neither the
Company nor the Guarantor shall 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 and the Guarantor 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 and the
Guarantor will promptly advise the Agents of the receipt by the Company or the
Guarantor of any notification with respect to the suspension of the
qualification of the Notes or the related Guarantees 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 and the Guarantor, 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 and the related Guarantees, 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. Neither the Company nor the
Guarantor shall 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
both the Company and the Guarantor herein and to the accuracy of the statements
of the Company's directors or executive officers, and the Guarantor's trustees
or executive officers, made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company and the
Guarantor 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) Opinions of Company Counsel. The favorable opinion of Xxxxx
& Xxxxxxx L.L.P., counsel to the Company, to the effect set forth in
Exhibit B or, with respect to matters involving the laws of the
Commonwealth of Massachusetts, Xxxxxxx Procter & Xxxx LLP, 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) Each of the Company and the Guarantor 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 or the Guarantor and its
subsidiaries, if any, considered as one enterprise, as applicable.
(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 Xxxxxxxxx & 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
Xxxxx & Wood LLP, counsel to the Agents, covering those matters requested
by the Agents. Xxxxx & Wood LLP may rely upon, or assume the accuracy of,
the opinion of Goodwin Procter & Xxxx LLP as to matters involving the
laws of the Commonwealth of Massachusetts.
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(5) Disclosure Documents. In giving their opinions required by
subsection (a)(1) and (a)(4), respectively, of this Section 5, Xxxxx &
Xxxxxxx 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 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 (i) in the case of the Company, the Chief Executive
Officer, President or Vice President and the principal financial officer or
principal accounting officer of the Company, and (ii) in the case of the
Guarantor, any officer thereof and the Guarantor's Secretary or Assistant
Secretary, 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 or
the Guarantor and its subsidiaries, if any, considered as one enterprise, as
applicable, whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company and the Guarantor, as applicable,
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 and the Guarantor have 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.
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(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 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.
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(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.
(d) 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
Guarantor 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 Guarantor and its subsidiaries
included or incorporated by reference in the Registration Statement and
Prospectus covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim financial
statements of the Guarantor and its indicated subsidiaries, a reading of
the minute books of the Guarantor 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
Guarantor 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 Guarantor 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
Guarantor 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 Guarantor 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 Guarantor and its subsidiaries, in each case as
compared with the amounts shown on the most recent consolidated balance
sheet of the Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement
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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 Guarantor 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 Guarantor.
(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
Guarantor and its subsidiaries identified in such letter.
(e) 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.
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(f) 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 and the issuance of the Guarantee 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 and the Guarantor with the issuance and sale
of Notes and the issuance of the Guarantee 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.
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 and the Guarantor.
Each of the Company and the Guarantor covenant and agree 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 and the Guarantor 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).
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(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 and the Guarantor 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.
(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 Xxxxx & Xxxxxxx 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
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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 Xxxxx & Xxxxxxx 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 Sections 5(c) and (d) 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 Sections 5(c) and (d) with
such changes as may be necessary to reflect changes in the financial statements
and other information derived 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 and the Guarantor,
jointly and severally, agree 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
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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 the Guarantor; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Agent), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the 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 and the Guarantor. Each Agent
severally agrees to indemnify and hold harmless the Company, the Guarantor, and
each of their trustees and directors, as applicable, and each of their officers
who signed the Registration Statement, and each person, if any, who controls the
Company or Guarantor 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 and/or the Guarantor 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
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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, the Guarantor 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, the
Guarantor 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 and the Guarantor are
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, each officer or trustee of the Guarantor who signed the
Registration Statement, and each person, if any, who controls the Company or the
Guarantor within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company and the Guarantor, as applicable.
SECTION 10. Payment of Expenses.
The Company and the Guarantor will pay all expenses incident to the
performance of their 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 and the Guarantor, 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;
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(f) The qualification of the Notes and the Guarantor 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.
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 or the Guarantor
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 or the
Guarantor, 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 and the
Guarantor 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 or the Guarantor and its subsidiaries, if any, considered as one
enterprise, as applicable, whether or not arising in the
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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 or the
Guarantor 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 Xxxxx'x Investors Service, Inc. or Standard and Poor's
Ratings Services to any debt securities of the Company or the Guarantor 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 the Guarantor, or (v) there
shall have come to the attention of such Agent or Agents any facts that would
cause them to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Notes, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading. As used in this Section 12(b), the term "Prospectus"
means the Prospectus in the form first provided to the applicable Agent or
Agents for use in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commission earned as a result of a sale of a Note by the
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.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: President
With a copy to: General Counsel
If to the Guarantor:
New Plan Realty Trust
c/o New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
With a copy to: General Counsel
If to the Agents:
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx XXX
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000/4.
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Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, New York 10036
Attention: Manager - Continuously Offered Products
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx - Investment Banking Information Center
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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 or the Guarantor against any Agent
in connection with or arising under this Agreement shall be brought
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solely in the state or federal court of appropriate jurisdiction located in the
Borough of Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents, the Company and the Guarantor 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. No Liability of Shareholders, Directors, Trustees or Officers.
This Agreement and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by officers of the Company and the Guarantor in
their respective capacities as officers of the Company and the Guarantor, as
applicable, and not individually, and neither the trustees, directors, officers
or shareholders of the Company or the Guarantor, as applicable, shall be bound
or have any personal liability hereunder or thereunder. Each party hereto shall
look solely to the assets of the Company for satisfaction of any liability of
the Company in respect of this Agreement and the assets of the Guarantor for
satisfaction of any liability of the Guarantor in respect of this Agreement and
all documents, agreements, understandings and arrangements relating to any
transaction contemplated hereby or thereby and will not seek recourse or
commence any action against any of the trustees, directors, officers or
shareholders of the Company or the Guarantor, as applicable, or any of their
personal assets for the performance or payment of any obligation hereunder or
thereunder. The foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties hereto.
SECTION 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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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, the Company and the Guarantor in accordance with its terms.
Very truly yours,
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
NEW PLAN REALTY TRUST
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
Confirmed and Accepted, as of the
date first above written:
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
XXXXXX BROTHERS INC.
By: /s/ Xxxx Xxxxxx
------------------------------
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx Xxxxxxxx
------------------------------
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XXXXXX XXXXXXX & CO.
INCORPORATED
By: /s/ Xxxxxxx Xxxxx
------------------------------
PRUDENTIAL SECURITIES INCORPORATED
By /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
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EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $_________
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[ ] LIBOR Reuters
Page:
[ ] LIBOR Telerate
Page:
Index Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
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Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ____________
Closing Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
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EXHIBIT B
FORM OF OPINION OF XXXXX & XXXXXXX L.L.P.
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EXHIBIT C
FORM OF OPINION OF XXXXXXX, XXXXXXX & XXXX LLP
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company and
the Guarantor, jointly and severally, agree 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:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year....................... .125%
From 1 year to less than 18 months...................... .150
From 18 months to less than 2 years..................... .200
From 2 years to less than 3 years....................... .250
From 3 years to less than 4 years....................... .350
From 4 years to less than 5 years....................... .450
From 5 years to less than 6 years....................... .500
From 6 years to less than 7 years....................... .550
From 7 years to less than 10 years...................... .600
From 10 years to less than 15 years..................... .625
From 15 years to less than 20 years..................... .700
From 20 years to 30 years............................... .750
Greater than 30 years................................... *
----------------------------
* As agreed to by the Company and the applicable Agent at the time of sale.
