NEW PLAN REALTY TRUST
(a Massachusetts business trust)
Common Shares, Preferred Shares, Warrants
to Purchase Common Shares and Preferred Shares,
Rights to Purchase Common Shares, and Depositary Shares
UNDERWRITING AGREEMENT
June 30, 1997
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
New Plan Realty Trust, a Massachusetts business trust (the "Trust")
proposes to issue and sell shares of beneficial interest without par value (the
"Common Shares"), preferred shares of beneficial interest, par value $1.00 per
share (the "Preferred Shares"), warrants to purchase a number of Common Shares
or Preferred Shares (the "Warrants"), and/or rights to purchase Common Shares
(the "Rights"), from time to time, in one or more offerings on terms to be
determined at the time of sale. The Preferred Shares may be offered in the
form of depositary shares (the "Depositary Shares") represented by depositary
receipts (the "Depositary Receipts"). The Warrants will be issued pursuant to
a Warrant Agreement (the "Warrant Agreement") between the Trust and a warrant
agent (the "Warrant Agent"). Each series of Preferred Shares may vary as to
the specific number of shares, title, stated value, liquidation preference,
issuance price, ranking, dividend rate or rates (or method of calculation),
dividend payment dates, any redemption or sinking fund requirements, any
conversion or exchange provisions and any other variable terms as set forth in
the applicable resolutions of the Trust's Board of Trustees (each, the
"Resolutions") relating to such Preferred Shares. As used herein, "Securities"
shall mean the Common Shares, the Preferred Shares, the Warrants, the Rights,
the Depositary Shares and the Depositary Receipts; and "Warrant Securities"
shall mean the Common Shares or Preferred Shares issuable upon exercise of
Warrants. As used herein, "you" and "your", unless the context otherwise
requires, shall mean the parties to whom this Agreement is addressed together
with the other parties, if any, identified in the applicable Terms Agreement
(as hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Trust determines to make an offering of Securities through
you or through an underwriting syndicate managed by you, the Trust will enter
into an agreement (the "Terms Agreement") providing for the sale of such
Securities (the "Underwritten Securities") to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by you as have
authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters", which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate and
any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Underwritten Securities shall specify the
number of Underwritten Securities of each class or series to be initially
issued, and the number of Warrant Securities, if any (the "Initial Underwritten
Securities"), whether the Initial Underwritten Securities shall be in the form
of Depositary Shares and the fractional amount of Preferred Shares represented
by each Depositary Share, the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof), the number
of Initial Underwritten Securities which each such Underwriter severally agrees
to purchase, the names of the Underwriters acting as lead manager and co-
managers, if any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters from
the Trust, the initial public offering price, if any, the time, date and place
of delivery and payment, any delayed delivery arrangements and any other
variable terms of the Initial Underwritten Securities (including, but not
limited to, current ratings (in the case of Preferred Shares and Depositary
Shares only), designations, liquidation preferences, conversion or exchange
provisions, redemption provisions and sinking fund requirements (in the case of
Preferred Shares only) and the terms of the Warrant Securities and the terms,
prices and dates upon which such Warrant Securities may be purchased). In
addition, each Terms Agreement shall specify whether the Trust has agreed to
grant to the Underwriters an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the number of Underwritten
Securities, and the number of Warrant Securities, if any, subject to such
option (the "Option Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of the Option Securities agreed to be purchased by the Underwriters as
provided herein, if any. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Trust. Each offering of
Underwritten Securities through you or through an underwriting syndicate
managed by you will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-15635) for the
registration of the Securities (including the Underwritten Securities) and
Warrant Securities and certain of the Trust's debt securities and warrants to
purchase debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), and the Trust has filed such amendments thereto as may
have been required prior to the execution of the applicable Terms Agreement.
Such registration statement (as amended, if applicable) has been declared
effective by the Commission. Such registration statement (as amended, if
applicable), on the one hand, and the prospectus constituting a part thereof,
and each prospectus supplement relating to the offering of Underwritten
Securities provided to the Underwriters for use (whether or not such prospectus
supplement is required to be filed by the Trust pursuant to Rule 424(b) of the
1933 Act Regulations) (the "Prospectus Supplement"), on the other hand,
including in each case all documents incorporated therein by reference and the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) or
Rule 434 of the 1933 Act Regulations, as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or otherwise, are referred to herein as the "Re-
gistration Statement" and the "Prospectus", respectively; provided, however,
that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Underwritten Securities to
which it relates. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include,
without limitation, any document filed under the 1934 Act which is or is deemed
to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. If the Trust elects to rely on Rule 434 under
the 1933 Act Regulations, all references to the Prospectus shall be deemed to
include, without limitation, the form of prospectus and the abbreviated term
sheet, taken together, provided to the Underwriters by the Trust in reliance on
Rule 434 under the 1933 Act (the "Rule 434 Prospectus"). If the Trust files a
registration statement to register a portion of the Securities and Warrant
Securities and relies on Rule 462(b) for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to both the registration statement referred to above (No. 33-
61383) and the Rule 462 Registration Statement, as each such registration
statement may be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
(a) The Trust represents and warrants to you, as of the date hereof, and
to you and each other Underwriter named in the applicable Terms Agreement, as
of the date thereof (such latter date being referred to herein as a "Repre-
sentation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective, and at each time thereafter on
which the Trust filed an Annual Report on Form 10-K with the Commission,
complied, and as of the applicable Representation Date will comply, in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations; the Registration Statement, at the time the Registration
Statement (or any amendment) became effective and at each time thereafter
on which the Trust filed an Annual Report on Form 10-K with the
Commission, did not, and as of the applicable Representation Date, will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, as of the date hereof,
does not, and as of the applicable Representation Date and at Closing Time
(as hereinafter defined), will not, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Trust in
writing by or on behalf of any Underwriter through you expressly for use
in the Registration Statement or the Prospectus.
(ii) The documents, as amended, if applicable, incorporated or deemed
to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective and as
of the applicable Representation Date or Closing Time or during the period
specified in Section 3(f), did not and will not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(iii) The accountants who certified the financial statements and
supporting schedules included in, or incorporated by reference into, the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) The historical financial statements, and the related notes
therein, of the Trust, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly in all material
respects the financial position of the Trust and its consolidated
subsidiaries as at the dates indicated and the results of their operations
for the periods specified. If applicable, the historical financial
information, including the notes thereto, for properties or other assets,
included or incorporated by reference into the Registration Statement and
the Prospectus present fairly in all material respects the stated
financial information for such specific property or asset. Except as
otherwise stated in the Registration Statement and the Prospectus, said
historical financial statements of the Trust and, if applicable, of the
specific properties or other assets, have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made. The supporting
schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
information required to be stated therein; and the selected financial data
(both historical and pro forma) included or incorporated by reference in
the Registration Statement and the Prospectus present fairly in all
material respects the information shown therein and have been compiled on
a basis consistent with the related financial statements.
(v) The unaudited pro forma condensed consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
pro forma financial position of the Trust as of the dates indicated and
the results of its operations for the periods specified. The assumptions
on which such pro forma financial statements have been prepared are
reasonable and are set forth in the notes thereto, and such pro forma
financial statements have been prepared, and the pro forma adjustments set
forth therein have been applied, in accordance with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations.
Such pro forma adjustments have been properly applied to the historical
amounts in the compilation of such statements.
(vi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business or business prospects
of the Trust and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (B) no material casualty
loss or material condemnation or other material adverse event with respect
to any of the properties of the Trust has occurred, which are material
with respect to the Trust and its subsidiaries considered as one
enterprise, (C) there have been no transactions entered into or
acquisitions by the Trust or any of its subsidiaries other than those
arising in the ordinary course of business, which are material with
respect to the Trust and its subsidiaries considered as one enterprise,
and (D) except for regular quarterly dividends on the Trust's Common
Shares, or dividends declared, paid or made in accordance with the terms
of any series of the Trust's Preferred Shares, there has been no dividend
or distribution of any kind declared, paid or made by the Trust on any
class of its Common Shares or Preferred Shares.
(vii) The Trust has been duly established and is validly existing as a
voluntary association (commonly referred to as a business trust) in good
standing under the laws of the Commonwealth of Massachusetts; the
declaration of trust, as amended (the "Declaration of Trust") pursuant to
which the Trust was established, confers upon the trustees therein named,
and their successors in trust, power and authority to hold mortgages, to
own and lease real property and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement and the applicable Terms Agreement; and the Trust is duly
qualified and in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise; and the Resolutions relating to the Preferred Shares or
Depositary Shares, if applicable, will be in full force and effect as of
the applicable Representation Date.
(viii) Each subsidiary of the Trust has been duly incorporated or
organized and is validly existing as a corporation or partnership in good
standing under the laws of the jurisdiction of its incorporation or
organization, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation or partnership to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock of each
subsidiary of the Trust has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Trust free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for security interests granted in respect of indebtedness
of the Trust or any of its subsidiaries and referred to in the Prospectus.
(ix) The authorized, issued and outstanding Common Shares and
Preferred Shares, if any, of the Trust are as set forth in the Prospectus
under "Capitalization" (except for subsequent issuances, if any, pursuant
to reservations or agreements or upon the exercise of convertible
securities referred to in the Registration Statement including, without
limitation, exercise of share options, granting of share options or
issuance of shares pursuant to the dividend reinvestment plan); and such
Common Shares and Preferred Shares, if any, have been duly authorized and
validly issued and are fully paid and non-assessable, except as described
in the section "Summary of Declaration of Trust -- Shareholders' Liability
to Third Persons and Indemnification by Trust" in an exhibit to the
Trust's Form 8-A dated May 30, 1986, and are not subject to preemptive or
other similar rights.
(x) The Underwritten Securities being sold (other than Warrants)
pursuant to the applicable Terms Agreement and, if applicable, the deposit
of the Preferred Shares in accordance with the provisions of a Deposit
Agreement (each, a "Deposit Agreement"), among the Trust, the financial
institution named in the Deposit Agreement (the "Depositary") and the
holders of the Depositary Receipts issued thereunder, have been duly
authorized by the Trust and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this Agreement (and, if
applicable, the Deposit Agreement) and such Underwritten Securities, when
issued and delivered by the Trust pursuant to this Agreement (and, if
applicable, the Deposit Agreement) against payment of the consideration
set forth in the applicable Terms Agreement or any Delayed Delivery
Contract (as hereinafter defined), will be validly issued, fully paid and
non-assessable, except as described in the section "Summary of Declaration
of Trust -- Shareholders' Liability to Third Persons and Indemnification
by Trust" in an exhibit to the Trust's Form 8-A dated May 30, 1986; the
Preferred Shares, if applicable, conform to the provisions of the
Resolutions; the Underwritten Securities being sold pursuant to the
applicable Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus; and the issuance
of such Underwritten Securities is not subject to preemptive or other
similar rights. The form of share certificate used to evidence the
Underwritten Securities is in due and proper form and complies in all
material respects with all applicable legal requirements.
(xi) If applicable, the Warrants have been duly authorized and, when
issued and delivered pursuant to this Agreement and countersigned by the
Warrant Agent as provided in the Warrant Agreement, will have been duly
executed, countersigned, issued and delivered and will constitute valid
and legally binding obligations of the Trust entitled to the benefits
provided by the Warrant Agreement under which they are to be issued,
except as enforcement of such benefits may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors'
rights generally and by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
Warrants conform in all material respects to all statements relating
thereto contained in the Prospectus.
(xii) If applicable, the Common Shares issuable upon conversion of
any of the Preferred Shares or the Depositary Shares, or the Warrant
Securities, will have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary action of the
Trust and such shares, when issued upon such conversion or exercise, will
be duly authorized and validly issued and will be fully paid and non-
assessable, except as described in the section "Summary of Declaration of
Trust -- Shareholders' Liability to Third Persons and Indemnification by
Trust" in an exhibit to the Trust's Form 8-A dated May 30, 1986, and the
issuance of such shares upon such conversion or exercise will not be
subject to preemptive or other similar rights; and the Common Shares
issuable upon conversion of any of the Preferred Shares or the Depositary
Shares or the Warrant Securities, conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xiii) The applicable Warrant Agreement, if any, and the applicable
Deposit Agreement, if any, will have been duly authorized, executed and
delivered by the Trust prior to the issuance of any applicable
Underwritten Securities, and each will constitute a valid and legally
binding agreement of the Trust enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws relating to or affecting creditors' rights generally
and by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Warrant
Agreement, if any, and the Deposit Agreement, if any, each conforms in all
material respects to all statements relating thereto contained in the
Prospectus.
(xiv) If applicable, upon execution and delivery thereof pursuant to
the terms of the Deposit Agreement, the persons in whose names the
Depositary Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement, except as enforcement of
such rights may be limited by bankruptcy, insolvency or other similar laws
relating to or affecting creditors' rights generally and by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xv) The Trust is not in violation of its Declaration of Trust, and
no subsidiary of the Trust is in violation of its charter or by-laws, and
neither the Trust nor any subsidiary is in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease (other
than as disclosed in the Prospectus) or other instrument to which the
Trust or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Trust or
any of its subsidiaries is subject where the violation or default might
result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise; and the execution,
delivery and performance of this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any, or the applicable
Deposit Agreement, if any, and the consummation of the transactions
contemplated herein and therein and compliance by the Trust with its
obligations hereunder and thereunder have been duly authorized by all
necessary action on the part of the Trust, and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Trust or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Trust or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any property or assets of the Trust
or any of its subsidiaries is subject, except for any such default or
violation that could not reasonably result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise, nor will such action result in any violation of the
Declaration of Trust of the Trust or any law, administrative regulation or
administrative or court decree, except for any such default or violation
that could not reasonably result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise.
(xvi) With respect to its taxable years ended July 31, 1996, 1995,
1994, 1993 and 1992 and for all other tax periods regarding which the
Internal Revenue Service is entitled to assert any claim against the
Trust, the Trust has met the requirements for qualification as a real
estate investment trust ("REIT") under the Internal Revenue Code of 1986,
as amended (the "Code"), and the Trust's present and proposed method of
operation will enable it to meet the requirements for taxation as a REIT
under the Code and it will be so qualified as a REIT for the taxable years
(assuming no amendment to the relevant sections of the Code) in which
sales of the Underwritten Securities are to occur.
(xvii) The Trust is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act").
(xviii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Trust (for purposes of this Agreement, such
knowledge shall mean the actual knowledge of a Trust executive officer or
trustee), threatened against or affecting the Trust or any of its
subsidiaries which is required to be disclosed in the Prospectus (other
than as disclosed therein) or which might result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or business prospects of the Trust and its subsidiaries
considered as one enterprise, or which might materially and adversely
affect the properties or assets of the Trust and any of its subsidiaries
considered as one enterprise or which might materially and adversely
affect the consummation of this Agreement, the applicable Terms Agreement,
the applicable Warrant Agreement, if any, or the applicable Deposit
Agreement, if any, or the transactions contemplated herein and therein;
all pending legal or governmental proceedings to which the Trust or any of
its subsidiaries is a party or of which any property or assets of the
Trust or any of its subsidiaries is subject which are not described in or
incorporated by reference into the Prospectus, including ordinary routine
litigation incidental to the business, are, considered in the aggregate,
not material; and there are no contracts or documents of the Trust or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xix) Neither the Trust nor any of its subsidiaries is required to
own or possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by them.
(xx) No authorization, approval or consent of any governmental
authority or agency is required that has not been obtained in connection
with the consummation by the Trust of the transactions contemplated by
this Agreement, the applicable Terms Agreement, any Warrant Agreement or
any Deposit Agreement, except such as may be required under the 1933 Act
or the 1933 Act Regulations, state or foreign securities laws, real estate
syndication laws or under the rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD").
(xxi) The Trust and its subsidiaries possess adequate certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, and neither the Trust nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of the Trust and its
subsidiaries considered as one enterprise.
(xxii) The Trust has full right, power and authority to enter into
this Agreement, the applicable Terms Agreement and the Delayed Delivery
Contracts, if any, and this Agreement has been, and as of each
Representation Date, the applicable Terms Agreement and the Delayed
Delivery Contracts, if any, will have been, duly authorized, executed and
delivered by the Trust.
(xxiii) (A) The Trust and its subsidiaries have good title to all
real property and interests in real property owned by them in each case
free and clear of all liens, encumbrances, claims, security interests and
defects other than those referred to in the Prospectus or such as do not
materially and adversely affect the value of such property or interests
and do not materially interfere with the use made and proposed to be made
of such property or interests by the Trust or its subsidiaries, as the
case may be; (B) all liens, charges, encumbrances, claims, or restrictions
on or affecting the properties and assets owned by the Trust or any of its
subsidiaries which are required to be disclosed in the Prospectus are
disclosed therein; (C) except as disclosed in the Prospectus, neither the
Trust nor any of its subsidiaries has received written notice of a default
under any of the leases relating to the properties and assets of the Trust
or any of its subsidiaries, and the Trust knows of no event which, but for
the passage of time or the giving of notice, or both, would constitute a
default under any of such leases, except with respect to defaults that
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise; (D) the properties and
assets of the Trust or any of its subsidiaries comply with all applicable
codes and zoning laws and regulations, except for such failures to comply
which would not individually or in the aggregate have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business or business prospects of the Trust and its subsidiaries
considered as one enterprise; and (E) the Trust has no knowledge of any
pending or threatened condemnation, zoning change, or other proceeding or
action that will in any manner affect the size of, use of, improvements
on, construction on, or access to the properties and assets of the Trust
or any of its subsidiaries, except such proceedings or actions that would
not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or business prospects of the Trust
and its subsidiaries considered as one enterprise.
(xxiv) Except as disclosed in the Prospectus, the Trust has no
knowledge of (A) the unlawful presence of any substance, material or waste
which is regulated by any federal, state or local governmental or quasi-
governmental authority, including, without limitation, (i) any substance,
material or waste defined, used or listed as a "hazardous waste",
"extremely hazardous waste", "restricted hazardous waste", "hazardous
substance", "hazardous material", "toxic substance" or other similar terms
as defined or used in any Environmental Law (as hereinafter defined) and
(ii) any petroleum products, asbestos, polychlorinated biphenyls, lead-
based paint, flammable explosives or radioactive materials (collectively
with clause (i) above, "Hazardous Materials"), on any of the properties
owned by the Trust, or of (B) any unlawful spills, releases, discharges or
disposal of Hazardous Materials that have occurred or are presently
occurring at, from or onto any of such properties, which presence or
occurrence referred to in clauses (A) or (B) above would materially
adversely affect the condition, financial or otherwise, or the earnings,
business or business prospects of the Trust and its subsidiaries
considered as one enterprise. Except as disclosed in the Prospectus, in
connection with the construction on or operation and use of the properties
of the Trust or any of its subsidiaries, the Trust represents that it has
no knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the use, generation,
recycling, reuse, sale, storage, handling, transport and disposal of any
Hazardous Materials (collectively, "Environmental Laws") that would have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business or business prospects of the Trust and its
subsidiaries considered as one enterprise.
(xxv) Other than the agreement for joint advertising, marketing and
promotion of an outlet center and theme park with respect to the Six Flags
Factory Outlet Center, there are no partnership and joint venture
agreements with unaffiliated parties to which the Trust or any of its
subsidiaries is a party and which relates to real property described in
the Prospectus.
(xxvi) Neither the Trust nor any of its subsidiaries does business
with any persons or affiliate located in Cuba within the meaning of
Florida Rule 3E-900.001.
(b) Any certificate signed by any officer of the Trust and delivered to
you or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by the
Trust to each Underwriter participating in such offering as to the matters
covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
To In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the number
of Option Securities set forth therein at the same price per Option Security as
is applicable to the Initial Underwritten Securities. Such option, if granted,
will expire 30 days or such lesser number of days as may be specified in the
applicable Terms Agreement after the Representation Date relating to the
Initial Underwritten Securities, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Trust setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than three full business days and not
be earlier than two full business days after the exercise of said option,
unless otherwise agreed upon by you and the Trust. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in the applicable Terms Agreement bears to the total number of
Initial Underwritten Securities (except as otherwise provided in the applicable
Terms Agreement), subject to such adjustments as you in your discretion shall
make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the Underwritten
Securities to be purchased by the Underwriters shall be made at the offices of
Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, or at
such other place as shall be agreed upon by you and the Trust, at 10:00 A.M.,
New York City time, on the third business day (unless postponed in accordance
with the provisions of Section 10) following the date of the applicable Terms
Agreement or, if pricing takes place after 4:30 p.m., New York City time, on
the date of the applicable Terms Agreement, on the fourth business day (unless
postponed in accordance with the provisions of Section 10) following the date
of the applicable Terms Agreement or at such other time as shall be agreed upon
by you and the Trust (each such time and date of payment and delivery being
referred to herein as a "Closing Time"). In addition, in the event that any or
all of the Option Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates representing, such Option
Securities, shall be made at the above-mentioned offices of Xxxxx & Wood LLP,
or at such other place as shall be agreed upon by you and the Trust on each
Date of Delivery as specified in the notice from you to the Trust. Unless
otherwise specified in the applicable Terms Agreement, payment shall be made to
the Trust by certified or official bank check or checks in New York Clearing
House or similar next-day funds payable to the order of the Trust against
delivery to you for the respective accounts of the Underwriters the
Underwritten Securities to be purchased by them. The Underwritten Securities
shall be in such authorized denominations and registered in such names as you
may request in writing at least two business days prior to the applicable
Closing Time or Date of Delivery, as the case may be. The Underwritten
Securities, which may be in temporary form, will be made available for
examination and packaging by you on or before the first business day prior to
the Closing Time or the Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Trust
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Trust may approve. As compensation for arranging Delayed Delivery Contracts,
the Trust will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the Closing Time, the Trust will enter into
Delayed Delivery Contracts (for not less than the minimum number of
Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters
and previously approved by the Trust as provided below, but not for an
aggregate number of Underwritten Securities in excess of that specified in the
applicable Terms Agreement. The Underwriters will not have any responsibility
for the validity or performance of Delayed Delivery Contracts.
You shall submit to the Trust, at least two business days prior to the
Closing Time, the names of any institutional investors with which it is
proposed that the Trust will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Trust will advise you, at least one business day prior to the Closing Time, of
the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Trust and the number of Underwritten Securities to
be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
you to the Trust; provided, however, that the total number of Underwritten
Securities to be purchased by all Underwriters shall be the total number of
Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Trust. The Trust covenants with you, and
with each Underwriter participating in the offering of Underwritten Securities,
as follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Trust will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection
with the offering, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Trust, the initial public offering
price, if any, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as you and the Trust deem
appropriate in connection with the offering of the Underwritten Securities; and
the Trust will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and
will furnish to the Underwriters named therein as many copies of the Prospectus
(including such Prospectus Supplement) as you shall reasonably request. If the
Trust elects to rely on Rule 434 under the 1933 Act Regulations, the Trust will
prepare an abbreviated term sheet that complies with the requirements of Rule
434 under the 1933 Act Regulations and will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such number as the Underwriters
may reasonably request, and promptly file or transmit for filing with the
Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act
Regulations in accordance with Rule 424(b) of the 1933 Act Regulations.
(b) The Trust will notify you immediately, and confirm such notice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus to be filed
pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the initia-
tion of any proceedings for that purpose; and the Trust will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Trust will give you notice of its intention to file or prepare
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise,
including any revised prospectus which the Trust proposes for use by the
Underwriters in connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement first became effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations, and will furnish you with copies of any such
amendment or supplement in a reasonable amount of time prior to such proposed
filing or use and, unless required by law, will not file or use any such
amendment or supplement or other documents in a form to which you or counsel
for the Underwriters shall reasonably object.
(d) The Trust will deliver to the lead Underwriter a signed copy of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference therein) and will also deliver to each
Underwriter upon its request a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (including documents
incorporated by reference but without exhibits).
(e) The Trust will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act in connection with sales of the Underwritten Securities, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Trust, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
at any such time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, then the Trust will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant
to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements; and the Trust will furnish to the
Underwriters a reasonable number of copies of such amendment or supplement in a
reasonable amount of time prior to such proposed filing and, unless required by
law, will not file any such amendment or supplement or other documents in a
form to which you or counsel for the Underwriters shall reasonably object.
(g) The Trust will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities, the Warrant Securities, if any, and the
Common Shares issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate. In each jurisdiction
in which the Underwritten Securities, the Warrant Securities, if any, and the
Common Shares issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, have been so qualified, the Trust will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities, the Warrant Securities, if any,
the Common Shares issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any; provided, however, that the Trust shall not be
obligated to qualify as a foreign corporation in any jurisdiction where it is
not so qualified.
(h) With respect to each sale of Underwritten Securities, the Trust will
make generally available to its security holders as soon as practicable, but
not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Trust's fiscal quarter next following the "effective date"
(as defined in such Rule 158) of the Registration Statement.
(i) The Trust will use the net proceeds received by it from each sale of
Underwritten Securities substantially in the manner specified in the applicable
Prospectus Supplement under the caption "Use of Proceeds".
(j) The Trust will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code for
the taxable year in which sales of the Underwritten Securities are to occur.
(k) The Trust, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods prescribed by the 1934 Act and the 1934 Act Regulations.
o P The Trust will not, between the date of the applicable Terms
Agreement and the termination of any trading restrictions (which will not be
greater than 90 days after the Closing Time) or the Closing Time, whichever is
later, with respect to the Underwritten Securities covered thereby, without
your prior written consent, directly or indirectly, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any securities of
the same class or series or ranking on a parity with such Underwritten
Securities (other than the Underwritten Securities which are to be sold
pursuant to such Terms Agreement), or any securities that are convertible into
or exchangeable into or exercisable for equity securities of the same class or
series or ranking on a parity with the Underwritten Securities of the Trust
(except for Common Shares issued pursuant to reservations, agreements, employee
benefit plans, dividend reinvestment plans, or employee and trustee stock
option plans), except as may otherwise be provided in the applicable Terms
Agreement or as partial or full payment for properties to be acquired by the
Trust or in connection with the acquisition by the Trust or any of its
subsidiaries of, or the merger of the Trust or any of its subsidiaries into or
with, any other entity (as long as the Trust or such subsidiary is the
successor entity).
(m) If the Preferred Shares or Depositary Shares are convertible into
Common Shares or if Warrants are issued, the Trust will reserve and keep
available at all times, free of preemptive rights or other similar rights, a
sufficient number of Common Shares or Preferred Shares, as the case may be, for
the purpose of enabling the Trust to satisfy any obligations to issue such
shares upon conversion of the Preferred Shares or the Depositary Shares, as the
case may be, or upon exercise of the Warrants.
(n) If applicable, the Trust will use its best efforts to list the Common
Shares on the New York Stock Exchange ("NYSE") or such other national exchange
on which the Common Shares are then listed.
(o) If the Preferred Shares or Depositary Shares are listed on the NYSE
and are convertible into Common Shares, the Trust will use its best efforts to
list the Common Shares issuable upon conversion of the Preferred Shares or
Depositary Shares on the NYSE or such other national exchange on which the
Trust's Common Shares are then listed.
(p) The Trust has complied and will comply with all of the provisions of
Florida H.B. 1771, Section 1, Section 17,130 of the Florida Securities and
Investors Act, and all regulations thereunder relating to issuers doing
business with Cuba.
Section 4. Payment of Expenses. The Trust will pay all expenses incident
to the performance of its obligations under this Agreement or the applicable
Terms Agreement, including (i) the reproduction and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the cost of
reproducing and distributing to the Underwriters copies of this Agreement and
the applicable Terms Agreement, (iii) the preparation, issuance and delivery of
the Underwritten Securities to the Underwriters and the Warrant Securities, if
any, (iv) the fees and disbursements of the Trust's counsel and accountants,
(v) the qualification of the Underwritten Securities, the Warrant Securities,
if any, and the Common Shares issuable upon conversion of the Preferred Shares
or the Depositary Shares, if any, under securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g), including
filing fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the reproduction and delivery to the Underwriters of copies of the
Blue Sky Survey, (vii) the reproduction and delivery to the Underwriters of
copies of the Registration Statement as originally filed and each amendment
thereto, and the printing and delivery of each of the preliminary prospectuses
and the Prospectus and any amendments or supplements thereto, including each
abbreviated term sheet delivered by the Trust pursuant to Rule 434 of the 1933
Act Regulations, (viii) the printing, reproduction and delivery to the
Underwriters of copies of the applicable Deposit Agreement, if any, and the
applicable Warrant Agreement, if any, (ix) any fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(x) the fees and expenses, if any, incurred with respect to the listing of the
Underwritten Securities, the Warrant Securities, if any, or the Common Shares
issuable upon conversion of the Preferred Shares or the Depositary Shares, if
any, on any national securities exchange, (xi) the fees and expenses, if any,
incurred with respect to any filing with the NASD, and (xii) the cost of
providing any CUSIP or other identification numbers for the Underwritten
Securities or the Common Shares issuable upon conversion of Preferred Shares or
Depositary Shares, if applicable, and (xiii) the fees and expenses of any
Depositary in connection with the Underwritten Securities.
If the applicable Terms Agreement is cancelled or terminated by you in
accordance with the provisions of Section 5, Section 9(b)(i) or 9(b)(iv), the
Trust shall reimburse the Underwriters named in such Terms Agreement for all of
their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Trust herein contained, to the accuracy
of the statements of the Trust's officers made in any certificate pursuant to
the provisions hereof, to the performance by the Trust of all of its covenants
and other obligations hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and (ii) if
Preferred Shares or
Depositary Shares are being offered, the rating assigned by any nationally
recognized statistical rating organization to any preferred shares of
beneficial interest of the Trust as of the date of the applicable Terms
Agreement shall not have been lowered since such date nor shall any such rating
organization have publicly announced that it has placed any preferred shares of
beneficial interest of the Trust on what is commonly termed a "watch list" for
possible downgrading, and (iii) there shall not have come to your attention any
facts that would reasonably cause you to believe that the Prospectus, together
with the applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
such time, not misleading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Trust has been duly established and is validly existing
and in good standing as an unincorporated association commonly
referred to as a business trust under the laws of the Commonwealth of
Massachusetts.
(ii) The Trust has trust power to own, lease and operate its
current properties and to conduct its business as described in the
Registration Statement and possesses all licenses, permits,
authorizations, consents and orders required for the contemplated
method of operation of its business as described in the Registration
Statement, the absence of which would materially adversely affect the
condition, financial or otherwise, or the earnings, business or
business prospects of the Trust and its subsidiaries considered as
one enterprise.
(iii) The Trust is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership of property or the
conduct of its business, except where the failure to so qualify or be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business or
business prospects of the Trust and its subsidiaries considered as
one enterprise.
(iv) Each significant subsidiary of the Trust (as such term is
defined in Rule 405 under the 0000 Xxx) has been duly incorporated or
organized and is validly existing as a corporation or partnership in
good standing under the laws of the jurisdiction of its incorporation
or organization, has power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation or
partnership to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
on the earnings, business or business prospects of the Trust and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each such significant subsidiary has
been duly authorized, validly issued, fully paid and is non-
assessable and, to the best of such counsel's knowledge, is owned by
the Trust, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(v) The authorized, issued and outstanding Common Shares and
Preferred Shares, if any, of the Trust are as set forth in the
Prospectus under "Capitalization" (except for subsequent issuances,
if any, pursuant to reservations, agreements or the exercise of
convertible securities referred to in the Registration Statement
including, without limitation, exercise of share options, granting of
share options or issuance of shares pursuant to the dividend
reinvestment plan); and such issued and outstanding shares of
beneficial interest have been duly authorized, validly issued, fully
paid and are non-assessable, except as described in the section
"Summary of Declaration of Trust -- Shareholders' Liability to Third
Persons and Indemnification by Trust" in an exhibit to the Trust's
Form 8-A dated May 30, 1986.
(vi) The applicable Underwritten Securities being sold pursuant
to the applicable Terms Agreement and, if applicable, the deposit of
the Preferred Shares in accordance with the provisions of a Deposit
Agreement, have been duly and validly authorized by all necessary
trust action and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this Agreement and such
Underwritten Securities, when issued and delivered by the Trust
pursuant to this Agreement against payment of the consideration set
forth in the applicable Terms Agreement or any Delayed Delivery
Contracts, will be validly issued, fully paid and non-assessable
(except as described in the section "Summary of Declaration of Trust
-- Shareholders' Liability to Third Persons and Indemnification by
Trust" in an exhibit to the Trust's Form 8-A dated May 30, 1986) and
will not be subject to preemptive or other similar rights arising by
operation of law or, to the best of such counsel's knowledge,
otherwise; and the Preferred Shares, if applicable, conform to the
provisions of the Resolutions.
(vii) If applicable, the Warrants have been duly authorized and,
when issued and delivered pursuant to this Agreement and
countersigned by the Warrant Agent as provided in the Warrant
Agreement, will have been duly executed, countersigned, issued and
delivered and will constitute valid and legally binding obligations
of the Trust entitled to the benefits provided by the Warrant
Agreement under which they are to be issued, except as enforcement of
such benefits may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights generally and
by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(viii) If applicable, the Common Shares issuable upon conversion
of any of the Preferred Shares or Depositary Shares, or the Warrant
Securities, have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary action on
the part of the Trust and such shares, when issued upon such
conversion or exercise in accordance with the Declaration of Trust,
as may be amended from time to time, the Terms Agreement, the Delayed
Delivery Contract or the Warrant Agreement, as the case may be, will
be duly authorized and validly issued and will be fully paid and non-
assessable (except as described in the section "Summary of
Declaration of Trust -- Shareholders' Liability to Third Persons and
Indemnification by Trust" in an exhibit to the Trust's Form 8-A dated
May 30, 1986), and the issuance of such shares upon such conversion
or exercise will not be subject to preemptive or other similar rights
arising by operation of law or, to the best of such counsel's
knowledge, otherwise.
(ix) Each of this Agreement, the applicable Terms Agreement and
the Delayed Delivery Contracts, if any, has been duly authorized,
executed and delivered by the Trust.
(x) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, have been duly authorized,
executed and delivered by the Trust, and (assuming due authorization,
execution and delivery by the Warrant Agent in the case of the
Warrant Agreement, and the Depositary, in the case of the Deposit
Agreement) each constitutes a valid and legally binding agreement of
the Trust enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights generally and
by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Warrant
Agreement, if any, and the Deposit Agreement, if any, each conforms
in all material respects to all statements relating thereto contained
in the Prospectus.
(xi) If applicable, upon execution and delivery thereof pursuant
to the terms of the Deposit Agreement, the persons in whose names the
Depositary Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement, except as enforcement
of such rights may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights generally and
by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xii) The Registration Statement has been declared effective
under the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(xiii) The Registration Statement and the Prospectus (including
the Rule 434 Prospectus, if applicable), excluding the documents
incorporated by reference therein, as of their respective effective
or issue dates, comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; it being
understood, however, that no opinion need be rendered with respect to
the financial statements, schedules and other financial and
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus.
(xiv) Each document filed pursuant to the 1934 Act (other than
the financial statements, schedules and other financial and
statistical data included therein, as to which no opinion need be
rendered) and incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed (or as when amended and
filed prior to the Representation Date, whichever is later) as to
form in all material respects with the 1934 Act and the 1934 Act
Regulations.
(xv) If applicable, the relative rights, preferences, interests
and powers of the Preferred Shares or Depositary Shares, as the case
may be, are as set forth in the Resolutions relating thereto, and all
such provisions are valid under applicable Massachusetts law.
(xvi) The Underwritten Securities (and, if applicable, the
Warrant Securities and the Common Shares issuable upon conversion of
the Preferred Shares or Depositary Shares) conform in all material
respects to the statements relating thereto contained in the
Prospectus.
(xvii) As applicable, the forms of certificate used to evidence
the Common Shares, the Preferred Shares being represented by the
Depositary Shares and the related Depositary Receipts are in due and
proper form under applicable Massachusetts law and comply in all
material respects with all applicable statutory requirements.
(xviii) To the best of their knowledge and information, there are
no legal or governmental proceedings pending or threatened against
the Trust or any of its subsidiaries which are required to be
disclosed in the Prospectus, other than those disclosed therein, and
all pending legal or governmental proceedings to which the Trust or
any of its subsidiaries is a party or of which any property of the
Trust or any of its subsidiaries is the subject which are not des-
cribed in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material to the business of the Trust and its subsidiaries considered
as one enterprise.
(xix) To the best of their knowledge and information, there are
no contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement other than those described or referred
to therein or filed as exhibits thereto, the descriptions thereof or
references thereto are correct in all material respects and, without
independent investigation, nothing has come to their attention that
would lead them to believe that a default exists in the due perform-
ance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described, referred to
or filed which would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or business
prospects of the Trust and its subsidiaries considered as one
enterprise.
(xx) No authorization, approval or consent of any court or
governmental authority or agency is required that has not been
obtained in connection with the consummation by the Trust of the
transactions contemplated by this Agreement, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or the
applicable Warrant Agreement, if any, except such as may be required
under the 1933 Act, the 1934 Act and state securities laws or real
estate syndication laws; and without independent investigation,
nothing has come to such counsel's attention that would lead them to
believe that the execution and delivery of this Agreement, the
applicable Terms Agreement, the applicable Deposit Agreement, if any,
or the applicable Warrant Agreement, if any, and the consummation of
the transactions contemplated herein and therein and compliance by
the Trust with its obligations hereunder and thereunder will conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust or any of its subsidiaries pursuant
to any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Trust or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of
the property or assets of the Trust or any of its subsidiaries is
subject, and such action will not result in violation of the
provisions of the Declaration of Trust or by-laws or any law, and,
without independent investigation, nothing has come to such counsel's
attention that would lead them to believe that such action will
result in violation of any administrative regulation or
administrative or court order or decree.
(xxi) The Trust is not required to be registered under the 0000
Xxx.
(xxii) The statements set forth in the Prospectus under the
captions "Description of Preferred Shares", "Description of
Depositary Shares", "Description of Common Shares", "Description of
Warrants" and "Description of Rights" and the statements in any
description of the applicable Underwritten Securities in the
applicable Prospectus Supplement, to the extent such statements
constitute matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by them and are correct in all
material respects.
(2) The favorable opinion dated as of Closing Time, of Altheimer &
Xxxx, tax counsel for the Trust, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) Based on various assumptions and representations made by the
Trust, (a) the Trust was a "REIT", as defined in Section 856 of the
Code, for the taxable years ended July 31, 1992, 1993, 1994, 1995 and
1996 (b) the Trust has been organized in conformity with the
requirements for qualification as a REIT under the Code, and its
present and proposed method of operation would enable it to meet the
requirements for qualification and taxation as a "REIT" under the
Code for the taxable years (assuming no amendment to the relevant
sections of the Code) in which sales of the Underwritten Securities
occur.
(ii) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Considerations to the Trust of its REIT
Election" and in the Prospectus Supplement under the caption
"Taxation", to the extent such statements constitute matters of law,
summaries of legal matters, or legal conclusions, have been reviewed
by them and are correct in all material respects.
(3) The favorable opinion, dated as of the Closing Time, of Xxxxx &
Wood LLP, counsel for the Underwriters, with respect to the matters set
forth in (i), (vi) to (xiii), inclusive, and (xvi) of subsection (b)(1) of
this Section.
(4) In giving their opinions required by subsections (b)(1) and
(b)(3), respectively, of this Section, Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx
& Xxxxxx LLP and Xxxxx & Xxxx LLP shall each additionally state that
nothing has come to their attention that would lead them to believe that
the Registration Statement (except for financial statements and schedules
and other financial and statistical data included or incorporated by
reference therein, as to which counsel need make no statement), at the
time it became effective or, if an amendment to the Registration Statement
or an Annual Report on Form 10-K has been filed by the Trust with the
Commission subsequent to the effectiveness of the Registration Statement,
then at the time such amendment becomes effective or at the time of the
most recent filing of such Annual Report, whichever is later, or at the
Representation Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that
the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial and statistical
data included or incorporated by reference therein, as to which counsel
need make no statement), at the Representation Date or at Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In giving their opinions required by subsections (b)(1), (b)(2) and
(b)(3) of this Section, Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP,
Altheimer & Xxxx and Xxxxx & Xxxx LLP may rely, (1) as to matters
involving the laws of the Commonwealth of Massachusetts, upon the opinion
of Xxxxxxx, Procter & Xxxx (or other counsel reasonably satisfactory to
counsel for the Underwriters) in form and substance satisfactory to
counsel for the Underwriters, (2) as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Trust, and (3) as to the qualification and good
standing of the Trust or any of its subsidiaries to do business in any
state or jurisdiction, upon certificates of appropriate government
officials or opinions of counsel in such jurisdictions.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business or business
prospects of the Trust and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business from that set forth
in the Prospectus; no proceedings shall be pending or, to the knowledge of the
Trust, threatened against the Trust or any of its subsidiaries or any of their
properties before or by any Federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding would
materially and adversely affect the business, property, financial condition or
income of the Trust and its subsidiaries considered as one enterprise other
than as set forth in the Prospectus or incorporated therein by reference; and
you shall have received a certificate of the Chief Executive Officer, the
President or the chief financial or chief accounting officer of the Trust,
dated as of such Closing Time, to the effect that (i) there has been no such
material adverse change and (ii) the representations and warranties in Section
1 are true and correct with the same force and effect as though such Closing
Time were a Representation Date. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first used by the Underwriters to
confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement, you shall
have received from Coopers & Xxxxxxx L.L.P. a letter dated such date, in form
and substance satisfactory to you, to the effect that (i) they are independent
accountants with respect to the Trust and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and financial statement schedules included or incorporated
by reference in the Registration Statement and the Prospectus and covered by
their opinions therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act, the 1933 Act
Regulations and the 1934 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available interim financial statements of the Trust, if applicable, a reading
of the minute books of the Trust, inquiries of officials of the Trust who have
responsibility for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, and on the basis of such
limited review and procedures (which shall include, without limitation, the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No. 71,
Interim Financial Information, with respect to the unaudited condensed
consolidated financial statements of the Trust and its subsidiaries included or
incorporated by reference in the Registration Statement), nothing has come to
their attention that caused them to believe that (A) any material modifications
should be made to the unaudited condensed consolidated financial statements of
the Trust included or incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally accepted
accounting principles, (B) the unaudited condensed consolidated financial
statements of the Trust included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations, (C) the unaudited financial data of the Trust
included or incorporated by reference in the Registration Statement and the
Prospectus under the caption "Selected Financial Data" was not determined on a
basis substantially consistent with that used in determining the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, (D)
the pro forma financial information included or incorporated by reference in
the Registration Statement and the Prospectus was not prepared in accordance
with the requirements of Rule 11-02 of Regulation S-X promulgated under the
1933 Act or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements, or (E) at a
specified date not more than five business days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock of
the Trust or any increase in the debt of the Trust or any decrease in the net
assets of the Trust, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from the date
of the most recent consolidated statement of operations included or
incorporated by reference in the Registration Statement and the Prospectus to a
specified date not more than five business days prior to the date of the
applicable Terms Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues, net
income or net income per share of the Trust, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition to the
examination referred to in their opinion and the limited procedures referred to
in clause (iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and the Prospectus and which are specified by you, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Trust and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Coopers & Xxxxxxx
L.L.P. a letter dated as of such Closing Time to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than five business days prior to such Closing Time.
(f) If applicable, at the time of the execution of the applicable Terms
Agreement, you shall have received from Xxxxxxx, Xxxxxxxx & Co., LLP (or from
such independent accountants that have prepared historical financial statements
included in or incorporated by reference into the Registration Statement and
Prospectus which financial statements relate to properties or assets acquired
or to be acquired by the Trust) a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that (i) they are independent
public accountants with respect to the Trust and such properties or assets
acquired by the Trust within the meaning of the 1933 Act and the 1933 Act
Regulations; and (ii) it is their opinion that the historical financial
statements for such properties or assets that have been audited by them and
covered by their opinions included or incorporated by reference into the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and the
1934 Act Regulations.
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities and the Warrant Securities, if any, as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Trust in
connection with the issuance and sale of the Underwritten Securities and the
Warrant Securities, if any as herein contemplated shall be satisfactory in form
and substance to you and counsel for the Underwriters.
(h) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Trust contained herein and the statements in any certificates furnished by the
Trust hereunder shall be true and correct as of each Date of Delivery, and, at
the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the Chief
Executive Officer, the President or the chief financial or chief
accounting officer of the Trust, in their capacities as such, confirming
that the certificate delivered at Closing Time pursuant to Section 5(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx LLP, counsel for the Trust, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise substantially to the same effect as the
opinion required by Section 5(b)(1) hereof.
(3) The favorable opinion of Altheimer & Xxxx, tax counsel for the
Trust, in form and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities and
otherwise substantially to the same effect as the opinion required by
Section 5(b)(2) hereof.
(4) The favorable opinion of Xxxxx & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(b)(3) hereof.
(5) A letter from Coopers & Xxxxxxx L.L.P., in form and substance
satisfactory to you and dated such Date of Delivery, substantially the
same in scope and substance as the letter furnished to you pursuant to
Section 5(d) hereof, except that the "specified date" in the letter
furnished pursuant to this Section 5(h)(5) shall be a date not more than
five business days prior to such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Trust at any time at or prior to the Closing
Time or Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof.
Section 6. Indemnification. (a) The Trust agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule 430A(b) or Rule 434
of the 1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission referred to in
subsection (1) above, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Trust; and
(3) against any and all expense whatsoever (including, the fees and
disbursements of counsel chosen by you), as incurred, which was reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Trust by or on
behalf of any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any amendment or
supplement thereto); and provided further, that the Trust will not be liable to
any Underwriter or any person controlling such Underwriter with respect to any
untrue statement or omission or alleged untrue statement or omission made in
any preliminary prospectus which is corrected in the Prospectus (or any
amendment or supplement thereto) if such Underwriter sold Underwritten
Securities to the person asserting any such loss, claim, damage or liability
without sending or giving, at or prior to the written confirmation of the sale
of such Underwritten Securities to such person, a copy of the Prospectus (or
any amendment or supplement thereto), and the Trust had previously furnished
copies thereof to such Underwriter.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Trust, its trustees, each of the officers who signed the Registration Statement
and each person, if any, who controls the Trust within the meaning of Section
15 of the 1933 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Trust by or on
behalf of such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it
and approved by the indemnified parties defendant in such action, which
approval may not be unreasonably withheld, unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) For purposes of this Section 6, all references to the Registration
Statement, any preliminary prospectus or the Prospectus, or any amendment or
supplement to any of the foregoing, shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copies filed with the Commission pursuant to XXXXX.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Trust and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Trust
and one or more of the Underwriters in respect of such offering, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the applicable Prospectus Supplement in respect of such offering
bears to the initial public offering price appearing thereon and the Trust is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter,
and each trustee of the Trust, each officer of the Trust who signed the
Registration Statement, and each person, if any, who controls the Trust within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Trust. The Underwriters' obligation to contribute pursuant
to this Section 7 are several in proportion to their respective underwriting
commitments set forth in the applicable Terms Agreement and not joint. For
purposes of this Section 7, the Trust and its subsidiaries shall be deemed one
party jointly and severally liable for any obligations hereunder.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or the applicable Terms Agreement, or contained in certificates
of officers of the Trust submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this Agreement or
the applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Trust and
shall survive delivery of and payment for the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Trust or by you upon the giving of 30 days' written notice of such termination
to the other parties hereto.
(b) You may also terminate the applicable Terms Agreement, by notice to
the Trust, at any time at or prior to the Closing Time (i) if there has been,
since the date of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business or business
prospects of the Trust and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or any outbreak of hostilities or escalation thereof or other calamity
or crisis, the effect of which on the financial markets of the United States is
such as to make it, in your judgment, impracticable to market the Underwritten
Securities or enforce contracts for the sale of the Underwritten Securities, or
(iii) if trading in any of the securities of the Trust has been suspended or
limited by the Commission or the NYSE, or if trading generally on either the
NYSE or the American Stock Exchange has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order of the Commission
or any other governmental authority, or if a banking moratorium has been
declared by Federal or New York authorities, or (iv) if Preferred Shares or
Depositary Shares are being offered and the rating assigned by any nationally
recognized statistical rating organization to any preferred shares of
beneficial interest of the Trust as of the date of the applicable Terms
Agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any preferred
shares of beneficial interest of the Trust on what is commonly termed a "watch
list" for possible downgrading. As used in this Section 9(b), the term
"Prospectus" means the Prospectus in the form first used by the Underwriters to
confirm sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth in
Section 3 with respect to any offering of Underwritten Securities shall remain
in effect so long as any Underwriter owns any such Underwritten Securities
purchased from the Trust pursuant to the applicable Terms Agreement and (y) the
covenant set forth in Section 3(h) hereof, the provisions of Section 4 hereof,
the indemnity and contribution agreements set forth in Sections 6 and 7 hereof,
and the provisions of Sections 8, 13 and 14 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then you shall have the right,
within 48 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, you shall not have
completed such arrangements within such 48-hour period, then:
(a) if the total number of Defaulted Securities does not exceed 10% of
the total number of Underwritten Securities to be purchased pursuant to such
Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of the total
number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, either you or the Trust shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o Merrill Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, attention of Tjarda V.S. Xxxxxxx, Director; and notices to the
Trust shall be directed to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention of Xxxxxxx Xxxxxx, Chairman.
Section 12. Parties. This Agreement and the applicable Terms Agreement
shall inure to the benefit of and be binding upon you and the Trust and any
Underwriter who becomes a party to such Terms Agreement, and their respective
successors. Nothing expressed or mentioned in this Agreement or the applicable
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or such Terms Agreement or any provision herein
or therein contained. This Agreement and the applicable Terms Agreement and
all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the parties hereto and thereto and their
respective successors and said controlling persons and officers and trustees
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. Governing Law and Time. This Agreement and the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. No Liability of Shareholders, Trustees or Officers. This
Agreement, the applicable Terms Agreement and all documents, agreements,
understandings and arrangements relating to this transaction have been executed
or entered into by an officer of the Trust in his/her capacity as an officer of
the Trust which has been formed as a Massachusetts business trust pursuant to
the Declaration of Trust, and not individually, and neither the trustees,
officers or shareholders of the Trust shall be bound or have any personal
liability hereunder or thereunder. Each party hereto shall look solely to the
assets of the Trust for satisfaction of any liability of the Trust in respect
of this Agreement, the applicable Terms Agreement and all documents,
agreements, understandings and arrangements relating to this transaction and
will not seek recourse or commence any action against any of the trustees,
officers or shareholders of the Trust or any of their personal assets for the
performance or payment of any obligation hereunder or thereunder. The
foregoing shall also apply to any future documents, agreements, understandings,
arrangements and transactions between the parties hereto.
Section 15. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust a counterpart hereof, whereupon
this instrument, along with all counterparts will become a binding agreement
between you and the Trust in accordance with its terms.
Very truly yours,
NEW PLAN REALTY TRUST
By: /s/ Xxxx Xxxxxxxxx
_________________________________
Name: Xxxx Xxxxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Tjarda van X. Xxxxxxx
__________________________________
Authorized Signatory
Exhibit A
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: New Plan Realty Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman of the Board of Trustees
Dear Sirs:
We (the "Representative") understand that New Plan Realty Trust, a
Massachusetts business trust (the "Trust"), proposes to issue and sell the
number of its [shares of beneficial interest (the "Common Shares")] [preferred
shares of beneficial interest (the "Preferred Shares")] [ Warrants
(the "Warrants") to purchase Shares (the "Warrant Securities")]
[interests in Preferred Shares in the form of depositary shares (the
"Depositary Shares") represented by depositary receipts (the "Depositary
Receipts")] (such [Common Shares] [Preferred Shares] [Warrants] [Depositary
Shares and Depositary Receipts] being collectively hereinafter [also] referred
to as the "Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
numbers of [Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below)] [, including the respective numbers of Warrants,
if applicable,] set forth below opposite their respective names, and a
proportionate share of Option Securities (as defined in the Underwriting
Agreement referred to below) to the extent any are purchased, at the purchase
price set forth below.
Number of Shares
of Initial Number of
Underwriter Underwritten Securities Warrants
----------- ----------------------- --------
__________ __________
Total $ $
========== ==========
The Underwritten Securities shall have the following terms:
[Common Shares] [Preferred Shares] [Depositary Shares]
Title of Securities:
Number of Shares:
[If applicable, fractional amount of Preferred Shares represented by each
Depositary Share:]
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if
any, from , 19 .]
Purchase price per share: $ [, plus accumulated dividends, if any,
from , 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee:]
Additional co-managers, if any:
Other terms:
Closing time, date and location:
Warrants
Number of Warrants to be issued:
Warrant Agent:
Issuable jointly with _______ Shares: [Yes] [No]
[Number of Warrants issued
with each ______ Share:]
[Detachable data:]
Date from which Warrants are exercisable:
Date on which Warrants expire:
Exercise price(s) of Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
All the provisions contained in the document attached as Annex A hereto
entitled "New Plan Realty Trust-Common Shares, Preferred Shares, Warrants to
Purchase Common Shares and Preferred Shares, and Depositary Shares-Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:_________________________
Acting on behalf of itself and
the other named Underwriters.
Accepted:
NEW PLAN REALTY TRUST
By:_________________________
Name:
Title:
Exhibit B
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_____________, 19__
New Plan Realty Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman of the Board of Trustees
Dear Sirs:
The undersigned hereby agrees to purchase from New Plan Realty Trust (the
"Trust"), and the Trust agrees to sell to the undersigned on __________, 19__
(the "Delivery Date"),
of the Trust's [insert title of security] (the "Securities"), offered by the
Trust's Prospectus dated __________, 19__, as supplemented by its Prospectus
Supplement dated ___________, 19__, receipt of which is hereby acknowledged, at
a purchase price of [$__________] [and, $__________ per Warrant, respectively],
on the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Trust or its order by certified or
official bank check in New York Clearing House or similar next-day funds at the
office of
, on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Trust
not less than three full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Trust, on or before __________, 19__, shall
have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated __________, 19__ between the Trust and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and
which govern such investment.
Promptly after completion of the sale to the Underwriters, the Trust will
mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Trust
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Trust that all necessary action for the due execution and delivery of this
contract and the payment for and purchase of the Securities has been taken by
it and no further authorization or approval of any governmental or other
regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Trust and mailing or delivery
of a copy as provided below, this contract will constitute a valid and binding
agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Trust will not accept Delayed Delivery Contracts
for a number of Securities in excess of ________ and that the acceptance of any
Delayed Delivery Contract is in the Trust's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the Trust, it is requested that the Trust sign
the form of acceptance on a copy hereof and mail or deliver a signed copy
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Trust and the undersigned when such copy is so
mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
_____________________________
(Name of Purchaser)
By___________________________
(Title)
_____________________________
_____________________________
(Address)
Accepted as of the date first above written.
NEW PLAN REALTY TRUST
By___________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
Telephone No.
(including
Name Area Code)
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