PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the expenses incurred by the
Trust in connection with the offering of the Offered Securities.
All the amounts shown are estimates except the Securities and
Exchange Commission registration fee.
Item Amount
____ ______
Registration Fee -- Securities and
Exchange Commission . . . . . . . . . . . . . $ 86,207
Fees of Rating Agencies . . . . . . . . . . . . 60,000
Legal Fees and Expenses . . . . . . . . . . . . 100,000
Accounting Fees and Expenses. . . . . . . . . . 50,000
Printing and Engraving Expenses . . . . . . . . 30,000
Blue Sky Fee and Expenses . . . . . . . . . . . 25,000
Trustee's Fees (including counsel fees) . . . . 15,000
Miscellaneous Expenses. . . . . . . . . . . . . 48,793
_________
Total. . . . . . . . . . . . . . . . . . . . $415,000
========
________________________
ITEM 16. Exhibits.
Exhibit
Number
______
(1.1) Form of Underwriting Agreement for Debt Securities
and Warrants to Purchase Debt Securities.
(1.2) Form of Underwriting Agreement for Preferred Shares,
Depositary Shares, Common Shares and Warrants.
*(3.1) Declaration of Trust, dated July 31, 1972, filed as
Exhibit 3.1 to Registration Statement No. 2-45633,
together with the following amendments:
*(a) Amendment #1, dated July 31, 1972, filed as
Exhibit 3.1(a) to Registration Statement No.
2-45633.
*(b) Amendment #2, dated August 1, 1972, filed as
Exhibit 3.1(b) to Registration Statement No.
2-45633.
*(c) Amendment #3, dated November 15, 1972, filed
as Exhibit 3.1(c) to Registration Statement
No. 2-45633.
*(d) Amendment #4, dated December 6, 1972, filed
as Exhibit 3.1(d) to Registration Statement
No. 2-45633.
*(e) Amendment #5, dated December 12, 1972, filed
as Exhibit 1 to Registrant's Form 10-K for
the fiscal year ended July 31, 1973.
*(f) Amendment #6, dated December 13, 1979, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 13, 1979.
*(g) Amendment #7, dated July 9, 1981, filed as
Appendix to Proxy Statement relating to
Special Meeting of Shareholders held on
July 9, 1981.
*(h) Amendment #8, dated December 15, 1982, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 15, 1982.
*(i) Amendment #9, dated December 10, 1985, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 10, 1985.
*(j) Amendment #10, dated December 14, 1987, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 14, 1987.
*(4.1) Declaration of Trust (see Exhibit 3.1 above).
***(4.2) Form of Indenture relating to Senior Securities to
be entered into by the Trust and a banking
institution organized under the laws of the United
States of America or a particular State thereof.
**(4.3) Form of Senior Securities.
**(4.4) Form of Indenture relating to Subordinated
Securities to be entered into by the Trust and a
banking institution organized under the laws of the
United States of America or a particular State
thereof.
**(4.5) Form of Subordinated Securities.
**(4.6) Resolutions adopted by the Board of Trustees of the
Trust authorizing the issuance and establishing the
terms of the Preferred Shares.
**(4.7) Form of Preferred Shares Certificate.
**(4.8) Form of Deposit Agreement (including Form of
Depositary Receipt).
**(4.9) Form of Common Shares Certificate.
**(4.10) Form of Warrants Agreement.
(5) Opinion of Robinson Silverman Pearce Aronsohn &
Berman re legality.
(8) Opinion of Altheimer & Gray re tax matters.
***(12) Statements re computation of ratios.
(23.1) Consent of Counsel (contained in Exhibit 5).
(23.2) Consent of Tax Counsel (contained in Exhibit 8).
(23.3) Consent of Coopers & Lybrand.
(23.4) Consent of Eichler, Bergsman, Belonsky & Co.
***(24) Powers of Attorney (included on signature pages).
**(25.1) Statement of Eligibility of Senior Securities
Trustee on Form T-1.
**(25.2) Statement of Eligibility of Subordinated Securities
Trustee on Form T-1.
____________________
* Incorporated herein by reference as above indicated.
** To be filed by amendment or incorporated by reference in
connection with the offering of Offered Securities.
*** Previously filed.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of New York, State of New York on the 20th day of May, 1994.
NEW PLAN REALTY TRUST
By /s/ William Newman
_________________________
William Newman,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
_________ _____ ____
/s/ William Newman Chief Executive Officer May 20, 1994
_____________________ and Trustee
William Newman
/s/ Michael Brown Chief Financial and May 20, 1994
_____________________ Accounting Officer,
Michael Brown Controller
/s/ Arnold Laubich President, Chief May 20, 1994
_____________________ Operating Officer
Arnold Laubich and Trustee
*/s/ Norman Gold Trustee May 20, 1994
_____________________
Norman Gold
*/s/ Melvin D. Newman Trustee May 20, 1994
_____________________
Melvin D. Newman
*/s/ Raymond H. Bottorf Trustee May 20, 1994
_______________________
Raymond H. Bottorf
*/s/ James M. Steuterman Senior Vice President-- May 20, 1994
________________________ Acquisitions
James M. Steuterman and Trustee
/s/ Dean Bernstein Vice President May 20, 1994
______________________ and Trustee
Dean Bernstein
*By:/s/ Arnold Laubich May 20, 1994
______________________
Arnold Laubich,
Attorney-in-fact
EXHIBIT INDEX
Exhibit No. Description Page No.
___________ ___________ ________
(1.1) Form of Underwriting Agreement for Debt
Securities and Warrants to Purchase Debt Securities.
(1.2) Form of Underwriting Agreement for Preferred
Shares, Depositary Shares, Common Shares
and Warrants.
*(3.1) Declaration of Trust, dated July 31, 1972, filed as
Exhibit 3.1 to Registration Statement No. 2-45633,
together with the following amendments:
*(a) Amendment #1, dated July 31, 1972, filed
as Exhibit 3.1(a) to Registration Statement
No. 2-45633.
*(b) Amendment #2, dated August 1, 1972, filed
as Exhibit 3.1(b) to Registration Statement
No. 2-45633.
*(c) Amendment #3, dated November 15, 1972, filed
as Exhibit 3.1(c) to Registration Statement
No. 2-45633.
*(d) Amendment #4, dated December 6, 1972, filed
as Exhibit 3.1(d) to Registration Statement
No. 2-45633.
*(e) Amendment #5, dated December 12, 1972, filed
as Exhibit 1 to Registrant's Form 10-K for
the
fiscal year ended July 31, 1973.
*(f) Amendment #6, dated December 13, 1979, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 13, 1979.
*(g) Amendment #7, dated July 9, 1981, filed as
Appendix to Proxy Statement relating to
Special
Meeting of Shareholders held on July 9, 1981.
*(h) Amendment #8, dated December 15, 1982, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 15, 1982.
*(i) Amendment #9, dated December 10, 1985, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 10, 1985.
*(j) Amendment #10, dated December 14, 1987, filed
as Appendix A to Proxy Statement relating to
Annual Meeting of Shareholders held on
December 14, 1987.
*(4.1) Declaration of Trust (see Exhibit 3.1 above).
***(4.2) Form of Indenture relating to Senior Securities to
be entered
into by the Trust and a banking institution
organized under
the laws of the United States of America or a
particular
State thereof.
**(4.3) Form of Senior Securities.
Exhibit No. Description Page No.
___________ ___________ ________
**(4.4) Form of Indenture relating to Subordinated
Securities
to be entered into by the Trust and a banking
institution
organized under the laws of the United States of
America
or a particular State thereof.
**(4.5) Form of Subordinated Securities.
**(4.6) Resolutions adopted by the Board of Trustees of the
Trust
authorizing the issuance and establishing the terms
of the
Preferred Shares.
**(4.7) Form of Preferred Shares Certificate.
**(4.8) Form of Deposit Agreement (including Form of
Depositary Receipt).
**(4.9) Form of Common Shares Certificate.
**(4.10) Form of Warrants Agreement.
(5) Opinion of Robinson Silverman Pearce Aronsohn &
Berman re legality.
(8) Opinion of Altheimer & Gray re tax status.
***(12) Statements re computation of ratios.
(23.1) Consent of Counsel (contained in Exhibit 5).
(23.2) Consent of Tax Counsel (contained in Exhibit 8).
(23.3) Consent of Coopers & Lybrand.
(23.4) Consent of Eichler, Bergsman, Belonsky & Co.
***(24) Powers of Attorney (included on signature pages).
**(25.1) Statement of Eligibility of Senior Securities
Trustee on Form T-1.
**(25.2) State of Eligibility of Subordinated Securities
Trustee on Form T-1.
____________________
* Incorporated herein by reference as above indicated.
** To be filed by amendment or incorporated by reference in
connection with the offering of Offered Securities.
*** Previously filed.
EXHIBIT (1.1)
B&W Draft
5/19/94
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT
_____________, 1994
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1326
Dear Sirs:
New Plan Realty Trust, a Massachusetts business trust (the
"Trust") proposes to issue and sell senior debt securities (the
"Senior Securities") or its subordinated debt securities (the
"Subordinated Securities"), or both, and/or warrants to purchase
Senior Securities or Subordinated Securities (the "Warrants"), or
both, from time to time, in one or more offerings on terms to be
determined at the time of sale. The Senior Securities will be
issued under an indenture (the "Senior Indenture") between the
Trust and a banking institution organized under the laws of the
United States of America or a particular State thereof (the
"Senior Trustee"), and the Subordinated Securities will be issued
under an indenture (the "Subordinated Indenture") between the
Trust and a banking institution organized under the laws of the
United States of America or a particular State thereof (the
"Subordinated Trustee"). The term "Trustee" as used herein shall
refer to either the Senior Trustee or the Subordinated Trustee,
as appropriate, for Senior Securities or Subordinated Securities.
The Senior Indenture and the Subordinated Indenture are each
sometimes referred to as the "Indenture". 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 Senior Securities, Subordinated Securities or
Warrants may vary, as applicable, as to aggregate principal
amount, maturity date, interest rate or formula and timing of
payments thereof, redemption and/or repayment provisions,
conversion provisions, sinking fund requirements, if any, and any
other variable terms which the Senior Indenture, the Subordinated
Indenture or any Warrant Agreement, as the case may be,
contemplates. The Senior Securities, the Subordinated Securities
or Warrants may be offered either together or separately. As
used herein, "Securities" shall mean Senior Securities,
Subordinated Securities or Warrants or any combination thereof;
and "Warrant Securities" shall mean the Senior Securities or
Subordinated Securities 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 principal amount of Underwritten Securities to be initially
issued, including the number of Warrants, if any (the "Initial
Underwritten Securities"), the names of the Underwriters
participating in such offering (subject to substitution as
provided in Section 10 hereof), the principal amount of Initial
Underwritten Securities, including the number of Warrants, which
each such Underwriter severally agrees to purchase, the names of
such of you or such other Underwriters acting as 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,
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, designations, denominations, interest rates or formulas,
interest payment dates, maturity dates, conversion provisions,
redemption and/or repayment provisions and sinking fund
requirements 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 principal amount of Underwritten
Securities, including the number of Warrants, 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 Com-
mission (the "Commission") a registration statement on Form S-3
(No. 33-53311) for the registration of the Securities (including
the Underwritten Securities) and Warrant Securities and certain
of the Trust's equity securities and warrants to purchase equity
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 and
each of the Senior Indenture and the Subordinated Indenture has
been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). 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 all documents incorporated therein by reference, 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 "Registration
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, the filing of any document under
the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the
case may be.
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 "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective,
complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations and the 1939 Act; the
Registration Statement, at the time the Registration
Statement became effective, 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 that part of the
Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the
Trust in writing by any Underwriter through you expressly
for use in the Registration Statement or the Prospectus or
to that part of the Registration Statement which shall
constitute the Statement of Eligibility under the 1939 Act
(From T-1) (the "Statement of Eligibility") of the Senior
Trustee and the Subordinated Trustee under the Senior
Indenture and the Subordinated Indenture, respectively.
(ii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were or
hereafter are filed with the 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 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 financial statements and supporting schedules
included in, or incorporated by reference into, the Regis-
tration Statement and the Prospectus present fairly in all
material respects the financial position of the Trust and
its consolidated subsidiaries as of the dates indicated and
the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis; and 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.
(v) 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) there have been no transactions or
acquisitions entered into 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 (C)
except for regular quarterly dividends on the Trust's
shares of beneficial interest without par value (the "Common
Shares"), or dividends declared, paid or made in accordance
with the terms of any series of the Trust's preferred shares
of beneficial interest, par value $1.00 per share (the
"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.
(vi) 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 the
Trust is duly qualified and in good standing in each
jurisdiction in which the ownership of its property or the
conduct of its business requires such qualification, except
where the failure to so qualify 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.
(vii) Each subsidiary of the Trust has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to hold
mortgages, to own and lease property and to conduct its
business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so
qualify 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 all of the issued and
outstanding capital stock of each such subsidiary 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].
(viii) The Indenture has been duly and validly
authorized, executed and delivered by the Trust and
constitutes the 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 enforcement
of creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(ix) The authorized, issued and outstanding Common
Shares and Preferred Shares 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 Common Shares and Preferred Shares of the
Trust have been duly authorized and validly issued and are
fully paid and non-assessable and are not subject to
preemptive or other similar rights.
(x) The Underwritten Securities (other than the
Warrants) have been duly authorized for issuance and sale
pursuant to this Agreement and when issued, authenticated
and delivered pursuant to the provisions of the Indenture
against payment of the consideration therefor specified in
the applicable Terms Agreement or any Delayed Delivery
Contract (as hereinafter defined), such Underwritten
Securities will constitute valid and legally binding
obligations of the Trust, enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or
affecting enforcement of creditors' rights generally or by
general equity principles (regardless or whether enforcement
is considered in a proceeding in equity or at law); such
Underwritten Securities and the Indenture conform in all
material respects to all statements relating thereto
contained in the Prospectus; and such Underwritten
Securities will be entitled to the benefits provided by the
Indenture.
(xi) 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); the issuance of the Warrant Securities upon
exercise of the Warrants will not be subject to preemptive
or other similar rights; and the Warrants conform in all
material respects to all statements relating thereto
contained in the Prospectus.
(xii) If applicable, the Common Shares or Preferred
Shares issuable upon conversion of any of the Securities, or
the Warrant Securities, will have been duly and validly
authorized and reserved for issuance upon such conversion or
exercise by all necessary action and such shares, when
issued upon such conversion or exercise, will be duly and
validly issued, fully paid and non-assessable, and the
issuance of such shares upon such conversion or exercise
will not be subject to preemptive or other similar rights;
the Common Shares or Preferred Shares so issuable 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, will
have been duly authorized, executed and delivered by the
Trust prior to the issuance of any applicable Underwritten
Securities, and 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, conforms in all material respects to all
statements relating thereto contained in the Prospectus.
(xiv) Neither the Trust nor any of its subsidiaries is
in violation of its Declaration of Trust or 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 and in which 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 Indenture 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 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 con-
tract, 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.
(xv) The Trust is qualified as a "real estate
investment trust" under the Internal Revenue Code of 1986,
as amended (the "Code"), and will be so qualified for the
taxable year in which sales of the Underwritten Securities
are to occur.
(xvi) The Trust is not required to be registered under
the Investment Company Act of 1940, as amended (the "1940
Act").
(xvii) 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 officer, trustee or regional
manager), 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 thereof or which
might materially and adversely affect the consummation of
this Agreement, the applicable Terms Agreement, the
Indenture or the applicable Warrant 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 of
their respective property is the subject which are not
described in the Prospectus, including ordinary routine
litigation incidental to the business, are, considered in
the aggregate, not material; and there are no contracts or
documents of the Trust or any of its subsidiaries which
would be required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the
Registration Statement.
(xviii) 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.
(xix) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the consummation by the Trust of the transactions
contemplated by this Agreement, the applicable Terms
Agreement, the Indenture or any Warrant Agreement, except
such as may be required under the 1933 Act, the 1933 Act
Regulations or the 1939 Act or state securities laws.
(xx) The Trust and its subsidiaries possess adequate
certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or bodies
necessary to conduct the business now operated by them, and
neither the Trust nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially
and adversely affect the conduct of the business,
operations, financial condition or income of the Trust and
its subsidiaries considered as one enterprise.
(xxi) Each of the Trust and its subsidiaries has good
and indefeasible title in fee simple to all real property
and interests in real property owned by it in each case free
and clear of all liens, encumbrances and defects except such
as are described in the Registration Statement or such as do
not materially 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 such subsidiary, as the case may be; and,
except as otherwise described in the Prospectus, any real
property and buildings held under lease by the Trust or any
of its subsidiaries or leased by the Trust or any of its
subsidiaries to a third party are held or leased by the
Trust or its subsidiary, as the case may be, under valid,
binding and enforceable leases conforming to the description
thereof set forth in the Prospectus (to the extent described
therein), enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting the
enforcement of creditors' rights or by general equity
principles, with such exceptions as do not materially
interfere with the use made and proposed to be made of such
property and buildings by the Trust or its subsidiary, as
the case may be, or third party.
(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 the applicable 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) Neither the Trust nor any of its subsidiaries has
knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of
the properties owned by the Trust or any of its
subsidiaries, or of (b) any unlawful spills, releases,
discharges or disposal of Hazardous Materials that have
occurred or are presently occurring off such properties as a
result of any construction on or operation and use of such
properties which presence or occurrence would 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 in connection with the construction on or
operation and use of the properties owned by 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 generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous
Materials.
(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 the applicable 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.
(b) 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 aggregate principal amount 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 aggregate principal amount of Option Securities
as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such
Option Securities. Any such time, date and place of delivery (a
"Date of Delivery") shall be determined by you, but shall not be
later than seven full business days nor earlier than two full
business days after the exercise of said option, nor in any event
prior to Closing Time, 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 aggregate principal amount of Option Securities then being
purchased which the aggregate principal amount of Initial
Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in the applicable Terms Agreement
bears to the total aggregate principal amount of Initial
Underwritten Securities (except as otherwise provided in the
applicable Terms Agreement).
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall
be made at the office of Brown & Wood, 58th Floor, One World
Trade Center, New York, New York 10048-0557, or at such other
place as shall be agreed upon by you and the Trust, at 10:00
A.M., New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section 10 hereof)
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 the "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of
certificates representing, such Option Securities, shall be made
at the above-mentioned offices of Brown & Wood, 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 Federal or similar same-day funds payable to
the order of the Trust against delivery to you for the respective
accounts of the Underwriters for 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
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 equal to
that percentage of the principal amount of 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 principal amount 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 principal amount 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 three 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 principal amount of
Underwritten Securities to be purchased by each of them, and the
Trust will advise you, at least two business days 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 principal amount of Underwritten Securities to be covered by
each such Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be
purchased by the several Underwriters pursuant to the applicable
Terms Agreement shall be reduced by the principal amount 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 principal
amount of Underwritten Securities to be purchased by all
Underwriters shall be the total amount of Underwritten Securities
covered by the applicable Terms Agreement, less the principal
amount 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 principal amount of Underwritten Securities
covered thereby and their terms not otherwise specified in the
Prospectus or the Indenture pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters
participating in the offering and the principal amount 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.
(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 initiation 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, and will furnish you with copies of any such amendment
or supplement a reasonable amount of time prior to such proposed
filing 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 each Underwriter a signed
copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith and
documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act) as each Underwriter reasonably
request and will also deliver to such Underwriter 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.
(g) The Trust will endeavor, in cooperation with the Under-
writers, to qualify the Underwritten Securities, the Warrant
Securities, if any, and the Common Shares or Preferred Shares
issuable upon conversion of the Securities, 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; and in each jurisdiction in
which the Underwritten Securities, the Warrant Securities, if
any, and the Common Shares or Preferred Shares issuable upon
conversion of the Securities, 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, and the
Common Shares or Preferred Shares issuable upon conversion of the
Securities, 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 Regis-
tration Statement.
(i) 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.
(j) 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.
(k) The Trust will not, between the date of the applicable
Terms Agreement and the termination of any trading restrictions
or the Closing Time, whichever is later, with respect to the
Underwritten Securities covered thereby, without your prior
written consent, offer or sell, grant any option for the sale of,
or enter into any agreement to sell, any debt securities of the
Trust, excluding debt issued in connection with the acquisition
of portfolio properties, with a maturity of more than one year
(other than the Underwritten Securities which are to be sold
pursuant to such Terms Agreement), or if such Terms Agreement
relates to Senior Securities or Subordinated Securities that are
convertible into Common Shares or Preferred Shares, any Common
Shares or Preferred Shares or any security convertible into
Common Shares or Preferred Shares (except for Common Shares or
Preferred 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.
(l) If the Senior Securities or Subordinated Securities are
convertible into Common Shares or Preferred Shares, 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 Securities.
(m) If the Senior Securities or Subordinated Securities are
convertible into Common Shares or Preferred Shares, the Trust
will use its best efforts to list the Common Shares or Preferred
Shares, as the case may be, issuable upon conversion of the
Securities on the New York Stock Exchange or such other national
exchange on which the Trust's Common Shares or Preferred Shares,
as the case may be, are then listed.
(n) The Trust has complied and will comply with all of the
provisions of Florida H.B. 1771, Section 1, Paragraph 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 printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the cost of
printing, filing 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, of
the Trustee and its counsel and of any applicable calculation
agent or exchange rate agent, (v) the qualification of the
Underwritten Securities, the Warrant Securities, if any, and the
Common Shares and Preferred Shares issuable upon conversion of
the Securities, 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
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment
thereto, and of the Prospectus and any amendments or supplements
thereto, (vii) the cost of reproducing and distributing to the
Underwriters copies of the Indenture and the applicable Warrant
Agreement, if any, (viii) the cost of reproducing and delivering
to the Underwriters copies of the Blue Sky Survey, (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
or Preferred Shares issuable upon conversion of the Securities,
if any, on any national securities exchange, (xi) the fees and
expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc., (xii) the cost
of providing any CUSIP or other identification numbers for the
Underwritten Securities or the Common Shares or Preferred Shares
issuable upon conversion of the Securities, 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 or Section
9(b)(1), 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) the rating assigned by any
nationally recognized statistical rating organization to any
long-term debt securities 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 long-term debt securities of the
Trust on what is commonly termed a "watch list" for possible
downgrading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time,
of Robinson Silverman Pearce Aronsohn & Berman, 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 power and authority 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 business of the Trust.
(iii) The Trust is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the ownership of
its properties or the conduct of its business requires
such qualification, unless failure to so qualify 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.
(iv) Each significant subsidiary of the Trust (as
such term is defined in Rule 405 under the 1933 Act)
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power
and authority to hold mortgages, to own and lease
property and to conduct its business as described in
the Prospectus and is duly qualified as a foreign cor-
poration to transact business and is in good standing
in each jurisdiction in which such qualification is
required, except where the failure to so qualify 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; all of the issued and
outstanding capital stock of each such significant
subsidiary has been duly authorized and validly issued
and 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.
(v) The authorized, issued and outstanding Common
Shares and Preferred Shares 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 shares of beneficial interest are duly authorized,
validly issued, fully paid and non-assessable and are
not subject to preemptive or other similar rights
arising by operation of law or, to the best of such
counsel's knowledge, otherwise.
(vi) The Underwritten Securities have been duly and
validly authorized by all necessary action and, when
executed, authenticated and delivered pursuant to the
provisions of the Indenture and against payment of the
consideration therefor specified in the applicable
Terms Agreement or the Delayed Delivery Contracts, if
any, the Underwritten Securities will constitute valid
and legally binding obligations of the Trust entitled
to the benefits provided by the Indenture and
enforceable in accordance with their terms.
(vii) The Warrants, if applicable, 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 or Preferred
Shares issuable upon conversion of any of the Senior
Securities or Subordinated Securities, or the Warrant
Securities, have been duly and validly authorized and
reserved for issuance upon such conversion or exercise
by all necessary action and such shares, when issued
upon such conversion or exercise, will be duly and
validly issued and will be fully paid and non-
assessable, 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) The applicable Warrant Agreement, if any, has
been duly authorized, executed and delivered by the
Trust, and (assuming due authorization, execution and
delivery by the Warrant Agent) 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, conforms in all material respects to
all statements relating thereto contained in the
Prospectus.
(x) 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.
(xi) The Indenture has been duly and validly
authorized, executed and delivered by the Trust and
(assuming due authorization, execution and delivery by
the Trustee) constitutes the valid and legally binding
agreement of the Trust, enforceable in accordance with
its terms.
(xii) The Indenture has been duly qualified under
the 1939 Act.
(xiii) The Registration Statement is 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.
(xiv) The Registration Statement and the Prospectus,
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 for registration statements on Form S-
3 under 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 or with
respect to the Statement of Eligibility of the Trustee.
(xv) 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 prior to the Representation Date) as to form in
all material respects with the 1934 Act and the 1934
Act Regulations.
(xvi) The Underwritten Securities, the Warrant
Securities, the Common Shares or Preferred Shares
issuable upon conversion of the Senior Securities or
the Subordinated Securities, if applicable, and the
Indenture conform in all material respects to the
statements relating thereto contained in the
Prospectus.
(xvii) To the best of their knowledge and informa-
tion, there are no legal or governmental proceedings
pending or threatened 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 of the property
of the Trust or its subsidiaries is the subject which
are not described 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.
(xviii) To the best of their knowledge and informa-
tion, 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, and, to the best of
their knowledge and information, no default exists in
the due performance or observance of any 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 in the earnings,
business or business prospects of the Trust and its
subsidiaries considered as one enterprise.
(xix) 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 Warrant Agreement, if any,
and the Indenture except such as may be required under
the 1933 Act, the 1934 Act and state securities laws or
real estate syndication laws; and to the best of their
knowledge and information, the execution and delivery
of this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement, if any, and the Indenture
and the consummation of the transactions contemplated
herein and therein and compliance by the Trust with its
obligations hereunder and thereunder 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 they may be
bound or to which any of the property or assets of the
Trust or any of its subsidiaries is subject, nor will
such action result in violation of the provisions of
the Declaration of Trust or any law, administrative
regulation or court decree.
(xx) The Trust is not required to be registered
under the 1940 Act.
(3) The favorable opinion dated as of Closing Time, of
Altheimer & Gray, tax counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The information in the Prospectus under
"Certain Federal Income Tax Considerations to the Trust
of its REIT Election," to the extent that it
constitutes matters of law or legal conclusions, has
been reviewed by them and is correct.
(ii) The Trust has all legal rights, powers and
authority necessary to qualify and has qualified as a
"real estate investment trust" under Sections 856
through 860 of the Internal Revenue Code of 1986, as
amended.
(4) The favorable opinion, dated as of the Closing
Time, of Brown & Wood, counsel for the Underwriters, with
respect to the matters set forth in (i), (vi) to (xiv),
inclusive, and (xvi) of subsection (b)(1) of this Section.
(5) In giving their opinions required by subsections
(b)(1) and (b)(4), respectively, of this Section, Robinson
Silverman Pearce Aronsohn & Berman and Brown & Wood shall
each additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement or any amendment thereto (excluding
the financial statements and financial schedules included or
incorporated by reference therein, as to which such counsel
need express no belief), at the time it became effective or
at the time an Annual Report on Form 10-K was filed by the
Trust with the Commission (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 to make the statements
therein not misleading or that the Prospectus or any
amendment or supplement thereto (excluding the financial
statements and financial schedules included or incorporated
by reference therein, as to which such counsel need express
no belief), 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, Robinson Silverman Pearce
Aronsohn & Berman, Altheimer & Gray and Brown & Wood may
rely, or assume the accuracy of, (1) as to matters involving
the laws of the Commonwealth of Massachusetts upon the
opinion of Fordham & Starrett (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; 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 to
confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms
Agreement, you shall have received from Coopers & Lybrand 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 consolidated financial statements and supporting
schedules of the Trust included or incorporated by reference in
the Registration Statement and the Prospectus and covered by
their opinions therein comply in form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the
latest available unaudited interim consolidated financial
statements of the Trust, a reading of the minute books of the
Trust, inquiries of certain 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
nothing came to their attention that caused them to believe that
(A) the unaudited financial statements and financial statement
schedules 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 or are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, (B)
the unaudited operating data and balance sheet data of the Trust
in the Registration Statement and the Prospectus under the
caption "Selected Consolidated Financial Data" were not
determined on a basis substantially consistent with that used in
determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus, or (C) at a specified
date not more than five days prior to the date of the applicable
Terms Agreement, there has been any change in the capital stock
of the Trust or in the consolidated long term 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 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, or decrease in 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 audit referred to in
their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and the
Prospectus and which are specified by you, and have found such
amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Trust and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Coopers &
Lybrand 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
days prior to such Closing Time.
(f) At the time of execution of the applicable Terms
Agreement, you shall have received from Eichler, Bergsman,
Belonsky & Co. a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that (i) they are
independent public accountants as required by the 1933 Act and
the applicable published rules and regulations thereunder with
respect to the Trust and its subsidiaries and certain properties
acquired by the Trust; and (ii) it is their opinion that the
financial statements and supporting schedules of the properties
acquired by the Trust included in the Trust's Form 8-K
incorporated by reference in the Registration Statement and
covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1934 Act and the related published rules and
regulations thereunder.
(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 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 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 you shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chief Executive Officer or the President of the Trust, in
their capacities as such, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Robinson Silverman Pearce
Aronsohn & Berman, counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as
the opinion required by Section 5(b)(1) hereof.
(3) The favorable opinion of Altheimer & Gray, tax
counsel for the Trust, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by
Section 5(b)(2) hereof.
(4) The favorable opinion of Brown & Wood, counsel for
the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b)(3) hereof.
(5) A letter from Coopers & Lybrand, 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 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, 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 un-
true statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission, or alleged omission therefrom, of
a material fact necessary 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
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)
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings
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 any
Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or made in reliance upon the Trustee's Statement of
Eligibility filed as an exhibit to the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Trust, its trustees, each of its 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 any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Trust by such Underwriter
through you expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) 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. 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.
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 respon-
sible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten
Securities purchased by it pursuant to the applicable Terms
Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this
Section 7, 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.
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
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
until the expiration of any statute of limitations applicable to
any legal or regulatory action.
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 party
hereto; provided that this Agreement may not be terminated prior
to the Closing Time set forth in any applicable Terms Agreement.
(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 other calamity or crisis
or escalation of any existing hostilities, the effect of which 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 by the Commission or
the New York Stock Exchange, or if trading generally on either
the New York Stock Exchange 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, New York or
Massachusetts authorities, or (iv) if the rating assigned by any
nationally recognized statistical rating organization to any
long-term debt securities 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 long-term debt securities 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 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 aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount
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 aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of
Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default
under this Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the
Trust shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
c/o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Merrill Lynch World Headquarters, North Tower,
World Financial Center, New York, New York 10281-1326, attention
of Tjarda V.S. Clagett, Director; and notices to the Trust shall
be directed to it at 1120 Avenue of the Americas, New York, New
York 10036, attention of William Newman, Chairman.
Section 12. Parties. This Agreement and the applicable
Terms Agreement shall inure to the benefit of and be binding upon
you and the Trust and any Underwriter who becomes a party to such
Terms Agreement, and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable Terms
Agreement is intended or shall be construed to give any person,
firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or such Terms Agreement or any provision herein or
therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors and
said controlling persons and officers and trustees and their
heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified
times of day refer to New York City time.
Section 14. No Liability of Shareholders, Trustees or
Officers. This Agreement, the applicable Terms Agreement and all
documents, agreements, understandings and arrangements relating
to this transaction have been executed by the undersigned in
his/her capacity as an officer or trustee of the Trust which has
been formed as a Massachusetts business trust pursuant to a
Declaration of Trust of New Plan Realty Trust dated as of July
31, 1972, as amended, and not individually, and neither the
trustees, officers or shareholders of the Trust shall be bound or
have any person 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: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:____________________________
Exhibit A
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
TERMS AGREEMENT
Dated: , 1994
To: New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
We (the "Representative") understand that New Plan Realty
Trust, a Massachusetts business trust (the "Trust"), proposes to
issue and sell $ aggregate principal amount of its
[Title of Debt Securities] [and] [ Warrants (the
"Warrants") to purchase an aggregate of $ principal
amount of [Title of Warrant Securities] (the "Warrant
Securities")] (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 amounts 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.
Principal Amount Number of
Underwriter of Debt Securities Warrants
___________ __________________ ________
__________ __________
Total $ $
========== ==========
The Underwritten Securities shall have the following terms:
[Securities]
Title of Securities:
Currency:
Principal amount to be issued:
Current Ratings:
Interest rate or formula:
Interest payment dates:
Stated maturity date:
Redemption and/or repayment 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 aggregate principal amount:
Fee: %]
Initial public offering price: %, plus accrued interest, if
any, or amortized original issue discount, if any, from
, 19 .
Purchase price: %, plus accrued interest, if any, or
amortized original issue discount, if any, from , 19
(payable in [same] [next] day funds).
Conversion provisions:
Form:
Other terms:
Closing time, date and location:
[Warrants]
Number of Warrants to be issued:
Warrant Agent:
Issuable jointly with Securities: [Yes] [No]
[Number of Warrants issued
with each $ principal amount of Securities:]
[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-Debt Securities
and Warrants to Purchase Debt Securities-Underwriting Agreement"
are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein
defined.
Please accept this offer no later than o'clock P.M. (New
York City time) on by signing a copy of this Terms
Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_________________________
Acting on behalf of itself and
the other named Underwriters.
Accepted:
NEW PLAN REALTY TRUST
By:_________________________
Name:
Title:
Exhibit B
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
DELAYED DELIVERY CONTRACT
, 19
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
The undersigned hereby agrees to purchase from New Plan
Realty Trust (the "Trust"), and the Trust agrees to sell to the
undersigned on __________, 19__ (the "Delivery Date"),
of the Trust's [insert title of security] (the "Securities"),
offered by the Trust's Prospectus dated __________, 19__, as
supplemented by its Prospectus Supplement dated ___________,
19__, receipt of which is hereby acknowledged, at a purchase
price of _____% of the principal amount thereof, plus accrued
interest from __________, 19__,] [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 Federal or
similar same-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 five 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 an aggregate principal amount 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)
____ _____________
EXHIBIT (1.2)
B&W Draft
5/19/94
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
Common Shares, Preferred Shares,
Warrants to Purchase Common Shares and
Preferred Shares, and Depositary Shares
UNDERWRITING AGREEMENT
____________, 1994
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1326
Dear Sirs:
New Plan Realty Trust, a Massachusetts business trust (the
"Trust") proposes to issue and sell shares of beneficial interest
without par value (the "Common Shares"), preferred shares of
beneficial interest, par value $1.00 per share (the "Preferred
Shares"), and/or warrants to purchase a number of Common Shares
or Preferred Shares (the "Warrants"), 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 provisions and any other
variable terms as set forth in the applicable resolutions (each,
the "Resolutions") relating to such Preferred Shares. As used
herein, "Securities" shall mean the Common Shares, the Preferred
Shares, the Warrants, 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, including the number of Warrants, 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 such
of you or such other Underwriters acting as 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, 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
provisions, redemption provisions and sinking fund requirements
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 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 Com-
mission (the "Commission") a registration statement on Form S-3
(No. 33-53311) 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 all
documents incorporated therein by reference, 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 "Registration 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, the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
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 "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective,
complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of
the 1933 Act and 1933 Act Regulations; the Registration
Statement, at the time the Registration Statement became
effective, 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 that
part of the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished
to the Trust in writing by any Underwriter through you
expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were or
hereafter are filed with the 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 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 financial statements and supporting schedules
included in, or incorporated by reference into, the Regis-
tration Statement and the Prospectus present fairly in all
material respects the financial position of the Trust and
its consolidated subsidiaries as of the dates indicated and
the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis; and 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.
(v) 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) there have been no transactions or
acquisitions entered into 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 (C)
except for regular quarterly dividends on the Trust's
shares of beneficial interest, or dividends declared, paid
or made in accordance with the terms of any series of the
Trust's preferred shares of beneficial interest, there has
been no dividend or distribution of any kind declared, paid
or made by the Trust on any class of its shares of
beneficial interest or preferred shares of beneficial
interest.
(vi) 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 the
Trust is duly qualified and in good standing in each
jurisdiction in which the ownership of its property or the
conduct of its business requires such qualification, except
where the failure to so qualify 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.
(vii) Each subsidiary of the Trust has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to hold
mortgages, to own and lease property and to conduct its
business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so
qualify 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 all of the issued and
outstanding capital stock of each such subsidiary 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].
(viii) The authorized, issued and outstanding common and
preferred shares of beneficial interest 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 shares of beneficial interest
and preferred shares of beneficial interest of the Trust
have been duly authorized and validly issued and are fully
paid and non-assessable and are not subject to preemptive or
other similar rights.
(ix) The Underwritten Securities (other than Warrants)
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
for issuance and sale pursuant to this Agreement (and, if
applicable, the Deposit Agreement) and, when issued and
delivered pursuant to this Agreement (and, if applicable,
the Deposit Agreement) against payment of the consideration
therefor specified in the applicable Terms Agreement or any
Delayed Delivery Contract (as hereinafter defined), such
Underwritten Securities will be duly and validly issued,
fully paid and non-assessable; the Preferred Shares, if
applicable, conform to the provisions of the Resolutions;
such Underwritten Securities 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.
(x) 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); the issuance of the Warrant Securities upon
exercise of the Warrants will not be subject to preemptive
or other similar rights; and the Warrants conform in all
material respects to all statements relating thereto
contained in the Prospectus.
(xi) 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 and such
shares, when issued upon such conversion or exercise, will
be duly and validly issued, fully paid and non-assessable,
and the issuance of such shares upon such conversion or
exercise will not be subject to preemptive or other similar
rights; the Common Shares so issuable or the Warrant
Securities conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xii) 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 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.
(xiii) 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).
(xiv) Neither the Trust nor any of its subsidiaries is
in violation of its Declaration of Trust or 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 and in which 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.
(xv) The Trust is qualified as a "real estate
investment trust" under the Internal Revenue Code of 1986,
as amended (the "Code"), and will be so qualified for the
taxable year in which sales of the Underwritten Securities
are to occur.
(xvi) The Trust is not required to be registered under
the Investment Company Act of 1940, as amended (the "1940
Act").
(xvii) 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 officer, trustee or regional
manager), 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 thereof 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 of their respective property is the
subject which are not described in the Prospectus, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material; and there are no
contracts or documents of the Trust or any of its
subsidiaries which would be required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been filed as exhibits to the
Registration Statement.
(xviii) 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.
(xix) No authorization, approval or consent of any
governmental authority or agency is necessary 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 or state securities laws.
(xx) The Trust and its subsidiaries possess adequate
certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or bodies
necessary to conduct the business now operated by them, and
neither the Trust nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially
and adversely affect the conduct of the business,
operations, financial condition or income of the Trust and
its subsidiaries considered as one enterprise.
(xxi) Each of the Trust and its subsidiaries has good
and indefeasible title in fee simple to all real property
and interests in real property owned by it in each case free
and clear of all liens, encumbrances and defects except such
as are described in the Registration Statement or such as do
not materially 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 such subsidiary, as the case may be; and,
except as otherwise described in the Prospectus, any real
property and buildings held under lease by the Trust or any
of its subsidiaries or leased by the Trust or any of its
subsidiaries to a third party are held or leased by the
Trust or its subsidiary, as the case may be, under valid,
binding and enforceable leases conforming to the description
thereof set forth in the Prospectus (to the extent described
therein), enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting the
enforcement of creditors' rights or by general equity
principles, with such exceptions as do not materially
interfere with the use made and proposed to be made of such
property and buildings by the Trust or its subsidiary, as
the case may be, or third party.
(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 the applicable 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) Neither the Trust nor any of its subsidiaries
has knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of
the properties owned by the Trust or any of its
subsidiaries, or of (b) any unlawful spills, releases,
discharges or disposal of Hazardous Materials that have
occurred or are presently occurring off such properties as a
result of any construction on or operation and use of such
properties which presence or occurrence would 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 in connection with the construction on or
operation and use of the properties owned by 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 generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous
Materials.
(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 the applicable 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.
(b) 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 and date
of payment and delivery for such Option Securities. Any such
time, date and place of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than seven full
business days nor earlier than two full business days after the
exercise of said option, nor in any event prior to Closing Time,
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 office of Brown & Wood, 58th Floor, One World
Trade Center, New York, New York 10048-0557, or at such other
place as shall be agreed upon by you and the Trust, at 10:00
A.M., New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section 10 herein)
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 the "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of
certificates representing, such Option Securities, shall be made
at the above-mentioned offices of Brown & Wood, 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 Federal or similar same-day funds payable to
the order of the Trust against delivery to you for the respective
accounts of the Underwriters of the certificates for 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 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 three 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 two business days 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.
(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 initiation 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, and will furnish you with copies of any such amendment
or supplement a reasonable amount of time prior to such proposed
filing 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 each Underwriter a signed
copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith and
documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act) as you reasonably request and
will also deliver to each Underwriter 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.
(g) The Trust will endeavor, in cooperation with the Under-
writers, 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; and 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 Regis-
tration Statement.
(i) 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.
(j) 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.
(k) The Trust will not, between the date of the applicable
Terms Agreement and the termination of any trading restrictions
or the Closing Time, whichever is later, with respect to the
Underwritten Securities covered thereby, without your prior
written consent, 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 if such Terms
Agreement relates to Preferred Shares or Depositary Shares that
are convertible into Common Shares, any Common Shares or any
security convertible into Common Shares (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.
(l) 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.
(m) If the Preferred Shares or Depositary Shares 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 New York Stock
Exchange or such other national exchange on which the Trust's
Common Shares are then listed.
(n) The Trust has complied and will comply with all of the
provisions of Florida H.B. 1771, Section 1, Paragraph 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 printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the cost of
printing, filing 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 printing and
delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, and
of the Prospectus and any amendments or supplements thereto,
(vii) the cost of reproducing and distributing to the
Underwriters copies of the applicable Deposit Agreement, if any,
and the applicable Warrant Agreement, if any, (viii) the cost of
reproducing and delivering to the Underwriters copies of the Blue
Sky Survey, (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, and (xi) the fees and
expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is cancelled or terminated
by you in accordance with the provisions of Section 5 or Section
9(b)(1), 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.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time,
of Robinson Silverman Pearce Aronsohn & Berman, 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 power and authority 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 business of the Trust.
(iii) The Trust is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the ownership of
its properties or the conduct of its business requires
such qualification, unless failure to so qualify 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.
(iv) Each significant subsidiary of the Trust (as
such term is defined in Rule 405 under the 1933 Act)
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power
and authority to hold mortgages, to own and lease
property and to conduct its business as described in
the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, except where the failure to
so qualify 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; all of the
issued and outstanding capital stock of each such
significant subsidiary has been duly authorized and
validly issued and 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.
(v) The authorized, issued and outstanding
shares of beneficial interest and preferred shares of
beneficial interest 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 shares of
beneficial interest are duly authorized, validly
issued, fully paid and non-assessable and are not
subject to preemptive or other similar rights arising
by operation of law or, to the best of such counsel's
knowledge, otherwise.
(vi) The Underwritten Securities 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
action and, when issued and delivered pursuant to this
Agreement against payment of the consideration therefor
specified in the applicable Terms Agreement or the
Delayed Delivery Contracts, the Underwritten Securities
will be validly issued, fully paid and non-assessable;
and the Preferred Shares, if applicable, conform to the
provisions of the Resolutions.
(vii) The Warrants, if applicable, 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 and such shares, when issued upon such
conversion or exercise, will be duly and validly issued
and will be fully paid and non-assessable, 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) 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.
(x) 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).
(xi) 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.
(xii) The Registration Statement is 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, 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 for registration statements on
Form S-3 under 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 prior to the Representation Date) 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; and, as applicable, the form of
certificate used to evidence the Preferred Shares being
represented by the Depositary Shares and form of
certificate used to evidence 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.
(xvi) The Underwritten Securities, the Warrant
Securities, and the Common Shares issuable upon
conversion of the Preferred Shares or Depositary
Shares, if applicable, conform in all material respects
to the statements relating thereto contained in the
Prospectus.
(xvii) To the best of their knowledge and informa-
tion, there are no legal or governmental proceedings
pending or threatened 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 of the property
of the Trust or its subsidiaries is the subject which
are not described 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.
(xviii) To the best of their knowledge and informa-
tion, 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, and, to the best of
their knowledge and information, no default exists in
the due performance or observance of any 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 in the earnings,
business or business prospects of the Trust and its
subsidiaries considered as one enterprise.
(xix) 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 to the best of their knowledge and information, 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 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 they may
be bound or to which any of the property or assets of
the Trust or any of its subsidiaries is subject, nor
will such action result in violation of the provisions
of the Declaration of Trust or any law, administrative
regulation or court decree.
(xx) The Trust is not required to be registered
under the 1940 Act.
(3) The favorable opinion dated as of Closing Time, of
Altheimer & Gray, tax counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The information in the Prospectus under
"Certain Federal Income Tax Considerations to the Trust
of its REIT Election," to the extent that it
constitutes matters of law or legal conclusions, has
been reviewed by them and is correct.
(ii) The Trust has all legal rights, powers and
authority necessary to qualify and has qualified as a
"real estate investment trust" under Sections 856
through 860 of the Internal Revenue Code of 1986, as
amended.
(4) The favorable opinion, dated as of the Closing
Time, of Brown & Wood, 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.
(5) In giving their opinions required by subsections
(b)(1) and (b)(4), respectively, of this Section, Robinson
Silverman Pearce Aronsohn & Berman and Brown & Wood shall
each additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement or any amendment thereto (excluding
the financial statements and financial schedules included or
incorporated by reference therein, as to which such counsel
need express no belief), at the time it became effective or
at the time an Annual Report on Form 10-K was filed by the
Trust with the Commission (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 to make the statements
therein not misleading or that the Prospectus or any
amendment or supplement thereto (excluding the financial
statements and financial schedules included or incorporated
by reference therein, as to which such counsel need express
no belief), 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, Robinson Silverman Pearce
Aronsohn & Berman, Altheimer & Gray and Brown & Wood may
rely, or assume the accuracy of, (1) as to matters involving
the laws of the Commonwealth of Massachusetts upon the
opinion of Fordham & Starrett (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; 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 to
confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms
Agreement, you shall have received from Coopers & Lybrand 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 consolidated financial statements and supporting
schedules of the Trust included or incorporated by reference in
the Registration Statement and the Prospectus and covered by
their opinions therein comply in form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the
latest available unaudited interim consolidated financial
statements of the Trust, a reading of the minute books of the
Trust, inquiries of certain 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
nothing came to their attention that caused them to believe that
(A) the unaudited financial statements and financial statement
schedules 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 or are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, (B)
the unaudited operating data and balance sheet data of the Trust
in the Registration Statement and the Prospectus under the
caption "Selected Consolidated Financial Data" were not
determined on a basis substantially consistent with that used in
determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus, (C) at a specified
date not more than five days prior to the date of the applicable
Terms Agreement, there has been any change in the capital stock
of the Trust or in the consolidated long term 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 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, or decrease in 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 audit referred to in
their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and the
Prospectus and which are specified by you, and have found such
amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Trust and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Coopers &
Lybrand 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
days prior to such Closing Time.
(f) At the time of execution of the applicable Terms
Agreement, you shall have received from Eichler, Bergsman,
Belonsky & Co. a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that (i) they are
independent public accountants as required by the 1933 Act and
the applicable published rules and regulations thereunder with
respect to the Trust and its subsidiaries and certain properties
acquired by the Trust; and (ii) it is their opinion that the
financial statements and supporting schedules of the properties
acquired by the Trust included in the Trust's Form 8-K
incorporated by reference in the Registration Statement and
covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1934 Act and the related published rules and
regulations thereunder.
(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 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 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 you shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chief Executive Officer or the President of the Trust, in
their capacities as such, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Robinson Silverman Pearce
Aronsohn & Berman, counsel for the Trust, in form and
substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as
the opinion required by Section 5(b)(1) hereof.
(3) The favorable opinion of Altheimer & Gray, tax
counsel for the Trust, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by
Section 5(b)(2) hereof.
(4) The favorable opinion of Brown & Wood, counsel for
the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b)(3) hereof.
(5) A letter from Coopers & Lybrand, 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 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, 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 un-
true statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission, or alleged omission therefrom, of
a material fact necessary 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
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)
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings
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 any
Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Trust, its trustees, each of its 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 any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Trust by such Underwriter
through you expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) 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. 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.
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 respon-
sible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten
Securities purchased by it pursuant to the applicable Terms
Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this
Section 7, 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.
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
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
until the expiration of any statute of limitations applicable to
any legal or regulatory action.
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 party
hereto; provided that this Agreement may not be terminated prior
to the Closing Time set forth in any applicable Terms Agreement.
(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 other calamity or crisis
or escalation of any existing hostilities, the effect of which 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 by the Commission or
the New York Stock Exchange, or if trading generally on either
the New York Stock Exchange 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, New York or
Massachusetts 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 to confirm sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of
Underwritten Securities shall remain in effect so long as any
Underwriter owns any such Underwritten Securities purchased from
the Trust pursuant to the applicable Terms Agreement and (y) the
covenant set forth in Section 3(h) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections
8, 13 and 14 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time to
purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then you shall have the right, within 48
hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities
in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, you shall not have completed such
arrangements within such 48-hour period, then:
(a) if the total number of Defaulted Securities does not
exceed 10% of the total number of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10%
of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement
shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default
under this Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the
Trust shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
c/o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Merrill Lynch World Headquarters, North Tower,
World Financial Center, New York, New York 10281-1326, attention
of Tjarda V.S. Clagett, Director; and notices to the Trust shall
be directed to it at 1120 Avenue of the Americas, New York, New
York 10036, attention of William Newman, Chairman.
Section 12. Parties. This Agreement and the applicable
Terms Agreement shall inure to the benefit of and be binding upon
you and the Trust and any Underwriter who becomes a party to such
Terms Agreement, and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable Terms
Agreement is intended or shall be construed to give any person,
firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or such Terms Agreement or any provision herein or
therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors and
said controlling persons and officers and trustees and their
heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified
times of day refer to New York City time.
Section 14. No Liability of Shareholders, Trustees or
Officers. This Agreement, the applicable Terms Agreement and all
documents, agreements, understandings and arrangements relating
to this transaction have been executed by the undersigned in
his/her capacity as an officer or trustee of the Trust which has
been formed as a Massachusetts business trust pursuant to a
Declaration of Trust of New Plan Realty Trust dated as of July
31, 1972, as amended, and not individually, and neither the
trustees, officers or shareholders of the Trust shall be bound or
have any person 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: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: __________________________
Exhibit A
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
TERMS AGREEMENT
Dated: , 1994
To: New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
We (the "Representative") understand that New Plan Realty
Trust, a Massachusetts business trust (the "Trust"), proposes to
issue and sell the number of its [shares of beneficial interest
(the "Common Shares")] [preferred shares of beneficial interest
(the "Preferred Shares")] [ Warrants (the "Warrants")
to purchase Shares (the "Warrant Securities")]
[interests in Preferred Shares in the form of
depositary shares (the "Depositary Shares") represented by
depositary receipts (the "Depositary Receipts")] (such [Common
Shares] [Preferred Shares] [Warrants] [Depositary Shares and
Depositary Receipts] being collectively hereinafter [also]
referred to as the "Underwritten Securities"). Subject to the
terms and conditions set forth or incorporated by reference
herein, the underwriters named below (the "Underwriters") offer
to purchase, severally and not jointly, the respective numbers of
[Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below)] [, including the respective numbers
of Warrants, if applicable,] set forth below opposite their
respective names, and a proportionate share of Option Securities
(as defined in the Underwriting Agreement referred to below) to
the extent any are purchased, at the purchase price set forth
below.
Number of Shares
of Initial Number of
Underwriter Underwritten Securities Warrants
___________ _______________________ ________
__________ __________
Total $ $
========== ===========
The Underwritten Securities shall have the following terms:
[Common Shares] [Preferred Shares] [Depositary Shares]
Title of Securities:
Number of Shares:
[If applicable, fractional amount of Preferred Shares represented
by each Depositary Share:]
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated
dividends, if any, from , 19 .]
Purchase price per share: $ [, plus accumulated
dividends, if any, from , 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of Option Securities, if any, that may be purchased by the
Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee:]
Additional co-managers, if any:
Other terms:
Closing time, date and location:
Warrants
Number of Warrants to be issued:
Warrant Agent:
Issuable jointly with _______ Shares: [Yes] [No]
[Number of Warrants issued
with each ______ Share:]
[Detachable data:]
Date from which Warrants are exercisable:
Date on which Warrants expire:
Exercise price(s) of Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
All the provisions contained in the document attached as
Annex A hereto entitled "New Plan Realty Trust-Common Shares,
Preferred Shares, Warrants to Purchase Common Shares and
Preferred Shares, and Depositary Shares-Underwriting Agreement"
are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein
defined.
Please accept this offer no later than o'clock P.M. (New
York City time) on by signing a copy of this Terms
Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_________________________
Acting on behalf of itself and
the other named Underwriters.
Accepted:
NEW PLAN REALTY TRUST
By:_________________________
Name:
Title:
Exhibit B
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_____________, 19__
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Chairman of the Board of Trustees
Dear Sirs:
The undersigned hereby agrees to purchase from New Plan
Realty Trust (the "Trust"), and the Trust agrees to sell to the
undersigned on __________, 19__ (the "Delivery Date"),
of the Trust's [insert title of security] (the "Securities"),
offered by the Trust's Prospectus dated __________, 19__, as
supplemented by its Prospectus Supplement dated ___________,
19__, receipt of which is hereby acknowledged, at a purchase
price of [$__________] [and, $__________ per Warrant,
respectively], on the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed
to purchase on the Delivery Date shall be made to the Trust or
its order by certified or official bank check in Federal or
similar same-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 five 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)
____ _____________
EXHIBIT (5)
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
1290 Avenue of the Americas
New York, New York 10104
May 20, 1994
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Re: $250,000,000 Aggregate Offering Price of
Securities of New Plan Realty Trust
________________________________________
Ladies and Gentlemen:
We are acting as counsel for New Plan Realty Trust
(the "Trust") in connection with the registration statement on
Form S-3 (the "Registration Statement") filed by the Trust with
the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to the offering from time to time,
as set forth in the prospectus contained in the Registration
Statement (the "Prospectus") and as to be set forth in one or
more supplements to the Prospectus (each a "Prospectus
Supplement"), by the Trust of up to $250,000,000 aggregate
offering price of one or more series of (i) unsecured debt
securities, which may be either senior debt securities (the
"Senior Securities") or subordinated debt securities (the
"Subordinated Securities," and together with the Senior
Securities, the "Debt Securities"), (ii) preferred shares of
beneficial interest, par value $1.00 per share (the "Preferred
Shares"), (iii) Preferred Shares represented by depositary
shares (the "Depositary Shares"), (iv) shares of beneficial
interest without par value (the "Common Shares"), or (v)
warrants to purchase Debt Securities, Preferred Shares or Common
Shares (the "Warrants"). The Debt Securities, Preferred Shares,
Depositary Shares, Common Shares and Warrants are collectively
referred to herein as the "Securities." Any Debt Securities may
be convertible into Preferred Shares or Common Shares and any
Preferred Shares may be convertible into Common Shares.
The Senior Securities are to be issued under an
Indenture, as amended or supplemented from time to time (the
"Senior Securities Indenture"), between the Trust and a trustee
to be selected by the Trust (the "Senior Securities Trustee")
and the Subordinated Securities are to be issued under an
Indenture, as amended or supplemented from time to time (the
"Subordinated Securities Indenture"), between the Trust and a
trustee to be selected by the Trust (the "Subordinated
Securities Trustee"). The Depositary Shares are to be issued
under one or more Deposit Agreements (each, a "Deposit
Agreement"), each to be between the Trust and a financial
institution identified therein as the depositary (each, a
"Depositary"). The Warrants are to be issued under one or more
Warrant Agreements (each, a "Warrant Agreement"), each to be
between the Trust and a financial institution identified therein
as warrant agent (each, a "Warrant Agent").
In our capacity as your counsel in connection with
such registration, we are familiar with the proceedings taken
and proposed to be taken by the Trust in connection with the
authorization and issuance of the Securities and for the
purposes of this opinion, have assumed such proceedings will be
timely completed. In addition, we have made such legal and
factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and
instruments, as we have deemed necessary or appropriate for
purposes of this opinion.
In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to
us as originals, and the conformity to authentic original
documents of all documents submitted to us as copies. With your
knowledge and permission, with respect to matters of
Massachusetts law and as to the matters set forth therein, we
have relied on the opinion of Fordham & Starrett, Massachusetts
counsel to the Trust, a copy of which is attached hereto and
made a part hereof.
We have been furnished with, and with your consent
have relied upon, certificates of officers of the Trust with
respect to certain factual matters. In addition, we have
obtained and relied upon such certificates and assurances from
public officials as we have deemed necessary.
We are members of the Bar of the State of New York and
we express no opinion herein concerning any law other than the
laws of the State of New York and the laws of the United States
of America.
Subject to the foregoing and the other matters set
forth herein, it is our opinion that, as of the date hereof:
1. The Senior Securities Indenture has been duly
authorized, and when duly executed and delivered by the
Trust will constitute the legally valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms.
2. The Senior Securities have been duly authorized
and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when the Senior Securities have been duly established
pursuant to the Senior Securities Indenture, duly
authenticated by the Senior Securities Trustee and duly
executed and delivered on behalf of the Trust against
payment therefor in accordance with the terms and
provisions of the Senior Securities Indenture and as
contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, the Senior Securities
will constitute legally valid and binding obligations of
the Trust, enforceable against the Trust in accordance with
their terms.
3. The Subordinated Securities Indenture has been
duly authorized and, when the final terms thereof have been
duly established in accordance with the laws of
Massachusetts, and when duly executed and delivered by the
Trust will constitute the legally valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms.
4. The Subordinated Securities have been duly
authorized and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when the Subordinated Securities have been established
pursuant to the Subordinated Securities Indenture, duly
authenticated by the Subordinated Securities Trustee and
duly executed and delivered on behalf of the Trust against
payment therefor in accordance with the terms and
provisions of the Subordinated Securities Indenture and as
contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, the Subordinated
Securities will constitute legally valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their terms.
5. The Preferred Shares have been duly authorized
and when the Preferred Shares have been duly established in
accordance with the terms of the Trust's Declaration of
Trust, as amended and applicable law, and, upon issuance,
delivery and payment therefor in the manner contemplated by
the Registration Statement and/or the applicable Prospectus
Supplement, the Preferred Shares will be validly issued,
fully paid and nonassessable.
6. The Deposit Agreements have been duly authorized
and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when duly executed and delivered by the Trust will
constitute the legally valid and binding agreements of the
Trust, enforceable against the Trust in accordance with
their respective terms.
7. The Depositary Shares have been duly authorized,
and when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when the
depositary receipts representing the Depositary Shares (the
"Depositary Receipts") have been duly executed and
delivered by the Depositary and delivered to and paid for
by the purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, and when all corporate action necessary for the
issuance of such Depositary Shares and the underlying
Preferred Shares has been taken, such Depositary Shares
will be validly issued and will entitle the holders thereof
to the rights specified in the Depositary Receipts and the
Deposit Agreement.
8. The Common Shares have been duly authorized, and
upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, will be validly issued,
fully paid and nonassessable.
9. The Warrant Agreements have been duly authorized
and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when duly executed and delivered by the Trust will
constitute the legally valid and binding agreements of the
Trust, enforceable against the Trust in accordance with
their respective terms.
10. The Warrants have been duly authorized, and when
the final terms thereof have been duly established in
accordance with the laws of Massachusetts, and when duly
executed and delivered by the Trust and countersigned by
the applicable Warrant Agent in accordance with the
applicable Warrant Agreement and delivered to and paid for
by the purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, will constitute legally valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their respective terms.
The opinions set forth above are subject to the
following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, whether enforcement is
considered in a proceeding in equity or law; (iii) the
unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy;
(iv) we express no opinion concerning the enforceability of the
waiver of rights or defenses contained in Section 514 of the
Senior Securities Indenture or any similar provision to be
contained in the Subordinated Securities Indenture; and (iii) we
express no opinion with respect to whether acceleration of Debt
Securities may affect the collectibility of any portion of the
stated principal amount thereof which might be determined to
constitute unearned interest thereon.
To the extent that the obligations of the Trust under
the Senior Securities Indenture may be dependent upon such
matters, we assume for purposes of this opinion that the Senior
Securities Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of
organization; that the Senior Securities Trustee is duly
qualified to engage in the activities contemplated by the Senior
Securities Indenture; that the Senior Securities Indenture has
been duly authorized, executed and delivered by the Senior
Securities Trustee and constitutes the legally valid and binding
obligation of the Senior Securities Trustee enforceable against
the Senior Securities Trustee in accordance with its terms; that
the Senior Securities Trustee is in compliance, generally with
respect to acting as a trustee under the Senior Securities
Indenture, with all applicable laws and regulations; and that
the Senior Securities Trustee has the requisite organization and
legal power and authority to perform its obligations under the
Senior Securities Indenture.
To the extent that the obligations of the Trust under
the Subordinated Securities Indenture may be dependent upon such
matters, we assume for purposes of this opinion that the
Subordinated Securities Trustee is duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization; that the Subordinated Securities Trustee is
duly qualified to engage in the activities contemplated by the
Senior Securities Indenture; that the Subordinated Securities
Indenture has been duly authorized, executed and delivered by
the Subordinated Securities Trustee and constitutes the legally
valid and binding obligation of the Subordinated Securities
Trustee enforceable against the Subordinated Securities Trustee
in accordance with its terms; that the Subordinated Securities
Trustee is in compliance, generally with respect to acting as a
trustee under the Subordinated Securities Indenture, with all
applicable laws and regulations; and that the Subordinated
Securities Trustee has the requisite organization and legal
power and authority to perform its obligations under the
Subordinated Securities Indenture.
To the extent that the obligations of the Trust under
each Deposit Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Depositary is duly
organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Depositary is duly
qualified to engage in the activities contemplated by the
Deposit Agreement; that the Deposit Agreement has been duly
authorized, executed and delivered by the Depositary and consti-
tutes the legally valid and binding obligation of the Depositary
enforceable against the Depositary in accordance with its terms;
that the Depositary is in compliance, generally with respect to
acting as a Depositary under the Deposit Agreement, with all
applicable laws and regulations; and that the Depositary has the
requisite organizational and legal power and authority to
perform its obligations under the Deposit Agreement.
To the extent that the obligations of the Trust under
each Warrant Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Warrant Agent is
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Warrant Agent
is duly qualified to engage in the activities contemplated by
the Warrant Agreement; that the Warrant Agreement has been duly
authorized, executed and delivered by the Warrant Agent and
constitutes the legally valid and binding obligation of the
Warrant Agent enforceable against the Warrant Agent in
accordance with its terms; that the Warrant Agent is in
compliance, generally with respect to acting as a Warrant Agent
under the Warrant Agreement, with all applicable laws and
regulations; and that the Warrant Agent has the requisite
organizational and legal power and authority to perform its
obligations under the Warrant Agreement.
We consent to your filing this opinion as an exhibit
to the Registration Statement and to the reference to our firm
under the caption "Legal Matters" in the prospectus included
therein.
This opinion is rendered only to you and is solely for
your benefit in connection with the transactions covered hereby.
This opinion may not be relied upon by you for any other
purpose, or furnished to, quoted to, or relied upon by any other
person, firm or corporation for any purpose, without our prior
written consent.
Very truly yours,
ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN
FORDHAM & STARRETT, P.C.
260 Franklin Street, Suite 1900
Boston, Massachusetts 02110
May 20, 1994
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Robinson Silverman Pearce Aronsohn & Berman
1290 Avenue of the Americas
New York, NY 10104
Re: $250,000,000 Aggregate Offering Price of
Securities of New Plan Realty Trust
________________________________________
Ladies and Gentlemen:
We are acting as Massachusetts counsel for New Plan
Realty Trust (the "Trust") in connection with the registration
statement on Form S-3 (the "Registration Statement") filed by the
Trust with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the offering from
time to time, as set forth in the prospectus contained in the
Registration Statement (the "Prospectus") and as to be set forth
in one or more supplements to the Prospectus (each a "Prospectus
Supplement"), by the Trust of up to $250,000,000 aggregate
offering price of one or more series of (i) unsecured debt
securities, which may be either senior debt securities (the
"Senior Securities") or subordinated debt securities (the
"Subordinated Securities," and together with the Senior
Securities, the "Debt Securities"), (ii) preferred shares of
beneficial interest, par value $1.00 per share (the "Preferred
Shares"), (iii) Preferred Shares represented by depositary shares
(the "Depositary Shares"), (iv) shares of beneficial interest
without par value (the "Common Shares"), or (v) warrants to
purchase Debt Securities, Preferred Shares or Common Shares (the
"Warrants"). The Debt Securities, Preferred Shares, Depositary
Shares, Common Shares and Warrants are collectively referred to
herein as the "Securities." Any Debt Securities may be
convertible into Preferred Shares or Common Shares and any
Preferred Shares may be convertible into Common Shares.
The Senior Securities are to be issued under an
Indenture, as amended or supplemented from time to time (the
"Senior Securities Indenture"), between the Trust and a trustee
to be selected by the Trust (the "Senior Securities Trustee") and
the Subordinated Securities are to be issued under an Indenture,
as amended or supplemented from time to time (the "Subordinated
Securities Indenture"), between the Trust and a trustee to be
selected by the Trust (the "Subordinated Securities Trustee").
The Depositary Shares are to be issued under one or more Deposit
Agreements (each, a "Deposit Agreement"), each to be between the
Trust and a financial institution identified therein as the
depositary (each, a "Depositary"). The Warrants are to be issued
under one or more Warrant Agreements (each, a "Warrant
Agreement"), each to be between the Trust and a financial
institution identified therein as warrant agent (each, a "Warrant
Agent").
In our capacity as your Massachusetts counsel in
connection with such registration, we are familiar with the
proceedings taken and proposed to be taken by the Trust in
connection with the authorization and issuance of the Securities
and for the purposes of this opinion, have assumed such
proceedings will be timely completed. In addition, we have made
such legal and factual examinations and inquiries, including an
examination of originals or copies certified or otherwise
identified to our satisfaction of such documents, corporate
records and instruments, as we have deemed necessary or
appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to authentic original documents
of all documents submitted to us as copies.
We have been furnished with, and with your consent have
relied upon, certificates of officers of the Trust with respect
to certain factual matters. In addition, we have obtained and
relied upon such certificates and assurances from public
officials as we have deemed necessary.
We are members of the Bar of the Commonwealth of
Massachusetts and we express no opinion herein concerning any law
other than the laws of the Commonwealth of Massachusetts. We
also express no opinion on Massachusetts securities or blue sky
laws, nor on Massachusetts tax law.
Subject to the foregoing and the other matters set
forth herein, it is our opinion that, as of the date hereof:
1. The Senior Securities Indenture has been duly
authorized, and when duly executed and delivered by the
Trust will constitute the legally valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms.
2. The Senior Securities have been duly authorized
and, when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when the
Senior Securities have been duly established pursuant to the
Senior Securities Indenture, duly authenticated by the
Senior Securities Trustee and duly executed and delivered on
behalf of the Trust against payment therefor in accordance
with the terms and provisions of the Senior Securities
Indenture and as contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, the Senior
Securities will constitute legally valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their terms.
3. The Subordinated Securities Indenture has been
duly authorized and, when the final terms thereof have been
duly established in accordance with the laws of
Massachusetts, and when duly executed and delivered by the
Trust will constitute the legally valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms.
4. The Subordinated Securities have been duly
authorized and, when the final terms thereof have been duly
established in accordance with the laws of Massachusetts,
and when the Subordinated Securities have been established
pursuant to the Subordinated Securities Indenture, duly
authenticated by the Subordinated Securities Trustee and
duly executed and delivered on behalf of the Trust against
payment therefor in accordance with the terms and provisions
of the Subordinated Securities Indenture and as contemplated
by the Registration Statement and/or the applicable
Prospectus Supplement, the Subordinated Securities will
constitute legally valid and binding obligations of the
Trust, enforceable against the Trust in accordance with
their terms.
5. The Preferred Shares have been duly authorized and
when the Preferred Shares have been duly established in
accordance with the terms of the Trust's Declaration of
Trust, as amended and applicable law, and, upon issuance,
delivery and payment therefor in the manner contemplated by
the Registration Statement and/or the applicable Prospectus
Supplement, the Preferred Shares will be validly issued,
fully paid and nonassessable.
6. The Deposit Agreements have been duly authorized
and, when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when duly
executed and delivered by the Trust will constitute the
legally valid and binding agreements of the Trust,
enforceable against the Trust in accordance with their
respective terms.
7. The Depositary Shares have been duly authorized,
and when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when the
depositary receipts representing the Depositary Shares (the
"Depositary Receipts") have been duly executed and delivered
by the Depositary and delivered to and paid for by the
purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, and when all corporate action necessary for the
issuance of such Depositary Shares and the underlying
Preferred Shares has been taken, such Depositary Shares will
be validly issued and will entitle the holders thereof to
the rights specified in the Depositary Receipts and the
Deposit Agreement.
8. The Common Shares have been duly authorized, and
upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, will be validly issued,
fully paid and nonassessable.
9. The Warrant Agreements have been duly authorized
and, when the final terms thereof have been duly established
in accordance with the laws of Massachusetts, and when duly
executed and delivered by the Trust will constitute the
legally valid and binding agreements of the Trust,
enforceable against the Trust in accordance with their
respective terms.
10. The Warrants have been duly authorized, and when
the final terms thereof have been duly established in
accordance with the laws of Massachusetts, and when duly
executed and delivered by the Trust and countersigned by the
applicable Warrant Agent in accordance with the applicable
Warrant Agreement and delivered to and paid for by the
purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, will constitute legally valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their respective terms.
The opinions set forth above are subject to the
following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, whether enforcement is
considered in a proceeding in equity or law; (iii) the
unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy;
(iv) we express no opinion concerning the enforceability of the
waiver of rights or defenses contained in Section 514 of the
Senior Securities Indenture or any similar provision to be
contained in the Subordinated Securities Indenture; and (iii) we
express no opinion with respect to whether acceleration of Debt
Securities may affect the collectibility of any portion of the
stated principal amount thereof which might be determined to
constitute unearned interest thereon.
To the extent that the obligations of the Trust under
the Senior Securities Indenture may be dependent upon such
matters, we assume for purposes of this opinion that the Senior
Securities Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization;
that the Senior Securities Trustee is duly qualified to engage in
the activities contemplated by the Senior Securities Indenture;
that the Senior Securities Indenture has been duly authorized,
executed and delivered by the Senior Securities Trustee and
constitutes the legally valid and binding obligation of the
Senior Securities Trustee enforceable against the Senior
Securities Trustee in accordance with its terms; that the Senior
Securities Trustee is in compliance, generally with respect to
acting as a trustee under the Senior Securities Indenture, with
all applicable laws and regulations; and that the Senior
Securities Trustee has the requisite organization and legal power
and authority to perform its obligations under the Senior
Securities Indenture.
To the extent that the obligations of the Trust under
the Subordinated Securities Indenture may be dependent upon such
matters, we assume for purposes of this opinion that the
Subordinated Securities Trustee is duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization; that the Subordinated Securities Trustee is duly
qualified to engage in the activities contemplated by the Senior
Securities Indenture; that the Subordinated Securities Indenture
has been duly authorized, executed and delivered by the
Subordinated Securities Trustee and constitutes the legally valid
and binding obligation of the Subordinated Securities Trustee
enforceable against the Subordinated Securities Trustee in
accordance with its terms; that the Subordinated Securities
Trustee is in compliance, generally with respect to acting as a
trustee under the Subordinated Securities Indenture, with all
applicable laws and regulations; and that the Subordinated
Securities Trustee has the requisite organization and legal power
and authority to perform its obligations under the Subordinated
Securities Indenture.
To the extent that the obligations of the Trust under
each Deposit Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Depositary is duly
organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Depositary is duly
qualified to engage in the activities contemplated by the Deposit
Agreement; that the Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes the
legally valid and binding obligation of the Depositary
enforceable against the Depositary in accordance with its terms;
that the Depositary is in compliance, generally with respect to
acting as a Depositary under the Deposit Agreement, with all
applicable laws and regulations; and that the Depositary has the
requisite organizational and legal power and authority to perform
its obligations under the Deposit Agreement.
To the extent that the obligations of the Trust under
each Warrant Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Warrant Agent is
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Warrant Agent
is duly qualified to engage in the activities contemplated by the
Warrant Agreement; that the Warrant Agreement has been duly
authorized, executed and delivered by the Warrant Agent and
constitutes the legally valid and binding obligation of the
Warrant Agent enforceable against the Warrant Agent in accordance
with its terms; that the Warrant Agent is in compliance,
generally with respect to acting as a Warrant Agent under the
Warrant Agreement, with all applicable laws and regulations; and
that the Warrant Agent has the requisite organizational and legal
power and authority to perform its obligations under the Warrant
Agreement.
We consent to your filing this opinion as an attachment
to the opinion of Robinson Silverman Pearce Aronsohn & Berman
which opinion is an exhibit to the Registration Statement and to
the reference to our firm under the caption "Legal Matters" in
the prospectus included therein.
This opinion is rendered only to you and is solely for
your benefit in connection with the transactions covered hereby.
This opinion may not be relied upon by you for any other purpose,
or furnished to, quoted to, or relied upon by any other person,
firm or corporation for any purpose, without our prior written
consent.
Very truly yours,
FORDHAM & STARRETT, P.C.
By_________________________
Brian W. LeClair
EXHIBIT (8)
Law Offices
ALTHEIMER & GRAY
Suite 4000
10 South Wacker Drive
Chicago, Illinois 60606
(312) 715-4000
May 18, 1994
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Gentlemen:
This opinion is delivered to you in connection with a public
offering of Debt Securities, Preferred Shares, Depository Shares,
Common Shares and Warrants having an aggregate offering price of
up to $250,000,000 of New Plan Realty Trust (the "Trust")
pursuant to the Trust's Registration Statement on Form S-3, as
filed with the Securities and Exchange Commission.
For purposes of this opinion:
1. We have examined the Declaration of Trust, as amended
to date, of the Trust.
2. We have prepared and sent to the Trust a memorandum
setting forth the various rules and definitions relating to the
qualification of the Trust as a real estate investment trust
("REIT") within the meaning of the Internal Revenue Code of 1986,
as amended (the "Code").
3. We have relied, as to matters of fact necessary to this
opinion, on certificates and representations of officers or
employees of the Trust and of Coopers & Lybrand, independent
public accountants of the Trust.
4. We have been advised by the Trust that the Internal
Revenue Service has completed tax audits of the Trust for taxable
years 1973, 1974, and 1975 and has made no assertion that the
Trust has not qualified as a REIT for any of such years or any
taxable year thereafter.
5. We have reviewed the information in the Trust's
Prospectus related to the above described offering (the
"Prospectus") under the caption "CERTAIN FEDERAL INCOME TAX
CONSIDERATIONS TO THE TRUST OF ITS REIT ELECTION."
6. We have made no independent investigation of the facts
represented or set forth in any of the foregoing paragraphs of
this letter and are relying for purposes hereof on said
Declaration of Trust, certificates, representations and advice.
Based on the foregoing, it is our opinion that the Trust has
been organized in conformity with the requirements for
qualification as a REIT, and has operated in such a manner as to
have qualified for taxation as a REIT under the Code.
Norman M. Gold, a partner of this firm, is a Trustee of the
Trust.
We consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and to the use of
our name wherever appearing in such Registration Statement,
including the Prospectus, and any amendment thereto.
Very truly yours,
ALTHEIMER & GRAY
EXHIBIT (23.3)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement on Form S-3 (File No. 33-53311) of our
report dated September 22, 1993, on our audits of the
consolidated financial statements and financial statement
schedules of New Plan Realty Trust (the "Trust") as of July 31,
1993 and 1992 and for each of the three years in the period ended
July 31, 1993, which are included in the Annual Report on Form
10-K of the Trust for the year ended July 31, 1993. We also
consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND
New York, New York
May 20, 1994
EXHIBIT (23.4)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement on Form S-3 of our reports dated September
3, 1993 and January 4, 1994, on our audits of the Historical
Summary of Revenues and Certain Operating Expenses of certain
properties acquired by New Plan Realty Trust (the "Trust") for
the year ended December 31, 1992, which are included in the
Reports on Form 8-K/A of the Trust dated October 6, 1993 and
January 13, 1994, respectively. We also consent to the
incorporation by reference in this Registration Statement on Form
S-3 of our report dated February 3, 1994, on our audit of the
Historical Summary of Revenues and Certain Operating Expenses of
certain properties acquired by the Trust for the year ended July
31, 1993, which are included in the Report on Form 8-K of the
Trust dated February 10, 1994. We also consent to the reference
to our firm under the caption "Experts" in the Prospectus.
EICHLER, BERGSMAN, BELONSKY & CO.
New York, New York
May 20, 1994