NEW PLAN REALTY TRUST
(a Massachusetts business trust)
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
December 6, 1996
LEHMAN BROTHERS
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1380
MORGAN STANLEY & CO.
INCORPORATED
1585 Broadway
New York, New York 10036-8293
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
SMITH BARNEY INC.
390 Greenwich Street
New York, New York 10013
Dear Sirs:
New Plan Realty Trust, a Massachusetts business trust (the "Trust"),
confirms its agreement with Lehman Brothers, Lehman Brothers Inc., Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, Salomon Brothers Inc and Smith Barney Inc. (each, an "Agent", and
collectively, the "Agents") with respect to its debt securities entitled
"Medium-Term Notes Due Nine Months or More from Date of Issue" to be issued from
time to time after the date hereof (the "Notes"). The Notes are to be issued
and the terms and rights thereof established pursuant to an Indenture, dated as
of March 29, 1995, as amended, supplemented or modified from time to time (the
"Indenture"), between the Trust and State Street Bank and Trust Company (as
successor to The First National Bank of Boston), as trustee (the "Trustee").
As of the date hereof, the Trust has authorized the issuance and sale of up to
U.S. $175,000,000 aggregate initial offering price (or its equivalent, based
upon the applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Trust shall designate at the time of issuance) of
Notes to or through the Agents pursuant to the terms of this Agreement.
This Agreement provides both for the sale of Notes by the Trust to one or
more Agents as principal for resale to investors and other purchasers, or
directly to investors (as may from time to time be agreed to by the Trust and
the applicable Agent), in which case such Agent will act as an agent of the
Trust in soliciting purchases of Notes.
The Trust has filed with the Securities and Exchange Commission (the "SEC")
two registration statements on Form S-3 (No. 333-15635 and 33-61383) for the
registration of various securities, including the Notes, under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the SEC under
the 1933 Act (the "1933 Act Regulations"). Such registration statements have
been declared effective by the SEC and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statements (and any further registration statements which may be
filed by the Trust for the purpose of registering additional Notes and in
connection with which this Agreement is included or incorporated by reference
as an exhibit) and the prospectuses constituting a part thereof, on the one
hand, and the prospectus dated December 6, 1996 and any prospectus supplement
and pricing supplement relating to the Notes, on the other hand, in each case
including all documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the "Prospectus,"
respectively, except that if any revised prospectus shall be provided to the
Agents by the Trust for use in connection with the offering of the Notes,
whether or not such revised prospectus is required to be filed by the Trust
pursuant to Rule 424(b) of the 1933 Act Regulations, then, unless otherwise
specified herein, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agents for such use. All
references in this Agreement to financial statements and schedules and other
information which are "contained", "included", "described", "disclosed" or
"stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include, without limitation, the filing of any document under the 1934
Act which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
It is understood that the Trust may from time to time authorize the
issuance of and may register additional Notes and that such additional Notes may
be sold to or through the Agents pursuant to the terms of this Agreement, all
as though the issuance of such Notes were authorized as of the date hereof.
The Trust and the Agents (other than Salomon Brothers Inc) agree that the
Distribution Agreement dated May 24, 1996 is hereby terminated, subject to the
provisions of Section 12(c) thereof.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to (i) the terms and conditions stated herein
and (ii) the reservation by the Trust of the right to sell Notes to any broker
or dealer (as principal) other than an Agent or directly on its own behalf, upon
such terms and conditions as the Trust may determine from time to time, the
Trust hereby agrees that Notes will be sold to or through the Agents and will
not appoint any other agents to act on its behalf, or to assist it, in the
placement of the Notes. Notwithstanding anything to the contrary contained
herein, the Trust may solicit or accept offers to purchase Notes through any
broker or dealer (as agent) other than an Agent, provided that (i) such broker
or dealer is engaged on the same terms and conditions (including the same
commission schedule) as those contained in this Agreement and (ii) the Trust
shall notify the Agents promptly following the acceptance of such offer.
(b) Sale of Notes. The Trust shall not sell or approve the solicitation
of purchases of Notes in excess of the amount which shall be authorized by the
Trust from time to time or in excess of the aggregate initial offering price of
Notes registered pursuant to the Registration Statement. The Agents shall have
no responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Trust as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the Trust,
such Agent, acting solely as an agent for the Trust and not as principal, will
solicit purchases of the Notes. Such Agent will communicate to the Trust,
orally, each offer to purchase Notes solicited by it on an agency basis, other
than those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein. The Trust may accept or reject any proposed
purchase of Notes, in whole or in part. Such Agent shall make reasonable
efforts to assist the Trust in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by it and accepted by the Trust.
Such Agent shall not have any liability to the Trust in the event that any such
purchase is not consummated for any reason. If the Trust shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Trust shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Trust and (ii) pay to such
Agent any commission to which it would otherwise be entitled absent such
default.
(e) Reliance. The Trust and the Agents agree that any Notes purchased by
one or more Agents as principal shall be purchased, and any Notes the placement
of which an Agent arranges as agent shall be placed by such Agent, in reliance
on the representations, warranties, covenants and agreements of the Trust
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
(a) The Trust represents and warrants to each Agent as of the date hereof,
as of the date of each acceptance by the Trust of an offer for the purchase of
Notes (whether to such Agent as principal or through such Agent as agent), as
of the date of each delivery of Notes (whether to such Agent as principal or
through such Agent as agent) (the date of each such delivery to the Agent as
principal being hereafter referred to as a "Settlement Date"), and as of any
time that the Registration Statement or the Prospectus shall be amended or
supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date"), as follows:
(i) Due Establishment and Qualification. The 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 Amended and Restated Declaration
of Trust (the "Declaration of Trust"), confers upon the trustees named
therein, 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 is 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 and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business or business prospects of the Trust and its subsidiaries
considered as one enterprise ("Material Adverse Effect").
(ii) Subsidiaries. Each subsidiary of the Trust which is a
significant subsidiary (each, a "Significant Subsidiary"), as defined in
Rule 405 of Regulation C of the 1933 Act Regulations, has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to hold mortgages, to own and lease and operate
property and conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify and be in good standing
would not have a Material Adverse Effect; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the 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
which are referred to in the Prospectus.
(iii) Registration Statement and Prospectus. The Registration
Statement and the Prospectus, at the time the Registration Statement
became effective, complied, and as of each Representation Date will
comply, in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the SEC promulgated thereunder; the Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any
amendment to the Registration Statement becomes effective or any Annual
Report on Form 10-K is filed by the Trust with the SEC and as of each
Representation Date will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Prospec-
tus, as of the date hereof does not, and as of each Representation Date
will not, include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in con-
formity with information furnished to the Trust in writing by the Agents
expressly for use in the Registration Statement or Prospectus or to that
part of the Registration Statement consisting of the Trustee's Statement
of Eligibility on Form T-1 under the 1939 Act (the "Statement of
Eligibility").
(iv) Incorporated Documents. The documents incorporated or
deemed incorporated by reference in the Prospectus pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time they were or hereafter are filed
with the SEC, complied or when so filed will comply, as the case may be,
in all material respects with the requirements of the 1934 Act and the
rules and regulations promulgated thereunder (the "1934 Act Regulations")
and, when read together with the other information in the Prospectus, at
the time the Registration Statement became effective, did not, and at each
time thereafter at which any amendment to the Registration Statement
becomes effective or Annual Report on Form 10-K is filed by the Trust with
the SEC and as of each Representation Date will not, include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were or are made, not
misleading.
(v) Accountants. The accountants who certified the financial
statements and any supporting schedules thereto included or incorporated
by reference in the Registration Statement and the Prospectus are
independent public accountants within the meaning of the 1933 Act and the
1933 Act Regulations.
(vi) Financial Statements. The financial statements of the
Trust and its subsidiaries included in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as any
financial statements, schedules and notes of any other entity or property
included therein, present fairly in all material respects the financial
position of the Trust and its subsidiaries, or such other entity or
property, as the case may be, at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Trust and its
subsidiaries, or such other entity or property, as the case may be, for
the periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved; the supporting
schedules, if any, included in the Registration Statement and the
Prospectus present fairly in all material respects in accordance with
generally accepted accounting principles the information required to be
stated therein; the selected financial data and the summary financial
information included in the Registration Statement and the Prospectus
present fairly in all material respects the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the
Prospectus; and any pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly in all material respects the information shown therein, have been
prepared in accordance with the SEC's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
(vii) Authorization and Validity of this Agreement, the Indenture
and the Notes. This Agreement has been duly authorized, executed and
delivered by the Trust; the Indenture has been duly authorized, executed
and delivered by the Trust and 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,
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general equity principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
(1) requirements that a claim with respect to any Notes payable other than
in U.S. dollars (or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the making of payments
outside the United States; the Notes have been duly authorized for
issuance, offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration therefor, the Notes
will constitute valid and legally binding obligations of the Trust
enforceable in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting enforcement of creditors'
rights generally or by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and except
further as enforcement thereof may be limited by (1) requirements that a
claim with respect to any Notes payable other than in U.S. dollars (or a
foreign currency or composite currency judgment in respect of such claim)
be converted into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority to
limit, delay or prohibit the making of payments outside the United States;
the Notes and the Indenture will be substantially in the form heretofore
delivered to the Agents and conform in all material respects to all
statements relating thereto contained in the Prospectus; and each holder
of Notes will be entitled to the benefits of the Indenture.
(viii) Material Changes, Material Transactions or Distributions.
Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated therein, (1) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business or busi-
ness prospects of the Trust and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (2)
there have been no transactions or acquisitions entered into by the 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 (3) except for regular
quarterly dividends on the Trust's shares of beneficial interest without
par value (the "Common Shares"), Common Shares issued pursuant to the
Trust's Distribution Reinvestment and Share Purchase Plan, 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.
(ix) No Defaults. The Trust is not in violation of its
Declaration of Trust, and no subsidiary of the Trust is in violation of
its charter or by-laws, and neither the Trust nor any subsidiary is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease (other than as disclosed in the Prospectus) or
other instrument to which the Trust or any of its subsidiaries is a party
or by which it or any of them may be bound or to which any of the property
or assets of the Trust or any of its subsidiaries is subject where the
violation or default might result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or
business prospects of the Trust and its subsidiaries considered as one
enterprise; and the execution, delivery and performance of this Agreement
and the Indenture and the consummation of the transactions contemplated
herein and therein and the compliance by the Trust with its obligations
hereunder and thereunder have been duly authorized by all necessary action
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 of the property or assets of the Trust or any of its sub-
sidiaries is subject, nor will such action result in any violation of the
provisions of the Declaration of Trust of the Trust or any law, adminis-
trative regulation or administrative or court order or decree.
(x) Regulatory Approvals. No authorization, approval or
consent of any court or governmental agency or body is required for the
consummation by the Trust of the transactions contemplated by this
Agreement or in connection with the sale of Notes hereunder, except such
as have been obtained or rendered, as the case may be, or such as may be
required under state securities laws ("Blue Sky").
(xi) Legal Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Trust (for purposes of
this Agreement, such knowledge shall mean the actual knowledge of a Trust
executive officer or trustee), threatened against or affecting, the Trust
or any of its subsidiaries, which is required to be disclosed in the
Prospectus (other than as disclosed therein) or which might result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, business or business prospects of the Trust and its
subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets of the Trust and its
subsidiaries considered as one enterprise, or which might adversely affect
the consummation of this Agreement or the Indenture or any transaction
contemplated hereby or thereby; and 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.
(xii) Contracts. There are no contracts or documents of the
Trust or any of its subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xiii) Possession of Licenses and Permits. 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 have a Material
Adverse Effect.
(xiv) Title to Property. 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
Prospectus 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, reorganization, moratorium or other similar laws relating to
or affecting the enforcement of creditors' rights or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xv) Environmental Laws. 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 in either case have a Material Adverse Effect; 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.
(xvi) Trademarks; Service Marks. 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.
(xvii) Internal Revenue Code. 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 Notes are to occur.
(xviii) Investment Company Act. The Trust is not required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(xix) Commodity Exchange Act. The Notes, when issued, authenti-
cated and delivered pursuant to the provisions of this Agreement and the
Indenture, will be excluded or exempted under the provisions of the
Commodity Exchange Act.
(b) Additional Certifications. Any certificate signed by any trustee or
executive officer of the Trust and delivered to one or more Agents or to counsel
for the Agents in connection with an offering of Notes to one or more Agents as
principal or through an Agent as agent shall be deemed a representation and
warranty by the Trust to such Agent or Agents as to the matters covered thereby
on the date of such certificate.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an Agent and the
Trust, Notes shall be purchased by one or more Agents as principal in accordance
with terms agreed upon by such Agent or Agents and the Trust (which terms shall
be agreed upon orally (with written confirmation prepared promptly by such Agent
or Agents and mailed promptly to the Trust) and, unless otherwise agreed, shall,
to the extent applicable, include those terms specified in Exhibit A hereto).
An Agent's commitment to purchase Notes as principal shall be deemed to have
been made on the basis of the representations and warranties of the Trust herein
contained and shall be subject to the terms and conditions herein set forth.
Unless the context otherwise requires, references herein to "this Agreement"
shall include the applicable agreement of one or more Agents to purchase Notes
from the Trust as principal. Each purchase of Notes, unless otherwise agreed,
shall be at a discount from the principal amount of each such Note equivalent
to the applicable commission set forth in Schedule A hereto. The Agents may
engage the services of any other broker or dealer in connection with the resale
of the Notes purchased by them as principal and may allow all or any portion of
the discount received in connection with such purchases from the Trust to such
brokers and dealers. At the time of each purchase of Notes by one or more
Agents as principal, such Agent or Agents shall specify the requirements for the
officers' certificate, opinions of counsel and comfort letter pursuant to
Sections 7(b), 7(c) and 7(d) hereof. In addition, such Agent or Agents shall
promptly notify the Trust when the related Notes are no longer held as principal
pursuant hereto.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Trust and an Agent, such Agent, as an agent of the
Trust, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth in the Prospectus. The Agents are not
authorized to appoint sub-agents with respect to Notes sold through them as
agent. All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Trust and such Agent.
The Trust reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing
at any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Trust, such Agent will suspend solicitation of
purchases from the Trust until such time as the Trust has advised such Agent
that such solicitation may be resumed.
The Trust agrees to pay each Agent a commission, in the form of a discount,
equal to the applicable percentage of the principal amount of each Note sold by
the Trust as a result of a solicitation made by such Agent as set forth in
Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified
in Exhibit A hereto shall be agreed upon by the Trust and the applicable Agent
or Agents and specified in a pricing supplement to the Prospectus (each, a
"Pricing Supplement") to be prepared in connection with each sale of Notes.
Except as may be otherwise specified in the applicable Pricing Supplement, the
Notes will be issued in denominations of U.S. $1,000 or any larger amount that
is an integral multiple of U.S. $1,000. Administrative procedures (the
"Procedures") with respect to the sale of Notes shall be agreed upon from time
to time by the Trust, the Agents and the Trustee. The current Procedures are
attached hereto as Exhibit B. The Agents and the Trust agree to perform, and
the Trust agrees to cause the Trustee to agree to perform, their respective
duties and obligations specifically provided to be performed by them in the
Procedures.
SECTION 4. Covenants of the Trust.
The Trust covenants with the Agents as follows:
(a) Notice of Certain Events. The Trust will notify the Agents
immediately, and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the SEC for
filing of any amendment or supplement to the Prospectus (it being understood
that only the applicable Agent(s) will receive notice and a copy of the related
pricing supplement) or any document to be filed pursuant to the 1934 Act (other
than any amendment, supplement or document relating solely to securities other
than the Notes), (iii) the receipt of any comments from the SEC with respect to
the Registration Statement or the Prospectus, (iv) any request by the SEC for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information relating to the Notes, (v) the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose and
(vi) any change in the rating assigned by Moody's Investors Service, Inc. or
Standard & Poor's Ratings Group to any debt securities of the Trust or the
public announcement by Moody's Investors Service, Inc. or Standard & Poor's
Ratings Group that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Trust. The Trust will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Notice of Certain Proposed Filings. The Trust will give the Agents
advance notice of its intention to file any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than an amendment or supplement providing solely for the terms of the Notes or
relating solely to the issuance and/or offering of securities other than the
Notes), whether by the filing of documents pursuant to the 1934 Act or the 1933
Act or otherwise. In the event of such additional registration statement,
amendment or supplement, the Trust will furnish to the Agents copies thereof a
reasonable time in advance of the related proposed filing or use thereof, as the
case may be, and will not file any such additional registration statement,
amendment or supplement in a form to which the Agents or counsel for the Agents
shall reasonably object; provided, however, that, in lieu of the foregoing, in
the event that the conditions of subsection (k) of this Section have been
satisfied and the Trust has notified the Agents in writing that offerings of
Notes are suspended, then the Trust shall be required to deliver copies of all
such additional registration statements, amendments and supplements at least
five business days prior to the date that offerings of Notes may be resumed.
(c) Copies of the Registration Statement and the Prospectus. The Trust
will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents reasonably
request. The Trust will furnish to the Agents as many copies of the Prospectus
(as amended or supplemented) as the Agents reasonably request so long as the
Agents are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Trust will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement in
accordance with Rule 424(b)(3) under the 1933 Act within the appropriate time
period specified therein.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Agents or counsel for the 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 the Prospectus is delivered to
a purchaser, or if it shall be necessary, in the opinion of either such counsel,
to amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Trust shall give immediate notice, confirmed in writing, to the Agents to cease
the solicitation of offers to purchase the Notes in their capacity as agents and
to cease sales of any Notes they may then own as principal, and the Trust will
promptly amend the Registration Statement and the Prospectus, whether by filing
documents pursuant to the 1934 Act or the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the Registra-
tion Statement and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Trust with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Trust shall furnish such information in
writing to the Agents and shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be required by the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Trust for
the preceding fiscal year, the Trust shall furnish such information in writing
to the Agents and shall cause the Registration Statement and the Prospectus to
be amended, whether by the filing of documents pursuant to the 1934 Act or the
1933 Act or otherwise, to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The 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 each
twelve month period beginning, in each case, not later than the first day of the
Trust's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Trust will endeavor, in cooperation with
the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for
as long as may be required for the distribution of the Notes; provided, however,
that the Trust shall not be obligated to file any general consent to service of
process or to qualify as a foreign entity in any jurisdiction in which it is not
so qualified. The Trust will file such statements and reports as may be
required by the laws of each jurisdiction in which the Notes have been qualified
as above provided. The Trust will promptly advise the Agents of the receipt by
the Trust of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The 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 Notes, will file all documents required to be filed with the
SEC pursuant to Sections 13, 14 or 15(d) of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(k) Suspension of Certain Obligations. The Trust shall not be required
to comply with the provisions of subsections (b), (e), (f) or (g) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to
a request from the Trust and (ii) no Agent shall then hold any Notes purchased
as principal pursuant hereto, until the time the Trust shall determine that
solicitation of purchases of the Notes should be resumed or an Agent shall
subsequently purchase Notes from the Trust as principal.
(l) Code Requirements. 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 Notes are to occur.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the Trust as principal
and to solicit offers to purchase Notes as agent of the Trust, and the
obligations of any purchasers of Notes sold through an Agent as agent, will be
subject to the accuracy of the representations and warranties on the part of the
Trust herein and to the accuracy of the statements of the Trust's trustees or
executive officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Trust of all its covenants and
agreements herein contained and to the following additional conditions prec-
edent:
(a) Legal Opinions. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) Opinion of Trust Counsel. The favorable opinion of Robinson
Silverman Pearce Aronsohn & Berman LLP, counsel to the Trust (or, with
respect to matters involving the laws of the Commonwealth of
Massachusetts, Goodwin, Procter & Hoar LLP), 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 pursuant to its Declaration of Trust
under the laws of the Commonwealth of Massachusetts.
(ii) The Trust has power and authority to own, lease and operate
its current properties and to conduct its business as described in
the Prospectus and possesses all licenses, permits, authorizations,
consents and orders required for the conduct of its business as
described in the Prospectus, the absence of which would materially
adversely affect the business of the Trust and its subsidiaries
considered as one enterprise.
(iii) Each Significant Subsidiary has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation and has corporate power and
authority to hold mortgages, own, lease and operate its properties
and conduct its business as described in the Prospectus; and all of
the issued and outstanding capital stock of each Significant Subsid-
iary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of such counsel's knowledge and
information, is owned by the Trust, free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity except for security
interests granted in respect of the Trust or any of its subsidiaries
which are referred to in the Prospectus.
(iv) This Agreement has been duly authorized, executed and
delivered by the Trust.
(v) The Indenture has been duly authorized, executed and
delivered by the Trust and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a
legal, valid and binding agreement of the Trust, enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally or by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by (1) require-
ments that a claim with respect to any Notes payable other than in
U.S. dollars (or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law
or (2) governmental authority to limit, delay or prohibit the making
of payments outside the United States.
(vi) The Notes, in the form(s) certified by the Trust as of the
date hereof, have been duly authorized for issuance, offer and sale
pursuant to this Agreement by all necessary trust action and, when
issued, authenticated and delivered pursuant to the provisions of
this Agreement and the Indenture against payment of the consideration
therefor, 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,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be
limited by (1) requirements that a claim with respect to any Notes
payable other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority
to limit, delay or prohibit the making of payments outside the United
States; and each holder of Notes will be entitled to the benefits of
the Indenture.
(vii) The Notes and the Indenture conform in all material
respects to the statements relating thereto in the Prospectus; and
the statements in the Prospectus under the captions "Description of
the Notes", "Special Provisions Relating to Foreign Currency Notes"
and "Description of Debt Securities", insofar as they purport to
summarize certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(viii) The Indenture has been duly qualified under the 1939 Act.
(ix) The Registration Statement has been declared effective by
the SEC under the 1933 Act and, to the best of such counsel's knowl-
edge 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 SEC.
(x) 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.
(xi) 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 as to form in all material
respects with the 1934 Act and the 1934 Act Regulations.
(xii) The Notes, in the form(s) certified by the Trust as of the
date hereof, when issued, authenticated and delivered pursuant to the
provisions of this Agreement and the Indenture, will be excluded or
exempted from the provisions of the Commodity Exchange Act; provided
that such counsel need not express any opinion as to compliance with
Part 34 of the Commodity Exchange Act ("Regulation of Hybrid
Instruments"), or any exclusion thereunder, of Notes bearing interest
determined by reference to one or more interest rate or other indices
not described in the Prospectus.
(xiii) The Trust is not required to be registered under the 1940
Act.
(xiv) To the best of such counsel's knowledge and information,
the execution and delivery of this Agreement 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; and 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 and the Indenture
except such as may be required under state securities laws or real
estate syndication laws.
(xv) To the best of such counsel's knowledge and information,
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 condition, financial
or otherwise, or to the earnings, business or business prospects of
the Trust and its subsidiaries considered as one enterprise and would
not adversely affect the consummation of this Agreement or the
Indenture or any transaction contemplated hereby or thereby.
(xvi) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement other than those
described or referred to therein or filed as exhibits thereto, the
descriptions thereof or references thereto are correct in all
material respects, and, to the best of such counsel's 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.
(2) Opinion of General Counsel for the Trust. The favorable opinion
of the General Counsel of the Trust, or other counsel satisfactory to the
Agents, to the effect that:
(i) The Trust is duly qualified or registered as a foreign
entity to transact business and is in good standing in each juris-
diction in which such qualification or registration and good standing
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so
qualify or register and be in good standing would not have a Material
Adverse Effect.
(ii) Each Significant Subsidiary is duly qualified or registered
as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification or registration and
good standing is required, except where the failure to so qualify and
be in good standing would not have a Material Adverse Effect.
(3) Opinion of Tax Counsel for the Trust. The favorable opinion of
Altheimer & Gray, tax counsel for the Trust, to the effect that:
(i) The information in the Prospectus under "Certain United
States Federal Income Tax Considerations" and "Certain Federal Income
Tax Considerations to the Trust of its REIT Election", to the extent
that such information constitutes matters of law or legal
conclusions, has been reviewed by them and is correct.
(ii) 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 Code.
(4) Opinion of Counsel to the Agents. The favorable opinion of
Brown & Wood LLP, counsel to the Agents, covering the matters referred to
in subsection (a)(1) under the subheadings (i), (vi) to (xii), inclusive,
above. Brown & Wood LLP may rely upon, or assume the accuracy of, the
opinion of Goodwin, Procter & Hoar LLP as to matters involving the laws of
the Commonwealth of Massachusetts.
(5) Disclosure Documents. In giving their opinions required by
subsection (a)(1) and (a)(4), respectively, of this Section 5, Robinson
Silverman Pearce Aronsohn & Berman LLP and Brown & Wood LLP shall each
additionally state that nothing has come to their attention that would
lead them to believe that the Registration Statement, at the time it
became effective (or, if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Trust with the SEC
subsequent to the effectiveness of the Registration Statement, then at the
time such amendment became effective or at the time of the most recent
such filing, as the case may be) or at the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading or that the Prospectus, at
the date hereof (or, if such opinion is being delivered in connection with
the purchase of Notes from the Trust by one or more Agents as principal
pursuant to Section 7(c) hereof, at the date of any agreement by such
Agent or Agents to purchase Notes as principal and at the Settlement Date
with respect thereto, as the case may be) (included or) includes an untrue
statement of a material fact or (omitted or) omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that counsel need not comment on the financial statements,
schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus).
In giving their opinions, the foregoing counsel may rely upon, or
assume the accuracy of, (1) as to all matters of fact, the certificates
and written statements of officers and employees of and accountants for
the Trust and (2) as to the qualification and good standing of the Trust
or any of its subsidiaries to do business in any state or jurisdiction,
the certificates of appropriate government officials or opinions of
counsel in such jurisdictions.
(b) Officers' Certificate. On the date hereof, the Agents shall have
received a certificate of the Chief Executive Officer, President or any Vice
President and the principal financial officer or principal accounting officer
of the Trust, dated as of the date hereof, to the effect that (i) since the
respective dates as of which information is given in the Prospectus or, if such
certificate is required pursuant to Section 7(b) hereof, since the date of the
agreement, if any, by one or more Agents to purchase Notes from the Trust as
principal, there has not been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the repre-
sentations and warranties of the Trust contained in Section 2 hereof are true
and correct with the same force and effect as though expressly made at and as
of the date of such certificate and (iii) the Trust has performed or complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the date of such certificate. As used in
this Section 5(b), the term "Prospectus" means the Prospectus in the form first
provided to the applicable Agent or Agents for use in confirming sales of the
Notes.
(c) Comfort Letter of Coopers & Lybrand L.L.P. On the date hereof, the
Agents shall have received a letter from Coopers & Lybrand L.L.P., dated as of
the date hereof, in form and substance satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants with respect to the
Trust and its subsidiaries within the meaning of the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations.
(ii) It is their opinion that the consolidated financial statements
and supporting schedules of the Trust and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial
statements of the Trust and its indicated subsidiaries, a reading of the
minute books of the Trust and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of the Trust and such
subsidiaries responsible for financial and accounting matters with respect
to the unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement and Prospectus and
the latest available interim unaudited financial statements of the Trust
and its subsidiaries, and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and
procedures, nothing came to their attention that caused them to believe
that: (A) any material modifications should be made to the unaudited
consolidated financial statements of the Trust and its subsidiaries
included or incorporated by reference in the Registration Statement and
Prospectus for them to be in conformity with generally accepted accounting
principles in the United States, (B) the unaudited consolidated financial
statements of the Trust and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations or (C) at a specified date
not more than three days prior to the date of such letter, there was any
change in the consolidated capital stock, any increase in consolidated
long-term debt or any decrease in the consolidated net current assets or
consolidated net assets of the Trust and its subsidiaries, in each case as
compared with the amounts shown on the most recent consolidated balance
sheet of the Trust and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus or, during the
period from the date of such balance sheet to a specified date not more
than three days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated revenues or in the total or per-share amounts of
income before extraordinary items or of net income of the Trust and its
subsidiaries, except in all instances for changes, increases or decreases
that the Registration Statement and Prospectus disclose have occurred or
may occur or except for such exceptions enumerated in such letter as shall
have been agreed to by the Agents and the Trust.
(iv) In addition to the audit referred to in their opinions and the
limited procedures referred to in clause (iii) above, they have carried
out certain specified procedures, not constituting an audit, with respect
to certain amounts, percentages and financial information which are
included or incorporated by reference in the Registration Statement and
the Prospectus and which are specified by the Agents, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Trust and its
subsidiaries identified in such letter.
(d) Comfort Letter of Applicable Accountants. On the date hereof, the
Agents shall have received, with respect to the financial statements and any
supporting schedules for properties or entities acquired by the Trust which are
included or incorporated by reference in the Registration Statement and the
Prospectus, a letter from the applicable accountants covering such financial
statements and supporting schedules, dated as of the date hereof, in form and
substance satisfactory to the Agents, to the effect that (i) they are
independent public accountants within the meaning of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations with respect to the Trust
and its subsidiaries and the applicable properties or entities acquired by the
Trust, (ii) it is their opinion that the financial statements and supporting
schedules of the properties or entities acquired by the Trust which are included
or incorporated by reference in the Registration Statement and the Prospectus
and covered by their opinions therein, comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations and (iii) with
respect to any pro forma financial statements and any supporting schedules for
properties or entities acquired by the Trust which are included or incorporated
by reference in the Registration Statement and the Prospectus, they have read
such pro forma financial statements, have performed an audit or review in
accordance with SAS 71 of such financial statements, have made appropriate
inquiries about the basis for the pro forma adjustments and whether such pro
forma financial statements comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X and have
proved the arithmetic accuracy of the application of the pro forma adjustments
to the historical amounts in such pro forma adjustments, and on the basis of
such review, inquiries and procedures, nothing came to their attention that
caused them to believe that such pro forma financial statements do not comply
as to form in all material respects with the applicable requirements of Rule 11-
02 of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such pro forma financial
statements.
(e) Other Documents. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Trust in connection with the
issuance and sale of Notes as herein contemplated shall be satisfactory in form
and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent or Agents by notice to the Trust at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery set forth in Section 11 hereof,
the termination provisions set forth in Section 12 hereof, the provisions
relating to governing law and forum set forth in Section 14 and the provisions
relating to parties set forth in Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent as
Agent.
Delivery of Notes sold through an Agent as agent shall be made by the Trust
to such Agent for the account of any purchaser only against payment therefor in
immediately available funds. In the event that a purchaser solicited by an
Agent as agent shall fail either to accept delivery of or to make payment for
a Note on the date fixed for settlement, the applicable Agent shall promptly
notify the Trust and deliver such Note to the Trust and, if such Agent has
theretofore paid the Trust for such Note, the Trust will promptly return such
funds (without interest) to such Agent.
SECTION 7. Additional Covenants of the Trust.
The Trust covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Trust of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the Trust
contained in this Agreement and in any certificate theretofore delivered to the
Agents pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to such Agent or
Agents or to the purchaser or its agent, as the case may be, of the Note or
Notes relating to such acceptance or sale, as the case may be, as though made
at and as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the terms of the Notes
or relating solely to the issuance and/or offering of securities other than the
Notes), (ii) there is filed with the SEC any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K relating solely
to the issuance and/or offering of securities other than the Notes), (iii) (if
required in connection with the purchase of Notes from the Trust by one or more
Agents as principal) the Trust sells Notes to such Agent or Agents as principal
or (iv) the Trust sells Notes in a form not previously certified to the Agents
by the Trust, the Trust shall furnish or cause to be furnished to the Agent(s)
forthwith a certificate dated the date of filing with the SEC of such supplement
or document, the date of effectiveness of such amendment, or the date of such
sale, as the case may be, in form and substance reasonably satisfactory to the
Agent(s) to the effect that the statements contained in the certificate referred
to in Section 5(b) hereof which were last furnished to the Agents are true and
correct at the time of such amendment, supplement, filing or sale, as the case
may be, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to such time) or, in lieu of such certificate, a certificate
of the same tenor as the certificate referred to in Section 5(b) hereof, modi-
fied as necessary to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the terms of the Notes,
providing solely for the inclusion of additional financial information, or
relating solely to the issuance and/or offering of securities other than the
Notes), (ii) there is filed with the SEC any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K relating solely
to the issuance and/or offering of securities other than the Notes), (iii) (if
required in connection with the purchase of Notes from the Trust by one or more
Agents as principal) the Trust sells Notes to such Agent or Agents as principal
or (iv) the Trust sells Notes in a form not previously certified to the Agents
by the Trust, the Trust shall furnish or cause to be furnished forthwith to the
Agent(s) and to counsel to the Agents the written opinions of Robinson Silverman
Pearce Aronsohn & Berman LLP, Goodwin, Procter & Hoar LLP, the General Counsel
of the Trust, and Altheimer & Gray, or other counsel satisfactory to the
Agent(s), dated the date of filing with the SEC of such supplement or document,
the date of effectiveness of such amendment, or the date of such sale, as the
case may be, in form and substance reasonably satisfactory to the Agent(s), of
the same tenor as the opinion referred to in Section 5(a)(1), 5(a)(2) and
5(a)(3), as the case may be, hereof, but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agent(s) with a letter
substantially to the effect that the Agent(s) may rely on such last opinion to
the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance); provided, however,
that, with respect to (i) and (ii) above, in the event that the conditions of
Section 4(k)(i) hereof have been satisfied and the Trust has notified the Agents
in writing that offerings of Notes are suspended, then the Trust shall be
required to furnish or cause to be furnished such opinions or such letter, as
the case may be, only prior to the date that offerings of Notes may be resumed.
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the terms of the Notes or the issuance and/or
offering of securities other than the Notes), (ii) there is filed with the SEC
any document incorporated by reference into the Prospectus which contains
additional financial information, or (iii) (if required in connection with the
purchase of Notes from the Trust by one or more Agents as principal) the Trust
sells Notes to such Agent or Agents as principal, the Trust shall cause Coopers
& Lybrand L.L.P. forthwith to furnish to the Agent(s) a letter, dated the date
of such filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form and substance reasonably satisfactory to the Agent(s), of the same tenor
as the portions of the letter referred to in clauses (i) and (ii) of Section
5(c) hereof but modified to relate to the Registration Statement and Prospectus
as amended and supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii) and (iv) of
said Section 5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Trust; provided, however, that with respect to (i) and (ii)
above, in the event that the conditions of Section 4(k)(i) hereof have been
satisfied and the Trust has notified the Agents in writing that offerings of
Notes are suspended, then the Trust shall be required to furnish or cause to be
furnished such letter only prior to the date that offerings of Notes may be
resumed. In addition, each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include financial statements and
any supporting schedules thereto of properties or entities acquired by the
Trust, the Trust shall cause the applicable accountants covering such financial
statements and supporting schedules to furnish to the Agents a letter, dated the
date of such amendment or supplement with the SEC, in form satisfactory to the
Agents, of the same tenor as the letter referred to in Section 5(d) hereof;
provided, however, that in the event that the conditions of Section 4(k)(i)
hereof have been satisfied and the Trust has notified the Agents in writing that
offerings of Notes are suspended, then the Trust shall be required to furnish
or cause to be furnished such letter only prior to the date that offerings of
Notes may be resumed.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Trust agrees to indemnify and hold
harmless each Agent and each person, if any, who controls such Agent within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission, or alleged omission
therefrom, of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission, or alleged omission therefrom, of a material
fact necessary to make the statements therein, in the light of the circum-
stances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission referred to in
subsection (i) above, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Trust; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Agent), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Trust by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or made in reliance upon the Trustee's Statement of
Eligibility incorporated by reference into the Registration Statement and the
Prospectus.
(b) Indemnification of the Trust. Each Agent severally agrees to indem-
nify 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, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Trust by such Agent
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) General. Each indemnified party shall give notice as promptly as is
reasonably practical to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 8 is for any reason
held to be unenforceable by the indemnified parties although applicable in
accordance with its terms, the Trust and the Agents shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Trust and the Agents,
as incurred, in such proportions that each Agent is responsible for that portion
represented by the percentage that the commission or underwriting discount
received by such Agent bears to the total sales price from the sale of the Notes
sold to or through such Agent that were the subject of the claim for
indemnification, and the Trust is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each 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 10. Payment of Expenses.
The Trust will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form;
(d) The fees and disbursements of the Trust's accountants and counsel, of
the Trustee and its counsel, and of any calculation agent or exchange rate
agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
(g) The printing and delivery to the Agents in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements thereto, and the delivery
by the Agents of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, reproduction and delivery to the Agents of copies of
the Indenture and all amendments, supplements and modifications thereto;
(i) Any fees charged by nationally recognized statistical rating
organizations for the rating of the Notes;
(j) The fees and expenses incurred in connection with any listing of Notes
on a securities exchange;
(k) The fees and expenses incurred with respect to any filing with the
National Association of Securities Dealers, Inc.; and
(l) The cost of providing any CUSIP or other identification numbers for
the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Trust submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Agents or any controlling person of an Agent, or by
or on behalf of the Trust, and shall survive each delivery of and payment for
any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Trust as principal)
may be terminated for any reason, at any time by either the Trust or an Agent,
as to itself, upon the giving of 7 days' written notice of such termination to
the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent or Agents may terminate any agreement by such Agent or Agents
to purchase Notes from the Trust as principal, immediately upon notice to the
Trust, at any time prior to the Settlement Date relating thereto, if (i) there
has been, since the date of such agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there shall have occurred any material adverse change in the financial markets
in the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis the effect of which is such as to
make it, in the reasonable judgment of such Agent or Agents, impracticable to
market the Notes or enforce contracts for the sale of the Notes, or (iii)
trading in any securities of the Trust has been suspended by the SEC or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or if
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the SEC or any other governmental authority, or if a banking moratorium
shall have been declared by either Federal, New York or Massachusetts
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, or (iv) the rating
assigned by Moody's Investors Service, Inc. or Standard and Poor's Ratings Group
to any debt securities of the Trust as of the date of such agreement shall have
been lowered since such date or if any such rating organization shall have
publicly announced since such date that it has under surveillance or review,
with possible negative implications, its rating of any debt securities of the
Trust, or (v) there shall have come to the attention of such Agent or Agents any
facts that would cause them to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, included an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at the time
of such delivery, not misleading. As used in this Section 12(b), the term
"Prospectus" means the Prospectus in the form first provided to the applicable
Agent or Agents for use in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commission earned as a result of a sale of a Note by the
Trust, (ii) if at the time of termination (a) any Agent shall own any Notes
purchased by it as principal with the intention of reselling them or (b) an
offer to purchase any of the Notes has been accepted by the Trust but the time
of delivery to the purchaser or his agent of the Note or Notes relating thereto
has not occurred, the covenants set forth in Sections 4 and 7 hereof shall
remain in effect until such Notes are so resold or delivered, as the case may
be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions of
Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Trust:
New Plan Realty Trust
1120 Avenue of the Americas, 12th Floor
New York, New York 10036
Attention: President
With a copy to: General Counsel
If to the Agents:
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Telephone No.: (212) 526-2040
Telecopy No.: (212) 528-1718
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone No.: (212) 449-7476
Telecopy No.: (212) 449-2234
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone No.: (212) 761-4000
Telecopy No.: (212) 761-0783
with a copy to
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Attention: Peter Cooper - Investment Banking Information
Center
Telephone No.: (212) 761-8385
Telecopy No.: (212) 761-0260
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Attention: MTN Department
Telephone No.: (212) 783-5897
Telecopy No.: (21) 783-2274
Smith Barney Inc.
390 Greenwich Street, 4th Floor
New York, New York 10013
Attention: James Hennessy
Telephone: (212) 723-7597
Telecopy No.: (212) 723-8812
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Forum.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by either party in connection with or arising under
this Agreement shall be brought solely in the state or federal court of
appropriate jurisdiction located in the Borough of Manhattan, The City of New
York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Trust and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and trustees referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their respec-
tive 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 Notes shall be deemed to be a successor by
reason merely of such purchase.
SECTION 16. No Liability of Shareholders, Trustees or Officers.
This Agreement and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by an officer of the Trust in his/her capacity as
an officer of the Trust which has been formed as a Massachusetts business trust
pursuant to the Declaration of Trust, and not individually, and neither the
trustees, officers or shareholders of the Trust shall be bound or have any
personal liability hereunder or thereunder. Each party hereto shall look solely
to the assets of the Trust for satisfaction of any liability of the Trust in
respect of this Agreement and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby and will
not seek recourse or commence any action against any of the trustees, 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 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts hereof shall constitute
a single instrument.
If the foregoing is in accordance with the Agents' 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 the Agents and the Trust in accordance with its terms.
Very truly yours,
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
---------------------------------------
Name: Dean Bernstein
Title: Vice President - Administration
and Finance
Confirmed and Accepted, as of the date
first above written:
LEHMAN BROTHERS INC.
By:/s/ Jerald Wigdortz
----------------------------------
Name: Jerald Wigdortz
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:/s/ Scott G. Primose
________________________________
Name: Scott A. Primose
Title: Authorized Signatory
MORGAN STANLEY & CO.
INCORPORATED
By:/s/ Jennifer A. Harris
________________________________
Name: Jennifer A. Harris
Title: Authorized Signatory
SALOMON BROTHERS INC
By:/s/ Martha Bailey
________________________________
Name: Martha Bailey
Title: Authorized Signatory
SMITH BARNEY INC.
By:/s/ Robert R. Holloman
________________________________
Name: Robert R. Holloman
Title: Managing Director
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Trust in connection with each sale of Notes:
Principal Amount: $____________
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
___
/__/ LIBOR Reuters
Page:
___
/__/ LIBOR Telerate
Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Closing Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Trust by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agents hereunder, the Trust
shall pay the applicable Agent, on a discount basis, a commission for the
sale of each Note equal to the principal amount of such Note multiplied by
the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year. . . . . . . . . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . . . . . . . . .150
From 18 months to less than 2 years. . . . . . . . . . . . . . . . . .200
From 2 years to less than 3 years. . . . . . . . . . . . . . . . . . .250
From 3 years to less than 4 years. . . . . . . . . . . . . . . . . . .350
From 4 years to less than 5 years. . . . . . . . . . . . . . . . . . .450
From 5 years to less than 6 years. . . . . . . . . . . . . . . . . . .500
From 6 years to less than 7 years. . . . . . . . . . . . . . . . . . .550
From 7 years to less than 10 years . . . . . . . . . . . . . . . . . .600
From 10 years to less than 15 years. . . . . . . . . . . . . . . . . .625
From 15 years to less than 20 years. . . . . . . . . . . . . . . . . .700
From 20 years to 30 years. . . . . . . . . . . . . . . . . . . . . . .750
Greater than 30 years. . . . . . . . . . . . . . . . . . . . . . . . . *
______________________
* As agreed to by the Company and the applicable Agent at the time of
sale.
EXHIBIT B
New Plan Realty Trust
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes
Due Nine Months or More from Date of Issue
(Dated as of December 6, 1996)
Medium-Term Notes Due Nine Months or More from Date of Issue (the
"Notes") are to be offered on a continuous basis by New Plan Realty Trust, a
Massachusetts business trust (the "Trust"), to or through Lehman Brothers,
Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, Salomon Brothers Inc
and Smith Barney Inc. (each, an "Agent" and, collectively, the "Agents")
pursuant to a Distribution Agreement, dated December 6, 1996 (the
"Distribution Agreement"), by and among the Trust and the Agents. The
Distribution Agreement provides both for the sale of Notes by the Trust to
one or more of the Agents as principal for resale to investors and other
purchasers and for the sale of Notes by the Trust directly to investors (as
may from time to time be agreed to by the Trust and the related Agent or
Agents), in which case each such Agent will act as an agent of the Trust in
soliciting purchases of Notes.
Unless otherwise agreed by the related Agent or Agents and the Trust,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related
Agent or Agents and the Trust (which terms shall be agreed upon orally, with
written confirmation prepared promptly by the related Agent or Agents and
mailed promptly to the Trust). If agreed upon by any Agent or Agents and the
Trust, the Agent or Agents, acting solely as agent or agents for the Trust
and not as principal, will use reasonable efforts to solicit offers to
purchase the Notes. Only those provisions in these Administrative Procedures
that are applicable to the particular role to be performed by the related
Agent or Agents shall apply to the offer and sale of the relevant Notes.
The Notes will be issued as a part of a series of debt securities under
an Indenture, dated as of March 29, 1995, as amended, supplemented or
modified from time to time (the "Indenture"), between the Trust and State
Street Bank and Trust Company (as successor to The First National Bank of
Boston), as trustee (together with any successor in such capacity, the
"Trustee"). The Trust has filed two Registration Statements with the
Securities and Exchange Commission (the "Commission") registering, among
other securities, debt securities (which include the Notes) (collectively,
the "Registration Statement", which term shall include any additional
registration statements filed in connection with the Notes). The most recent
base prospectus deemed part of the Registration Statement, as supplemented
with respect to the Notes, is herein referred to as "Prospectus". The most
recent supplement to the Prospectus setting forth the purchase price,
interest rate or formula, maturity date and other terms of the Notes (as
applicable) is herein referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Trust Company ("DTC"),
and recorded in the book-entry system maintained by DTC, or (b) in
certificated form (each, a "Certificated Note") delivered to the investor or
other purchaser thereof or a person designated by such investor or other
purchaser.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be
issued in accordance with the procedures set forth in Part II hereof and
Certificated Notes will be issued in accordance with the procedures set forth
in Part III hereof. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed thereto in the Indenture or the Notes, as
the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall also
bear an original issue date (each, an "Original
Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
Maturities: Each Note will mature on a date nine months or more
from its Original Issue Date (the "Stated Maturity
Date") selected by the investor or other purchaser
and agreed to by the Trust.
Registration: Unless otherwise provided in the applicable Pricing
Supplement, Notes will be issued only in fully
registered form.
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Notes will be issued in
denominations of $1,000 and integral multiples
thereof.
Interest Rate Bases
applicable to
Floating Rate
Notes: Unless otherwise provided in the applicable Pricing
Supplement, Floating Rate Notes will bear interest
at a rate or rates determined by reference to the CD
Rate, the CMT Rate, the Commercial Paper Rate, the
Eleventh District Cost of Funds Rate, the Federal
Funds Rate, LIBOR, the Prime Rate, the Treasury
Rate, or such other interest rate basis or formula
as may be set forth in applicable Pricing
Supplement, or by reference to two or more such
rates, as adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such Floating Rate
Notes.
Redemption/Repayment: The Notes will be subject to redemption by the Trust
in accordance with the terms of the Notes, which
will be fixed at the time of sale and set forth in
the applicable Pricing Supplement. If no Initial
Redemption Date is specified on the face of a Note,
such Note will not be redeemable prior to its Stated
Maturity Date.
The Notes will be subject to repayment at the option
of the Holders thereof in accordance with the terms
of the Notes, which will be fixed at the time of
sale and set forth in the applicable Pricing
Supplement. If no Optional Repayment Date is
specified on the face of a Note, such Note will not
be repayable at the option of the Holder prior to
its Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated and
paid on the basis of a 360-day year of twelve 30-day
months.
The interest rate on each Floating Rate Note will be
calculated by reference to the specified Interest
Rate Basis or Bases plus or minus the applicable
Spread, if any, and/or multiplied by the applicable
Spread Multiplier, if any.
Unless otherwise provided in the applicable Pricing
Supplement, interest on each Floating Rate Note will
be calculated by multiplying its principal amount by
an accrued interest factor. Such accrued interest
factor is computed by adding the interest factor
calculated for each day in the period for which
accrued interest is being calculated. Unless
otherwise provided in the applicable Pricing
Supplement, the interest factor for each such day is
computed by dividing the interest rate applicable to
such day by 360 if the CD Rate, Commercial Paper
Rate, Eleventh District Cost of Funds Rate, Federal
Funds Rate, LIBOR or Prime Rate is an applicable
Interest Rate Basis, or by the actual number of days
in the year if the CMT Rate or Treasury Rate is an
applicable Interest Rate Basis. As provided in the
applicable Pricing Supplement, the interest factor
for Notes for which the interest rate is calculated
with reference to two or more Interest Rate Bases
will be calculated in each period in the same manner
as if only one of the applicable Interest Rate Bases
applied as specified in the applicable Pricing
Supplement.
Interest: General. Each Note will bear interest in accordance
with its terms. Unless otherwise provided in the
applicable Pricing Supplement, interest on each Note
will accrue from and including the Original Issue
Date of such Note for the first interest period or
from the most recent Interest Payment Date (as
defined below) to which interest has been paid or
duly provided for all subsequent interest periods to
but excluding the applicable Interest Payment Date
or the Stated Maturity Date or date of earlier
redemption or repayment, as the case may be (the
Stated Maturity Date or date of earlier redemption
or repayment is referred to herein as the "Maturity
Date" with respect to the principal repayable on
such date).
If an Interest Payment Date or the Maturity Date
with respect to any Fixed Rate Note falls on a day
that is not a Business Day (as defined in the
Prospectus), the required payment to be made on such
day need not be made on such day, but may be made on
the next succeeding Business Day with the same force
and effect as if made on such day, and no interest
shall accrue on such payment for the period from and
after such day to the next succeeding Business Day.
If an Interest Payment Date other than the Maturity
Date with respect to any Floating Rate Note would
otherwise fall on a day that is not a Business Day,
such Interest Payment Date will be postponed to the
next succeeding Business Day, except that in the
case of a Note for which LIBOR is an applicable
Interest Rate Basis, if such Business Day falls in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day. If the Maturity Date with respect to
any Floating Rate Note falls on a day that is not a
Business Day, the required payment to be made on
such day need not be made on such day, but may be
made on the next succeeding Business Day with the
same force and effect as if made on such day, and no
interest shall accrue on such payment for the period
from and after the Maturity Date to the next
succeeding Business Day.
Regular Record Dates. Unless otherwise provided in
the applicable Pricing Supplement, the "Regular
Record Date" for a Note shall be the date 15
calendar days (whether or not a Business Day)
preceding the applicable Interest Payment Date.
Interest Payment Dates. Interest payments will be
made on each Interest Payment Date commencing with
the first Interest Payment Date following the
Original Issue Date; provided, however, the first
payment of interest on any Note originally issued
between a Regular Record Date and an Interest
Payment Date will occur on the Interest Payment Date
immediately following the next succeeding Regular
Record Date.
Unless otherwise provided in the applicable Pricing
Supplement, interest payments on the Notes will be
made in arrears as specified in the applicable
Pricing Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Trust, then such
Agent acting solely as agent for the Trust and not
as principal will solicit purchases of the Notes.
Each Agent will communicate to the Trust, orally or
in writing, each reasonable offer to purchase Notes
solicited by such Agent on an agency basis, other
than those offers rejected by such Agent. Each
Agent has the right, in its discretion reasonably
exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall
not be a breach of such Agent's agreement contained
in the Distribution Agreement. The Trust has the
sole right to accept or reject any proposed purchase
of Notes, in whole or in part, and any such
rejection shall not constitute a breach of the
Trust's agreement contained in the Distribution
Agreement. Each Agent has agreed to make reasonable
efforts to assist the Trust in obtaining performance
by each purchaser whose offer to purchase Notes has
been solicited by such Agent and accepted by the
Trust.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Trust, the Trust will promptly prepare a Pricing
Supplement reflecting the terms of such Note.
Information to be included in the Pricing Supplement
shall include:
1. the name of the Trust;
2. the title of the Notes;
3. the date of the Pricing Supplement and the date
of the Prospectus to which the Pricing
Supplement relates;
4. the name of the Offering Agent (as defined
below);
5. whether such Notes are being sold to the
Offering Agent as principal or to an investor
or other purchaser through the Offering Agent
acting as agent for the Trust;
6. with respect to Notes sold to the Offering
Agent as principal, whether such Notes will be
resold by the Offering Agent to investors and
other purchasers at (i) a fixed public offering
price of a specified percentage of their
principal amount or (ii) at varying prices
related to prevailing market prices at the time
of resale to be determined by the Offering
Agent;
7. with respect to Notes sold to an investor or
other purchaser through the Offering Agent
acting as agent for the Trust, whether such
Notes will be sold at (i) 100% of their
principal amount or (ii) a specified percentage
of their principal amount;
8. the Offering Agent's discount or commission;
9. Net proceeds to the Trust;
10. the Principal Amount, Specified Currency,
Original Issue Date, Stated Maturity Date,
Interest Payment Date(s), Authorized
Denomination, Initial Redemption Date, if any,
Initial Redemption Percentage, if any, Annual
Redemption Percentage Reduction, if any,
Optional Repayment Date(s), if any, Exchange
Rate Agent, if any, Default Rate, if any, and,
in the case of Fixed Rate Notes, the Interest
Rate, and, in the case of Floating Rate Notes,
the Interest Category, the Interest Rate Basis
or Bases, the Day Count Convention, Index
Maturity (if applicable), Initial Interest
Rate, if any, Maximum Interest Rate, if any,
Minimum Interest Rate, if any, Initial Interest
Reset Date, Interest Reset Dates, Spread and/or
Spread Multiplier, if any, and Calculation
Agent, and whether such Note is a Discount Note
(and, if so, the Issue Price); and
11. any other additional provisions of the Notes
material to investors or other purchasers of
the Notes not otherwise specified in the
Prospectus.
The Trust shall use its reasonable best efforts to
send such Pricing Supplement by telecopy or
overnight express (for delivery by the close of
business on the applicable trade date, but in no
event later than 11:00 a.m., New York City time, on
the Business Day following the applicable trade
date) to the Agent which made or presented the offer
to purchase the applicable Note (in such capacity,
the "Offering Agent") and the Trustee at the
following applicable address: if to Lehman Brothers
Inc., c/o ADP, Prospectus Services, 536 Broad Hollow
Road, Melville, New York 11747, Attention: Mike
Ward, (516) 254-7106, telecopier: (516) 249-7942 and
by hand to Lehman Brothers Inc., 3 World Financial
Center, 9th floor, New York, New York 10285,
Attention: Brunnie Vazquez, (212) 526-8400; and if
to the Trustee, to: State Street Bank and Trust
Company, Two International Place, Boston,
Massachusetts 02110, Attention: Corporate Trust
Department, (617) 664-5602, telecopier: (617) 664-
5371; if to Merrill Lynch & Co., to: Tritech
Services, 40 Colonial Drive, Piscataway, New Jersey
08854, Attention: Nachman Kimerling/Final Prospectus
Unit, (908) 885-2768, telecopier: (908) 885-
2774/5/6, for record keeping purposes, one copy of
such Pricing Supplement shall also be mailed or
telecopied to Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, World Financial
Center, North Tower, 10th Floor, New York, New York,
10281-1310, Attention: MTN Product Management, (212)
449-7476, telecopier: (212) 449-2234; if to Morgan
Stanley & Co., Morgan Stanley & Co. Incorporated,
1585 Broadway, 2nd floor, New York, New York 10036,
Attention: Medium-Term Note Trading Desk, Carlos
Cabrera, Telephone No.: (212) 761-2000, Telecopy
No.: (212) 761-8846; if to Salomon Brothers Inc,
Seven World Trade Center, New York, New York 10048,
Attention: MTN Department, Telephone No.: (212) 783-
5897, Telecopy No.: (212) 783-2274; and if to Smith
Barney Inc., 1345 Avenue of the Americas, 46th
Floor, New York, New York 10105, Attention: James
Hennessy, Telephone: (212) 723-7597, Telecopy No.:
(212) 723-8812, with a copy to Brown & Wood, One
World Trade Center, New York, New York 10048,
Attention: Edward F. Petrosky, Esq.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a copy of
such Pricing Supplement to each investor or
purchaser of the relevant Notes or its agent.
Pursuant to Rule 434 ("Rule 434") of the Securities
Act of 1933, as amended, the Pricing Supplement may
be delivered separately from the Prospectus. Out-
dated Pricing Supplements (other than those retained
for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Trust in payment for a Note and the authentication
and delivery of such Note shall, with respect to
such Note, constitute "settlement". Offers accepted
by the Trust will be settled in three Business Days,
or at such time as the purchaser, the applicable
Agent and the Trust shall agree, pursuant to the
timetable for settlement set forth in Parts II and
III hereof under "Settlement Procedure Timetable"
with respect to Global Notes and Certificated Notes,
respectively (each such date fixed for settlement is
hereinafter referred to as a "Settlement Date"). If
procedures A and B of the applicable Settlement
Procedures with respect to a particular offer are
not completed on or before the time set forth under
the applicable "Settlement Procedures Timetable",
such offer shall not be settled until the Business
Day following the completion of settlement
procedures A and B or such later date as the
purchaser and the Trust shall agree.
The foregoing settlement procedures may be modified
with respect to any purchase of Notes by an Agent as
principal if so agreed by the Trust and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any
Notes being sold by the Trust, the Trust will
promptly advise the Agents and the Trustee by
telephone and the Agents will forthwith suspend
solicitation of offers to purchase such Notes. The
Agents will telephone the Trust with recommendations
as to the changed interest rates or other variable
terms. At such time as the Trust notifies the
Agents and the Trustee of the new interest rates or
other variable terms, the Agents may resume
solicitation of offers to purchase such Notes.
Until such time, only "indications of interest" may
be recorded. Immediately after acceptance by the
Trust of an offer to purchase Notes at a new
interest rate or new variable term, the Trust, the
Offering Agent and the Trustee shall follow the
procedures set forth under the applicable
"Settlement Procedures".
Suspension of
Solicitation;
Amendment or
Supplement: The Trust may instruct the Agents to suspend
solicitation of offers to purchase Notes at any
time. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation of offers
to purchase from the Trust until such time as the
Trust has advised the Agents that solicitation of
offers to purchase may be resumed. Any notice of an
amendment or supplement to the Registration
Statement or the Prospectus required to be given by
the Trust to the Agents pursuant to the Distribution
Agreement shall be given as so required and any
amendment or supplement to the Registration
Statement or the Prospectus required to be delivered
or mailed to the Agents pursuant to the Distribution
Agreement shall be delivered or mailed as so
required in quantities which such parties may
reasonably request at the following respective
addresses: if to Lehman Brothers Inc., 3 World
Financial Center, 12th floor, New York, New York
10285-1200, Attention: Medium-Term Note
Department,(212) 526-2040, telecopier: (212) 528-
1718; if to Merrill Lynch & Co., World Financial
Center, North Tower, 10th Floor, New York, New York
10281-1310, Attention: MTN Product Management, (212)
449-7476, telecopier: (212) 449-2234; if to Morgan
Stanley & Co., Morgan Stanley & Co. Incorporated,
1585 Broadway, 2nd floor, New York, New York 10036,
Attention: Medium-Term Note Trading Desk, Carlos
Cabrera, Telephone No.: (212) 761-2000, Telecopy
No.: (212) 761-8846; if to Salomon Brothers Inc,
Seven World Trade Center, New York, New York 10048,
Attention: MTN Department, Telephone No.: (212) 783-
5897, Telecopy No.: (212) 783-2274; and if to Smith
Barney Inc., 1345 Avenue of the Americas, 46th
Floor, New York, New York 10105, Attention: James
Hennessy, Telephone: (212) 723-7597, Telecopy No.:
(212) 723-8812; and if to the Trustee, to: State
Street Bank and Trust Company, Two International
Place, Boston, Massachusetts 02110, Attention:
Corporate Trust Department, (617) 664-5602,
telecopier: (617) 664-5371, for record keeping
purposes, one copy of each such amendment or
supplement shall also be mailed or telecopied to
Brown & Wood, One World Trade Center, New York, New
York 10048, Attention: Edward F. Petrosky, Esq.,
(212) 839-5455, telecopier: (212) 839-5599.
In the event that at the time the solicitation of
offers to purchase from the Trust is suspended
(other than to establish or change interest rates
or formulas, maturities, prices or other similar
variable terms with respect to the Notes) there
shall be any offers to purchase Notes that have been
accepted by the Trust which have not been settled,
the Trust will promptly advise the Offering Agent
and the Trustee whether such offers may be settled
and whether copies of the Prospectus as theretofore
amended and/or supplemented as in effect at the time
of the suspension may be delivered in connection
with the settlement of such offers. The Trust will
have the sole responsibility for such decision and
for any arrangements which may be made in the event
that the Trust determines that such offers may not
be settled or that copies of such Prospectus may not
be so delivered.
Delivery of Prospectus
and Applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant to
Rule 434 may be delivered separately from the Pro-
spectus, must accompany or precede the earlier of
(a) the written confirmation of a sale sent to an
investor or other purchaser or its agent and (b) the
delivery of Notes to an investor or other purchaser
or its agent.
Authenticity of
Signatures: The Agents will have no obligation or liability to
the Trust or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Trust or the Trustee on any
Note.
Documents Incorporated
by Reference: The Trust shall supply the Agents with an adequate
supply of all documents incorporated by reference in
the Registration Statement and the Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representations from the Trust and the Trustee to DTC, dated December 6,
1996, and a Certificate Agreement, dated September 27, 1988, between the
Trustee and DTC, as amended (the "Certificate Agreement"), and its
obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Rate, Default Rate, Interest
Payment Dates, redemption and/or repayment terms, if
any, and Stated Maturity Date (collectively, the
"Fixed Rate Terms") will be represented initially by
a single Global Note; and all Floating Rate Notes
issued in book-entry form having the same Original
Issue Date, Specified Currency, Interest Category,
formula for the calculation of interest (including
the Interest Rate Basis or Bases, which may be the
CD Rate, the CMT Rate, the Commercial Paper Rate,
the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR, the Prime Rate or the
Treasury Rate or any other interest rate basis or
formula, and Spread and/or Spread Multiplier, if
any), Day Count Convention, Initial Interest Rate,
Default Rate, Index Maturity (if applicable),
Minimum Interest Rate, if any, Maximum Interest
Rate, if any, redemption and/or repayment terms, if
any, Interest Payment Dates, Initial Interest Reset
Date, Interest Reset Dates and Stated Maturity
Date(collectively, the "Floating Rate Terms") will
be represented initially by a single Global Note.
For other variable terms with respect to the Fixed
Rate Notes and Floating Rate Notes, see the
Prospectus and the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will
be entitled to physical delivery of Certificated
Notes equal in principal amount to their respective
beneficial interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Trust has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of one series of CUSIP
numbers, which series consists of approximately 900
CUSIP numbers which have been reserved for and
relating to Global Notes and the Trust has delivered
to each of the Trustee and DTC such list of such
CUSIP numbers. The Trust will assign CUSIP numbers
to Global Notes as described below under Settlement
Procedure B. DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Trust has assigned to Global Notes. The Trustee
will notify the Trust at any time when fewer than
100 of the reserved CUSIP numbers remain unassigned
to Global Notes, and, if it deems necessary, the
Trust will reserve and obtain additional CUSIP
numbers for assignment to Global Notes. Upon
obtaining such additional CUSIP numbers, the Trust
will deliver a list of such additional numbers to
the Trustee and DTC. Notes issued in book-entry
form in excess of $200,000,000 (or the equivalent
thereof in one or more foreign or composite
currencies) aggregate principal amount and otherwise
required to be represented by the same Global Note
will instead be represented by two or more Global
Notes which shall all be assigned the same CUSIP
number.
Registration: Unless otherwise specified by DTC, each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the register maintained by the
Trustee under the Indenture. The beneficial owner
of a Note issued in book-entry form (i.e., an owner
of a beneficial interest in a Global Note) (or one
or more indirect participants in DTC designated by
such owner) will designate one or more participants
in DTC (with respect to such Note issued in
book-entry form, the "Participants") to act as agent
for such beneficial owner in connection with the
book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such Note issued in
book-entry form in the account of such Participants.
The ownership interest of such beneficial owner in
such Note issued in book-entry form will be recorded
through the records of such Participants or through
the separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests in a
Global Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and
transferees of such Global Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a)
the CUSIP numbers of two or more Global Notes
outstanding on such date that represent Global Notes
having the same Fixed Rate Terms or Floating Rate
Terms, as the case may be (other than Original Issue
Dates), and for which interest has been paid to the
same date; (b) a date, occurring at least 30 days
after such written notice is delivered and at least
30 days before the next Interest Payment Date for
the related Notes issued in book-entry form, on
which such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a new CUSIP
number, obtained from the Trust, to be assigned to
such replacement Global Note. Upon receipt of such
a notice, DTC will send to its Participants
(including the Trustee) a written reorganization
notice to the effect that such exchange will occur
on such date. Prior to the specified exchange date,
the Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and
the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global Notes
to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Global Notes for a single Global Note bearing
the new CUSIP number and the CUSIP numbers of the
exchanged Notes will, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the
foregoing, if the Global Notes to be exchanged
exceed $200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies) in
aggregate principal amount, one replacement Note
will be authenticated and issued to represent each
$200,000,000 (or the equivalent thereof in one or
more foreign or composite currencies) in aggregate
principal amount of the exchanged Global Notes and
an additional Global Note or Notes will be
authenticated and issued to represent any remaining
principal amount of such Global Notes (see
"Denominations" below).
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, Notes issued in book-entry form will be
issued in denominations of $1,000 and integral
multiples thereof. Global Notes will not be
denominated in excess of $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) aggregate principal amount.
If one or more Notes are issued in book-entry form
in excess of $200,000,000 (or the equivalent thereof
in one or more foreign or composite currencies)
aggregate principal amount and would, but for the
preceding sentence, be represented by a single
Global Note, then one Global Note will be issued to
represent each $200,000,000 (or the equivalent
thereof in one or more foreign or composite
currencies) in aggregate principal amount of such
Notes issued in book-entry form and an additional
Global Note or Notes will be issued to represent any
remaining aggregate principal amount of such Note or
Notes issued in book-entry form. In such a case,
each of the Global Notes representing Notes issued
in book-entry form shall be assigned the same CUSIP
number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each
Regular Record Date, the Trustee will deliver to the
Trust and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each
Global Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
the Maturity Date) and the total of such amounts.
DTC will confirm the amount payable on each Global
Note on such Interest Payment Date by reference to
the daily bond reports published by Standard &
Poor's Corporation. On such Interest Payment Date,
the Trust will pay to the Trustee in immediately
available funds an amount sufficient to pay the
interest then due and owing on the Global Notes, and
upon receipt of such funds from the Trust, the
Trustee in turn will pay to DTC such total amount of
interest due on such Global Notes (other than on the
Maturity Date) which is payable in U.S. dollars, at
the times and in the manner set forth below under
"Manner of Payment." The Trustee shall make payment
of that amount of interest due and owing on any
Global Notes that Participants have elected to
receive in foreign or composite currencies directly
to such Participants.
Notice of Interest Rates. Promptly after each
Interest Determination Date or Calculation Date, as
the case may be, for Floating Rate Notes issued in
book-entry form, the Trustee will notify each of
Moody's Investors Service, Inc. and Standard &
Poor's Corporation of the interest rates determined
as of such Interest Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will deliver
to the Trust and DTC a written list of principal,
premium, if any, and interest to be paid on each
Global Note maturing or otherwise becoming due in
the following month. The Trustee, the Trust and DTC
will confirm the amounts of such principal, premium,
if any, and interest payments with respect to each
such Global Note on or about the fifth Business Day
preceding the Maturity Date of such Global Note. On
the Maturity Date, the Trust will pay to the Trustee
in immediately available funds an amount sufficient
to make the required payments, and upon receipt of
such funds the Trustee in turn will pay to DTC the
principal amount of Global Notes, together with
premium, if any, and interest due on the Maturity
Date, which are payable in U.S. dollars, at the
times and in the manner set forth below under
"Manner of Payment." The Trustee shall make payment
of the principal, premium, if any, and interest to
be paid on the Maturity Date of each Global Note
that Participants have elected to receive in foreign
or composite currencies directly to such Partici-
pants. Promptly after (i) payment to DTC of the
principal, premium, if any, and interest due on the
Maturity Date of such Global Note which are payable
in U.S. dollars and (ii) payment of the principal,
premium, if any, and interest due on the Maturity
Date of such Global Note to those Participants who
have elected to receive such payments in foreign or
composite currencies, the Trustee will cancel such
Global Note and deliver it to the Trust with an
appropriate debit advice. On the first Business Day
of each month, the Trustee will deliver to the Trust
a written statement indicating the total principal
amount of outstanding Global Notes as of the close
of business on the immediately preceding Business
Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Global Notes on any Interest Payment Date or the
Maturity Date, as the case may be, which is payable
in U.S. dollars shall be paid by the Trust to the
Trustee in funds available for use by the Trustee no
later than 10:00 a.m., New York City time, on such
date. The Trust will make such payment on such
Global Notes to an account specified by the Trustee.
Upon receipt of such funds, the Trustee will pay by
separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New
York previously specified by DTC, in funds available
for immediate use by DTC, each payment in U.S.
dollars of principal, premium, if any, and interest
due on Global Notes on such date. Thereafter on
such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the beneficial interests
in such Global Notes are recorded in the book-entry
system maintained by DTC. Neither the Trust nor the
Trustee shall have any responsibility or liability
for the payment in U.S. dollars by DTC of the prin-
cipal of, or premium, if any, or interest on, the
Global Notes. The Trustee shall make all payments
of principal, premium, if any, and interest on each
Global Note that Participants have elected to
receive in foreign or composite currencies directly
to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any
interest payment on a Global Note will be determined
and withheld by the Participant, indirect
participant in DTC or other Person responsible for
forwarding payments and materials directly to the
beneficial owner of such Global Note.
Settlement
Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by an Agent, as agent of the
Trust, or purchased by an Agent, as principal, will
be as follows:
A. The Offering Agent will advise the Trust by
telephone, confirmed by facsimile, of the
following settlement information:
1. Principal amount, Authorized Denomination,
and Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
(v) Initial Interest Reset Date or
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest
Rates, if any.
(ix) Day Count Convention.
(viii) Calculation Agent.
(c) Discount Notes:
(i) Issue Price.
4. Price to public, if any, of such Note (or
whether such Note is being offered at
varying prices relating to prevailing
market prices at time of resale as
determined by the Offering Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
9. Repayment provisions, if any.
10. Default Rate, if any.
11. Net proceeds to the Trust.
12. The Offering Agent's discount or
commission.
13. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Trust.
14. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. The Trust will assign a CUSIP number to the
Global Note representing such Note and then
advise the Trustee by facsimile transmission or
other electronic transmission of the above
settlement information received from the
Offering Agent, such CUSIP number and the name
of the Offering Agent. The Trust will also
advise the Offering Agent of the CUSIP number
assigned to the Global Note.
C. The Trustee will communicate to DTC and the
Offering Agent through DTC's Participant
Terminal System a pending deposit message
specifying the following settlement
information:
1. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of
the Trustee and the Offering Agent.
3. Identification of the Global Note as a
Fixed Rate Global Note or Floating Rate
Global Note.
4. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for DTC
purposes (or, in the case of Floating Rate
Notes which reset daily or weekly, the
date five calendar days preceding the
Interest Payment Date) and, if then
calculable, the amount of interest payable
on such Interest Payment Date (which
amount shall have been confirmed by the
Trustee).
5. CUSIP number of the Global Note
representing such Note.
6. Whether such Global Note represents any
other Notes issued or to be issued in
book-entry form.
DTC will arrange for each pending deposit
message described above to be transmitted to
Standard & Poor's Corporation, which will use
the information in the message to include
certain terms of the related Global Note in the
appropriate daily bond report published by
Standard & Poor's Corporation.
D. The Trustee will complete and authenticate the
Global Note representing such Note.
E. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Trustee's participant account and credit such
Note to the participant account of the Offering
Agent maintained by DTC and (ii) to debit the
settlement account of the Offering Agent and
credit the settlement account of the Trustee
maintained by DTC, in an amount equal to the
price of such Note less such Offering Agent's
discount or underwriting commission, as
applicable. Any entry of such a deliver order
shall be deemed to constitute a representation
and warranty by the Trustee to DTC that (i) the
Global Note representing such Note has been
issued and authenticated and (ii) the Trustee
is holding such Global Note pursuant to the
Certificate Agreement.
G. In the case of Notes in book-entry form sold
through the Offering Agent, as agent, the
Offering Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Offering Agent's participant account and credit
such Note to the participant account of the
Participants maintained by DTC and (ii) to
debit the settlement accounts of such
Participants and credit the settlement account
of the Offering Agent maintained by DTC in an
amount equal to the initial public offering
price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures F and G will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
I. Upon receipt, the Trustee will pay the Trust,
by wire transfer of immediately available funds
to an account specified by the Trust to the
Trustee from time to time, the amount
transferred to the Trustee in accordance with
Settlement Procedure F.
J. The Trustee will send a copy of the Global Note
by first-class mail to the Trust together with
a statement setting forth the principal amount
of Notes Outstanding as of the related
Settlement Date after giving effect to such
transaction and all other offers to purchase
Notes of which the Trust has advised the
Trustee but which have not yet been settled.
K. If such Note was sold through the Offering
Agent, as agent, the Offering Agent will
confirm the purchase of such Note to the
investor or other purchaser either by
transmitting to the Participant with respect to
such Note a confirmation order through DTC's
Participant Terminal System or by mailing a
written confirmation to such investor or other
purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the Trust,
Settlement Procedures A through K set forth above
shall be completed as soon as possible following the
trade but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or
within one hour following the trade
B 12:00 noon on the trade date or
within one hour following the trade
C No later than the close of business
on the trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G 2:00 p.m. on Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Note issued in book-entry form is
rescheduled or canceled, the Trustee will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
5:00 p.m., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note issued in book-entry form
pursuant to Settlement Procedure F, the Trustee may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the
participant account of the Trustee maintained at
DTC. DTC will process the withdrawal message,
provided that such participant account contains a
principal amount of the Global Note representing
such Note that is at least equal to the principal
amount to be debited. If withdrawal messages are
processed with respect to all the Notes represented
by a Global Note, the Trustee will mark such Global
Note "canceled," make appropriate entries in its
records and send certification of destruction of
such canceled Global Note to the Trust. The CUSIP
number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If
withdrawal messages are processed with respect to a
portion of the Notes represented by a Global Note,
the Trustee will exchange such Global Note for two
Global Notes, one of which shall represent the
Global Notes for which withdrawal messages are
processed and shall be canceled immediately after
issuance and the other of which shall represent the
other Notes previously represented by the
surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note.
In the case of any Note in book-entry form sold
through the Offering Agent, as agent, if the
purchase price for any such Note is not timely paid
to the Participants with respect thereto by the
beneficial investor or other purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such investor or other
purchaser), such Participants and, in turn, the
related Offering Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing
the orders entered pursuant to Settlement Procedures
F and G, respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note in book-entry form,
DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to a Note that
was to have been represented by a Global Note also
representing other Notes, the Trustee will provide,
in accordance with Settlement Procedure D, for the
authentication and issuance of a Global Note
representing such remaining Notes and will make
appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Certificated Notes will be issued in
denominations of $1,000 and integral multiples
thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated
Note, the Trustee upon receipt of immediately
available funds from the Trust will pay the
principal of, premium, if any, and interest on, each
Certificated Note on the Maturity Date in
immediately available funds. All interest payments
on a Certificated Note, other than interest due on
the Maturity Date, will be made by check mailed to
the address of the person entitled thereto as such
address shall appear in the Security Register;
provided, however, that Holders of U.S. $10,000,000
(or, if the Specified Currency is other than United
States dollars, the equivalent thereof in such
Specified Currency) or more in aggregate principal
amount of Certificated Notes (whether having
identical or different terms and provisions) shall
be entitled to receive such interest payments on any
Interest Payment Date other than the Maturity Date
by wire transfer of immediately available funds if
appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date.
The Trustee will provide monthly to the Trust a list
of the principal, premium, if any, and interest to
be paid on Certificated Notes maturing in the next
succeeding month. The Trustee will be responsible
for withholding taxes on interest paid as required
by applicable law.
Certificated Notes presented to the Trustee on the
Maturity Date for payment will be canceled by the
Trustee. All canceled Certificated Notes held by
the Trustee shall be destroyed, and the Trustee
shall furnish to the Trust a certificate with
respect to such destruction.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall be
as follows:
A. The Offering Agent will advise the Trust by
telephone of the following Settlement
information with regard to each Certificated
Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices and
payments of principal, premium, if any,
and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount, Authorized Denomination
and Specified Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset Date
and Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
(c) Discount Notes:
(i) Issue Price.
7. Price to public of such Certificated Note
(or whether such Note is being offered at
varying prices relating to prevailing
market prices at time of resale as
determined by the Offering Agent).
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity Date.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Net proceeds to the Trust.
15. The Offering Agent's discount or
commission.
16. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Trust.
17. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. After receiving such settlement information
from the Offering Agent, the Trust will advise
the Trustee of the above settlement information
by facsimile transmission confirmed by
telephone. The Trust will cause the Trustee to
issue, authenticate and deliver the
Certificated Note.
C. The Trustee will complete the Certificated Note
in the form approved by the Trust and the
Offering Agent, and will make three copies
thereof (herein called "Stub 1", "Stub 2" and
"Stub 3"):
1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering Agent's
customer confirmation, if traded on an
agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Trust.
D. With respect to each trade, the Trustee will
deliver the Certificated Note and Stub 2
thereof to the Offering Agent at the following
applicable address: if to Lehman Brothers
Inc., to Chemical Bank, 4 New York Plaza,
Ground Floor, Receive Window, FAO Lehman
Brothers, New York, New York, Attention:
Jennifer Jones,(212) 623-5953; if to Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Merrill Lynch Money Markets Clearance, 55 Water
Street, 3rd Floor, N.S.C.C. Window, New York,
New York 10041, Attention: Al Mitchell, (212)
558-2405, telecopier: (212) 558-2457; if to
Morgan Stanley & Co., Morgan Stanley & Co.
Incorporated, to Bank of New York, Dealer
Clearance Department, 1 Wall Street, 3rd Floor,
Window 3B, New York, New York 10005,
Attention: For the Account of Morgan Stanley &
Co. Incorporated; if to Salomon Brothers Inc,
c/o Bank of New York, Dealer Clearance
Department, 1 Wall Street, 3rd Floor, Window
3B, New York, New York, 10005, Attention: For
the Account of Salomon Brothers Inc; and if to
Smith Barney Inc., 1345 Avenue of the Americas,
46th Floor, New York, New York 10105,
Attention: James Hennessy, Telephone: (212)
723-7597, Telecopy No.: (212) 723-8812. The
Trustee will keep Stub 1. The Offering Agent
will acknowledge receipt of the Certificated
Note through a broker's receipt and will keep
Stub 2. Delivery of the Certificated Note will
be made only against such acknowledgment of
receipt. Upon determination that the
Certificated Note has been authorized,
delivered and completed as aforementioned, the
Offering Agent will wire the net proceeds of
the Certificated Note after deduction of its
applicable commission to the Trust pursuant to
standard wire instructions given by the Trust.
E. In the case of a Certificated Note sold through
the Offering Agent, as agent, the Offering
Agent will deliver such Certificated Note (with
the confirmation) to the purchaser against
payment in immediately available funds.
F. The Trustee will send Stub 3 to the Trust.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes accepted
by the Trust, Settlement Procedures A through F set
forth above shall be completed as soon as possible
following the trade but not later than the
respective times (New York City time) set forth
below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or
within one hour following the trade
B 12:00 noon on the trade date or
within one hour following the trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or other
purchaser of a Certificated Note from the Trust
shall either fail to accept delivery of or fail to
make payment for such Certificated Note on the date
fixed for settlement, the Offering Agent will
forthwith notify the Trustee and the Trust by
telephone, confirmed in writing, and return such
Certificated Note to the Trustee.
The Trustee, upon receipt of such Certificated Note
from the Offering Agent, will immediately advise the
Trust and the Trust will promptly arrange to credit
the account of the Offering Agent in an amount of
immediately available funds equal to the amount
previously paid to the Trust by such Offering Agent
in settlement for such Certificated Note (without
interest). Such credits will be made on the
Settlement Date if possible, and in any event not
later than the Business Day following the Settlement
Date; provided that the Trust has received notice on
the same day. Immediately upon receipt of the
Certificated Note in respect of which the failure
occurred, the Trustee will cancel and destroy such
Certificated Note, make appropriate entries in its
records to reflect the fact that such Certificated
Note was never issued, and accordingly notify in
writing the Trust.