FORM OF
CERTIFICATE OF DESIGNATION
SUPPLEMENTING THE
AMENDED AND RESTATED DECLARATION OF TRUST OF
NEW PLAN REALTY TRUST
1. Pursuant to authority granted under Section 6.1.2 of the Amended and
Restated Declaration of Trust of New Plan Realty Trust (the "Trust"), the Board
of Trustees of the Trust hereby establishes a series of preferred shares
designated 7.80% Series A Step Up Premium Rate Preferred Shares (Liquidation
Preference $500.00 Per Share) (the "Series A Preferred Shares") on the
following terms:
A. Certain Definitions.
Unless the context otherwise requires, the terms defined in this
paragraph A of Section 1 shall have, for all purposes of this Certificate of
Designation, the meanings herein specified (with terms defined in the singular
having comparable meanings when used in the plural).
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Shares" shall mean the shares of beneficial interest, without
par value per share, of the Trust.
"Junior Shares" shall have the meaning set forth in subparagraph (2)
of paragraph B.
"Preferred Shares" shall mean preferred shares of the Trust having a
par value of $1.00 per share.
"Quarterly Distribution Date" shall have the meaning set forth in
subparagraph (3) of paragraph B.
"Quarterly Distribution Period" shall have the meaning set forth in
subparagraph (3) of paragraph B.
"Record Date" shall have the meaning set forth in subparagraph (3) of
paragraph B.
"REIT" shall mean a Real Estate Investment Trust under Section 856 of
the Code.
"Series A Redemption Date" shall have the meaning set forth in
subparagraph (5) of paragraph B.
"Series A Redemption Price" shall have the meaning set forth in
subparagraph (5) of paragraph B.
B. Series A Preferred Shares.
(1) Number. The maximum number of shares of the Series A Preferred
Shares shall be 150,000.
(2) Relative Seniority. In respect of rights to receive
distributions and to participate in distributions or payments in the event of
any liquidation, dissolution or winding-up of the Trust, the Series A Preferred
Shares shall rank pari passu with any other Preferred Shares of the Trust
unless the terms of such other preferred shares provide otherwise, and will
rank senior to the Common Shares and any other class or series of shares of
beneficial interest of the Trust ranking, as to distributions and upon
liquidation, dissolution or winding-up, junior (collectively, the "Junior
Shares") to the Series A Preferred Shares. The Trust may authorize or increase
any class or series of shares ranking on a parity with or junior to the Series
A Preferred Shares as to distribution rights and upon liquidation, dissolution
or winding-up, without the vote or consent of the holders of the Series A
Preferred Shares.
(3) Distributions. The holders of the then outstanding Series A
Preferred Shares shall be entitled to receive, when, as and if declared by the
Board of Trustees out of any funds legally available therefor, cumulative
distributions at the rate of $39.00 per share per year through September 15,
2012 and at the rate of $49.00 per share per year thereafter, payable in equal
amounts of $9.75 per share quarterly in cash through September 15, 2012 and in
equal amounts of $12.25 per share quarterly in cash thereafter, on the
fifteenth day, or if not a Business Day, the next succeeding Business Day, of
March, June, September and December in each year, beginning September 15, 1997
(each such day being hereinafter called a "Quarterly Distribution Date" and
each period ending on a Quarterly Distribution Date being called a "Quarterly
Distribution Period"), to shareholders of record at the close of business on
such date as shall be fixed by the Board of Trustees at the time of declaration
of the distribution (the "Record Date"), which shall not be less than 10 nor
more than 30 days preceding the Quarterly Distribution Date. The amount of any
distribution payable for the initial Distribution Period and for any other
Distribution Period shorter than a full Quarterly Distribution Period shall be
prorated and computed on the basis of a 360-day year of twelve 30-day months.
Distributions on each share of Series A Preferred Shares shall accrue and be
cumulative from and including the date of original issue thereof, whether or
not (i) the Trust has earnings, (ii) on any Quarterly Distribution Date there
shall be funds legally available for the payment of distributions or (iii) such
distributions are authorized. Distributions paid on the Series A Preferred
Shares in an amount less than the total amount of such distributions at the
time accrued and payable on such shares shall be allocated pro rata on a per
share basis among all such shares at the time outstanding. Accrued but unpaid
dividends on the Series A Preferred Shares will not bear interest and holders
of the Series A Preferred Shares will not be entitled to any dividends in
excess of full cumulative dividends as described above. Any dividend payment
on Series A Preferred Shares shall first be credited against the earliest
accrued but unpaid dividend due with respect to such shares which remains
payable.
The amount of any distributions accrued on any Series A Preferred Shares
at any Quarterly Distribution Date shall be the amount of any unpaid
distributions accumulated thereon, to and including such Quarterly Distribution
Date, whether or not earned or declared, and the amount of distributions
accrued on any Series A Preferred Shares at any date other than a Quarterly
Distribution Date shall be equal to the sum of the amount of any unpaid
distributions accumulated thereon, to and including the last preceding
Quarterly Distribution Date, whether or not earned or declared, plus an amount
calculated on the basis of the applicable annual distribution rate for the
period after such last preceding Quarterly Distribution Date to and including
the date as of which the calculation is made based on a 360-day year of twelve
30-day months.
Except as provided in this Certificate of Designation Supplementing the
Amended and Restated Declaration of Trust of the Trust (the "Certificate of
Designation"), the Series A Preferred Shares shall not be entitled to
participate in the earnings or assets of the Trust.
(4) Liquidation Rights.
(a) Upon the voluntary or involuntary dissolution, liquidation
or winding-up of the Trust, the holders of the Series A
Preferred Shares then outstanding shall be entitled to
receive and to be paid out of the assets of the Trust
legally available for distribution to its shareholders,
before any payment or distribution shall be made on any
Junior Shares, the amount of $500.00 per Series A Preferred
Share, plus accrued and unpaid distributions thereon to the
date of such dissolution, liquidation or winding-up.
(b) After the payment to the holders of the Series A Preferred
Shares of full preferential amounts provided for in this
Certificate of Designation, the holders of the Series A
Preferred Shares as such shall have no right or claim to
any of the remaining assets of the Trust.
(c) If, upon any voluntary or involuntary dissolution,
liquidation, or winding-up of the Trust, the amounts
payable with respect to the preference value of the
Series A Preferred Shares and any other shares of
beneficial interest or Preferred Shares of the Trust
ranking as to any such distribution on a parity with the
Series A Preferred Shares are not paid in full, the holders
of the Series A Preferred Shares and of such other shares
will share ratably in any such distribution of assets of
the Trust in proportion to the full respective preference
amounts to which they are entitled.
(d) Neither (i) the sale or other disposition of all or
substantially all the property or business of the Trust,
(ii) the merger or consolidation of the Trust into or with
any other entity nor (iii) the dissolution, liquidation,
winding-up or reorganization of the Trust immediately
followed by organization of another entity to which the
assets in such dissolution, liquidation or winding-up are
distributed, shall be deemed to be a dissolution,
liquidation or winding-up, voluntary or involuntary, for
the purposes of this subparagraph (4); provided that, in
each case, effective provision is made in the charter of
the resulting and surviving entity or otherwise for the
recognition, preservation, and protection of the rights of
the holders of the Series A Preferred Shares.
(5) Redemption.
(a) Optional Redemption. On and after June 15, 2007, the Trust
may, at its option, redeem in whole or in part, at any time
or from time to time, the Series A Preferred Shares at a
price per share (the "Series A Redemption Price"), of
$500.00 per Series A Preferred Share, together with all
accrued and unpaid distributions to and including the date
fixed for redemption (the "Series A Redemption Date").
(b) Procedures for Redemption.
(i) Notice of any redemption will be given by
publication in a newspaper of general circulation in The City of
New York, such publication to be made once a week for two
successive weeks commencing not less than 30 nor more than 60
days prior to the Redemption Date. A similar notice of any
redemption will be mailed by the Trust, postage prepaid, not
less than 30 nor more than 60 days prior to the Series A
Redemption Date, addressed to the holders of record of the
Series A Preferred Shares to be redeemed at their addresses as
they appear on the share transfer records of the Trust. No
failure to give such notice or any defect therein or in the
mailing thereof shall affect the validity of the proceedings for
the redemption of any Series A Preferred Shares except as to the
holder to whom the notice was defective or not given. In
addition to any information required by law or by the applicable
rules of any exchange upon which Series A Preferred Shares may
be listed or admitted to trading, such notice shall state: (a)
the Series A Redemption Date; (b) the Series A Redemption Price;
(c) the number of Series A Preferred Shares to be redeemed; (d)
the place or places where certificates representing such shares
are to be surrendered for payment of the Series A Redemption
Price; and (e) that distributions on the shares to be redeemed
will cease to accrue on the Series A Redemption Date. If fewer
than all the Series A Preferred Shares held by any holder are to
be redeemed, the notice mailed to such holder shall also specify
the number of shares to be redeemed from such holder.
(ii) If notice has been mailed in accordance with
subparagraph (5)(b)(i) above and provided that on or before the
Series A Redemption Date specified in such notice all funds
necessary for such redemption shall have been irrevocably set
aside by the Trust, separate and apart from its other funds in
trust for the pro rata benefit of the holders of the Series A
Preferred Shares so called for redemption, so as to be, and to
continue to be available therefor, then, from and after the
Series A Redemption Date, distributions on the Series A
Preferred Shares so called for redemption shall cease to accrue,
and said shares shall no longer be deemed to be outstanding and
shall not have the status of Series A Preferred Shares and all
rights of the holders thereof as shareholders of the Trust
(except the right to receive the Series A Redemption Price)
shall cease. Upon surrender, in accordance with said notice, of
the certificates for any Series A Preferred Shares so redeemed
(properly endorsed or assigned for transfer, if the Trust shall
so require and the notice shall so state), such Series A
Preferred Shares shall be redeemed by the Trust at the Series A
Redemption Price. In case fewer than all the Series A Preferred
Shares represented by any such certificate are redeemed, a new
certificate or certificates shall be issued representing the
unredeemed Series A Preferred Shares without cost to the holder
thereof.
(iii) Any funds deposited with a bank or trust
company for the purpose of redeeming Series A Preferred Shares
shall be irrevocable except that:
(A) the Trust shall be entitled to receive from
such bank or trust company the interest or
other earnings, if any, earned on any money
so deposited in trust, and the holders of
any shares redeemed shall have no claim to
such interest or other earnings; and
(B) any balance of monies so deposited by the
Trust and unclaimed by the holders of the
Series A Preferred Shares entitled thereto
at the expiration of two years from the
applicable Series A Redemption Date shall be
repaid, together with any interest or other
earnings earned thereon, to the Trust, and
after any such repayment, the holders of the
shares entitled to the funds so repaid to
the Trust shall look only to the Trust for
payment without interest or other earnings.
(iv) No Series A Preferred Shares may be redeemed
except with funds legally available for the payment of the
Series A Redemption Price. The Series A Redemption Price (other
than any portion thereof consisting of accrued and unpaid
distributions) shall be paid solely from the sales proceeds of
other capital shares of beneficial interest of the Trust and not
from any other source. For purposes of the preceding sentence,
"capital shares of beneficial interest" means any equity
securities (including common shares of beneficial interest and
preferred shares), shares, interests, participations, or other
ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(v) Unless full accumulated distributions on all
Series A Preferred Shares shall have been or contemporaneously
are declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past Distribution
Periods and the then current Distribution Period, no Series A
Preferred Shares shall be redeemed (unless all outstanding
Series A Preferred Shares are simultaneously redeemed) or
purchased or otherwise acquired directly or indirectly (except
by conversion into or exchange for capital shares of the Trust
ranking junior to the Series A Preferred Shares as to
distributions and upon liquidation); provided, however, that the
foregoing shall not prevent the redemption of Series A Preferred
Shares pursuant to Article VIII of the Amended and Restated
Declaration of Trust or the purchase or acquisition of Series A
Preferred Shares pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding shares of
Series A Preferred Shares.
(vi) If the Series A Redemption Date is after a Record
Date and before the related Quarterly Distribution Date, the
distribution payable on such Quarterly Distribution Date shall
be paid to the holder in whose name the Series A Preferred
Shares to be redeemed are registered at the close of business on
such Record Date notwithstanding the redemption thereof between
such Record Date and the related Quarterly Distribution Date or
the Trust's default in the payment of the distribution due.
(vii) In case of redemption of less than all
Series A Preferred Shares at the time outstanding, the Series A
Preferred Shares to be redeemed shall be selected pro rata from
the holders of record of such shares in proportion to the number
of Series A Preferred Shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by any
other equitable method determined by the Trust.
(6) Voting Rights. Except as expressly provided herein or as
required by law, the holders of the Series A Preferred Shares shall not be
entitled to vote at any meeting of the shareholders for election of trustees or
for any other purposes or otherwise to participate in any action taken by the
Trust or the shareholders thereof, or to receive notice of any meeting of
shareholders.
(a) In any matter in which the Series A Preferred Shares are
entitled to vote (as expressly provided herein or as may be
required by law), including any action by written consent,
each Series A Preferred Share shall be entitled to 10
votes, each of which 10 votes may be directed separately by
the holder thereof (or by any proxy or proxies of such
holder). With respect to each Series A Preferred Share, the
holder thereof may designate up to 10 proxies, with each
such proxy having the right to vote a whole number of votes
(totaling 10 votes per Series A Preferred Share).
(b) Provided the Trust's Amended and Restated Declaration of
Trust is amended to remove the provision in Section 6.1.2
thereof that prohibits Preferred Shares from having the
right to elect one or more separate Trustees, whenever
distributions on any Series A Preferred Shares shall be in
arrears for six or more quarterly periods, the holders of
the Series A Preferred Shares, voting separately as a class
with all other series of preferred shares upon which like
voting rights have been conferred and are exercisable, will
be entitled to vote for the election of two additional
Trustees of the Trust at a special meeting called by the
holders of record of at least ten percent (10%) of any
series of preferred shares so in arrears (unless such
request is received less than 90 days before the date fixed
for the next annual or special meeting of the shareholders)
or at the next annual meeting of shareholders, and at each
subsequent annual meeting until all distributions
accumulated on such Series A Preferred Shares for the past
distribution periods and the then current distribution
period shall have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment.
In such case, the entire Board of Trustees of the Trust
will be increased by two Trustees. If and when all accumu-
lated distributions on the Series A Preferred Shares have
been declared and paid or set aside for payment in full,
the holders of the Series A Preferred Shares shall be
divested of the special voting rights provided by this
subparagraph (b) of subparagraph (6). Upon termination of
such special voting rights attributable to all holders of
the Series A Preferred Shares, the term of office of each
trustee elected by the holders of the Series A Preferred
Shares and all other series of preferred shares upon which
like voting rights had been conferred (a "Preferred Shares
Trustee") pursuant to such special voting rights shall
forthwith terminate and the number of trustees constituting
the entire Board of Trustees shall be reduced by the number
of Preferred Shares Trustees. Except as provided in the
immediately preceding sentence, any Preferred Shares
Trustee may be removed only by the vote of the holders of
record of a majority of the outstanding Series A Preferred
Shares and all other series of preferred shares of the
Trust upon which like voting rights had been conferred,
voting together as a separate class, at a meeting called
for such purpose.
So long as any Series A Preferred Shares are outstanding,
the number of trustees constituting the entire Board of
Trustees of the Trust shall at all times be such that the
exercise, by the holders of the Series A Preferred Shares
and the holders of preferred shares of the Trust upon which
like voting rights have been conferred, of the right to
elect trustees under the circumstances provided above will
not contravene any provision of the Trust's Amended and
Restated Declaration of Trust restricting the number of
trustees which may constitute the entire Board of Trustees.
Any vacancy in the office of a Preferred Shares Trustee may
be filled by vote of the holders of record of a majority of
the outstanding Series A Preferred Shares and all other
series of preferred shares upon which like voting rights
have been conferred.
(c) So long as any Series A Preferred Shares remain
outstanding, the Trust will not, without the affirmative
vote or consent of the holders of at least two-thirds of
the Series A Preferred Shares outstanding at the time,
given in person or by proxy, either in writing or at a
meeting (such series voting separately as a class), (i)
authorize or create, or increase the authorized or issued
amount of, any class or series of shares of beneficial
interest ranking prior to the Series A Preferred Shares
with respect to the payment of distributions or the
distribution of assets upon liquidation, dissolution or
winding-up or reclassify any authorized shares of
beneficial interest of the Trust into such shares, or
create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any
such shares; or (ii) amend, alter or repeal the provisions
of the Trust's Amended and Restated Declaration of Trust or
this Certificate of Designation whether by merger,
consolidation or otherwise (an "Event"), so as to
materially and adversely affect any right, preference,
privilege or voting power of the Series A Preferred Shares
or the holders thereof; provided, however, with respect to
the occurrence of any of the Events set forth in (ii)
above, so long as the Series A Preferred Shares remain
outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of an Event,
the Trust may not be the surviving entity, the occurrence
of any such Event shall not be deemed to materially and
adversely affect such rights, preferences, privileges or
voting power of holders of Series A Preferred Shares and
provided further that (x) any increase in the amount of the
authorized Preferred Shares or the creation or issuance of
any other Series A Preferred Shares, or (y) any increase in
the amount of authorized Series A Preferred Shares or any
other Preferred Shares, in each case ranking on a parity
with or junior to the Series A Preferred Shares with
respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up, shall
not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding Series A Preferred Shares shall have been redeemed
or called for redemption upon proper notice and sufficient funds shall have
been irrevocably deposited in trust to effect such redemption.
(7) Conversion. The Series A Preferred Shares are not convertible
into or exchangeable for any other property or securities of the Trust.
(8) Status. The Series A Preferred Shares shall constitute Shares
as defined in Section 6.1 of the Amended and Restated Declaration of Trust,
including for the purposes of Section 8.3 thereof.
2. Exclusion of Other Rights.
Except as may otherwise be required by law, the Series A Preferred Shares
shall not have any voting powers, preferences and relative, participating,
optional or other special rights, other than those specifically set forth in
this Certificate of Designation and in the Trust's Amended and Restated
Declaration of Trust (as such Certificate of Designation or Declaration of
Trust may be amended from time to time). The Series A Preferred Shares shall
have no preemptive or subscription rights.
3. Severability of Provisions.
If any voting powers, preferences and relative, participating, optional
and other special rights of the Series A Preferred Shares and qualifications,
limitations and restrictions thereof set forth in this Certificate of
Designation (as such Certificate of Designation may be amended from time to
time) is invalid, unlawful or incapable of being enforced by reason of any rule
of law or public policy, all other voting powers, preferences and relative,
participating, optional and other special rights of Series A Preferred Shares
and qualifications, limitations and restrictions thereof set forth in this
Certificate of Designation (as so amended) which can be given effect without
the invalid, unlawful or unenforceable voting powers, preferences and relative,
participating, optional or other special rights of Series A Preferred Shares
and qualifications, limitations and restrictions thereof herein set forth shall
remain in full force and effect and shall not be deemed dependent upon any
other such voting powers, preferences and relative, participating, optional or
other special right of Series A Preferred Shares and qualifications,
limitations and restrictions thereof unless so expressed herein.
4. This Certificate of Designation has been duly adopted by the Board of
Trustees of the Trust. Shareholder action or approval is not required.