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EXHIBIT 1.1
NEW PLAN EXCEL REALTY TRUST, INC.
(A MARYLAND CORPORATION)
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
September 10, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.
American Express Tower
World Financial Center, 10th Floor
New York, New York 10285
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
World Financial Center, North Tower, 10th Floor
New York, New York 10281-1380
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10036-8293
PRUDENTIAL SECURITIES
INCORPORATED
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
New Plan Excel Realty Trust, Inc., a Maryland corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇
Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Prudential Securities Incorporated (each, an
"Agent", and collectively, the "Agents") with respect to the issue and sale by
the Company of a series of its debt securities entitled "Medium-Term Notes Due
Nine Months or More from Date of Issue" (the "Notes"). The Notes are to be
issued pursuant to an Indenture, dated as of February 3, 1999, as amended,
supplemented or modified from time to time (the "Indenture"), between the
Company and State Street Bank and Trust Company, as trustee (the "Trustee").
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This Agreement amends and restates in its entirety that certain
Distribution Agreement, dated February 3, 1999, by and among the Company, New
Plan Realty Trust and the Agents, which contemplated the issuance and sale of
up to U.S. $500,000,000 aggregate initial offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such
foreign or composite currencies as the Company shall designate at the time of
issuance) of Notes to or through the Agents. As of the date hereof, the
Company has remaining U.S. $325,000,000 aggregate initial offering price of
Notes authorized for issuance and sale pursuant to the terms of this Agreement.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers,
or directly to investors (as may from time to time be agreed to by the Company
and the applicable Agent), in which case such Agent will act as an agent of the
Company in soliciting purchases of Notes.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-67511) for the
registration of various securities, including the Notes, under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the SEC under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the SEC and the Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company 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 prospectus constituting a part thereof, on the one hand, and such
prospectus and any prospectus supplement and pricing supplement relating to the
Notes, on the other hand, in each case including all documents incorporated
therein by reference, as from time to time amended or supplemented by the
filing of documents pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act"), the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations, then, unless otherwise specified herein, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use. All references in this Agreement
to financial statements and schedules and other information which are
"contained", "included", "described", "disclosed" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include,
without limitation, the filing of any document under the 1934 Act which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
It is understood that the Company may from time to time authorize the
issuance of and may register additional Notes and that such additional Notes
may be sold to or through the
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Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to (i) the terms and conditions stated
herein and (ii) the reservation by the Company of the right to sell Notes to
any broker or dealer (as principal) other than an Agent or directly on its own
behalf, upon such terms and conditions as the Company may determine from time
to time, the Company hereby agrees that Notes will be sold to or through the
Agents and will not appoint any other agents to act on its behalf, or to assist
it, in the placement of the Notes. Notwithstanding anything to the contrary
contained herein, the Company may solicit or accept offers to purchase Notes
through any broker or dealer (as agent) other than an Agent, provided that (i)
such broker or dealer is engaged on the same terms and conditions (including
the same commission schedule) as those contained in this Agreement and (ii) the
Company shall notify the Agents promptly following the acceptance of such
offer.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration
Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Company as principal, but one or more
Agents may agree from time to time to purchase Notes as principal for resale to
investors and other purchasers determined by such Agent or Agents. Any such
purchase of Notes by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit purchases of the Notes. Such Agent will communicate to
the Company, orally, each offer to purchase Notes solicited by it on an agency
basis, other than those offers rejected by such Agent. Such Agent shall have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein. The Company may accept or
reject any proposed purchase of Notes, in whole or in part. Such Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it and accepted
by the Company. Such Agent shall not have any liability to the Company in the
event that any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall (i) hold such Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) pay to such Agent any commission to which it would otherwise be entitled
absent such default.
(e) Reliance. The Company 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
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arranges as agent shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether to such Agent as principal or through such Agent
as agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
the Agent as principal being hereafter referred to as a "Settlement Date"), and
as of any time that the Registration Statement or the Prospectus shall be
amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date"), as follows:
(i) Due Establishment and Qualification. The Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Maryland and has
corporate power and authority to hold mortgages, to own and lease real
property and to conduct its business as described in the Prospectus;
and the Company is duly qualified and is in good standing in each
jurisdiction in which its ownership of property or its conduct of
business requires such qualification, except where the failure to so
qualify and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company
which is a significant subsidiary (each, a "Significant Subsidiary"),
as defined in Rule 405 of Regulation C of the 1933 Act Regulations,
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to hold mortgages, to own and lease
and operate property and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify and
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business or
business prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for security interests granted in
respect of indebtedness of the Company or any of its subsidiaries
which are referred to in the Prospectus.
(iii) Registration Statement and Prospectus. The
Registration Statement, at the time the Registration Statement became
effective, complied, and the Registration Statement and the
Prospectus, 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
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Registration Statement, at the time it became effective, did not, and
at each time thereafter at which any amendment to the Registration
Statement becomes effective or any Annual Report on Form 10-K is filed
by the Company with the SEC and as of each Representation Date will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of the date
hereof does not, and as of each Representation Date will not, include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Agents expressly
for use in the Registration Statement or Prospectus or to that part of
the Registration Statement consisting of the Trustee's Statement of
Eligibility on Form T-1 under the 1939 Act (the "Statement of
Eligibility").
(iv) Incorporated Documents. The documents incorporated
or deemed incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were or hereafter
are filed with the SEC, complied or when so filed will comply, as the
case may be, in all material respects with the requirements of the 1934
Act and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective, did not, and at each time thereafter at which any amendment
to the Registration Statement becomes effective or Annual Report on
Form 10-K is filed by the Company with the SEC and as of each
Representation Date will not, include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading.
(v) Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included or
incorporated by reference in the Registration Statement and the
Prospectus are independent public accountants within the meaning of the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements of
the Company and its subsidiaries included in the Registration Statement
and the Prospectus, together with the related schedules and notes, as
well as any financial statements, schedules and notes of any other
entity or property included therein, present fairly in all material
respects the financial position of the Company and its subsidiaries or
such other entity or property, as the case may be, at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its subsidiaries 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
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required to be stated therein; the selected financial data and the
summary financial information included in the Registration Statement
and the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement and the Prospectus; and any pro forma financial
statements and the related notes thereto included in the Registration
Statement and the Prospectus present fairly in all material respects
the information shown therein, have been prepared in accordance with
the SEC's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company; the Indenture has been duly
authorized, executed and delivered by the Company; the Indenture
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with the respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by (1) requirements that a claim with respect to
any Notes payable other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (2) governmental authority to limit,
delay or prohibit the making of payments outside the United States; the
Notes have been duly authorized for issuance, offer and sale pursuant
to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor, the Notes will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by (1)
requirements that a claim with respect to any Notes payable other than
in U.S. dollars (or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the making of
payments outside the United States; and each holder of the Notes will
be entitled to the benefits of the Indenture.
(viii) Material Changes, Material Transactions or
Distributions. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as may
otherwise be stated therein, (1) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business, (2) there have been no
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transactions or acquisitions entered into by the Company or any of its
subsidiaries other than those arising in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (3) except for regular
quarterly dividends on the common stock of the Company (the "Company
Common Shares"), Company Common Shares issued pursuant to the Company's
Distribution Reinvestment and Share Purchase Plan, or dividends
declared, paid or made in accordance with the terms of any series of
preferred stock of the Company (the "Company Preferred Shares"), there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its Company Common Shares or Company
Preferred Shares.
(ix) No Defaults. The Company is not in violation of its
articles of incorporation (the "Charter") or by-laws, and no subsidiary
of the Company is in violation of its charter or by-laws (or similar
governing documents), and neither of the Company nor any subsidiary of
the Company is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease (other than as
disclosed in the Prospectus) or other instrument to which the Company,
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 Company or
any of its subsidiaries is subject where the violation or default would
reasonably be expected to result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or
business prospects of the Company and its subsidiaries considered as
one enterprise; 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 Company with
its obligations hereunder and thereunder have been duly authorized by
all necessary action of the Company 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 Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company, 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 Company or any of its subsidiaries, is
subject, nor will such action result in any violation of the provisions
of the Charter or the by-laws of the Company or any law, administrative
regulation or administrative or court order or decree.
(x) Regulatory Approvals. No authorization, approval or
consent of any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement or in connection with the issuance and sale of Notes
hereunder, except such as have been obtained or rendered, as the case
may be, or as may be required under state securities laws ("Blue Sky").
(xi) Legal Proceedings. There is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company
(for purposes of this Agreement, such knowledge shall mean the actual
knowledge of either an executive officer or director of the Company)
threatened against or affecting the Company or any of its subsidiaries
which is required to be disclosed in the Prospectus (other than as
disclosed therein) or which would
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reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
business prospects of the Company and its subsidiaries considered as
one enterprise or which might materially and adversely affect the
properties or assets of the Company and its subsidiaries considered as
one enterprise or which might adversely affect the consummation of this
Agreement, the Indenture or the Notes or any transaction contemplated
hereby or thereby; and all pending legal or governmental proceedings to
which the Company 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 reasonably expected to
result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xii) Contracts. There are no contracts or documents of
the Company 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 Company and
its subsidiaries possess adequate certificates, authorities or permits
issued by the appropriate state or federal regulatory agencies or
bodies necessary to conduct the business now operated by them, and none
of the Company or any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the conduct of the business,
operations, financial condition or earnings of the Company and its
subsidiaries considered as one enterprise.
(xiv) Title to Property. Each of the Company and its
subsidiaries has good and indefeasible title in fee simple to all real
property and interests in real property owned by it in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially adversely
affect conduct of the business, operations, financial condition or
earnings of the Company and its subsidiaries considered as one
enterprise; and, except as otherwise described in the Prospectus or as
such do not materially adversely affect the conduct of the business,
operations, financial condition or earnings of the Company and its
subsidiaries considered as one enterprise; any real property and
buildings held under lease by the Company, or any of its subsidiaries
or leased by the Company or any of its subsidiaries to a third party
are held or leased by the Company or any of its subsidiaries, as the
case may be, under valid, binding and enforceable leases conforming to
the description thereof set forth in the Prospectus (to the extent
described therein), enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xv) Environmental Laws. Except as set forth in the
Prospectus, neither the Company nor any of its subsidiaries has
knowledge of (a) the unlawful presence of any
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hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the
properties owned by the Company or any of such subsidiaries, as
applicable, or of (b) any unlawful spills, releases, discharges or
disposal of Hazardous Materials that have occurred or are presently
occurring off such properties as a result of any construction on or
operation and use of such properties which presence or occurrence
would, in either case, have a material adverse effect on the
condition, financial or otherwise, or the earnings, business or
business prospects of the Company and its subsidiaries considered as
one enterprise; and in connection with the construction on or
operation and use of the properties owned by the Company or any of its
subsidiaries, the Company represents that it has no knowledge of any
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
that would have a material adverse effect on the condition, financial
or otherwise, or the earnings, business or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xvi) Trademarks; Service Marks. Neither the Company
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 any of them.
(xvii) Internal Revenue Code. The Company is qualified
as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended (the "Code"), and will be so qualified for the
taxable year in which sales of the Notes are to occur.
(xviii) Investment Company Act. The Company 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,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or exempted under the
provisions of the Commodity Exchange Act.
(b) Additional Certifications. Any certificate signed by any
executive officer or director of the Company and delivered to one or more
Agents or to counsel for the Agents in connection with an offering of Notes to
one or more Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an Agent
and the Company, Notes shall be purchased by one or more Agents as principal in
accordance with terms agreed upon by such Agent or Agents and the Company
(which terms shall be agreed upon orally (with written confirmation prepared
promptly by such Agent or Agents and mailed promptly to the Company) and,
unless otherwise agreed, shall, to the extent applicable, include those terms
specified in Exhibit A hereto). An Agent's commitment to purchase Notes as
principal shall be
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deemed to have been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms and conditions
herein set forth. Unless the context otherwise requires, references herein to
"this Agreement" shall include the applicable agreement of one or more Agents
to purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto.
The Agents may engage the services of any other broker or dealer in connection
with the resale of the Notes purchased by them as principal and may allow all
or any portion of the discount received in connection with such purchases from
the Company to such brokers and dealers. At the time of each purchase of Notes
by one or more Agents as principal, such Agent or Agents shall specify the
requirements for the officers' certificate, opinions of counsel and comfort
letter pursuant to Sections 7(b), 7(c) and 7(d) hereof. In addition, such Agent
or Agents shall promptly notify the Company when the related Notes are no
longer held as principal pursuant hereto.
(b) Solicitations as Agent. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Company and an Agent, such Agent, as an agent of
the Company, will use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth in the Prospectus. The Agents are
not authorized to appoint sub-agents with respect to Notes sold through them as
agent. All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing
at any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend solicitation
of purchases from the Company until such time as the Company has advised such
Agent that such solicitation may be resumed.
The Company 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 Company as a result of a solicitation made by such Agent as
set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate
or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Company and the
applicable Agent or Agents and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared in connection with
each sale of Notes. Except as may be otherwise specified in the applicable
Pricing Supplement, the Notes will be issued in denominations of U.S. $1,000
or any larger amount that is an integral multiple of U.S. $1,000.
Administrative procedures (the "Procedures") with respect to the sale of Notes
shall be agreed upon from time to time by the Company, the Agents and the
Trustee. The current Procedures are attached hereto as Exhibit B. The Agents
and the Company agree to perform, and the Company agrees to cause the Trustee
to agree to perform, their respective duties and obligations specifically
provided to be performed by them in the Procedures.
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SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company 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
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Services to any
debt securities of the Company or the public announcement by ▇▇▇▇▇'▇ Investors
Service, Inc. or Standard & Poor's Ratings Services that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Company. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company 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 a change in the
interest rate or formula applicable to the Notes or relating solely to the
issuance and/or offering of securities other than the Notes), whether by the
filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise. In
the event of such additional registration statement, amendment or supplement,
the Company will furnish to the Agents copies thereof a reasonable time in
advance of the related proposed filing or use thereof, as the case may be, and
will not file any such additional registration statement, amendment or
supplement in a form to which the Agents or counsel for the Agents shall
reasonably object; provided, however, that, in lieu of the foregoing, in the
event that the conditions of subsection (k) of this Section have been satisfied
and the Company has notified the Agents in writing that offerings of Notes are
suspended, then the Company shall be required to deliver copies of all such
additional registration statements, amendments and supplements at least five
business days prior to the date that offerings of Notes may be resumed.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents reasonably
request. The Company 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.
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(d) Preparation of Pricing Supplements. The Company 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
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the SEC on the fifth business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (k) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Company, to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company shall give immediate notice, confirmed in writing,
to the Agents to cease the solicitation of offers to purchase the Notes in
their capacity as agents and to cease sales of any Notes they may then own as
principal, and the Company will promptly amend the Registration Statement and
the Prospectus, whether by filing documents pursuant to the 1934 Act or the
1933 Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with such
requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (k) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information in writing to the Agents and shall cause the Prospectus to be
amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be required by the 1933 Act or the 1933
Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except
as otherwise provided in subsection (k) of this Section, on or prior to the
date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information in writing to the Agents and shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant
to the 1934 Act or the 1933 Act or otherwise, to include or incorporate by
reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be required by the 1933 Act or the 1933 Act
Regulations.
(h) Earnings Statements. The Company will make generally
available to their respective security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of
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Rule 158 of the 1933 Act Regulations) covering each twelve month period
beginning, in each case, not later than the first day of the fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company 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 Company 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 Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company 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 Company, 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 Company 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 Company and (ii) no Agent shall then hold any
Notes purchased as principal pursuant hereto, until the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or an
Agent shall subsequently purchase Notes from the Company as principal.
(l) Code Requirements. The Company will use its best efforts to
continue to meet the requirements to qualify as a "real estate investment
trust" under the Code for the taxable year in which sales of the Notes are to
occur.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the Company as
principal and to solicit offers to purchase Notes as agent of the Company, and
the obligations of any purchasers of Notes sold through an Agent as agent, will
be subject to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
directors or executive officers, made in any certificate furnished pursuant to
the provisions hereof, to the performance and observance by the Company of all
its covenants and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
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(1) Opinion of Company Counsel. The favorable opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., counsel to the Company, to the effect set forth in Exhibit
C.
(2) Opinion of General Counsel for the Company. The favorable
opinion of the General Counsel of the Company, or other counsel satisfactory
to the Agents, to the effect that:
(i) The Company is duly qualified as a foreign entity to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ii) Each Significant Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to so qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(3) Opinion of Tax Counsel for the Company. The favorable opinion of
▇▇▇▇▇▇▇▇▇ & Gray, tax counsel for the Company, to the effect that:
(i) The information in the Prospectus under "Certain United
States Federal Income Tax Considerations" and "Certain Federal Income
Tax Considerations to the Company of its REIT Election", to the extent
that such information constitutes matters of law or legal conclusions,
has been reviewed by them and is correct.
(ii) At all times on or after January 1, 1995 (which such
counsel believes is the beginning of the earliest year still open
under the applicable statute of limitations (including waivers
thereof) for examination by the Internal Revenue Service), the Company
has had all legal rights, powers and authority necessary to qualify
and has qualified as a "real estate investment trust" under Section
856 through 860 of the Code.
(4) Opinion of Counsel to the Agents. The favorable opinion of
▇▇▇▇▇ & Wood LLP, counsel to the Agents, covering those matters requested by
the Agents.
(5) Disclosure Documents. In giving their opinions required by
subsection (a)(1) and (a)(4), respectively, of this Section 5, ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P. and Brown & Wood LLP shall each additionally state that
nothing has come to their attention that would lead them to believe that the
Registration Statement, at the time it became effective (or, if an amendment
to the Registration Statement or an Annual Report on Form 10-K has been
filed by the Company with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became effective or
at the
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time of the most recent such filing, as the case may be) or at the
date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, at the date hereof (or, if such
opinion is being delivered in connection with the purchase of Notes
from the Company by one or more Agents as principal pursuant to
Section 7(c) hereof, at the date of any agreement by such Agent or
Agents to purchase Notes as principal and at the Settlement Date with
respect thereto, as the case may be) (included or) includes an untrue
statement of a material fact or (omitted or) omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it
being understood that counsel need not comment on the financial
statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or
the Prospectus).
In giving their opinions, the foregoing counsel may rely upon,
or assume the accuracy of, (1) as to all matters of fact, the
certificates and written statements of officers and employees of and
accountants for the Company and (2) as to the qualification and good
standing of the Company or any of its subsidiaries to do business in
any state or jurisdiction, the certificates of appropriate government
officials or opinions of counsel in such jurisdictions.
(b) Officer's Certificate. On the date hereof, the Agents shall
have received a certificate of the Chief Executive Officer, President or Vice
President and the principal financial officer or principal accounting officer
of the Company, dated as of the date hereof, to the effect that (i) since the
respective dates as of which information is given in the Prospectus or, if such
certificate is required pursuant to Section 7(b) hereof, since the date of the
agreement, if any, by one or more Agents to purchase Notes from the Company as
principal, there has not been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate and (iii) the Company has performed or
complied with all agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the date of such certificate.
As used in this Section 5(b), the term "Prospectus" means the Prospectus in the
form first provided to the applicable Agent or Agents for use in confirming
sales of the Notes.
(c) Comfort Letter of PricewaterhouseCoopers LLP On the date
hereof, the Agents shall have received a letter from PricewaterhouseCoopers
LLP, dated as of the date hereof, in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(ii) It is their opinion that the consolidated
financial statements and supporting schedules of the Company and its
subsidiaries included or incorporated by
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reference in the Registration Statement and Prospectus covered by their opinions
therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations.
(iii) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim financial
statements of the Company and its indicated subsidiaries, a reading of the
minute books of the Company and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of the Company and such
subsidiaries responsible for financial and accounting matters with respect to
the unaudited consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus and the latest available
interim unaudited financial statements of the Company and its subsidiaries, and
such other inquiries and procedures as may be specified in such letter, and on
the basis of such inquiries and procedures, nothing came to their attention that
caused them to believe that: (A) any material modifications should be made to
the unaudited consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and Prospectus for them to be in conformity with generally accepted accounting
principles in the United States, (B) the unaudited consolidated financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the 1934
Act and the 1934 Act Regulations or (C) at a specified date not more than three
days prior to the date of such letter, there was any change in the consolidated
capital stock, any increase in consolidated long-term debt or any decrease in
the consolidated net current assets or consolidated net assets of the Company
and its subsidiaries, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement and
Prospectus or, during the period from the date of such balance sheet to a
specified date not more than three days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the preceding
year, in consolidated revenues or in the total or per-share amounts of income
before extraordinary items or of net income of the Company and its subsidiaries,
except in all instances for changes, increases or decreases that the
Registration Statement and Prospectus disclose have occurred or may occur or
except for such exceptions enumerated in such letter as shall have been agreed
to by the Agents and the Company.
(iv) In addition to the audit referred to in their opinions and
the limited procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus and
which are specified by the Agents, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting, financial
and other records of the Company and its subsidiaries identified in such letter.
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(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 Company
which are included or incorporated by reference in the Registration Statement
and the Prospectus, a letter from the applicable accountants covering such
financial statements and supporting schedules, dated as of the date hereof, in
form and substance satisfactory to the Agents, to the effect that (i) they are
independent public accountants within the meaning of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations with respect to the
Company and its subsidiaries and the applicable properties or entities acquired
by the Company, (ii) it is their opinion that the financial statements and
supporting schedules of the properties or entities acquired by the Company
which are included or incorporated by reference in the Registration Statement
and the Prospectus and covered by their opinions therein, comply as to form in
all material respects with the applicable accounting requirements of the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and
(iii) with respect to any pro forma financial statements and any supporting
schedules for properties or entities acquired by the Company which are included
or incorporated by reference in the Registration Statement and the Prospectus,
they have read such pro forma financial statements, have performed an audit or
review in accordance with SAS 71 of such financial statements, have made
appropriate inquiries about the basis for the pro forma adjustments and whether
such pro forma financial statements comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X and
have proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in such pro forma adjustments, and on the
basis of such review, inquiries and procedures, nothing came to their attention
that caused them to believe that such pro forma financial statements do not
comply as to form in all material respects with the applicable requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such pro forma
financial statements.
(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 Company 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 Company at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 10 hereof, the indemnity and contribution agreement
set forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery set forth in
Section 11 hereof, the termination provisions set forth in Section 12 hereof,
the provisions relating to governing law and forum set forth in Section 14, the
provisions relating to parties set forth in Section 15 hereof shall remain in
effect.
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SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds (without interest)
to such Agent.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes (whether to one
or more Agents as principal or through an Agent as agent), and each delivery of
Notes (whether to one or more Agents as principal or through an Agent as
agent), shall be deemed to be an affirmation that the representations and
warranties of the Company 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 a change in the
interest rate or formula applicable to the Notes or relating solely to the
issuance and/or offering of securities other than the Notes), (ii) there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating solely to the issuance
and/or offering of securities other than the Notes), (iii) (if required in
connection with the purchase of Notes from the Company by one or more Agents as
principal) the Company sells Notes to such Agent or Agents as principal or (iv)
the Company sells Notes in a form not previously certified to the Agents by the
Company, the Company shall furnish or cause to be furnished to the Agent(s),
forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form and substance reasonably
satisfactory to the Agent(s) to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were last furnished to the
Agents are true and correct at the time of such amendment, supplement, filing
or sale, as the case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(b) hereof, modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate.
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(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes, providing solely for the
inclusion of additional financial information, or relating solely to the
issuance and/or offering of securities other than the Notes), (ii) there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating solely to the issuance
and/or offering of securities other than the Notes), (iii) (if required in
connection with the purchase of Notes from the Company by one or more Agents as
principal) the Company sells Notes to such Agent or Agents as principal or (iv)
the Company sells Notes in a form not previously certified to the Agents by the
Company, the Company shall furnish or cause to be furnished forthwith to the
Agent(s) and to counsel to the Agents the written opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., the General Counsel of the Company, and Altheimer & Gray, or other
counsel satisfactory to the Agent(s), dated the date of filing with the SEC of
such supplement or document, the date of effectiveness of such amendment, or
the date of such sale, as the case may be, in form and substance reasonably
satisfactory to the Agent(s), of the same tenor as the opinions referred to in
Section 5(a)(1), 5(a)(2) and 5(a)(3), as the case may be, hereof, but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion or, in lieu of
such opinion, counsel last furnishing such opinion to the Agents shall furnish
the Agent(s) with a letter substantially to the effect that the Agent(s) may
rely on such last opinion to the same extent as though it was dated the date of
such letter authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance); provided, however, that, with respect to (i) and (ii) above, in the
event that the conditions of Section 4(k)(i) hereof have been satisfied and the
Company has notified the Agents in writing that offerings of Notes are
suspended, then the Company shall be required to furnish or cause to be
furnished such opinions or such letters, as the case may be, only prior to the
date that offerings of Notes may be resumed. Notwithstanding the foregoing, in
the event that the Company sells Notes in a form not previously certified to
the Agents by the Company, then the Company shall cause ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
to furnish, prior to such sale, an opinion to the effect that such Notes will
be excluded or exempted from the provisions of the Commodity Exchange Act.
(d) Subsequent Delivery of Comfort Letters. Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes), (ii) there is filed with the SEC any document incorporated by
reference into the Prospectus which contains additional financial information,
or (iii) (if required in connection with the purchase of Notes from the Company
by one or more Agents as principal) the Company sells Notes to such Agent or
Agents as principal, the Company shall cause PricewaterhouseCoopers LLP
forthwith to furnish to the Agent(s) a letter, dated the date of such filing
with the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and substance
reasonably satisfactory to the Agent(s) of the same tenor as the portions of
the letter referred to in clauses (i) and (ii) of Section 5(c) 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
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from the accounting records of the Company; provided, however, that with respect
to (i) and (ii) above, in the event that the conditions of Section 4(k)(i)
hereof have been satisfied and the Company has notified the Agents in writing
that offerings of Notes are suspended, then the Company shall be required to
furnish or cause to be furnished such letter only prior to the date that
offerings of Notes may be resumed. In addition, each time that the Registration
Statement or the Prospectus shall be amended or supplemented to include
financial statements and any supporting schedules thereto of properties or
entities acquired by the Company, the Company shall cause the applicable
accountants covering such financial statements and supporting schedules to
furnish to the Agents a letter, dated the date of such amendment or supplement
with the SEC, in form satisfactory to the Agents, of the same tenor as the
letter referred to in Section 5(e) hereof; provided, however, that in the event
that the conditions of Section 4(k)(i) hereof have been satisfied and the
Company has notified the Agents in writing that offerings of Notes are
suspended, then the Company shall be required to furnish or cause to be
furnished such letter only prior to the date that offerings of Notes may be
resumed.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company 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 circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission referred to in subsection (i) above,
or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
(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;
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provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or made in reliance upon the Trustee's Statement of
Eligibility incorporated by reference into the Registration Statement and the
Prospectus.
(b) Indemnification of the Company. Each Agent severally agrees
to indemnify and hold harmless the Company, and each of its directors and each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company 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 Company and the Agents shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and the Agents, as incurred, in such proportions that each Agent is responsible
for that portion represented by the percentage that the commission or
underwriting discount received by such Agent bears to the total sales price
from the sale of the Notes sold to or through such Agent that were the subject
of the claim for indemnification, and the Company 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 officer or
director of the Company who signed the
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Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 10. Payment of Expenses.
The Company 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 accountants and counsel of
the Company, 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.
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SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Trust as principal)
may be terminated for any reason, at any time by either the Company or an
Agent, as to itself, upon the giving of 7 days' written notice of such
termination to the other parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent or Agents may terminate any agreement by such Agent or Agents
to purchase Notes from the Company as principal, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto, if (i)
there has been, since the date of such agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise 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 Company has been suspended by the SEC or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or if
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the SEC or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York authorities
or if a banking moratorium shall have been declared by the relevant authorities
in the country or countries of origin of any foreign currency or currencies in
which the Notes are denominated or payable, or (iv) the rating assigned by
▇▇▇▇▇'▇ Investors Service, Inc. or Standard and Poor's Ratings Services to any
debt securities of the Company as of the date of such agreement shall have been
lowered since such date or if any such rating organization shall have publicly
announced since such date that it has under surveillance or review, with
possible negative implications, its rating of any debt securities of the
Company or (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.
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(c) General. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) the Agents
shall be entitled to any commission earned as a result of a sale of a Note by
the Company, (ii) if at the time of termination (a) any Agent shall own any
Notes purchased by it as principal with the intention of reselling them or (b)
an offer to purchase any of the Notes has been accepted by the Company but the
time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
New Plan Excel Realty Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to: General Counsel
If to the Agents:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇/4.
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▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, New York 10036
Attention: Manager - Continuously Offered Products
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ - Investment Banking Information Center
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Prudential Securities Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Forum
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against any Agent in connection
with or arising under this Agreement shall be brought solely in
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the state or federal court of appropriate jurisdiction located in the Borough
of Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers, directors and trustees
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Notes
shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior V.P.
Confirmed and Accepted, as of the
date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
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PRUDENTIAL SECURITIES INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
agrees to pay the applicable Agent, on a discount basis, a commission for the
sale of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year . . . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . . .150
From 18 months to less than 2 years . . . . . . . . . . . .200
From 2 years to less than 3 years . . . . . . . . . . . . .250
From 3 years to less than 4 years . . . . . . . . . . . . .350
From 4 years to less than 5 years . . . . . . . . . . . . .450
From 5 years to less than 6 years . . . . . . . . . . . . .500
From 6 years to less than 7 years . . . . . . . . . . . . .550
From 7 years to less than 10 years . . . . . . . . . . . .600
From 10 years to less than 15 years . . . . . . . . . . . .625
From 15 years to less than 20 years . . . . . . . . . . . .700
From 20 years to 30 years . . . . . . . . . . . . . . . . .750
Greater than 30 years . . . . . . . . . . . . . . . . . . *
------------------------------
* As agreed to by the Company and the applicable Agent at the time of sale.