-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Euvm8g5cWKNCkIpum//ZXIEUC+zrNy9efp/xrNuuhzdf/57JGAheBk7TMu/KY5kg fpUEbl0gcp4pPUaJ8R5Rbg== 0000910643-97-000123.txt : 19971014 0000910643-97-000123.hdr.sgml : 19971014 ACCESSION NUMBER: 0000910643-97-000123 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 11 CONFORMED PERIOD OF REPORT: 19970731 FILED AS OF DATE: 19971010 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW PLAN REALTY TRUST CENTRAL INDEX KEY: 0000071519 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 131995781 STATE OF INCORPORATION: MA FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-08459 FILM NUMBER: 97693508 BUSINESS ADDRESS: STREET 1: 1120 AVE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2128693000 MAIL ADDRESS: STREET 1: 1120 AVENUE OF THE AMERICAS STREET 2: 1120 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10036 10-K 1 ================================================================= SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 10-K [x] ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED EFFECTIVE OCTOBER 7, 1996] For the fiscal year ended July 31, 1997 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED] For the transition period from __________ to __________ Commission File Number 1-8459 NEW PLAN REALTY TRUST (Exact Name of Registrant as Specified in Its Charter) Massachusetts 13-1995781 (State of Incorporation) (I.R.S. Employer Identification No.) 1120 Avenue of the Americas New York, NY 10036 (212) 869-3000 (Address of Principal Executive Offices) (Registrant's Telephone Number) Securities registered pursuant to Section 12(b) of the Act: Shares of Beneficial Interest, no par value (Title of Class) New York Stock Exchange (Name of Exchange on Which Registered) Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days. YES X NO _____ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] The aggregate market value of the voting stock held by non-affiliates of the Registrant was approximately $1,385,513,196 based on the closing price on the New York Stock Exchange for such stock on September 12, 1997. The number of shares of the Registrant's Shares of Beneficial Interest outstanding was 58,964,171 as of October 6, 1997. Documents Incorporated By Reference Portions of the 1997 New Plan Realty Trust Proxy Statement to be filed with the Securities and Exchange Commission within 120 days after the year covered by this Form 10-K with respect to the Annual Meeting of Shareholders to be held on December 10, 1997 are incorporated by reference into Part III. =========================================================================== TABLE OF CONTENTS Item No. Page - -------- ----- PART I. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Item 1. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Item 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Item 3. Legal Proceedings. . . . . . . . . . . . . . . . . . . . . . . .19 Item 4. Submission of Matters to a Vote of Security Holders. . . . . . .19 PART II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Item 5. Market for the Registrant's Common Equity and Related Shareholder Matters. . . . . . . . . . . . . . . . . . .19 Item 6. Selected Financial Data. . . . . . . . . . . . . . . . . . . . .22 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations. . . . . . . . . . . . . . .23 Item 7A. Quantitative and Qualitative Disclosures About Market Risk . . .25 Item 8. Financial Statements and Supplementary Data. . . . . . . . . . .26 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. . . . . . . . . . . . . . .26 PART III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Item 10. Trustees and Executive Officers of the Trust . . . . . . . . . .26 Item 11. Executive Compensation . . . . . . . . . . . . . . . . . . . . .27 Item 12. Security Ownership of Certain Beneficial Owners and Management . . . . . . . . . . . . . . . . . . . . . . . . .27 Item 13. Certain Relationships and Related Transactions . . . . . . . . .27 PART IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Item 14. Exhibits, Consolidated Financial Statements, Consolidated Financial Statement Schedules, and Reports on Form 8-K. . . . . . . . . . . . . . . . . . . . . . . . . . .28 PART I This Form 10-K, together with other statements and information publicly disseminated by New Plan Realty Trust (the "Registrant" or the "Trust"), contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Such statements are based on assumptions and expectations which may not be realized and are inherently subject to risks and uncertainties, many of which cannot be predicted with accuracy and some of which might not even be anticipated. Future events and actual results, financial and otherwise, may differ materially from the results discussed in the forward-looking statements. Risks and other factors that might cause such differences, some of which could be material, include, but are not limited to, the effect of economic and market conditions; financing risks, such as the inability to obtain debt or equity financing on favorable terms; the level and volatility of interest rates; financial stability of tenants; the rate of revenue increases versus expense increases, as well as other risks listed from time to time in this Form 10-K and in the Company's other reports filed with the Securities and Exchange Commission or otherwise publicly disseminated by the Company. Item 1. Business (a) General Development of Business The Trust, a self-administered and self-managed equity real estate investment trust, was organized on July 31, 1972 as a business trust under the laws of the Commonwealth of Massachusetts. The Trust is the successor to the original registrant (Reg. No. 2-19671), New Plan Realty Corporation, which was incorporated under the laws of the State of Delaware on December 4, 1961. (b) Financial Information About Industry Segments The Trust is in the business of managing, operating, leasing, acquiring, developing and investing in shopping centers, factory outlet centers and apartment complexes. See the Consolidated Financial Statements and Notes thereto included in Item 8 of this Annual Report on Form 10-K for certain information required by Item 1. (c) Narrative Description of Business General At September 9, 1997, the Trust owned fee, mortgage or leasehold interests in 131 shopping centers containing an aggregate of approximately 18,905,000 gross rentable square feet, six factory outlet centers containing an aggregate of approximately 1,752,000 gross rentable square feet and 49 apartment complexes containing 11,288 units, all located in 23 states. The average occupancy rates at July 31, 1997 for the shopping centers, factory outlet centers and apartment complexes were approximately 89%, 93% and 95%, respectively. The Trust is self-administered and self-managed and does not engage or pay a REIT advisor because the Trust personnel manage and maintain all of the Trust's properties. The Trust maintains its executive offices at 1120 Avenue of the Americas, New York, New York 10036, and its telephone number is (212) 869- 3000. Acquisition, Financing and Operating Strategies The Trust's primary investment strategy is to identify and purchase well-located income-producing shopping centers and apartment complexes at a discount to replacement cost. The Trust also purchases selected factory outlet centers. The Trust seeks to achieve income growth and enhance the cash flow potential of its properties through a program of expansion, renovation, leasing, re-leasing and improving the tenant mix. The Trust minimizes development risks by generally purchasing existing income- producing properties. The Trust regularly reviews its portfolio and from time to time considers the sale of certain of its properties. The Trust generally has acquired properties for cash. It is management's belief that its ability to purchase available properties for cash enhances its negotiating position in obtaining attractive purchase prices. In a few instances properties have been acquired subject to existing mortgages. Long-term debt of the Trust at July 31, 1997, consisted of $65.6 million of mortgages having a weighted average interest rate of 7.79% and unsecured notes aggregating $412.6 million having a weighted average interest rate of 6.88%. In July 1997 the Trust issued 150,000 shares of Series A Cumulative Preferred Stock (the "Cumulative Preferred Shares"). In connection with the issuance of Cumulative Preferred Shares, 1,500,000 depositary shares, each representing a 1/10 fractional interest in a Cumulative Preferred Share, were sold to the public. This stock currently pays dividends quarterly at the rate of 7.8% per annum and has a liquidation preference of $500 per share ($50 per depositary share). The Trust's short-term debt consists of normal trade payables and the current portion of mortgages payable. As of July 31, 1997 there was no balance outstanding under the Trust's $50 million unsecured line of credit with the Bank of New York, Corestates Bank N.A. and Fleet National Bank. Virtually all operating and administrative functions, such as leasing, data processing, finance, accounting, construction and legal, are centrally managed at the Trust's headquarters. In addition, the Trust maintains regional offices located near its various properties. On-site functions such as security, maintenance, landscaping and other similar activities are either performed by the Trust or subcontracted. The cost of these functions are passed through to tenants to the extent permitted by the respective leases. Developments During the 1997 Fiscal Year In the fiscal year ended July 31, 1997, the Trust acquired 16 shopping centers containing an aggregate of approximately 2.5 million gross rentable square feet and 13 apartment complexes containing 3,810 units. The newly acquired properties are located in Alabama, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Michigan, Missouri, Nevada, Ohio, Pennsylvania, Tennessee and Virginia. The aggregate purchase price for all of the properties, including assumed mortgages, was approximately $281 million. In April 1997 construction was completed on the Trust's Six Flags Factory Outlet in Jackson, New Jersey. Between July 31, 1997 and September 9, 1997 the Trust purchased one apartment complex containing 184 units and three shopping centers containing an aggregate of approximately 479,000 gross rentable square feet. The newly acquired properties are located in New York, North Carolina and Florida. The aggregate purchase price for these properties was approximately $28.7 million. Gross revenues, net income and funds from operations of the Trust for the fiscal year ended July 31, 1997 were the largest in the Trust's history. Funds from operations applicable to shares of beneficial interest, defined as net income plus depreciation and amortization of real estate, less gains from asset sales, less preferred stock dividend requirements, was approximately $101.6 million ($1.74 per share). Competition The success of the Trust depends, among other factors, upon the trends of the economy, including interest rates, construction costs, income tax laws, increases or decreases in operating expenses, governmental regulations and legislation, including environmental requirements, real estate fluctuations, retailing trends, population trends, zoning laws, the financial condition and stability of tenants, the availability of financing and capital on satisfactory terms and the ability of the Trust to compete with others for tenants and keep its properties leased at profitable levels. The Trust competes for properties with an indeterminate number of investors, including domestic and foreign corporations and financial institutions, other real estate investment trusts, life insurance companies, pension funds and trust funds. Adverse changes in general or local economic conditions could result in the inability of some existing tenants of the Trust to meet their lease obligations and could otherwise adversely affect the Trust's ability to attract or retain tenants. Management believes, however, that the Trust's financial strength and operating practices, particularly its ability to implement renovation, expansion and leasing programs will enable it to maintain and increase rental income from its properties. Employees As of September 9, 1997, the Trust employed 602 individuals, including executive, administrative and field personnel. The Trust considers its relations with its personnel to be good. Qualification as a Real Estate Investment Trust The Trust presently meets the qualification requirements of a real estate investment trust under Sections 856-58 of the Internal Revenue Code of 1986, as amended (the "Code"). If, as the Trust contemplates, such qualification continues, the Trust will not be taxed on its real estate investment trust taxable income, at least 95% of which will be distributed to shareholders. See Item 5 below. Item 2. Properties The location, general character and primary occupancy information with respect to the Trust's properties as of July 31, 1997 (including acquisitions through September 9, 1997) are set forth on the Summary of Properties Schedule on the pages immediately following.
NEW PLAN REALTY TRUST AND SUBSIDIARIES Summary of Properties At July 31, 1997 (Includes acquisitions through September 9, 1997) Description |---------------------------| Type of Percent Property Sq. Ft. Units Acres Interest Rented --------------- ------- ----- ----- -------- ------- Apartments - ----------------- BRECKENRIDGE APARTMENTS 120 7 Fee 94 BIRMINGHAM AL DEVONSHIRE PLACE 284 16 Fee 98 BIRMINGHAM AL COURTS AT WILDWOOD 220 22 Fee 98 BIRMINGHAM AL THE CLUB APARTMENTS 292 23 Fee 95 BIRMINGHAM AL PLANTATION APARTMENTS 120 6 Fee 99 MOBILE AL MAISON DE VILLE APTS 347 20 Fee 99 MOBILE AL MAISON IMPERIAL APTS 56 6 Fee 98 MOBILE AL KNOLLWOOD APARTMENTS 704 43 Fee 99 MOBILE AL HILLCREST APARTMENTS 140 7 Fee 99 MOBILE AL RODNEY APARTMENTS 207 11 Fee 88 DOVER DE MAYFAIR APARTMENTS 96 7 Fee 98 DOVER DE LAKE PARK APARTMENTS 227 10 Fee 95 LAKE PARK FL CAMBRIDGE APARTMENTS 180 12 Fee 99 ATHENS GA TARA APARTMENTS 240 19 Fee 94 ATHENS GA REGENCY CLUB APARTMENTS 232 17 Fee 97 EVANSVILLE IN HAWTHORNE HEIGHTS APTS 241 15 Fee 94 INDIANAPOLIS IN JAMESTOWN APARTMENTS 125 8 Fee 95 LEXINGTON KY SADDLEBROOK APARTMENTS 455 20 Fee 95 LEXINGTON KY POPLAR LEVEL APARTMENTS 88 3 Fee 99 LOUISVILLE KY LA FONTENAY APARTMENTS 248 17 Fee 99 LOUISVILLE KY CHARLESTOWN @ DOUGLASS HILLS 244 27 Fee 95 LOUISVILLE KY RIVERCHASE APARTMENTS 203 5 Fee 91 NEWPORT KY SHERWOOD ACRES APARTMENTS 612 26 Fee 88 BATON ROUGE LA FORESTWOOD APARTMENTS 272 11 Fee 87 BATON ROUGE LA WILLOW BEND LAKE APARTMENTS 360 25 Fee 90 BATON ROUGE LA DEERHORN VILLAGE APARTMENTS 309 36 Fee 98 KANSAS CITY MO CARDINAL WOODS APARTMENTS 184 17 Fee (1) CARY NC MEADOW EAST APARTMENTS 100 15 Fee 100 POTSDAM NY MOHAWK GARDEN APARTMENTS 208 12 Fee 88 ROME NY SPRING CREEK APARTMENTS 288 19 Fee 99 COLUMBUS OH ARLINGTON VILLAGE APARTMENTS 164 10 Fee 96 FAIRBORN OH CHESTERFIELD APARTMENTS 104 9 Fee 95 MAUMEE OH GOLDCREST APARTMENTS 173 9 Fee 95 SHARONVILLE OH CAMBRIDGE PARK APTS 196 14 Fee 100 UNION TWP-CINN OH GOVERNOUR'S PLACE APARTMENTS 130 9 Fee 98 HARRISBURG PA HARBOUR LANDING APARTMENTS 208 15 Fee 98 COLUMBIA SC SEDGEFIELD APARTMENTS 280 19 Fee 89 FLORENCE SC TURTLE CREEK APARTMENTS 152 13 Fee 96 GREENVILLE SC HICKORY LAKE APARTMENTS 322 26 Fee 90 ANTIOCH TN COURTS @ WATERFORD PLACE 318 26 Fee 96 CHATTANOOGA TN ASHFORD PLACE APARTMENTS 268 16 Fee 98 CLARKSVILLE TN THE PINES APARTMENTS 224 10 Fee 99 CLARKSVILLE TN CEDAR VILLAGE APARTMENTS 170 11 Fee 99 CLARKSVILLE TN PADDOCK PLACE APARTMENTS 240 11 Fee 95 CLARKSVILLE TN LANDMARK ESTATES APARTMENTS 92 9 Fee 95 EAST RIDGE TN MILLER CREST APARTMENTS 121 16 Fee 99 JOHNSON CITY TN CEDAR BLUFF APARTMENTS 192 32 Fee 100 KNOXVILLE TN COUNTRY PLACE APARTMENTS 312 27 Fee 96 NASHVILLE TN WOODBRIDGE APARTMENTS 220 19 Fee 95 NASHVILLE TN Factory Outlets - --------------- BARSTOW FACTORY OUTLET 334,000 49 Fee 96 BARSTOW CA ST AUGUSTINE OUTLET CENTER 335,000 32 Fee 99 ST AUGUSTINE FL BRANSON FACTORY OUTLET 317,000 39 Fee & 91 BRANSON MO Leasehold OSAGE FACTORY OUTLET VILLAGE 400,000 147 Fee 99 OSAGE BEACH MO SIX FLAGS FACTORY OUTLET CENTER 190,000 55 Fee 91 JACKSON NJ FT CHISWELL FACTORY OUTLET 176,000 55 Fee 69 MAX MEADOWS VA Miscellaneous - ------------- PIZZA HUT - PAD 4,000 1 Fee 100 GREENVILLE NC HARDEES - PAD 4,000 Leasehold 100 HANOVER PA PIZZA HUT - PAD 3,000 Leasehold 100 HARRISONBURG VA Mortgages Receivable - -------------------- SHOPPING CENTER - NEW BERN 99,000 17 $750,000 NEW BERN NC First Mortgage NEWDON PLAZA 105,000 10 $10,350,000 NEW CITY NY First Mortgage WHITESTOWN PLAZA 83,000 11 $4,205,000 WHITESBORO NY First Mortgage LAUREL MALL 333,000 57 $5,180,000 CONNELLSVILLE PA First Mortgage SHOPPING CENTER - HANOVER 87,000 12 $700,000 HANOVER PA First Mortgage SHOPPING CENTER - HARRISONBURG 119,000 10 $794,500 HARRISONBURG VA First Mortgage Office Building - --------------- INSTITUTE FOR DEFENSE ANALYSES 51,000 8 Leasehold 100 PRINCETON NJ Shopping Centers - ---------------- CLOVERDALE VILLAGE 59,000 6 Fee 100 FLORENCE AL RODNEY VILLAGE 216,000 15 Fee 73 DOVER DE DOVERAMA @ RODNEY VILLAGE 30,000 1 75% Owned 100 DOVER DE REGENCY PARK SHOPPING CENTER 328,000 30 Fee 93 JACKSONVILLE FL SOUTHGATE SHOPPING CENTER 263,000 24 Fee (1) NEW PORT RICHIE FL PRESIDENTIAL PLAZA 67,000 6 Fee 100 NORTH LAUDERDALE FL PRESIDENTIAL PLAZA WEST 21,000 2 Fee 80 NORTH LAUDERDALE FL RIVERWOOD SHOPPING CENTER 94,000 15 Fee (1) PORT ORANGE FL RUTLAND PLAZA 150,000 13 Fee 99 ST PETERSBURG FL ALBANY PLAZA 114,000 7 Fee 95 ALBANY GA SOUTHGATE PLAZA - ALBANY 60,000 5 Fee 92 ALBANY GA PERLIS PLAZA 166,000 20 Fee 93 AMERICUS GA EASTGATE PLAZA - AMERICUS 44,000 4 Fee 100 AMERICUS GA ROGERS PLAZA 50,000 5 Fee 72 ASHBURN GA SWEETWATER VILLAGE 66,000 7 Fee 98 AUSTELL GA CEDARTOWN SHOPPING CENTER 107,000 14 Fee 100 CEDARTOWN GA CEDAR PLAZA 83,000 9 Fee 100 CEDARTOWN GA CORDELE SQUARE 131,000 11 Fee 91 CORDELE GA SOUTHGATE PLAZA - CORDELE 39,000 3 Fee 41 CORDELE GA MR B'S 14,000 1 Fee 29 CORDELE GA HABERSHAM VILLAGE 147,000 18 Fee 98 CORNELIA GA MIDWAY VILLAGE SHOPPING CENTER 73,000 10 Fee 89 DOUGLASVILLE GA WESTGATE - DUBLIN 191,000 35 Fee 76 DUBLIN GA NEW CHASTAIN CORNERS SHOPPING C 109,000 13 Fee 97 MARIETTA GA CREEKWOOD SHOPPING CENTER 70,000 9 Fee 98 REX GA VICTORY SQUARE 171,000 35 Fee 97 SAVANNAH GA EISENHOWER SQUARE SHOPPING CENTER 125,000 12 Fee 100 SAVANNAH GA TIFT-TOWN 61,000 4 Fee 61 TIFTON GA WESTGATE - TIFTON 16,000 2 Fee 92 TIFTON GA HAYMARKET SQUARE 267,000 28 Fee 91 DES MOINES IA HAYMARKET MALL 234,000 22 Fee 65 DES MOINES IA SOUTHFIELD PLAZA SHOPPING CENTER 208,000 18 Fee 87 BRIDGEVIEW IL WESTRIDGE COURT SHOPPING CENTER 446,000 50 Fee 96 NAPERVILLE IL TINLEY PARK PLAZA 283,000 21 Fee 95 TINLEY PARK IL COLUMBUS CENTER 272,000 24 Fee 93 COLUMBUS IN JASPER MANOR 194,000 26 Fee 97 JASPER IN TOWN FAIR SHOPPING CENTER 114,000 16 Fee 96 PRINCETON IN WABASH CROSSING 167,000 18 Fee 98 WABASH IN JACKSON VILLAGE 147,000 48 Fee 74 JACKSON KY J*TOWN CENTER 187,000 17 Fee 58 JEFFERSONTOWN KY NEW LOUISA PLAZA 115,000 20 Fee 85 LOUISA KY PICCADILLY SQUARE 96,000 13 Fee 89 LOUISVILLE KY EASTGATE SHOPPING CENTER 153,000 18 Fee 99 MIDDLETOWN KY LIBERTY PLAZA 216,000 26 Fee 87 RANDALLSTOWN MD SHOPPING CENTER - SALISBURY 110,000 16 Fee 0 SALISBURY MD MAPLE VILLAGE SHOPPING CENTER 281,000 32 Fee 94 ANN ARBOR MI FARMINGTON CROSSROADS 84,000 8 Fee 100 FARMINGTON MI DELTA CENTER 174,000 16 Fee 91 LANSING MI HAMPTON VILLAGE CENTRE 460,000 79 Fee 99 ROCHESTER HILLS MI FASHION CORNERS 189,000 15 Fee & 87 SAGINAW MI Leasehold HALL ROAD CROSSING 176,000 27 Fee 94 SHELBY MI DELCO PLAZA 155,000 15 Fee 100 STERLING HEIGHTS MI WASHTENAW FOUNTAIN PLAZA 136,000 12 Fee 90 YPSILANTI MI SHOPPING CENTER - GOLDSBORO 80,000 10 Fee 100 GOLDSBORO NC SHOPPING CENTER - WILSON 105,000 17 Fee 76 WILSON NC LAUREL SQUARE 246,000 35 Fee 96 BRICKTOWN NJ HAMILTON PLAZA 149,000 18 Fee 99 HAMILTON NJ BENNETTS MILLS PLAZA 102,000 12 Fee 98 JACKSON NJ MIDDLETOWN PLAZA 123,000 19 Fee 74 MIDDLETOWN NJ RENAISSANCE CENTER EAST 146,000 14 Fee 94 LAS VEGAS NV UNIVERSITY MALL 78,000 25 Fee 73 CANTON NY CORTLANDVILLE 100,000 13 Fee 95 CORTLAND NY KMART PLAZA 116,000 11 Fee 100 DEWITT NY D & F PLAZA 192,000 30 Fee 48 DUNKIRK NY SHOPPING CENTER - ELMIRA 54,000 5 Fee 100 ELMIRA NY PYRAMID MALL 233,000 37 Fee 82 GENEVA NY SHOPPING CENTER - GLOVERSVILLE 45,000 4 Fee 100 GLOVERSVILLE NY MCKINLEY PLAZA 93,000 20 Fee 89 HAMBURG NY CAYUGA PLAZA 208,000 22 Fee 98 ITHACA NY SHOPS @ SENECA MALL 237,000 30 Fee 73 LIVERPOOL NY TRANSIT ROAD PLAZA 138,000 15 Fee 79 LOCKPORT NY SHOPPING CENTER - MARCY 123,000 21 Fee 2 MARCY NY WALLKILL PLAZA 203,000 24 Fee 95 MIDDLETOWN NY MONROE SHOPRITE PLAZA 122,000 12 Fee (1) MONROE NY ROCKLAND PLAZA 260,000 28 Fee 97 NANUET NY SOUTH PLAZA 144,000 36 Fee 88 NORWICH NY WESTGATE PLAZA - ONEONTA 72,000 11 Fee 92 ONEONTA NY OSWEGO PLAZA 128,000 20 Fee 90 OSWEGO NY MOHAWK ACRES 107,000 13 Fee 78 ROME NY MONTGOMERY WARD 84,000 7 Fee 100 ROME NY PRICE CHOPPER PLAZA 78,000 6 Fee 100 ROME NY WESTGATE MANOR PLAZA - ROME 66,000 15 Fee 59 ROME NY NORTHLAND 123,000 23 Fee 92 WATERTOWN NY HARBOR PLAZA 52,000 7 Fee 80 ASHTABULA OH BELPRE PLAZA 89,000 8 Leasehold 78 BELPRE OH SOUTHWOOD PLAZA 83,000 44 Fee 92 BOWLING GREEN OH BRENTWOOD PLAZA 235,000 20 Fee 64 CINCINNATI OH DELHI SHOPPING CENTER 166,000 15 Fee 93 CINCINNATI OH WESTERN VILLAGE SHOPPING CENTER 139,000 13 Fee 99 CINCINNATI OH SOUTH TOWNE CENTRE 309,000 29 Fee 99 DAYTON OH HERITAGE SQUARE 232,000 29 Fee 89 DOVER OH MIDWAY CROSSING 139,000 15 Fee 941 ELYRIA OH FAIRFIELD MALL 74,000 9 Fee 92 FAIRFIELD OH SILVER BRIDGE PLAZA 146,000 20 Fee 96 GALLIPOLIS OH SHOPPING CENTER - GENOA 17,000 2 Fee 85 GENOA OH PARKWAY PLAZA 141,000 12 Fee 74 MAUMEE OH NEW BOSTON SHOPPING CENTER 234,000 22 Fee 99 NEW BOSTON OH MARKET PLACE 169,000 18 Fee 96 PIQUA OH CENTRAL AVE MARKET PLACE 157,000 18 Fee 98 TOLEDO OH BETHEL PARK PLAZA 224,000 23 Fee 96 BETHEL PARK PA DILLSBURG SHOPPING CENTER 69,000 22 Fee 100 DILLSBURG PA NEW GARDEN SHOPPING CENTER 149,000 19 Fee 70 KENNETT SQUARE PA STONEMILL PLAZA 95,000 21 Fee 92 LANCASTER PA CROSSROADS PLAZA 105,000 14 Fee 98 MT. PLEASANT PA STRAWBRIDGE'S 313,000 Fee (A) 100 PHILADELPHIA PA ROOSEVELT MALL NE 250,000 36 Leasehold (A) 96 PHILADELPHIA PA IVYRIDGE SHOPPING CENTER 112,000 9 Fee 100 PHILADELPHIA PA ROOSEVELT MALL ANNEX 36,000 Fee (A) 100 PHILADELPHIA PA ST MARY'S PLAZA 108,000 11 Fee 99 ST MARY'S PA NORTHLAND CENTER 105,000 15 Fee & 98 STATE COLLEGE PA Leasehold SHOPS AT PROSPECT 63,000 9 Fee 94 WEST HEMPFIELD PA YORK MARKETPLACE 256,000 34 Fee & 100 YORK PA Leasehold CONGRESS CROSSING 172,000 39 Fee 100 ATHENS TN GREENEVILLE COMMONS 223,000 26 Fee 100 GREENEVILLE TN KINGS GIANT SHOPPING CENTER 162,000 18 Leasehold 94 KINGSPORT TN GEORGETOWN SQUARE 104,000 11 Fee 94 MURFREESBORO TN SHOPPING CENTER - COLONIAL HTS 82,000 10 Fee 0 COLONIAL HEIGHTS VA HANOVER SQUARE SHOPPING CENTER 130,000 14 Fee 100 MECHANICSVILLE VA VICTORIAN SQUARE 271,000 34 Fee 99 MIDLOTHIAN VA CAVE SPRING CORNERS SHOPPING CENTER 171,000 16 Fee 100 ROANOKE VA SHOPPING CENTER - SPOTSYLVANIA 87,000 8 Fee 100 SPOTSYLVANIA VA RIDGEVIEW CENTRE 177,000 30 Fee 96 WISE VA MOUNDSVILLE PLAZA 170,000 29 Fee 64 MOUNDSVILLE WV GRAND CENTRAL PLAZA 73,000 7 Leasehold 100 PARKERSBURG WV KMART PLAZA 106,000 14 Fee 100 VIENNA WV Vacant Land - ----------------- 1 NORTH CENTRAL AVENUE 15,000 1 Fee HARTSDALE NY ___________________ (A) The acreage of this property has been included in the acreage of the Roosevelt Mall NE shopping center. (1) Property purchased after July 31, 1997. Item 3. Legal Proceedings The Trust is not presently involved in any material litigation nor, to its knowledge, is any material litigation threatened against the Trust or its properties, other than routine litigation arising in the ordinary course of business or which is expected to be covered by the Trust's liability insurance. Item 4. Submission of Matters to a Vote of Security Holders No matter was submitted to a vote of security holders during the fourth quarter of the fiscal year covered by this report. PART II Item 5. Market for the Registrant's Common Equity and Related Shareholder Matters (a) Market Information The following table shows the high and low sales price for the Trust's shares of beneficial interest on the New York Stock Exchange, and, prior to June 12, 1986, on the American Stock Exchange, and cash distributions paid for the periods indicated. Figures are adjusted to give effect to a 2-for- 1 stock split on February 1, 1983 and a 3-for-2 stock split on April 1, 1986. Fiscal Year Ended Cash Distributions July 31, High Low Paid per Share ----------------- ---- --- ------------------ 1983 $ 9.50 $ 4.96 $ .51 1984 8.50 7.25 .57 1985 11.92 7.50 .65 1986 14.50 10.00 .73 1987 18.38 13.00 .81 1988 17.63 10.75 .89 1989 17.88 14.38 .97 1990 19.13 14.88 1.05 1991 21.25 13.75 1.13 1992 25.00 19.63 1.21 1993 26.38 21.50 1.275 1994 26.38 20.38 1.315 1995 22.63 18.75 1.355 1996 First Quarter 23.00 21.13 .345 Second Quarter 22.13 20.75 .3475 Third Quarter 22.13 20.00 .35 Fourth Quarter 21.75 19.88 .3525 ----- TOTAL 1.395 1997 First Quarter 22.00 21.13 .3550 Second Quarter 25.63 21.63 .3575 Third Quarter 24.50 21.38 .3600 Fourth Quarter 23.63 21.50 .3625 ----- TOTAL 1.435 (b) Holders The approximate number of record holders of the Trust's shares of beneficial interest, no par value ("Common Shares") (the only class of common equity), at September 12, 1997 was 13,745. (c) Distributions The Trust made distributions to shareholders aggregating $1.435 per share during the fiscal year ended July 31, 1997. Of this distribution, it is estimated that $1.326 will qualify as ordinary income, $0 will qualify as capital gain distribution and $.109 will qualify as a return of capital. The Trust has paid regular and uninterrupted cash distributions on its Common Shares since it commenced operations as a real estate investment trust in 1972. Since inception, each dividend has either been equal to or greater than the dividend preceding it, and the dividends have been increased in each of the last 73 consecutive quarters. The Trust intends to continue to declare quarterly distributions on its Common Shares. However, no assurances can be made as to the amounts of future distributions since such distributions are subject to the Trust's cash flow from operations, earnings, financial condition, capital requirements and such other factors as the Board of Trustees deems relevant. The principal factor in the determination of the amounts of distributions is the requirement of the Code that a real estate investment trust must distribute at least 95% of its real estate investment trust taxable income. The amount of cash available for distribution is impacted by capital expenditures to the extent the Trust were to fund such expenditures out of cash from operations. The Trust has a Dividend Reinvestment and Share Purchase Plan (the "Plan") which allows shareholders to acquire additional Common Shares by automatically reinvesting distributions. Common Shares are acquired pursuant to the Plan at a price equal to 95% of the market price of such Common Shares, without payment of any brokerage commission or service charge. The Plan also allows shareholders to purchase additional Common Shares on the dividend payment date, at 100% of the average of the high and low sales price of such Common Shares on that date. At present, approximately 69% of the Trust's shareholders of record participate in the Plan, including members of the Newman family and executive officers and trustees of the Trust.
Item 6. Selected Financial Data The financial data included in this table have been selected by the Trust and have been derived from the consolidated financial statements for the years indicated and should be read in conjunction with the audited financial statements included in item 14(a) of this Form 10-K. NEW PLAN REALTY TRUST AND SUBSIDIARIES Year Ended July 31, ------------------- 1997 1996 1995 1994 1993 ---- ---- ---- ---- ---- Statement of Income Data: - ------------ Revenue $ 206,820,928 $167,605,981 $130,576,129 $100,954,515 $ 76,308,770 Operating expenses 127,578,431 94,867,530 65,572,225 46,913,963 31,400,256 -------------- ------------ ------------ ------------ ------------ 79,242,497 72,738,451 65,003,904 54,040,552 44,908,514 (Loss)/Gain on sales of properties and securities, net (2,657) 398,498 227,638 989,867 939,878 -------------- ------------ ------------ ------------ ------------ 79,239,840 73,136,949 65,231,542 55,030,419 45,848,392 Other deductions 2,203,045 2,616,138 2,515,669 2,713,163 2,619,754 --------------- ------------ ------------ ------------ ------------ Net income $ 77,036,795 $ 70,520,811 $ 62,715,873 $ 52,317,256 $ 43,228,638 =============== ============ ============ ============ ============ Net income per share of beneficial interest $ 1.31 $ 1.25 $ 1.19 $ 1.06 $ .89 ------------------------------------------------------------ ------------ Balance Sheet Data: - ------------------- Total assets $1,261,143,790 $945,393,725 $796,636,475 $616,992,574 $534,247,738 -------------- ------------ ------------ ------------ ------------ Long term obligations $ 478,206,839 $238,426,049 $206,652,468 $ 28,060,067 $ 23,321,235 -------------- ------------ ------------ ------------ ------------ Other Data: - ----------- Distributions per common share $ 1.435 $ 1.395 $ 1.355 $ 1.315 $ 1.275 -------------- ------------ ------------ ------------ ------------ Funds from operations per share of beneficial interest(1) $ 1.74 $ 1.60 $ 1.47 $ 1.27 $ 1.02 -------------- ------------ ------------ ------------ ------------ _____________________________ (1) Represents funds from operations less preferred stock dividend requirements divided by the weighted average shares of beneficial interest outstanding. Funds from operations is defined as net income plus depreciation and amortization of real estate less gains from sales of securities and properties.
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations (a) Liquidity and Capital Resources At July 31, 1997, the Trust had approximately $42.8 million in available cash and cash equivalents, $2 million in marketable securities and $23.1 million in mortgages receivable. During the year the Trust issued $223 million of unsecured notes. Three of these note issues, aggregating $99 million, have variable interest rates ranging from 5.86% to 5.91% per annum and four of these note issues, aggregating $124 million, have interest rates ranging from 5.95% to 7.68% per annum. In July 1997 the Trust issued 150,000 Series A Cumulative Preferred Shares with a liquidation preference of $75 million for $73 million net of issuance costs. The shares pay dividends at the rate of 7.8% of the liquidation preference through September 15, 2012 and at the rate of 9.8% thereafter. They are redeemable at the option of the Trust on or after June 15, 2007 at the liquidation preference of $500 per share. The Trust maintains a $50 million unsecured credit facility, which it expects to renew under substantially similar terms prior to such credit facility's expiration in December 1997. Debt at July 31, 1997 consisted of $65.6 million of mortgages payable with a weighted average interest rate of 7.79% and unsecured notes aggregating $412.6 million with a weighted average interest rate of 6.88%. The $16.6 million increase in mortgages payable was the net result of the assumption of $17.5 million in connection with the purchase of properties and the repayment of $900,000 of existing mortgages. The increase in other liabilities is due to increases in interest payable, accrued construction costs and real estate taxes payable. These increases are due primarily to the larger portfolio of properties and the increase in notes payable. Short term debt consists of normal trade payables and the current portion of mortgages payable. During the fiscal year $16.5 million of funds were provided from the Dividend Reinvestment and Share Purchase Plan. The Trust made distributions of $83.8 million to shareholders, paid $274.6 million to acquire properties and complete the construction of the Six Flags Factory Outlet Center, and invested $8 million in expansion and improvement of properties. Other sources of funds are available to the Trust. Based on management's internal valuation of the Trust's properties, most of which are free and clear of mortgages, the estimated value is considerably in excess of the outstanding mortgage indebtedness totaling $65.6 million. Accordingly, management believes that potential exists for additional mortgage financing as well as unsecured borrowing capacity from public debt financing, banks and other lenders. (b) Results of Operations Fiscal year Ended July 31, 1997 Compared to Fiscal Year Ended July 31, 1996 In fiscal 1997, total revenues increased $39.2 million to $206.8 million. The increase was in the rental income and related revenues category and came from properties in the portfolio which were acquired in fiscal 1997 or were owned for less than a full year in fiscal 1996. Interest and dividend income decreased slightly. Operating expenses increased $32.7 million to $127.6 million. Operating costs, real estate and other taxes, and depreciation and amortization increased primarily because of property acquisitions. Interest expense increased $10.7 million to $28.3 million due to a higher level of outstanding debt during fiscal 1997. The increase in the provision for doubtful accounts reflects a larger revenue base and a higher level of receivables. Administrative expenses as a percent of revenue declined to 1.1% of revenue from 1.6% due to increased revenue from newly acquired properties; these costs do not increase in direct proportion to revenue due to economies of scale. Income before (loss)/gain on sale of properties and securities increased $6.9 million to $77 million. During the fiscal year three former Nichols stores, in Annville and Hanover, Pennsylvania and Lumberton, North Carolina were sold. Net income applicable to shares of beneficial interest increased $6.1 million to $77 million and earnings per share of beneficial interest increased to $1.31 per share from $1.25 per share. Funds from operations, defined as net income plus depreciation and amortization of real estate less net gains from the sale of assets, increased $11.9 million to $102 million. Funds from operations per share of beneficial interest, defined as funds from operations less preferred stock dividend requirements divided by the weighted average number of shares of beneficial interest outstanding, increased to $1.74 from $1.60. Funds from operations do not necessarily represent cash generated from operating activities in accordance with generally accepted accounting principles and should not be considered as an alternative to net income as an indicator of the Trust's operating performance or as an alternative to cash flow as a measure of liquidity. During fiscal 1997, distributions declared and paid were $1.435 per share of beneficial interest, a $.04 per share increase over fiscal 1996. The most recent distribution declaration for shares of beneficial interest was $.365 per share which is $1.46 per share on an annualized basis. Fiscal Year Ended July 31, 1996 Compared to Fiscal Year Ended July 31, 1995 In fiscal 1996, total revenues increased $37 million to $167.6 million. Rental income and related revenues increased $36.4 million to $162.8 million. The increase in rental revenue came primarily from properties in the portfolio which were acquired in fiscal 1996 or were owned for less than a full year in fiscal 1995. In addition, increased revenue from all property categories, apartments, factory outlets and shopping centers, owned prior to fiscal 1995 contributed to the rental revenue increase. Interest and dividend income increased $.7 million due to higher average investment balances. Operating expenses increased $29.3 million to $94.9 million. Operating costs, real estate and other taxes, and depreciation and amortization increased primarily because of property acquisitions. Interest expense increased $10.4 million to $17.6 million due to a higher level of outstanding debt during fiscal 1996. The increase in the provision for doubtful accounts reflects a much larger revenue base and a higher level of receivables. Administrative expenses as a percent of revenue declined to 1.6% from 1.9% due to increased revenue from newly acquired properties; these costs do not increase in direct proportion to revenue due to economies of scale. Income before gain/(loss) on the sale of properties and securities increased $7.6 million to $70.1 million. During fiscal 1996, a shopping center in Chinoe, Kentucky and two former Nichols stores in Harrisonburg, Virginia and New Bern, North Carolina were sold for a net gain of $.5 million. The $.1 million loss on the sale of securities was due to bonds being called which had been issued at a premium. Net income increased $7.8 million to $70.5 million and earnings per share of beneficial interest increased to $1.25 per share from $1.19 per share. Funds from operations, defined as net income plus depreciation and amortization of real estate less net gains from the sale of assets, increased $12.6 million to $90.1 million, and funds from operations per share of beneficial interest increased to $1.60 from $1.47. Funds from operations do not necessarily represent cash generated from operating activities in accordance with generally accepted accounting principles and should not be considered as an alternative to net income as an indicator of the Trust's operating performance or as an alternative to cash flow as a measure of liquidity. During fiscal 1996, distributions declared and paid were $1.395 per share of beneficial interest, a $.04 per share of beneficial interest increase over the preceding year. Fiscal Year Ended July 31, 1995 Compared to Fiscal Year Ended July 31, 1994 In fiscal 1995, total revenues increased $29.6 million to $130.6 million. Rental income and related revenues increased $30 million to $126.4 million. The rental revenue increase came primarily from properties in the portfolio which were acquired in fiscal 1995 or were owned for less than a full year in fiscal 1994. In addition, increased revenue from all property types owned prior to fiscal 1994 contributed to the rental revenue increase. Interest and dividend income decreased $.4 million because of lower investment balances. Balances were lower because funds were used for property acquisitions and expansions. Operating expenses increased $18.7 million to $65.6 million. Operating costs, real estate taxes and depreciation and amortization increased primarily because of property acquisitions. Interest expense increased because of the issuance of $181 million face amount of Senior Notes. The decrease in the provision for doubtful accounts was mostly due to higher recoveries in fiscal 1995. In fiscal 1995 the Trust had bad debt recoveries of $501,000 versus $261,000 in fiscal 1994. Administrative expenses as a percentage of revenue decreased to 1.9% from 2.67% due primarily to increased revenue from newly acquired properties; these costs do not vary in proportion to revenue. Income before gains on sales of properties and securities increased $11.2 million to $62.5 million. During the year, a very small shopping center in Millersberg, Ohio and an outparcel at the New Bern, North Carolina shopping center were sold. Net income increased $10.4 million to $62.7 million and earnings per share of beneficial interest increased to $1.19 from $1.06. Funds from operations, defined as net income plus depreciation and amortization of real estate less gains from the sale of assets, increased $14.9 million to $77.5 million, and funds from operations per share of beneficial interest increased to $1.47 from $1.27. Funds from operations do not represent cash generated from operating activities in accordance with generally accepted accounting principles and should not be considered as an alternative to net income as an indicator of the Trust's operating performance or as an alternative to cash flow as a measure of liquidity. During fiscal 1995, distributions declared and paid were $1.355 per share, a $.04 per share of beneficial interest increase over the preceding fiscal year. Item 7A. Quantitative and Qualitative Disclosures About Market Risk Not applicable. Item 8. Financial Statements and Supplementary Data The response to this item is included in Pages F-1 to F-37 attached to this report. Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure Not applicable. PART III Item 10. Trustees and Executive Officers of the Trust Item 10 is incorporated herein pursuant to General Instruction G to this Form 10-K by reference to Registrant's definitive proxy statement which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the close of the fiscal year. Executive Officers of the Trust The executive officers of the Trust and their principal occupations are as follows: Name Age - ---- --- William Newman. . . . . . . . . . . .71 Chairman of the Board and Chief Chairman of the Board of Trustees Executive Officer of the Trust and Chief Executive Officer since its organization in 1972; President of the Trust from 1972 to 1988; President of the Trust's corporate predecessor from 1962 to 1972; formerly Chairman of National Association of Real Estate Investment Trusts; active in real estate for more than 47 years. Arnold Laubich. . . . . . . . . . . .67 President and Chief Operating President, Chief Operating Officer Officer and Trustee of the Trust and Trustee since August 1, 1988; President of Dover Management Corp. (which managed the Trust's properties) from 1972 to 1988; Senior Vice President of the Trust's predecessor from 1962 to 1972. James M. Steuterman . . . . . . . . .41 Executive Vice President since Executive Vice President and October 1994; Trustee since 1990; Trustee Senior Vice President from 1990 to 1994; Vice President from 1988 to 1990. Dean Bernstein. . . . . . . . . . . .39 Vice President - Administration Vice President - Administration and Finance since October 1994; and Finance and Trustee Vice President and Trustee since 1992; Assistant Vice President from 1991 to 1992; previously a Vice President in the Real Estate Group at Chemical Bank for three years. William Kirshenbaum . . . . . . . . .61 Vice President of the Trust since Vice President, Treasurer 1981; Treasurer since 1983. Leonard N. Cancell. . . . . . . . . .64 Senior Vice President of the Senior Vice President - Operations Trust since August 1, 1988; Senior Vice President of Dover Management from 1972 to 1988; employee of the Trust's predecessor from 1964 to 1972. Michael I. Brown. . . . . . . . . . .55 Chief Financial Officer since Chief Financial Officer and 1991; Controller of the Trust Controller since 1987. Irwin E. Kwartler . . . . . . . . . .71 Vice President of the Trust since Vice President 1982; previously National Sales Manager, Kimball Division of Litton Industries. Steven F. Siegel. . . . . . . . . . .37 General Counsel and Secretary of General Counsel and Secretary the Trust since October 1991. Joseph Bosco. . . . . . . . . . . . .48 Vice President of the Trust since Vice President -- Apartment 1993; employee of the Trust since Operations 1983. James DeCicco . . . . . . . . . . . .51 Senior Vice President of the Senior Vice President -- Leasing Trust since March, 1996; Vice President of the Trust since 1992; employee of the Trust since 1991. Thomas J. Farrell . . . . . . . . . .40 Vice President and employee of Vice President -- Acquisitions the Trust since 1994; formerly a Vice President at The Balcor Company, a real estate company, for five years. Item 11. Executive Compensation Item 11 is incorporated herein pursuant to General Instruction G to this Form 10-K by reference to Registrant's definitive proxy statement which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the close of the fiscal year. Item 12. Security Ownership of Certain Beneficial Owners and Management Item 12 is incorporated herein pursuant to General Instruction G to this Form 10-K by reference to Registrant's definitive proxy statement which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A no later than 120 days after the close of the fiscal year. Item 13. Certain Relationships and Related Transactions Item 13 is incorporated herein pursuant to General Instruction G to this Form 10-K by reference to Registrant's definitive proxy statement which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the close of the fiscal year. PART IV Item 14. Exhibits, Consolidated Financial Statements, Consolidated Financial Statement Schedules, and Reports on Form 8-K (a) Consolidated Financial Statements. The following documents are filed as a part of this report: The response to this portion of Item 14 is submitted as a separate section of this report. (b) Reports on Form 8-K. 1. Form 8-K dated June 18, 1997 containing items 2, 5 and 7. 2. Form 8-K dated June 30, 1997 containing items 2, 5 and 7. 3. Form 8-K dated July 2, 1997 containing items 5 and 7. 4. Form 8-K dated July 31, 1997 containing items 5 and 7. 5. Form 8-K/A dated September 19, 1997 containing items 5 and 7. (c) Exhibits. The following documents are filed as exhibits to this report: *3.1 Amended and Restated Declaration of Trust of New Plan Realty Trust filed as Exhibit 99.3 to the Registrant's Form 8-K dated May 24, 1996. 4.1 Specimen Certificate for Shares of Beneficial Interest. *4.2 Certificate of Designation Supplementing the Amended and Restated Declaration of Trust of New Plan Realty Trust filed as Exhibit 4.1 to the Registrant's Form 8-K dated July 2, 1997. 4.3 Deposit Agreement dated as of July 3, 1997, among New Plan Realty Trust and BankBoston N.A. 4.4 Specimen Certificate for 7.80% Series A Cumulative Step-Up Premium Rate Preferred Shares. 4.5 Specimen Depositary Receipt. *9.1 Agreement dated February 26, 1979 among William Newman, Joseph Newman and Melvin Newman filed as Exhibit 9 to Registration Statement No. 2-63669. *9.2 Purchase Agreement dated December 18, 1990 between New Plan Realty Trust and Beleggingsmaatschappij Midas B.V. (presently known as Stichting Pensioenfonds) filed as Exhibit 9.5 to the Registrant's Form 10-K for the fiscal year ended July 31, 1994. *9.3 Termination of Purchase Agreement dated December 17, 1981 between New Plan Realty Trust and Merchant Navy Officers Pension Fund Trustees Limited (presently known as MNOPF Trustees Limited) filed as Exhibit 9.6 to the Registrant's Form 10-K for the fiscal year ended July 31, 1995. 10.1 Revolving Credit Agreement by and among New Plan Realty Trust, the Lenders party thereto and The Bank of New York, as agent, dated as of October 29, 1996. *10.2 Senior Securities Indenture between New Plan Realty Trust and The First National Bank of Boston, as Trustee, dated as of March 29, 1995 filed as Exhibit 4.2 to Registration Statement No. 33-60045. *10.3 7.75% Senior Note Due April 6, 2005 filed as Exhibit 10.7 to the Registrant's Form 10-K for the fiscal year ended July 31, 1995. *10.4 6.8% Senior Note Due May 15, 2002 filed as Exhibit 10.8 to the Registrant's Form 10-K for the fiscal year ended July 31, 1995. *10.5 Distribution Agreement dated May 24, 1996 by and among New Plan Realty Trust, Lehman Brothers, Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and Smith Barney Inc., filed as Exhibit 1 to the Registrant's Form 8-K dated May 24, 1996. *10.6 Form of Medium Term Note (Fixed Rate) filed as Exhibit 99.1 to the Registrant's Form 8-K dated May 24, 1996. *10.7 Form of Medium Term Note (Floating Rate) filed as Exhibit 99.2 to the Registrant's Form 8-K dated May 24, 1996. *10.8 Distribution Agreement dated December 6, 1996 by and among New Plan Realty Trust, Lehman Brothers, Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Salomon Brothers Inc and Smith Barney Inc., filed as Exhibit 1 to the Registrant's Form 8-K dated December 12, 1996. *10.9 Form of Medium Term Note (Fixed Rate) filed as Exhibit 4.1 to the Registrant's Form 8-K dated December 12, 1996. *10.10 Form of Medium Term Note (Floating Rate) filed as Exhibit 4.2 to the Registrant's Form 8-K dated December 12, 1996. 11 Statement of Computation of Earnings Per Share for the Twelve Months Ended July 31, 1997. 12 Ratio of Earnings to Fixed Charges. 21 Subsidiaries of the Registrant. 23 Consent of Coopers & Lybrand L.L.P. dated October 9, 1997. 27(1) Financial Data Schedule. ______________________________ * Incorporated herein by reference as above indicated. (1) Filed as exhibit to electronic filing only. (d) Financial Statement Schedules. The following documents are filed as a part of this report: The response to this portion of Item 14 is submitted as a separate section of this report. SIGNATURES ---------- Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. NEW PLAN REALTY TRUST (Registrant) By:/s/ William Newman ----------------------- William Newman Chief Executive Officer Dated: October 10, 1997 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ William Newman Chief Executive Officer October 10, 1997 - ------------------------- and Trustee William Newman /s/ Arnold Laubich President, Chief Operating October 10, 1997 - ------------------------- Officer and Trustee Arnold Laubich /s/ Michael I. Brown Chief Financial Officer and October 10, 1997 - ------------------------- Chief Accounting Officer, Michael I. Brown Controller /s/ James M. Steuterman Executive Vice President October 10, 1997 - ------------------------- and Trustee James M. Steuterman /s/ Dean Bernstein Vice President - October 10, 1997 - ------------------------- Administration and Finance Dean Bernstein and Trustee /s/ Melvin Newman Trustee October 10, 1997 - ------------------------- Melvin Newman - ------------------------- Trustee _________, 1997 Norman Gold - ------------------------- Trustee _________, 1997 Raymond H. Bottorf - ------------------------- Trustee _________, 1997 John Wetzler - ------------------------- Trustee _________, 1997 Gregory White ANNUAL REPORT ON FORM 10-K ITEM 8 AND ITEM 14(a)(1), (a)(2) AND (d) LIST OF CONSOLIDATED FINANCIAL STATEMENTS, SUPPLEMENTARY DATA AND CONSOLIDATED FINANCIAL STATEMENT SCHEDULES CERTAIN EXHIBITS YEAR ENDED JULY 31, 1997 NEW PLAN REALTY TRUST AND SUBSIDIARIES NEW YORK, NEW YORK NEW PLAN REALTY TRUST AND SUBSIDIARIES INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND CONSOLIDATED FINANCIAL STATEMENT SCHEDULES Report of Independent Auditors. . . . . . . . . . . . . . . . . . . . . F-2 Consolidated Balance Sheets as of July 31, 1997 and 1996. . . . . . . . F-3 Consolidated Statements of Income for the years ended July 31, 1997, 1996 and 1995. . . . . . . . . . . . . . . . . . F-5 Consolidated Statements of Changes in Shareholders' Equity for the years ended July 31, 1997, 1996 and 1995. . . . . . . . . . . F-6 Consolidated Statements of Cash Flows for the years ended July 31, 1997, 1996 and 1995. . . . . . . . . . . . . . . . . . F-7 Notes to Consolidated Financial Statements. . . . . . . . . . . . . . . F-9 Schedules II - Valuation and Qualifying Accounts . . . . . . . . . . . . . .F-19 III - Real Estate and Accumulated Depreciation. . . . . . . . . . .F-20 IV - Mortgage Loans on Real Estate . . . . . . . . . . . . . . . .F-36 All other schedules for which provision is made in the applicable regulation of the Securities and Exchange Commission are not required under the related instructions or are inapplicable, and therefore have been omitted. REPORT OF INDEPENDENT AUDITORS To the Trustees and Shareholders of New Plan Realty Trust: We have audited the consolidated financial statements and financial statement schedules of New Plan Realty Trust and Subsidiaries listed in Item 14(a) of this Form 10-K. These financial statements and financial statement schedules are the responsibility of the Trust's management. Our responsibility is to express an opinion on these financial statements and financial statement schedules based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of New Plan Realty Trust and Subsidiaries as of July 31, 1997 and 1996, and the consolidated results of their operations and their cash flows for each of the three years in the period ended July 31, 1997 in conformity with generally accepted accounting principles. In addition, in our opinion, the financial statement schedules referred to above, when considered in relation to the basic financial statements taken as a whole, present fairly, in all material respects, the information required to be included therein. COOPERS & LYBRAND L.L.P. New York, New York September 9, 1997 NEW PLAN REALTY TRUST AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS JULY 31, 1997 AND 1996 1997 1996 ---- ---- ASSETS: Real estate, at cost (Notes A and E) Land $ 232,501,644 $ 174,711,789 Buildings and improvements 1,045,273,400 803,229,718 - ------------------------------------ 1,277,775,044 977,941,507 Less accumulated depreciation and amortization 105,866,380 82,523,169 - ------------------------------------ 1,171,908,664 895,418,338 Cash and cash equivalents (Note A) 42,780,757 4,300,261 Marketable securities (Note B) 2,034,599 2,095,481 Mortgages and notes receivable (Note C) 23,106,633 23,597,342 Receivables Trade and notes, net of allowance for doubtful accounts (1997 - $5,581,000; 1996 - $3,976,500) (Note A) 12,035,327 11,586,091 Other (Note D) 1,463,943 1,109,164 Prepaid expenses and deferred charges 4,999,889 5,083,827 Other assets 2,813,978 2,203,221 - ------------------------------------ TOTAL ASSETS $1,261,143,790 $ 945,393,725 ==================================== See Notes to Consolidated Financial Statements. NEW PLAN REALTY TRUST AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS JULY 31, 1997 AND 1996 1997 1996 ---- ---- LIABILITIES: Mortgages payable (Note E) $ 65,572,883 $ 48,935,776 Credit facility (Note E) - 19,500,000 Notes payable, net of unamortized discount 412,633,956 189,490,273 (1997 - $1,366,044; 1996 - $1,509,727) (Note F) Other liabilities (Note G) 33,359,165 24,984,134 Tenants' security deposits 4,622,687 3,129,524 -------------- ------------ TOTAL LIABILITIES 516,188,691 286,039,707 -------------- ------------ COMMITMENTS AND CONTINGENCIES (Notes H,I,J,N and P) - - SHAREHOLDERS' EQUITY Preferred shares par value $1.00, authorized 1,000,000 shares; issued and outstanding (1997 - 150,000 Series A Cumulative Preferred Shares, 1996 - none), 72,775,000 - $75,000,000 redemption value (Note H) Shares of beneficial interest without par value, unlimited authorization; issued and outstanding (1997 - 58,934,371; 1996 - 58,069,362) (Note H) 738,010,825 719,080,157 Less: loans receivable for the purchase of shares of beneficial interest (Note H) 2,814,366 3,083,573 Add: unrealized gain on securities reported at fair value (Note B) 1,057,537 643,141 -------------- ------------ 809,028,996 716,639,725 Less distributions in excess of net income 64,073,897 57,285,707 -------------- ------------ TOTAL SHAREHOLDERS' EQUITY 744,955,099 659,354,018 -------------- ------------ TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $1,261,143,790 $945,393,725 ============== ============ See Notes to Consolidated Financial Statements. NEW PLAN REALTY TRUST AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME FOR THE YEARS ENDED JULY 31, 1997, 1996 AND 1995 1997 1996 1995 ---- ---- ---- Revenues: Rental income and related revenues $202,093,168 $162,821,434 $ 126,447,966 (Notes A and J) Interest and dividend income (Notes B and C) 4,727,760 4,784,547 4,128,163 ------------ ------------ ------------- 206,820,928 167,605,981 130,576,129 ------------ ------------ ------------- Operating Expenses: Operating costs 51,909,521 38,865,276 29,960,955 Leasehold rent (Note I) 675,434 665,237 614,084 Real estate and other taxes 18,448,503 15,787,643 11,809,539 Interest expense 28,256,473 17,561,362 7,174,028 Depreciation and amortization 25,005,629 20,004,378 15,055,225 Provision for doubtful accounts 3,282,871 1,983,634 958,394 ------------ ------------ ------------- Total operating expenses 127,578,431 94,867,530 65,572,225 ------------ ------------ ------------- 79,242,497 72,738,451 65,003,904 Other Expenses: Administrative expenses 2,203,045 2,616,138 2,515,669 ------------ ------------ ------------- Income Before (Loss)/Gain on Sale of Properties and Securities: 77,039,452 70,122,313 62,488,235 (Loss)/gain on sale of properties, net (9,625) 540,209 227,638 Gain/(loss) on sale of securities, net 6,968 (141,711) - ------------ - -------------------------------- (2,657) 398,498 227,638 ------------ ------------ ------------- Net Income $ 77,036,795 $ 70,520,811 $ 62,715,873 ------------ ------------ ------------- Net Income applicable to Shares of Beneficial Interest $ 76,575,795 $ 70,520,811 $ 62,715,873 ------------ ------------ ------------- Net Income Per Share of Beneficial Interest (Note A) $1.31 $1.25 $1.19 ------------ ------------ ------------- Cash Distribution Per Share of Beneficial Interest $1.435 $1.395 $1.355 ------------ ------------ ------------- See Notes to Consolidated Financial Statements.
NEW PLAN REALTY TRUST CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY For the Years Ended July 31, 1995, 1996, 1997 (Note H) Cumulative Shares of Beneficial Unrealized Distributions Total Preferred Shares Interest Notes Gains on in Excess of Shareholders' Issued Amount Issued Amount Receivable Securities Net Income Equity --------------------------------------------------------------------------------------------------------- Balance July 31, 1994 52,594,161 $ 609,067,613 $(3,630,421) $ (39,944,408) $ 565,492,784 Net income 62,715,873 62,715,873 Dividends paid ($1.355 (71,616,427) (71,616,427) per share of beneficial interest) Dividend Reinvestment 667,204 13,472,493 13,472,493 Exercise of stock options 1,200 21,425 21,425 Repayments of loans 260,863 260,863 At adoption of SFAS 115 $ 182,460 182,460 --------------------------------------------------------------------------------------------------------- Balance July 31, 1995 53,262,565 622,561,531 (3,369,558) 182,460 (48,844,962) 570,529,471 Net income 70,520,811 70,520,811 Dividends paid ($1.395 per share of beneficial interest) (78,961,556) (78,961,556) Dividend Reinvestment 737,797 15,126,326 15,126,326 Exercise of stock options 9,000 164,500 164,500 Repayments of loans 285,985 285,985 Increase during the year 460,681 460,681 Issuance of shares of beneficial interest 4,060,000 81,227,800 81,227,800 ---------------------------------------------------------------------------- Balance July 31, 1996 58,069,362 719,080,157 (3,083,573) 643,141 (57,285,707) 659,354,018 Net income 77,036,795 77,036,795 Dividends paid ($1.435 per share of beneficial interest) (83,824,985) (83,824,985) Dividend Reinvestment 750,209 16,475,143 16,475,143 Exercise of stock options 114,800 2,455,525 2,455,525 Repayment of loans 269,207 269,207 Increase during year 414,396 414,396 Issuance of preferred shares 150,000 $72,775,000 72,775,000 ---------------------------------------------------------------------------- Balance July 31, 1997 150,000 $72,775,000 58,934,371$ 738,010,825 $ (2,814,366) $1,057,537 $(64,073,897) $744,955,099 ============================================================================ See Notes to Consolidated Financial Statements
NEW PLAN REALTY TRUST AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED JULY 31, 1997, 1996 AND 1995 (NOTE M) 1997 1996 1995 ---- ---- ---- OPERATING ACTIVITIES - -------------------- Net income $ 77,036,795 $70,520,811 $ 62,715,873 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization 25,005,629 20,004,378 15,055,225 Gain on sale of properties, net 9,625 (540,209) (227,638) (Gain)/Loss on sale of securities, net (6,968) 141,711 - ------------ ----------- ----------- 102,045,081 90,126,691 77,543,460 Changes in operating assets and liabilities, net: Increase in trade and notes receivable (2,053,736) (5,775,617) (1,165,765) (Increase)/decrease in other receivables (354,781) 12,714 506,489 Increase in allowance for doubtful accounts 1,604,500 1,054,000 591,000 Increase in other liabilities 3,475,030 8,239,264 6,492,376 Decrease/(increase) in net sundry assets and liabilities 604,983 (250,994) (907,583) ------------ ----------- ------------ NET CASH PROVIDED BY OPERATING ACTIVITIES 105,321,077 93,406,058 83,059,977 ------------ ----------- ------------ INVESTING ACTIVITIES - -------------------- Sales of marketable securities 484,314 4,274,356 424,783 Purchases of marketable securities (2,068) - - Net proceeds from the sale of properties 3,862,557 3,473,913 1,025,000 Purchase and improvement of properties (282,606,924) (186,008,486) (136,310,299) Repayment of mortgage notes receivable 490,709 820,662 36,172 ------------ ----------- ------------ NET CASH USED IN INVESTING ACTIVITIES (277,771,412) (177,439,555) (134,824,344) See Notes to Consolidated Financial Statements (Continued on next page) NEW PLAN REALTY TRUST AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED JULY 31, 1997, 1996 AND 1995 (NOTE M) (CONTINUED FROM PREVIOUS PAGE) 1997 1996 1995 ---- ---- ---- FINANCING ACTIVITIES - -------------------- Distributions to shareholders (83,824,985) (78,961,556) (71,616,427) Issuance of preferred shares pursuant to a public offering, net of offering costs 72,775,000 Issuance of shares of beneficial interest pursuant to dividend reinvestment plan 16,475,143 15,126,326 13,472,493 Issuance of shares of beneficial interest pursuant to public offering, net of loans receivable and offering costs 81,227,800 - Issuance of shares of beneficial interest upon exercise of stock options 2,455,525 164,500 21,425 Proceeds from short-term borrowings 12,000,000 19,500,000 352,000,000 Repayment of short-term borrowings (31,500,000) - (359,500,000) Proceeds from sale of notes 223,143,682 10,000,000 179,322,720 Payment of deferred financing costs (956,990) Principal payments on mortgages (862,741) (364,422) (407,892) Repayment of mortgages (10,533,682) (12,059,000) Repayment of loans receivable for the purchase of shares of beneficial interest 269,207 285,985 260,863 ------------ ------------- -------------- NET CASH PROVIDED BY FINANCING ACTIVITIES 210,930,831 36,444,951 100,537,192 ------------ ------------- -------------- INCREASE/(DECREASE) IN CASH AND CASH EQUIVALENTS 38,480,496 (47,588,546) 48,772,825 Cash and cash equivalents at beginning of year 4,300,261 51,888,807 3,115,982 ------------ ------------- -------------- CASH AND CASH EQUIVALENTS AT END OF YEAR $ 42,780,757 $ 4,300,261 $ 51,888,807 ============ ============= ============== See Notes to Consolidated Financial Statements. Notes To Consolidated Financial Statements Note A - Summary of Significant Accounting Policies Organization and Income Taxes: New Plan Realty Trust was organized July 31, 1972 as a Massachusetts Business Trust. New Plan Realty Trust and subsidiaries (the "Trust") have elected to be taxed as a Real Estate Investment Trust ("REIT") under the applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code"). Accordingly, the Trust does not pay Federal income tax on income as long as income distributed to shareholders is at least equal to 95% of real estate investment trust taxable income and pays no Federal income tax on capital gains distributed to shareholders. The Trust may be subject to tax by certain states that do not recognize the REIT. Provision for such taxes has been included in real estate and other taxes. Basis of Consolidation: The consolidated financial statements include the accounts of New Plan Realty Trust and its wholly owned subsidiaries. All significant intercompany transactions and balances have been eliminated. Certain prior period amounts have been reclassified to conform to the current year presentation. Real Estate: Real estate is carried at cost less accumulated depreciation and amortization. For financial reporting purposes, depreciation is calculated on the straight-line method based on the estimated useful lives of the assets ranging from 5 to 40 years. Amortization of leasehold improvements is calculated on a straight-line basis over the shorter of the life of the lease or the estimated useful life of the asset. If there is an event or a change in circumstances that indicates that the basis of the Trust's property may not be recoverable the Trust's policy is to assess any impairment in value by making a comparison of the current and projected operating cash flows (excluding interest and income taxes) of the property over its remaining useful life, on an undiscounted basis, to the carrying amount of the property. Such carrying amounts would be adjusted, if necessary, to reflect an impairment in the value of the property. The Trust records sales when, among other criteria, the parties are bound by the terms of a contract, all consideration has been exchanged and all conditions precedent to closing have been performed. These conditions are usually met at the time of closing. The cost and related accumulated depreciation of assets sold are removed from the respective accounts and any gain or loss is recognized in income. New Accounting Standards: During 1997, the Financial Accounting Standards Board issued Statements of Financial Accounting Standards: (i) No. 128 "Earnings Per Share" ("SFAS 128"), which will be effective for financial statements for both interim and annual periods ending after December 15, 1997, (ii) No. 129 "Disclosure of Information About Capital Structure" ("SFAS 129"), which is effective for financial statements for periods ending after December 15, 1997, (iii) No. 130 "Reporting Comprehensive Income" ("SFAS 130"), which is effective for fiscal years beginning after December 15, 1997, and (iv) No. 131 "Disclosures About Segments of an Enterprise and Related Information" ("SFAS 131"), which is effective for fiscal years beginning after December 15, 1997. Management believes that the implementation of SFAS 128, 129 and 130 will not have a material impact on the Trust's financial statements. The Trust has yet to determine the impact of SFAS 131. Cash Equivalents: Cash equivalents consist of short-term, highly liquid debt instruments with original maturities of three months or less. Items classified as cash equivalents include insured bank certificates of deposit and commercial paper. At times cash balances at a limited number of banks may exceed insurable amounts. The Trust believes it mitigates its risk by investing in or through major financial institutions. Recoverability of investments is dependent upon the performance of the issuer. Revenue Recognition: Lease agreements between the Trust and retail tenants generally provide for additional rentals based on such factors as percentage of tenants' sales in excess of specified volumes, increases in real estate taxes, increases in Consumer Price Indices and common area maintenance charges. These additional rentals are generally included in income when reported to the Trust or when billed to tenants. The Trust recognizes rental income from leases with scheduled rent increases on a straight-line basis over the lease term. Deferred rent receivable, included in trade and notes receivable, represents the difference between the straight-line rent and amounts currently due. Concentration of Credit Risk: No tenant or single property accounts for more than 5.0% of the Trust's revenues. Net Income Per Share of Beneficial Interest: Net income per share of beneficial interest is calculated using a weighted average number of shares outstanding during each year: 1997 - 58,461,056 shares; 1996 - 56,483,827 shares; 1995 - 52,894,355 shares. Estimates: The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities. Actual results could differ from those estimates. The most significant estimates relate to depreciation and valuation of real estate. Internal Software Costs: Any costs associated with modifying computer software for the year 2000 are expensed as incurred. Management does not believe these costs will be material. Note B - Marketable Securities The Trust has classified all investments in debt and equity securities as available-for-sale. All investments are recorded at current market value with an offsetting adjustment to shareholders' equity. July 31, 1997 1996 - --------------------------------------------------------------------------- Equity Equity Debt Amortized cost/cost basis $ 977,061 $ 977,061 $ 475,279 Unrealized holdings gains 1,057,538 643,141 -- Unrealized holdings losses -- -- -- ---------- ----------------------------- Fair value $2,034,599 $ 1,620,202 $ 475,279 The net increase in unrealized holding gains that has been included as a separate component of shareholders' equity is $414,396 for 1997. The weighted average method is used to determine realized gain or loss on securities sold. The market value of marketable securities is based on quoted market prices as of July 31, 1997 and 1996. Note C - Mortgages & Notes Receivable Mortgages and Notes Receivable are collateralized principally by real property and consist of the following: July 31, 1997 1996 - --------------------------------------------------------------------------- 10% purchase money first mortgage, due August 31, 1998 $ 5,180,000 $ 5,420,000 9.38% purchase money first mortgage, due July 25, 1998 4,205,000 4,610,000 9.375% purchase money first mortgage, due July 27, 2002 10,350,000 10,350,000 12% leasehold mortgage, due June 1, 2011 890,273 913,999 10.5% second mortgage due February 1, 1999 - 500,000 11.5% note, due April 30, 2004 236,860 258,843 8.75% purchase money first mortgage, due July 23, 1998 794,500 794,500 7.2% purchase money first mortgage, due May 9, 2001 750,000 750,000 8.75% purchase money first mortgage, due July 23, 2001 700,000 - ------------ ----------- $ 23,106,633 $23,597,342 - --------------------------------------------------------------------------- Note D - Other Receivables July 31, 1997 1996 Interest and dividends $ 599,314 $ 312,733 Notes receivable 338,250 282,055 Due from officers, trustees and employees (1) 496,564 488,271 Miscellaneous receivables 29,815 26,105 ------------ ----------- $ 1,463,943 $ 1,109,164 - --------------------------------------------------------------------------- (1) Amounts, which are interest bearing, are either due on demand or have scheduled maturities. Note E - Mortgages and Credit Facility Mortgages are collateralized by real property with a carrying value of $182,443,000 before accumulated depreciation and amortization. As of July 31, 1997, mortgages payable bear interest at rates ranging from 4.30% to 10.75%, having a weighted average rate of 7.79% per annum and mature from 1998 to 2010. Scheduled principal payments during each of the next five fiscal years and thereafter are approximately as follows: Year Ending July 31, Amount - --------------------------------------------------------------------------- 1998 $ 2,895,014 1999 10,427,652 2000 17,789,006 2001 6,962,917 2002 10,034,539 Thereafter 17,463,755 ------------ Total $ 65,572,883 The Trust has an unsecured revolving credit facility which provides for up to $50 million of borrowings until October 28, 1997. At July 31, 1997 there were no amounts outstanding under this facility. At the time of borrowing, the Trust can choose from three interest rate options. There are restrictive covenants that place a ceiling on total indebtedness of the lesser of 65% of tangible net worth or $350,000,000, a ceiling on mortgage indebtedness of $105,000,000, a minimum interest coverage ratio of 2.5 to 1 and a minimum tangible net worth of $400,000,000. The Trust has outstanding approximately $1.4 million of letters of credit as of July 31, 1997. Interest costs capitalized for the years ended July 31, 1997, 1996, and 1995 were approximately $868,000, $203,000, and $1,161,000, respectively. Note F - Notes Payable Notes Payable consists of the following: Face Amount Description ($ in millions) Due Date 1997 1996 - ----------- --------------- -------- ---- ---- 7.75% Senior unsecured notes effective interest rate 7.95%, net of unamortized discount: 1997 - $1,132,255; 1996 - $1,236,986 $100 4/6/2005 $98,867,745 $98,763,014 6.80% Senior unsecured notes, effective interest rate 6.87% net of unamortized discount: 1997 - 233,789; 1996 - $272,741 81 5/15/2002 80,766,211 80,727,259 7.97% unsecured notes 10 8/14/2026 10,000,000 10,000,000 Variable rate unsecured notes 49 8/3/99 49,000,000 Variable rate unsecured notes 10 8/3/98 10,000,000 5.95% unsecured notes 49 11/2/26 49,000,000 7.65% unsecured notes 25 11/2/26 25,000,000 7.68% unsecured notes 20 11/2/26 20,000,000 Variable rate unsecured notes 40 5/15/00 40,000,000 7.35% unsecured notes 30 6/15/07 30,000,000 ------------ ------------ Total $412,633,956 $189,490,273 - --------------------------------------------------------------------------- The Notes are subordinate to mortgages payable and rank equally with borrowings under the revolving credit facility. Where applicable, the discount is being amortized over the life of the respective Notes using the effective interest method. Interest is payable semi-annually or quarterly and the principal is due at maturity. Among other restrictive covenants, there is a restrictive covenant that limits the amount of total indebtedness to 65% of total assets. For the year ended July 31, 1997, $342,412 of amortized discount and issuing costs were included in interest expense. Note G - Other Liabilities July 31, 1997 1996 - --------------------------------------------------------------------------- Accounts payable $ 2,095,888 $ 2,750,313 Real estate taxes payable 6,920,090 4,769,689 State and local taxes payable 2,369,004 3,906,163 Interest payable 7,779,381 3,633,896 Amounts due seller of property 1,466,713 970,104 Professional fees and costs 1,665,753 728,628 Accrued construction costs 4,871,656 -- Acquisition costs 1,884,419 2,574,000 Other 2,968,748 5,332,891 Deferred advance rent expense 1,337,513 318,450 ------------ ----------- $ 33,359,165 $24,984,134 - --------------------------------------------------------------------------- Note H - Shareholders Equity The Series A Cumulative Preferred Shares are redeemable at the option of the Trust on or after June 15, 2007 at the liquidation preference of $500 a share. The preferred shares pay dividends quarterly at the rate of 7.8% of the liquidation preference per annum through September 15, 2012 and at the rate of 9.8% of the liquidation preference per annum thereafter. In connection with the issuance of the Series A Cumulative Preferred Shares, 1,500,000 depositary shares, each representing a 1/10 fractional interest in a share of cumulative preferred, were sold to the public. The Trust has the following stock option plans (the "Plans") pursuant to which the Trust has granted (and in one instance, may continue to grant) options to purchase Shares of Beneficial Interest of the Trust (the "Shares") to officers, trustees and certain key employees of the Trust: (i) the 1985 Incentive Stock Option Plan (the "1985 Plan"), (ii) the March 1991 Stock Option Plan (the "March 1991 Plan"), (iii) the Non-Qualified Stock Option Plan (the "Non-Qualified Plan"), and (iv) the 1991 Stock Option Plan (the "1991 Plan"). The exercise price of a Share pursuant to each of the Plans is or was required (as the case may be) to be no less than the fair market value of a Share on the date of grant. Under the 1985 Plan, the 1991 Plan (with the exception of certain option grants of 10,000 Shares or more, as discussed below) and the Non-Qualified Plan, options are exercisable 20% per year commencing one year from the date of grant. In the case of certain option grants of 10,000 Shares or more under the 1991 Plan, such option grants are exercisable 10% after the first anniversary of the date of grant, 25% after the second anniversary of the date of grant, 45% after the third anniversary of the date of grant, 70% after the fourth anniversary of the date of grant and 100% after the fifth anniversary of the date of grant. In the case of the March 1991 Plan, 30% of the options granted are exercisable on the third anniversary of the date of grant and, thereafter, an additional 10% of the granted options are exercisable on a yearly basis. Future option grants can be made only under the 1991 Plan. The following table shows the activity and balances for each stock option plan during the fiscal years indicated. Non- March 1985 Qualified 1991 1991 Options Plan Plan Plan Plan - --------------------------------------------------------------------------- Outstanding July 31, 1994 345,500 5,000 1,300,000 179,000 Exercised (1,200) -- -- -- Cancelled (17,700) -- -- (6,000) Granted 25,000 -- -- 249,250 ------- ------- --------- -------- Outstanding July 31, 1995 351,600 5,000 1,300,000 422,250 Exercised (5,000) -- -- (4,000) Cancelled (800) -- -- (20,500) Granted 3,200 -- -- 31,300 ------- ------- --------- -------- Outstanding July 31, 1996 349,000 5,000 1,300,000 429,050 Exercised (72,700) -- -- (42,100) Cancelled -- -- -- (26,800) Granted -- -- -- 571,750 ------- ------- --------- -------- Outstanding July 31, 1997 276,300 5,000 1,300,000 931,900 - --------------------------------------------------------------------------- Options exercisable at July 31, 1997 232,480 4,000 910,000 173,660 Average outstanding option price, which was the market price of the shares on the dates of grant $ 21.75 $ 21.88 $ 18.88 $ 21.71 Average price of options exercised during fiscal 1997 $ 21.72 -- -- $ 20.82 - --------------------------------------------------------------------------- The Trust has adopted the disclosure-only provision of Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS 123"). Accordingly, no compensation expense has been recognized for the options described above which were granted on or after August 1, 1995. Had compensation cost for these options been determined based on the fair value on the grant date consistent with the provisions of SFAS 123, the Trust's net earnings and earnings per share of beneficial interest would have been changed to the following pro forma amounts: Net Income Per Share of Beneficial Net Income Interest (in thousands) --------------- -------------- Year ended July 31, 1997 $76,465 $1.31 Year ended July 31, 1996 70,510 1.25 The Trust has a Dividend Reinvestment and Share Purchase Plan (the "Plan") whereby shareholders may invest cash distributions and make optional cash payments to purchase Shares of the Trust without payment of any brokerage commission or service charge. The price per share of the additional shares to be purchased with invested cash distributions is the midpoint between the day's high and low sales prices on the New York Stock Exchange, less 5%. The Trust has made loans to officers, trustees and employees primarily for the purpose of purchasing its Shares. These loans are demand and term notes bearing interest at rates ranging from 5% to 9.75%. Interest is payable quarterly. Note I - Lease Agreements The Trust has entered into leases, as lessee, in connection with ground leases for shopping centers which it operates, an office building which it sublets and administrative office space for the Trust. These leases are accounted for as operating leases. The minimum annual rental commitments during the next five fiscal years and thereafter are approximately as follows (000's omitted): Year Ending July 31, Amount - --------------------------------------------------------------------------- 1998 $1,045 1999 1,050 2000 1,049 2001 1,052 2002 1,183 Thereafter 20,332 ------ Total $25,711 - --------------------------------------------------------------------------- For the years ended July 31, 1996 and 1995, the lease for office space included contingent rentals for real estate tax escalations and operating expense in the amount of $100,000, and $111,000, respectively. There were no contingent rentals for the year ended July 31, 1997. In addition, ground leases provide for fixed rent escalations and renewal options. Note J - Rental Income Under Operating Leases Minimum future rentals to be received during the next five fiscal years and thereafter with initial or remaining noncancellable lease terms in excess of one year are approximately as follows (000's omitted): Year Ending July 31, Amount - --------------------------------------------------------------------------- 1998 $118,157 1999 106,241 2000 90,243 2001 75,217 2002 63,790 Thereafter 385,975 -------- Total $839,623 - --------------------------------------------------------------------------- The above table assumes that all leases which expire are not renewed, therefore neither renewal rentals nor rentals from replacement tenants are included. Minimum future rentals do not include contingent rentals, which may be received under certain leases on the basis of percentage of reported tenants' sales volume, increases in Consumer Price Indices, common area maintenance charges and real estate tax reimbursements. Contingent rentals included in income for the years ended July 31, 1997, 1996 and 1995 amounted to approximately $28,933,000, $26,173,000, and $19,388,000, respectively. Note K - Pro Forma Financial Information (Unaudited) The Trust acquired 16 shopping centers and 13 apartment complexes during the year ended July 31, 1997. The pro forma financial information for the years ended July 31, 1997 and 1996 shown below is based on the historical statements of the Trust after giving effect to the acquisitions as if such acquisitions took place on August 1, 1996 and 1995, respectively. The $280,814,000 aggregate acquisition cost included existing mortgages and $259,914,000 in cash. The pro forma financial information is presented for informational purposes only and may not be indicative of results that would have actually occurred had the acquisitions taken place at the dates indicated or of what may occur in the future. (Amounts In Thousands, Except Share Data) Year Ended July 31, 1997 1996 - --------------------------------------------------------------------------- Pro forma total revenues $ 228,038 $ 209,212 Pro forma net income $ 79,322 $ 73,900 Pro forma earnings per share of beneficial interest $ 1.36 $ 1.31 - --------------------------------------------------------------------------- Note L - Quarterly Financial Information (Unaudited) (Amounts In Thousands, Except Share Data) Income Before Gain on Sale Year Ended of Property Net Earnings July 31, Revenue and Securities Income Per Share - --------------------------------------------------------------------------- 1997 - --------------------------------------------------------------------------- First $ 47,783 $ 19,076 $ 19,076 $ .33 Second 51,147 19,023 19,092 .33 Third 52,066 19,224 19,088 .32 Fourth 55,825 19,716 19,781 .33 - --------------------------------------------------------------------------- 1996 - --------------------------------------------------------------------------- First $ 37,795 $ 16,273 $ 16,274 $ .31 Second 41,523 17,230 18,012 .31 Third 43,353 17,799 17,297 .30 Fourth 44,935 18,820 18,938 .33 - --------------------------------------------------------------------------- Note M - Supplemental Cash Flow Information The Trust entered into the following non-cash investing and financing activities: Year Ended July 31, 1997 1996 - --------------------------------------------------------------------------- Mortgages payable assumed in the acquisition of properties $ 17,500,000 $ 32,538,000 Mortgages receivable in connection with the sale of properties $ 700,000 $ 1,544,500 State and local income taxes paid for the year ended July 31, 1997 were $872,000. No state and local income taxes were paid by the Trust for the year ended July 31, 1996. Interest paid for the years ended July 31, 1997 and 1996 was $24,642,000 and $17,085,000, respectively. - --------------------------------------------------------------------------- Note N - Retirement Savings Plan The Trust has a Retirement Savings Plan (the "Savings Plan"). Participants in the Savings Plan may elect to contribute a portion of their earnings to the Savings Plan and the Trust may, at the discretion of the Board of Trustees, make a voluntary contribution to the Savings Plan. For the years ended July 31, 1997, 1996 and 1995, the Trust's expense for the Savings Plan was $250,000, $228,000 and $191,000, respectively. - --------------------------------------------------------------------------- Note O - Financial Instruments The estimated fair values of the Trust's financial instruments are as follows (000's omitted) At July 31, 1997 1996 - --------------------------------------------------------------------------- Corres- Carrying Fair Carrying Fair ponding Value Value Value Value Footnote -------- ----- -------- ----- -------- Assets: Cash and cash equivalents $ 42,781 $ 42,781 $ 4,300 $ 4,300 A Marketable securities 2,035 2,035 2,095 2,095 B Mortgages and notes receivable 23,107 24,200 23,597 (1) C Other receivables 1,464 1,464 1,109 (1) D Liabilities: Mortgages payable 65,573 67,500 48,935 (2) E Notes payable 412,634 429,200 189,490 (2) F Other liabilities 35,359 35,359 24,984 24,984 G The following methods and assumptions were used to estimate the fair value of each class of financial instruments for which it is practicable: Cash and cash equivalents: The carrying amount approximates fair value because of the short maturity of those instruments. Marketable securities: Fair value is based on quoted market prices in accordance with SFAS 115. (1) Mortgages and notes receivable: The fair value approximates the carrying value and is estimated based on discounting the future cash flows at a year-end risk adjusted lending rate that the Trust would utilize for loans of similar risk and duration. (2) Mortgages payable and Notes payable: The fair value approximates the carrying value and is estimated based on discounting future cash flows at a year-end adjusted borrowing rate which reflects the risks associated with mortgages and notes of similar risk and duration. - --------------------------------------------------------------------------- Note P - Subsequent Events Subsequent to July 31, 1997 the Trust purchased one apartment complex containing 184 units and three shopping centers containing an aggregate of approximately 479,000 gross leasable square feet. The properties are located in New York, North Carolina and Florida. The aggregate purchase price for such properties was approximately $28.7 million. On August 28, 1997 the Trustees declared a cash distribution to shareholders of record of the shares of beneficial interest as of September 18, 1997 in the amount of $.365 per share (approximately $21.5 million) payable on October 7, 1997. On August 21, 1997 the Trustees declared a cash distribution to shareholders of record of the Series A Cumulative Preferred Shares as of September 1, 1997 in the amount of $8.125 per share ($.8125 per depositary share, approximately $1,220,000) payable on September 15, 1997. NEW PLAN REALTY TRUST AND SUBSIDIARIES VALUATION AND QUALIFYING ACCOUNTS SCHEDULE II Additions Charged Balance at to Costs Credited Balance Beginning and to Other at End Description of Period Expenses Revenues Deductions of Period - ----------- ---------- -------- -------- ---------- --------- Year Ended July 31, 1997 - ------------- Allowance for doubtful accounts $ 3,976,500 $ 3,282,871 -- $ 1,678,371(1) $ 5,581,000 Year Ended July 31, 1996 - ------------- Allowance for doubtful accounts $ 2,922,500 $ 1,966,715 - $ 912,715(1) $ 3,976,500 Year Ended July 31, 1995 - ------------- Allowance for doubtful accounts $ 2,331,500 $ 993,710 -- $ 402,710(1) $ 2,922,500 - ------------------- (1) Trade receivables charged to the reserve.
NEW PLAN REALTY TRUST AND SUBSIDIARIES SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION July 31, 1997 COLUMN A COLUMN B COLUMN C COLUMN D ____________ _____________ ______________________________ ________________ Cost Capitalized Subsequent to Initial Cost to Company Acquisition ______________________________ ________________ Building & Description Encumbrances Land Improvements Improvements ___________ ____________ ___________ _____________ ________________ Apartments ************************** BRECKENRIDGE APARTMENTS 604,487 2,411,462 193,861 BIRMINGHAM AL COURTS AT WILDWOOD 1,119,320 4,477,301 310,955 BIRMINGHAM AL DEVONSHIRE PLACE 1,245,728 4,982,914 1,112,479 BIRMINGHAM AL THE CLUB APARTMENTS 6,145,000 1,709,558 6,838,233 280,275 BIRMINGHAM AL HILLCREST APARTMENTS 1,252,632 249,734 3,317,904 MOBILE AL KNOLLWOOD APARTMENTS 6,147,218 4,377,501 17,027,203 23,982 MOBILE AL MAISON DE VILLE APTS 4,625,000 1,971,014 7,897,056 38,546 MOBILE AL MAISON IMPERIAL APTS 1,750,000 672,368 2,702,471 20,720 MOBILE AL PLANTATION APARTMENTS 1,000,000 440,866 1,773,465 9,992 MOBILE AL MAYFAIR APARTMENTS 240,000 962,217 464,446 DOVER DE RODNEY APARTMENTS 769,188 1,612,614 1,238,692 DOVER DE LAKE PARK APARTMENTS 833,000 1,822,039 2,584,476 LAKE PARK FL CAMBRIDGE APARTMENTS 878,593 3,514,373 37,044 ATHENS GA TARA APARTMENTS 3,541,345 1,192,545 4,792,179 43,190 ATHENS GA REGENCY CLUB APARTMENTS 1,179,910 4,719,639 31,774 EVANSVILLE IN HAWTHORNE HEIGHTS APTS 1,669,304 6,698,215 59,570 INDIANAPOLIS IN JAMESTOWN APARTMENTS 518,646 2,075,236 696,220 LEXINGTON KY SADDLEBROOK APARTMENTS 1,939,164 7,756,655 238,724 LEXINGTON KY CHARLESTOWN @ DOUGLASS HILLS 1,306,230 5,231,914 288,619 LOUISVILLE KY LA FONTENAY APARTMENTS 1,176,550 4,706,200 707,222 LOUISVILLE KY POPLAR LEVEL APARTMENTS 284,793 1,139,174 91,639 LOUISVILLE KY RIVERCHASE APARTMENTS 807,302 3,229,206 26,673 NEWPORT KY FORESTWOOD APARTMENTS 2,070,811 8,283,242 53,478 BATON ROUGE LA SHERWOOD ACRES APARTMENTS 3,906,900 15,627,597 30,765 BATON ROUGE LA WILLOW BEND LAKE APARTMENTS 2,930,484 11,721,937 27,388 BATON ROUGE LA DEERHORN VILLAGE APARTMENTS 1,292,778 5,171,112 144,766 KANSAS CITY MO MEADOW EAST APARTMENTS 86,407 1,467,282 451,518 POTSDAM NY MOHAWK GARDEN APARTMENTS 163,235 1,135,660 1,657,938 ROME NY SPRING CREEK APARTMENTS 1,451,271 9,067,552 COLUMBUS OH ARLINGTON VILLAGE APARTMENTS 1,065,284 4,269,138 114,478 FAIRBORN OH CHESTERFIELD APARTMENTS 179,109 1,449,156 314,834 MAUMEE OH GOLDCREST APARTMENTS 1,133,355 4,533,416 23,845 SHARONVILLE OH CAMBRIDGE PARK APTS 1,223,582 4,894,326 45,725 UNION TWP-CINN OH GOVERNOUR'S PLACE APARTMENTS 626,807 2,507,226 83,167 HARRISBURG PA HARBOUR LANDING APARTMENTS 1,141,954 4,567,815 120,213 COLUMBIA SC SEDGEFIELD APARTMENTS 1,550,734 6,211,936 170,808 FLORENCE SC TURTLE CREEK APARTMENTS 984,565 3,954,261 29,178 GREENVILLE SC HICKORY LAKE APARTMENTS 1,369,251 5,483,004 650,345 ANTIOCH TN COURTS @ WATERFORD PLACE 10,100,000 2,745,404 10,982,373 47,797 CHATTANOOGA TN ASHFORD PLACE APARTMENTS 1,150,270 4,611,080 580,759 CLARKSVILLE TN CEDAR VILLAGE APARTMENTS 806,355 3,230,420 92,692 CLARKSVILLE TN PADDOCK PLACE APARTMENTS 1,358,400 5,437,602 65,837 CLARKSVILLE TN THE PINES APARTMENTS 918,769 3,679,074 83,523 CLARKSVILLE TN LANDMARK ESTATES APARTMENTS 476,624 1,906,284 41,699 EAST RIDGE TN MILLER CREST APARTMENTS 747,155 3,025,619 55,683 JOHNSON CITY TN CEDAR BLUFF APARTMENTS 1,312,383 5,269,532 32,553 KNOXVILLE TN COUNTRY PLACE APARTMENTS 1,896,828 7,587,313 51,393 NASHVILLE TN WOODBRIDGE APARTMENTS 1,594,214 6,376,854 47,184 NASHVILLE TN Factory Outlets ************************** BARSTOW FACTORY OUTLET 9,899,696 5,730,337 22,936,349 12,667,955 BARSTOW CA ST AUGUSTINE OUTLET CENTER 71,835 4,488,742 14,426,139 9,686,447 ST AUGUSTINE FL BRANSON FACTORY OUTLET 17,669 22,312,120 11,757,215 BRANSON MO OSAGE FACTORY OUTLET VILLAGE 6,978,714 27,259,675 7,282,030 OSAGE BEACH MO SIX FLAGS FACTORY OUTLET CENTER 794,941 20,578,120 JACKSON NJ FT CHISWELL FACTORY OUTLET 411,023 1,644,017 944,759 MAX MEADOWS VA Miscellaneous ************************** PIZZA HUT - PAD 40,065 225,958 GREENVILLE NC HARDEES - PAD 400,000 HANOVER PA PIZZA HUT - PAD 427,500 HARRISONBURG VA Office Building ************************** INSTITUTE FOR DEFENSE ANALYSES 1,389,460 PRINCETON NJ Shopping Centers ************************** CLOVERDALE VILLAGE 634,152 2,536,606 7,304 FLORENCE AL DOVERAMA @ RODNEY VILLAGE 50,755 311,781 DOVER DE RODNEY VILLAGE 1,202,551 2,082,918 2,088,160 DOVER DE REGENCY PARK SHOPPING CENTER 3,884,925 15,539,701 JACKSONVILLE FL PRESIDENTIAL PLAZA 1,308,956 2,440,917 17,400 NORTH LAUDERDALE FL PRESIDENTIAL PLAZA WEST 437,485 812,473 5,256 NORTH LAUDERDALE FL RUTLAND PLAZA 1,443,294 5,773,176 ST PETERSBURG FL ALBANY PLAZA 696,447 2,799,786 92,201 ALBANY GA SOUTHGATE PLAZA - ALBANY 231,517 970,811 27,442 ALBANY GA EASTGATE PLAZA - AMERICUS 221,637 1,036,331 10,052 AMERICUS GA PERLIS PLAZA 774,966 5,301,644 244,079 AMERICUS GA ROGERS PLAZA 291,014 688,590 84,343 ASHBURN GA SWEETWATER VILLAGE 707,938 2,831,750 AUSTELL GA CEDAR PLAZA 928,302 3,713,207 24,999 CEDARTOWN GA CEDARTOWN SHOPPING CENTER 745,006 3,266,424 84,289 CEDARTOWN GA CORDELE SQUARE 864,335 3,457,337 299,068 CORDELE GA MR B'S 166,047 154,140 6,718 CORDELE GA SOUTHGATE PLAZA - CORDELE 202,682 958,998 59,768 CORDELE GA HABERSHAM VILLAGE 1,301,643 4,340,422 699,985 CORNELIA GA MIDWAY VILLAGE SHOPPING CENTER 1,551,580 2,881,506 DOUGLASVILLE GA WESTGATE - DUBLIN 699,174 5,834,809 103,582 DUBLIN GA NEW CHASTAIN CORNERS SHOPPING CENTER 2,452,946 5,723,542 MARIETTA GA CREEKWOOD SHOPPING CENTER 1,158,203 3,474,608 REX GA EISENHOWER SQUARE SHOPPING CENTER 1,026,000 4,104,000 SAVANNAH GA VICTORY SQUARE 1,206,181 4,824,725 45,726 SAVANNAH GA TIFT-TOWN 271,444 1,325,238 173,785 TIFTON GA WESTGATE - TIFTON 156,269 304,705 TIFTON GA HAYMARKET MALL 1,230,252 5,031,799 119,315 DES MOINES IA HAYMARKET SQUARE 2,056,172 8,224,688 261,955 DES MOINES IA SOUTHFIELD PLAZA SHOPPING CENTER 3,188,496 3,897,167 5,666 BRIDGEVIEW IL WESTRIDGE COURT SHOPPING CENTER 9,765,195 39,060,786 NAPERVILLE IL TINLEY PARK PLAZA 2,607,702 10,430,808 162,520 TINLEY PARK IL COLUMBUS CENTER 1,196,269 3,608,315 2,411,081 COLUMBUS IN JASPER MANOR 1,319,937 7,110,063 10,766 JASPER IN TOWN FAIR SHOPPING CENTER 1,104,876 3,759,503 PRINCETON IN WABASH CROSSING 1,614,878 6,470,511 27,744 WABASH IN JACKSON VILLAGE 284,815 3,115,586 579,110 JACKSON KY J*TOWN CENTER 1,331,074 4,121,997 593,420 JEFFERSONTOWN KY NEW LOUISA PLAZA 469,014 1,998,752 161,683 LOUISA KY PICCADILLY SQUARE 355,000 1,588,409 290,032 LOUISVILLE KY EASTGATE SHOPPING CENTER 1,945,679 7,792,717 195,167 MIDDLETOWN KY LIBERTY PLAZA 2,075,809 8,303,237 115,702 RANDALLSTOWN MD SHOPPING CENTER - SALISBURY 312,650 1,833,330 46,741 SALISBURY MD MAPLE VILLAGE SHOPPING CENTER 1,625,580 6,514,322 264,178 ANN ARBOR MI FARMINGTON CROSSROADS 1,092,200 4,368,800 26,831 FARMINGTON MI DELTA CENTER 2,405,200 9,620,800 165,179 LANSING MI HAMPTON VILLAGE CENTRE 21,040,157 8,638,500 34,541,500 172,079 ROCHESTER HILLS MI FASHION CORNERS 2,244,800 8,799,200 9,900 SAGINAW MI HALL ROAD CROSSING 2,595,500 10,382,000 131,542 SHELBY MI DELCO PLAZA 1,277,504 5,109,367 STERLING HEIGHTS MI WASHTENAW FOUNTAIN PLAZA 1,530,281 6,121,123 351,094 YPSILANTI MI SHOPPING CENTER - GOLDSBORO 181,998 1,014,432 55,222 GOLDSBORO NC SHOPPING CENTER - WILSON 315,000 1,780,370 61,682 WILSON NC LAUREL SQUARE 3,261,701 9,283,302 529,934 BRICKTOWN NJ HAMILTON PLAZA 1,124,415 4,513,658 215,779 HAMILTON NJ BENNETTS MILLS PLAZA 1,794,122 6,399,888 28,315 JACKSON NJ MIDDLETOWN PLAZA 1,204,829 1,479,487 3,561,728 MIDDLETOWN NJ RENAISSANCE CENTER EAST 2,543,856 10,175,427 23,065 LAS VEGAS NV UNIVERSITY MALL 115,079 1,009,902 756,101 CANTON NY CORTLANDVILLE 236,846 1,439,000 420,708 CORTLAND NY KMART PLAZA 942,257 3,769,027 116,884 DEWITT NY D & F PLAZA 730,512 2,156,542 1,082,391 DUNKIRK NY SHOPPING CENTER - ELMIRA 110,116 891,205 ELMIRA NY PYRAMID MALL 2,175,221 8,700,884 109,499 GENEVA NY SHOPPING CENTER - GLOVERSVILLE 139,429 524,517 104,564 GLOVERSVILLE NY MCKINLEY PLAZA 1,246,680 4,986,720 93,023 HAMBURG NY CAYUGA PLAZA 1,397,708 5,591,832 417,505 ITHACA NY SHOPS @ SENECA MALL 1,545,838 6,183,353 351,767 LIVERPOOL NY TRANSIT ROAD PLAZA 424,634 1,698,537 186,630 LOCKPORT NY SHOPPING CENTER - MARCY 400,000 2,231,817 94,207 MARCY NY WALLKILL PLAZA 2,445,200 8,580,800 62,992 MIDDLETOWN NY ROCKLAND PLAZA 3,990,842 3,570,410 5,177,066 NANUET NY SOUTH PLAZA 508,013 1,051,638 1,539,333 NORWICH NY WESTGATE PLAZA - ONEONTA 142,821 1,192,103 249,069 ONEONTA NY OSWEGO PLAZA 250,000 1,168,027 2,483,385 OSWEGO NY MOHAWK ACRES 241,606 1,268,890 1,495,180 ROME NY MONTGOMERY WARD 93,341 483,405 231,437 ROME NY PRICE CHOPPER PLAZA 933,792 3,735,170 ROME NY WESTGATE MANOR PLAZA - ROME 77,208 391,982 439,016 ROME NY NORTHLAND 16,182 255,557 790,160 WATERTOWN NY HARBOR PLAZA 388,997 1,456,108 244,999 ASHTABULA OH BELPRE PLAZA 2,066,121 134,189 BELPRE OH SOUTHWOOD PLAZA 707,073 1,537,519 637,042 BOWLING GREEN OH BRENTWOOD PLAZA 2,050,969 8,222,875 204,224 CINCINNATI OH DELHI SHOPPING CENTER 2,300,029 9,218,117 CINCINNATI OH WESTERN VILLAGE SHOPPING CENTER 1,321,484 5,300,935 101,028 CINCINNATI OH SOUTH TOWNE CENTRE 4,737,368 9,636,943 1,466,988 DAYTON OH HERITAGE SQUARE 1,749,182 7,011,927 59,707 DOVER OH MIDWAY CROSSING 1,944,200 7,776,800 ELYRIA OH FAIRFIELD MALL 1,287,649 1,685,919 83,779 FAIRFIELD OH SILVER BRIDGE PLAZA 919,022 3,197,673 1,452,608 GALLIPOLIS OH SHOPPING CENTER - GENOA 96,001 1,016,349 GENOA OH PARKWAY PLAZA 950,667 2,069,921 388,291 MAUMEE OH NEW BOSTON SHOPPING CENTER 2,102,371 9,176,918 93,574 NEW BOSTON OH MARKET PLACE 597,923 3,738,164 361,385 PIQUA OH CENTRAL AVE MARKET PLACE 1,046,480 1,769,207 363,682 TOLEDO OH BETHEL PARK PLAZA 861,539 9,907,694 43,781 BETHEL PARK PA DILLSBURG SHOPPING CENTER 1,166,376 4,665,505 DILLSBURG PA NEW GARDEN SHOPPING CENTER 907,130 3,141,296 KENNETT SQUARE PA STONEMILL PLAZA 1,407,975 5,650,901 31,885 LANCASTER PA CROSSROADS PLAZA 384,882 1,040,668 305,825 MT. PLEASANT PA IVYRIDGE SHOPPING CENTER 1,504,080 6,026,320 263,077 PHILADELPHIA PA ROOSEVELT MALL ANNEX 159,703 91,798 1,074,786 PHILADELPHIA PA ROOSEVELT MALL NE 2,602,635 6,385,817 PHILADELPHIA PA STRAWBRIDGE'S 605,607 3,923,050 PHILADELPHIA PA ST MARY'S PLAZA 977,711 3,910,842 102,304 ST MARY'S PA NORTHLAND CENTER 1,198,947 4,824,500 58,058 STATE COLLEGE PA SHOPS AT PROSPECT 741,941 2,967,765 12,058 WEST HEMPFIELD PA YORK MARKETPLACE 3,199,353 12,797,412 359,172 YORK PA CONGRESS CROSSING 1,098,351 6,747,013 69,993 ATHENS TN GREENEVILLE COMMONS 1,075,200 7,884,800 23,156 GREENEVILLE TN KINGS GIANT SHOPPING CENTER 2,500,633 192,845 KINGSPORT TN GEORGETOWN SQUARE 1,166,924 4,674,698 201,633 MURFREESBORO TN SHOPPING CENTER - COLONIAL HTS 290,000 792,441 COLONIAL HEIGHTS VA HANOVER SQUARE SHOPPING CENTER 1,778,701 7,114,805 194,278 MECHANICSVILLE VA VICTORIAN SQUARE 3,548,432 14,208,727 84,833 MIDLOTHIAN VA CAVE SPRING CORNERS SHOPPING CENTER 1,059,798 4,239,192 ROANOKE VA SHOPPING CENTER - SPOTSYLVANIA 250,000 1,363,880 231,472 SPOTSYLVANIA VA RIDGEVIEW CENTRE 2,707,679 4,417,792 476,393 WISE VA MOUNDSVILLE PLAZA 228,283 1,989,798 4,728,584 MOUNDSVILLE WV GRAND CENTRAL PLAZA 4,358,333 153,150 PARKERSBURG WV KMART PLAZA 664,121 2,656,483 40,122 VIENNA WV Vacant Land ************************** 1 NORTH CENTRAL AVENUE 17,197 HARTSDALE NY ------------ ------------ ------------ ------------ $65,572,883 $232,501,644 $917,362,983 $127,910,413 ============= ============ ============ ============
(1) Aggregate cost is the same for Federal income tax purposes
NEW PLAN REALTY TRUST AND SUBSIDIARIES SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION July 31, 1995 COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I ___________ ___________________________________________ ________ ___________ ________ ________ Gross Amount at Which Carried at the Close of the Period ___________________________________________ Life on Which Depreci- ated in Latest Building & Accumulated Date of Date Income Description Land Improvements Total(1) Depreciation Construction Acquired Statement ___________ ----------- ------------- --------------- -------------- ------------ -------- --------- Apartments ************************** BRECKENRIDGE APARTMENTS 604,487 2,605,323 3,209,810 370,420 1979 Feb 92 40 Years BIRMINGHAM AL COURTS AT WILDWOOD 1,119,320 4,788,256 5,907,576 513,057 1969 Jul 93 40 Years BIRMINGHAM AL DEVONSHIRE PLACE 1,245,728 6,095,393 7,341,121 846,177 1971 Feb 92 40 Years BIRMINGHAM AL THE CLUB APARTMENTS 1,709,558 7,118,508 8,828,066 400,871 1969-1974 May 95 40 Years BIRMINGHAM AL HILLCREST APARTMENTS 249,734 3,317,904 3,567,638 3,456 1977 Jun 97 40 Years MOBILE AL KNOLLWOOD APARTMENTS 4,377,501 17,051,185 21,428,686 53,617 1978-1982 May 97 40 Years MOBILE AL MAISON DE VILLE APTS 1,971,014 7,935,602 9,906,616 190,933 1963,71-73 Jul 96 40 Years MOBILE AL MAISON IMPERIAL APTS 672,368 2,723,191 3,395,559 65,918 1969-73 Jul 96 40 Years MOBILE AL PLANTATION APARTMENTS 440,866 1,783,457 2,224,323 42,773 1977 Jul 96 40 Years MOBILE AL MAYFAIR APARTMENTS 240,000 1,426,663 1,666,663 712,109 1971 Jan 81 40 Years DOVER DE RODNEY APARTMENTS 769,188 2,851,306 3,620,494 2,235,211 1963-1965 Jan 69 40 Years DOVER DE LAKE PARK APARTMENTS 833,000 4,406,515 5,239,515 2,271,741 1965 Feb 76 40 Years LAKE PARK FL CAMBRIDGE APARTMENTS 878,593 3,551,417 4,430,010 109,404 1972,1982 May 96 40 Years ATHENS GA TARA APARTMENTS 1,192,545 4,835,369 6,027,914 137,398 1970 Jun 96 40 Years ATHENS GA REGENCY CLUB APARTMENTS 1,179,910 4,751,413 5,931,323 94,496 1980 Sep 96 40 Years EVANSVILLE IN HAWTHORNE HEIGHTS APTS 1,669,304 6,757,785 8,427,089 191,302 1965 Jun 96 40 Years INDIANAPOLIS IN JAMESTOWN APARTMENTS 518,646 2,771,456 3,290,102 531,803 1967 Sep 91 40 Years LEXINGTON KY SADDLEBROOK APARTMENTS 1,939,164 7,995,379 9,934,543 469,866 1969 May 95 40 Years LEXINGTON KY CHARLESTOWN @ DOUGLASS HILLS 1,306,230 5,520,533 6,826,763 555,402 1974 Sep 93 40 Years LOUISVILLE KY LA FONTENAY APARTMENTS 1,176,550 5,413,422 6,589,972 721,393 1970 Jul 92 40 Years LOUISVILLE KY POPLAR LEVEL APARTMENTS 284,793 1,230,813 1,515,606 211,915 1974 Jan 91 40 Years LOUISVILLE KY RIVERCHASE APARTMENTS 807,302 3,255,879 4,063,181 64,999 1968 Aug 96 40 Years NEWPORT KY FORESTWOOD APARTMENTS 2,070,811 8,336,720 10,407,531 130,787 1985 Oct 96 40 Years BATON ROUGE LA SHERWOOD ACRES APARTMENTS 3,906,900 15,658,362 19,565,262 278,033 1978-1979 Oct 96 40 Years BATON ROUGE LA WILLOW BEND LAKE APARTMENTS 2,930,484 11,749,325 14,679,809 184,017 1986 Oct 96 40 Years BATON ROUGE LA DEERHORN VILLAGE APARTMENTS 1,292,778 5,315,878 6,608,656 281,170 1974 Jul 95 40 Years KANSAS CITY MO MEADOW EAST APARTMENTS 86,407 1,918,800 2,005,207 668,977 1964-1971 Sep 83 40 Years POTSDAM NY MOHAWK GARDEN APARTMENTS 163,235 2,793,598 2,956,833 1,103,739 1947 Nov 85 40 Years ROME NY SPRING CREEK APARTMENTS 1,451,271 9,067,552 10,518,823 9,445 1985 Jun 97 40 Years COLUMBUS OH ARLINGTON VILLAGE APARTMENTS 1,065,284 4,383,616 5,448,900 331,219 1966 Aug 94 40 Years FAIRBORN OH CHESTERFIELD APARTMENTS 179,109 1,763,990 1,943,099 283,447 1979-1984 Feb 91 40 Years MAUMEE OH GOLDCREST APARTMENTS 1,133,355 4,557,261 5,690,616 90,835 1968 Aug 96 40 Years SHARONVILLE OH CAMBRIDGE PARK APTS 1,223,582 4,940,051 6,163,633 98,642 1973 Aug 96 40 Years UNION TWP-CINN OH GOVERNOUR'S PLACE APARTMENTS 626,807 2,590,393 3,217,200 148,699 1974 Apr 95 40 Years HARRISBURG PA HARBOUR LANDING APARTMENTS 1,141,954 4,688,028 5,829,982 225,176 1974 Sep 95 40 Years COLUMBIA SC SEDGEFIELD APARTMENTS 1,550,734 6,382,744 7,933,478 496,863 1972,74,79 Jul 94 40 Years FLORENCE SC TURTLE CREEK APARTMENTS 984,565 3,983,439 4,968,004 112,903 1976 Jun 96 40 Years GREENVILLE SC HICKORY LAKE APARTMENTS 1,369,251 6,133,349 7,502,600 582,438 1974 Dec 93 40 Years ANTIOCH TN COURTS @ WATERFORD PLACE 2,745,404 11,030,170 13,775,574 172,527 1988,89 Dec 96 40 Years CHATTANOOGA TN ASHFORD PLACE APARTMENTS 1,150,270 5,191,839 6,342,109 517,950 1972-1974 Oct 93 40 Years CLARKSVILLE TN CEDAR VILLAGE APARTMENTS 806,355 3,323,112 4,129,467 256,928 1982 Jul 94 40 Years CLARKSVILLE TN PADDOCK PLACE APARTMENTS 1,358,400 5,503,439 6,861,839 417,546 1989 Jul 94 40 Years CLARKSVILLE TN THE PINES APARTMENTS 918,769 3,762,597 4,681,366 290,817 1986 Jul 94 40 Years CLARKSVILLE TN LANDMARK ESTATES APARTMENTS 476,624 1,947,983 2,424,607 39,370 1971 Aug 96 40 Years EAST RIDGE TN MILLER CREST APARTMENTS 747,155 3,081,302 3,828,457 86,989 1973 Jun 96 40 Years JOHNSON CITY TN CEDAR BLUFF APARTMENTS 1,312,383 5,302,085 6,614,468 161,332 1980 May 96 40 Years KNOXVILLE TN COUNTRY PLACE APARTMENTS 1,896,828 7,638,706 9,535,534 249,399 1979 Apr 96 40 Years NASHVILLE TN WOODBRIDGE APARTMENTS 1,594,214 6,424,038 8,018,252 128,790 1980 Aug 96 40 Years NASHVILLE TN Factory Outlets ************************** BARSTOW FACTORY OUTLET 5,730,337 35,604,304 41,334,641 3,241,746 1989 Nov 93 40 Years BARSTOW CA ST AUGUSTINE OUTLET CENTER 4,488,742 24,112,586 28,601,328 3,166,557 1991 Mar 92 40 Years ST AUGUSTINE FL BRANSON FACTORY OUTLET 17,669 34,069,335 34,087,004 3,004,139 1988 Nov 93 40 Years BRANSON MO OSAGE FACTORY OUTLET VILLAGE 6,978,714 34,541,705 41,520,419 3,832,597 1987 Jan 93 40 Years OSAGE BEACH MO SIX FLAGS FACTORY OUTLET CENTER 794,941 20,578,120 21,373,061 108,578 1997 Apr 97 40 Years JACKSON NJ FT CHISWELL FACTORY OUTLET 411,023 2,588,776 2,999,799 671,308 1989 Nov 93 40 Years MAX MEADOWS VA Miscellaneous ************************** PIZZA HUT - PAD 40,065 225,958 266,023 83,906 1973 May 86 35 Years GREENVILLE NC HARDEES - PAD 400,000 400,000 417 1971 Jul 97 35 Years HANOVER PA PIZZA HUT - PAD 427,500 427,500 12,214 1969 Jul 96 35 Years HARRISONBURG VA Office Building ************************** INSTITUTE FOR DEFENSE ANALYSES 1,389,460 1,389,460 653,404 1982 May 74 35 Years PRINCETON NJ Shopping Centers ************************** CLOVERDALE VILLAGE 634,152 2,543,910 3,178,062 177,953 1986 Oct 94 40 Years FLORENCE AL DOVERAMA @ RODNEY VILLAGE 50,755 311,781 362,536 67,906 1969 Oct 88 40 Years DOVER DE RODNEY VILLAGE 1,202,551 4,171,078 5,373,629 3,130,285 1959 Jan 69 40 Years DOVER DE REGENCY PARK SHOPPING CENTER 3,884,925 15,539,701 19,424,626 16,187 1985 Jun 97 40 Years JACKSONVILLE FL PRESIDENTIAL PLAZA 1,308,956 2,458,317 3,767,273 18,645 1977 Apr 97 40 Years NORTH LAUDERDALE FL PRESIDENTIAL PLAZA WEST 437,485 817,729 1,255,214 5,924 1977 Apr 97 40 Years NORTH LAUDERDALE FL RUTLAND PLAZA 1,443,294 5,773,176 7,216,470 102,178 1964 Nov 96 40 Years ST PETERSBURG FL ALBANY PLAZA 696,447 2,891,987 3,588,434 230,576 1968 May 94 40 Years ALBANY GA SOUTHGATE PLAZA - ALBANY 231,517 998,253 1,229,770 172,379 1969 Jul 90 40 Years ALBANY GA EASTGATE PLAZA - AMERICUS 221,637 1,046,383 1,268,020 183,436 1980 Jul 90 40 Years AMERICUS GA PERLIS PLAZA 774,966 5,545,723 6,320,689 996,768 1972 Jul 90 40 Years AMERICUS GA ROGERS PLAZA 291,014 772,933 1,063,947 151,166 1974 Jul 90 40 Years ASHBURN GA SWEETWATER VILLAGE 707,938 2,831,750 3,539,688 197,912 1985 Oct 94 40 Years AUSTELL GA CEDAR PLAZA 928,302 3,738,206 4,666,508 260,350 1994 Oct 94 40 Years CEDARTOWN GA CEDARTOWN SHOPPING CENTER 745,006 3,350,713 4,095,719 212,960 1989 Jan 95 40 Years CEDARTOWN GA CORDELE SQUARE 864,335 3,756,405 4,620,740 687,834 1968 Jul 90 40 Years CORDELE GA MR B'S 166,047 160,858 326,905 28,540 1968 Jul 90 40 Years CORDELE GA SOUTHGATE PLAZA - CORDELE 202,682 1,018,766 1,221,448 171,199 1969 Jul 90 40 Years CORDELE GA HABERSHAM VILLAGE 1,301,643 5,040,407 6,342,050 668,483 1985 May 92 40 Years CORNELIA GA MIDWAY VILLAGE SHOPPING CENTER 1,551,580 2,881,506 4,433,086 9,005 1989 May 97 40 Years DOUGLASVILLE GA WESTGATE - DUBLIN 699,174 5,938,391 6,637,565 1,036,006 1974 Jul 90 40 Years DUBLIN GA NEW CHASTAIN CORNERS SHOPPING CENTE 2,452,946 5,723,542 8,176,488 5,962 1990 Jul 97 40 Years MARIETTA GA CREEKWOOD SHOPPING CENTER 1,158,203 3,474,608 4,632,811 10,858 1990 May 97 40 Years REX GA EISENHOWER SQUARE SHOPPING CENTER 1,026,000 4,104,000 5,130,000 4,275 1985 Jul 97 40 Years SAVANNAH GA VICTORY SQUARE 1,206,181 4,870,451 6,076,632 614,097 1986 Jul 92 40 Years SAVANNAH GA TIFT-TOWN 271,444 1,499,023 1,770,467 254,504 1965 Jul 90 40 Years TIFTON GA WESTGATE - TIFTON 156,269 304,705 460,974 53,672 1980 Jul 90 40 Years TIFTON GA HAYMARKET MALL 1,230,252 5,151,114 6,381,366 274,867 1968-1979 May 95 40 Years DES MOINES IA HAYMARKET SQUARE 2,056,172 8,486,643 10,542,815 456,066 1971-1979 May 95 40 Years DES MOINES IA SOUTHFIELD PLAZA SHOPPING CENTER 3,188,496 3,902,833 7,091,329 52,943 1958,72 Dec 96 40 Years BRIDGEVIEW IL WESTRIDGE COURT SHOPPING CENTER 9,765,195 39,060,786 48,825,981 40,697 1990 Jul 97 40 Years NAPERVILLE IL TINLEY PARK PLAZA 2,607,702 10,593,328 13,201,030 499,961 1973 Sep 95 40 Years TINLEY PARK IL COLUMBUS CENTER 1,196,269 6,019,396 7,215,665 1,366,383 1964 Dec 88 40 Years COLUMBUS IN JASPER MANOR 1,319,937 7,120,829 8,440,766 974,190 1990 Feb 92 40 Years JASPER IN TOWN FAIR SHOPPING CENTER 1,104,876 3,759,503 4,864,379 419,248 1991 Feb 93 40 Years PRINCETON IN WABASH CROSSING 1,614,878 6,498,255 8,113,133 588,886 1988 Dec 93 40 Years WABASH IN JACKSON VILLAGE 284,815 3,694,696 3,979,511 713,687 1983 Dec 88 40 Years JACKSON KY J*TOWN CENTER 1,331,074 4,715,417 6,046,491 1,025,246 1959 Oct 88 40 Years JEFFERSONTOWN KY NEW LOUISA PLAZA 469,014 2,160,435 2,629,449 638,290 1978 Feb 88 40 Years LOUISA KY PICCADILLY SQUARE 355,000 1,878,441 2,233,441 387,386 1973 Apr 89 40 Years LOUISVILLE KY EASTGATE SHOPPING CENTER 1,945,679 7,987,884 9,933,563 757,026 1987 Nov 93 40 Years MIDDLETOWN KY LIBERTY PLAZA 2,075,809 8,418,939 10,494,748 466,171 1962 May 95 40 Years RANDALLSTOWN MD SHOPPING CENTER - SALISBURY 312,650 1,880,071 2,192,721 599,300 1973 May 86 35 Years SALISBURY MD MAPLE VILLAGE SHOPPING CENTER 1,625,580 6,778,500 8,404,080 471,644 1965 Oct 94 40 Years ANN ARBOR MI FARMINGTON CROSSROADS 1,092,200 4,395,631 5,487,831 170,322 1986 Dec 95 40 Years FARMINGTON MI DELTA CENTER 2,405,200 9,785,979 12,191,179 371,823 1985 Dec 95 40 Years LANSING MI HAMPTON VILLAGE CENTRE 8,638,500 34,713,579 43,352,079 1,342,463 1990 Dec 95 40 Years ROCHESTER HILLS MI FASHION CORNERS 2,244,800 8,809,100 11,053,900 340,960 1986 Dec 95 40 Years SAGINAW MI HALL ROAD CROSSING 2,595,500 10,513,542 13,109,042 406,627 1985 Dec 95 40 Years SHELBY MI DELCO PLAZA 1,277,504 5,109,367 6,386,871 79,770 1970,73 Nov 96 40 Years STERLING HEIGHTS MI WASHTENAW FOUNTAIN PLAZA 1,530,281 6,472,217 8,002,498 782,956 1989 Oct 92 40 Years YPSILANTI MI SHOPPING CENTER - GOLDSBORO 181,998 1,069,654 1,251,652 330,563 1973 May 86 35 Years GOLDSBORO NC SHOPPING CENTER - WILSON 315,000 1,842,052 2,157,052 578,647 1973 May 86 35 Years WILSON NC LAUREL SQUARE 3,261,701 9,813,236 13,074,937 1,249,278 1973 Jul 92 40 Years BRICKTOWN NJ HAMILTON PLAZA 1,124,415 4,729,437 5,853,852 379,814 1972 May 94 40 Years HAMILTON NJ BENNETTS MILLS PLAZA 1,794,122 6,428,203 8,222,325 462,109 1988 Sep 94 40 Years JACKSON NJ MIDDLETOWN PLAZA 1,204,829 5,041,215 6,246,044 1,776,020 1972 Jan 75 40 Years MIDDLETOWN NJ RENAISSANCE CENTER EAST 2,543,856 10,198,492 12,742,348 201,955 1981 Oct 96 40 Years LAS VEGAS NV UNIVERSITY MALL 115,079 1,766,003 1,881,082 896,918 1967 Jan 76 40 Years CANTON NY CORTLANDVILLE 236,846 1,859,708 2,096,554 407,486 1984 Aug 87 35 Years CORTLAND NY KMART PLAZA 942,257 3,885,911 4,828,168 382,619 1970 Aug 93 40 Years DEWITT NY D & F PLAZA 730,512 3,238,933 3,969,445 925,009 1967 Jan 86 40 Years DUNKIRK NY SHOPPING CENTER - ELMIRA 110,116 891,205 1,001,321 188,453 1976 Feb 89 40 Years ELMIRA NY PYRAMID MALL 2,175,221 8,810,383 10,985,604 867,285 1973 Aug 93 40 Years GENEVA NY SHOPPING CENTER - GLOVERSVILLE 139,429 629,081 768,510 130,368 1974 Dec 88 40 Years GLOVERSVILLE NY MCKINLEY PLAZA 1,246,680 5,079,743 6,326,423 707,955 1991 Jun 92 40 Years HAMBURG NY CAYUGA PLAZA 1,397,708 6,009,337 7,407,045 1,208,666 1969 May 89 40 Years ITHACA NY SHOPS @ SENECA MALL 1,545,838 6,535,120 8,080,958 633,061 1971 Aug 93 40 Years LIVERPOOL NY TRANSIT ROAD PLAZA 424,634 1,885,167 2,309,801 178,279 1971 Aug 93 40 Years LOCKPORT NY SHOPPING CENTER - MARCY 400,000 2,326,024 2,726,024 744,201 1971 May 86 35 Years MARCY NY WALLKILL PLAZA 2,445,200 8,643,792 11,088,992 333,776 1986 Dec 95 40 Years MIDDLETOWN NY ROCKLAND PLAZA 3,990,842 8,747,476 12,738,318 3,134,331 1963 Jan 83 40 Years NANUET NY SOUTH PLAZA 508,013 2,590,971 3,098,984 1,003,554 1967 Apr 83 40 Years NORWICH NY WESTGATE PLAZA - ONEONTA 142,821 1,441,172 1,583,993 522,468 1967 Jan 84 40 Years ONEONTA NY OSWEGO PLAZA 250,000 3,651,412 3,901,412 1,219,684 1966 Jan 77 40 Years OSWEGO NY MOHAWK ACRES 241,606 2,764,070 3,005,676 820,374 1965 Feb 84 40 Years ROME NY MONTGOMERY WARD 93,341 714,842 808,183 248,249 1965 Jan 84 40 Years ROME NY PRICE CHOPPER PLAZA 933,792 3,735,170 4,668,962 369,964 1988 Aug 93 40 Years ROME NY WESTGATE MANOR PLAZA - ROME 77,208 830,998 908,206 234,634 1961 Jan 86 40 Years ROME NY NORTHLAND 16,182 1,045,717 1,061,899 289,033 1962 Jan 73 40 Years WATERTOWN NY HARBOR PLAZA 388,997 1,701,107 2,090,104 282,162 1988 Feb 91 40 Years ASHTABULA OH BELPRE PLAZA 2,200,310 2,200,310 484,545 1969 Jun 88 40 Years BELPRE OH SOUTHWOOD PLAZA 707,073 2,174,561 2,881,634 570,241 1961 May 90 40 Years BOWLING GREEN OH BRENTWOOD PLAZA 2,050,969 8,427,099 10,478,068 673,922 1957 May 94 40 Years CINCINNATI OH DELHI SHOPPING CENTER 2,300,029 9,218,117 11,518,146 259,810 1973,85,87 May 96 40 Years CINCINNATI OH WESTERN VILLAGE SHOPPING CENTER 1,321,484 5,401,963 6,723,447 430,829 1960 May 94 40 Years CINCINNATI OH SOUTH TOWNE CENTRE 4,737,368 11,103,931 15,841,299 1,524,737 1972 Mar 92 40 Years DAYTON OH HERITAGE SQUARE 1,749,182 7,071,634 8,820,816 725,931 1959 Aug 93 40 Years DOVER OH MIDWAY CROSSING 1,944,200 7,776,800 9,721,000 300,556 1986 Dec 95 40 Years ELYRIA OH FAIRFIELD MALL 1,287,649 1,769,698 3,057,347 323,648 1978 May 90 40 Years FAIRFIELD OH SILVER BRIDGE PLAZA 919,022 4,650,281 5,569,303 1,519,649 1972 Dec 86 40 Years GALLIPOLIS OH SHOPPING CENTER - GENOA 96,001 1,016,349 1,112,350 162,159 1987 Mar 91 40 Years GENOA OH PARKWAY PLAZA 950,667 2,458,212 3,408,879 449,746 1955 Sep 89 40 Years MAUMEE OH NEW BOSTON SHOPPING CENTER 2,102,371 9,270,492 11,372,863 1,029,537 1991 Feb 93 40 Years NEW BOSTON OH MARKET PLACE 597,923 4,099,549 4,697,472 634,857 1972 Nov 91 40 Years PIQUA OH CENTRAL AVE MARKET PLACE 1,046,480 2,132,889 3,179,369 355,838 1968 Aug 90 40 Years TOLEDO OH BETHEL PARK PLAZA 861,539 9,951,475 10,813,014 31,098 1965 May 97 40 Years BETHEL PARK PA DILLSBURG SHOPPING CENTER 1,166,376 4,665,505 5,831,881 92,286 1994 Oct 96 40 Years DILLSBURG PA NEW GARDEN SHOPPING CENTER 907,130 3,141,296 4,048,426 17,340 1979 Apr 97 40 Years KENNETT SQUARE PA STONEMILL PLAZA 1,407,975 5,682,786 7,090,761 501,352 1988 Jan 94 40 Years LANCASTER PA CROSSROADS PLAZA 384,882 1,346,493 1,731,375 288,844 1975 Nov 88 40 Years MT. PLEASANT PA IVYRIDGE SHOPPING CENTER 1,504,080 6,289,397 7,793,477 302,764 1963 Aug 95 40 Years PHILADELPHIA PA ROOSEVELT MALL ANNEX 159,703 1,166,584 1,326,287 560,764 1958 Apr 74 40 Years PHILADELPHIA PA ROOSEVELT MALL NE 8,988,452 8,988,452 4,282,633 1964 Jan 64 40 Years PHILADELPHIA PA STRAWBRIDGE'S 605,607 3,923,050 4,528,657 3,923,050 1964 Jan 64 35 Years PHILADELPHIA PA ST MARY'S PLAZA 977,711 4,013,146 4,990,857 277,305 1970 Dec 94 40 Years ST MARY'S PA NORTHLAND CENTER 1,198,947 4,882,558 6,081,505 645,204 1988 Jun 92 40 Years STATE COLLEGE PA SHOPS AT PROSPECT 741,941 2,979,823 3,721,764 148,082 1994 Jul 95 40 Years WEST HEMPFIELD PA YORK MARKETPLACE 3,199,353 13,156,584 16,355,937 727,224 1955 May 95 40 Years YORK PA CONGRESS CROSSING 1,098,351 6,817,006 7,915,357 923,779 1990 Mar 92 40 Years ATHENS TN GREENEVILLE COMMONS 1,075,200 7,907,956 8,983,156 1,073,128 1990 Mar 92 40 Years GREENEVILLE TN KINGS GIANT SHOPPING CENTER 2,693,478 2,693,478 348,423 1970 Sep 92 40 Years KINGSPORT TN GEORGETOWN SQUARE 1,166,924 4,876,331 6,043,255 527,474 1986 Sep 93 40 Years MURFREESBORO TN SHOPPING CENTER - COLONIAL HTS 290,000 792,441 1,082,441 254,713 1972 May 86 35 Years COLONIAL HEIGHTS VA HANOVER SQUARE SHOPPING CENTER 1,778,701 7,309,083 9,087,784 882,224 1991 Jan 93 40 Years MECHANICSVILLE VA VICTORIAN SQUARE 3,548,432 14,293,560 17,841,992 1,198,697 1991 Mar 94 40 Years MIDLOTHIAN VA CAVE SPRING CORNERS SHOPPING CENTER 1,059,798 4,239,192 5,298,990 13,247 1969 Jun 97 40 Years ROANOKE VA SHOPPING CENTER - SPOTSYLVANIA 250,000 1,595,352 1,845,352 454,512 1970 May 86 35 Years SPOTSYLVANIA VA RIDGEVIEW CENTRE 2,707,679 4,894,185 7,601,864 617,486 1990 Jul 92 40 Years WISE VA MOUNDSVILLE PLAZA 228,283 6,718,382 6,946,665 716,558 1961 Dec 88 40 Years MOUNDSVILLE WV GRAND CENTRAL PLAZA 4,511,483 4,511,483 991,379 1986 Jun 88 40 Years PARKERSBURG WV KMART PLAZA 664,121 2,696,605 3,360,726 300,757 1975 Feb 93 40 Years VIENNA WV Vacant Land ************************** 1 NORTH CENTRAL AVENUE 17,197 17,197 Jul 72 HARTSDALE NY ------------ -------------- -------------- ------------ $232,501,644 $1,045,273,396 $1,277,775,040 $105,866,380 ============ ============== ============== ============
(1) Aggregate cost is the same for Federal income tax purposes NEW PLAN REALTY TRUST REAL ESTATE AND ACCUMULATED DEPRECIATION SCHEDULE III JULY 31, 1997 (continued) Reconciliation of "Real Estate and Accumulated Depreciation": 1997 1996 1995 ---- ---- ---- INVESTMENT IN REAL ESTATE Balance at beginning of period $ 977,941,507 $ 765,080,457 $ 621,342,318 Additions during the period: Land 58,502,501 40,640,504 23,964,530 Buildings and improvements 246,887,815 177,887,917 120,636,110 -------------- ------------- ------------- 1,283,331,823 983,608,878 765,942,958 Less: Costs of assets sold and written-off 5,556,779 5,667,371 862,501 -------------- ------------- ------------- Balance at end of period $1,277,775,044 $ 977,941,507 $ 765,080,457 ============== ============= ============= ACCUMULATED DEPRECIATION Balance at beginning of period $82,523,169 $64,006,509 $ 49,101,916 Additions charged to operating expenses 24,620,418 19,724,387 14,968,266 -------------- ------------- ------------- 107,143,587 83,730,896 64,070,182 Less: Accumulated depreciation on assets sold and written-off 1,277,207 1,207,727 63,673 -------------- ------------- ------------- Balance at end of period $ 105,866,380 $ 82,523,169 $ 64,006,509 ============== ============= =============
NEW PLAN REALTY TRUST AND SUBSIDIARIES MORTGAGE LOANS ON REAL ESTATE SCHEDULE IV July 31, 1997 COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E COLUMN F COLUMN G -------- -------- ---------- -------- -------- -------- -------- Final Face Face Carrying Interest Maturity Periodic Amount of Amount of Description Rate Date Payment Terms Prior Liens Mortgages Mortgages ----------- -------- ---------- ---------------- ----------- --------- --------- Purchase money first mortgage, Interest payable collateralized by a shopping monthly, balance center in Connellsville, PA 10% 8/31/98 at maturity $5,420,000 $5,180,000 Purchase money first mortgage, Interest payable collateralized by a shopping monthly, $45,000 center in Whitesboro, NY 9.38% 7/25/98 principal per 4,610,000 4,205,000 month for 17 months, balance at maturity Leasehold mortgage Interest and collateralized principal payable by a tenant lease 11.5% 4/30/2004 monthly 258,843 236,860 Purchase money first mortgage $100,000 interest collateralized by a shopping center and principal in New City, NY 9.375% 7/27/2002 payable monthly, 10,350,000 10,350,000 balance at maturity Leasehold mortgage Interest and collateralized principal payable by a Tenant lease 12% 6/1/2001 monthly 1,000,000 890,273 Purchase money first mortgage Interest payable collateralized by a shopping monthly, balance center in Harrisonburg, VA 8.75% 7/23/98 at maturity 794,500 794,500 Purchase money first mortgage Interest payable collateralized by shopping quarterly and center in New Bern, NC 7.2% 5/9/2001 principal payable 750,000 750,000 at maturity Purchase money first mortgage Interest payable collateralized by shopping center monthly and in Hanover, PA 8.75% 7/23/2001 principal payable 700,000 700,000 at maturity ------- ------- Note--Column H is not applicable $23,883,343 $23,106,633 =========== ===========
Year Ended July 31, 1997 1996 1995 Balance, beginning of period $23,597,342 $22,873,504 $22,909,676 Additions during period: New mortgage loans 700,000 1,544,500 -- Reductions during period: Collection of principal (1,190,709) (820,662) (36,172) ------------ ----------- ----------- Balance, end of period $23,106,633 $23,597,342 $22,873,504 =========== =========== =========== EXHIBIT INDEX Page Number in Signed Exhibit No. Description Registration Statement *3.1 Amended and Restated Declaration of Trust of New Plan Realty Trust filed as Exhibit 99.3 to the Registrant's Form 8-K dated May 24, 1996. 4.1 Specimen Certificate for Shares of Beneficial Interest. *4.2 Certificate of Designation Supplementing the Amended and Restated Declaration of Trust of New Plan Realty Trust filed as Exhibit 4.1 to the Registrant's Form 8-K dated July 2, 1997. 4.3 Deposit Agreement dated as of July 3, 1997, among New Plan Realty Trust and BankBoston N.A. 4.4 Specimen Certificate for 7.80% Series A Cumulative Step-Up Premium Rate Preferred Shares. 4.5 Specimen Depositary Receipt. *9.1 Agreement dated February 26, 1979 among William Newman, Joseph Newman and Melvin Newman filed as Exhibit 9 to Registration Statement No. 2- 63669. *9.2 Purchase Agreement dated December 18, 1990 between New Plan Realty Trust and Beleggingsmaatschappij Midas B.V. (presently known as Stichting Pensioenfonds) filed as Exhibit 9.5 to the Registrant's Form 10-K for the fiscal year ended July 31, 1994. *9.3 Termination of Purchase Agreement dated December 17, 1981 between New Plan Realty Trust and Merchant Navy Officers Pension Fund Trustees Limited (presently known as MNOPF Trustees Limited) filed as Exhibit 9.6 to the Registrant's Form 10-K for the fiscal year ended July 31, 1995. 10.1 Credit Agreement by and among New Plan Realty Trust, the Lenders party thereto and The Bank of New York, as agent, dated as of October 29, 1996. *10.2 Senior Securities Indenture between New Plan Realty Trust and The First National Bank of Boston, as Trustee, dated as of March 29, 1995 filed as Exhibit 4.2 to Registration Statement No. 33-60045. *10.3 7.75% Senior Note Due April 6, 2005 filed as Exhibit 10.7 to the Registrant's Form 10-K for the fiscal year ended July 31, 1995. *10.4 6.8% Senior Note Due May 15, 2002 filed as Exhibit 10.8 to the Registrant's Form 10-K for the fiscal year ended July 31, 1995. *10.5 Distribution Agreement dated May 24, 1996 by and among New Plan Realty Trust, Lehman Brothers, Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and Smith Barney Inc., filed as Exhibit 1 to the Registrant's Form 8-K dated May 24, 1996. *10.6 Form of Medium Term Note (Fixed Rate) filed as Exhibit 99.1 to the Registrant's Form 8-K dated May 24, 1996. *10.7 Form of Medium Term Note (Floating Rate) filed as Exhibit 99.2 to the Registrant's Form 8-K dated May 24, 1996. *10.8 Distribution Agreement dated December 6, 1996 by and among New Plan Realty Trust, Lehman Brothers, Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Salomon Brothers Inc and Smith Barney Inc., filed as Exhibit 1 to the Registrant's Form 8-K dated December 12, 1996. *10.9 Form of Medium Term Note (Fixed Rate) filed as Exhibit 4.1 to the Registrant's Form 8-K dated December 12, 1996. *10.10 Form of Medium Term Note (Floating Rate) filed as Exhibit 4.2 to the Registrant's Form 8-K dated December 12, 1996. 11 Statement of Computation of Earnings Per Share for the Twelve Months Ended July 31, 1997. 12 Ratio of Earnings to Fixed Charges. 21 Subsidiaries of the Registrant. 23 Consent of Coopers & Lybrand L.L.P. dated October 9, 1997. 27(1) Financial Data Schedule. *Incorporated herein by reference as above indicated. (1) Filed as exhibit to electronic filing only. EX-4.1 2 -------- | Number | | | | UM | -------- PROVISIONS RELATING TO REDEMPTION AND PROHIBITION OF TRANSFER OF SHARES Subsequent to the Trust first becoming qualified for certain tax benefits under the Internal Revenue Code, if necessary to effect compliance by the Trust with certain requirements of the Internal Revenue Code, the Shares represented by this Certificate are subject to redemption by the vote of two-thirds (2/3) of the Trustees of the Trust and the transfer thereof may be prohibited upon the terms and conditions set forth in the Declaration of Trust. The Trust will furnish a copy of such terms and conditions to the registered holder of this Certificate upon request and without charge. -------- | Shares | | | | | -------- New Plan Realty Trust A BUSINESS TRUST ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS Certificate for Shares of Beneficial Interest. This Certificate is CUSIP 648059 10 3 transferable in SEE REVERSE FOR CERTAIN DEFINITIONS Boston, Massachusetts and in New York, New York Fully paid and non-assessable shares of beneficial interest of no par value. This Certifies that is the Owner of New Plan Realty Trust is established as a Massachusetts business trust (hereinafter called the "Trust") under a Declaration of Trust made July 31, 1972, as amended from time to time. The holder and every transferee or assignee of this Certificate or of the Shares represented hereby or any interest therein accepts and agrees to be bound by the provisions of such Declaration of Trust and all amendments thereto (copies of which are filed with the Secretary of the Commonwealth of Massachusetts and recorded in the office of the City Clerk, City of Boston, Suffolk County, Commonwealth of Massachusetts) and such By-Laws of the Trust as may from time to time be adopted by the Trustees (copies of which will be on file at the principal office of the Trust), all of which provisions are hereby incorporated by reference as fully as if set forth herein in their entirety. The Declaration of Trust provides that obligations thereunder are not personally binding upon the Trustees, and that no Trustee, shareholder, officer, employee or agent of the Trust shall be held to any personal liability, nor shall resort be had to the private property of any Trustee, shareholder, officer, employee or agent of the Trust. This Certificate and the Shares represented hereby are transferable on the books of the Trust by the registered holder hereof in person or by duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate is issued by the Trustees of New Plan Realty Trust, acting not individually but as such Trustees, and is not valid until countersigned by the Transfer Agent and registered by the Registrar. Witness the seal of the Trust and the signatures of its duly authorized officers. Countersigned and Registered: Dated: The First National Bank of Boston Transfer Agent and Registrar by Treasurer Chief Executive Officer Authorized Signature NEW PLAN REALTY TRUST The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ...........Custodian........... (Cust) (Minor) under Uniform Gifts to Minors Act............................................... (State) Additional abbreviations may also be used though not in the above list. For Value received, __________________ hereby sell, assign and transfer unto _______________________________________________________________________ Please Insert Social Security or Other Identifying Number of Assignee ____________________________________________________________________________ ____________________________________________________________________________ (Please Print or Typewrite Name and Address of Assignee) ____________________________________________________________________________ ____________________________________________________________________________ _____________________ Shares of Beneficial Interest represented by the within certificate and do hereby irrevocably constitute and appoint _________________ Attorney to transfer the same on the books of the within- named Trust with full power of substitution in the premises. Dated, ________________ (SIGN HERE) _________________________________________________________ NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. EX-4.3 3 DEPOSIT AGREEMENT DEPOSIT AGREEMENT, dated as of July 3, 1997, among NEW PLAN REALTY TRUST, a Massachusetts business trust (the "Company") and BankBoston N.A., a national banking association, as Depositary, and all holders from time to time of Receipts (as hereinafter defined) issued hereunder. WITNESSETH: WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of the Company's Preferred Shares (as hereinafter defined) with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of the Receipts evidencing Depositary Shares representing a fractional interest in the Preferred Shares deposited; and WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement; NOW, THEREFORE, in consideration of the premises contained herein, it is agreed by and among the parties hereto as follows: ARTICLE I DEFINITIONS The following definitions shall apply to the respective terms (in the singular and plural forms of such terms) used in this Deposit Agreement and the Receipts: SECTION 1.1 "Certificate of Designation" shall mean the Certificate of Designation supplementing the Declaration of Trust of the Company authorized by resolution of the Board of Trustees of the Company on June 30, 1997 and to be filed with the office of the Secretary of State of the Commonwealth of Massachusetts establishing the Preferred Shares as a series of preferred shares of the Company. SECTION 1.2 "Company" shall mean New Plan Realty Trust, a Massachusetts business trust, and its successors. SECTION 1.3 "Corporate Office" shall mean the corporate office of the Depositary at which at any particular time its business in respect of matters governed by this Deposit Agreement shall be administered, which at the date of this Deposit Agreement is located at 150 Royall Street, Canton, Massachusetts 02021 and c/o Securities Transfer & Reporting Services, Inc., 55 Broadway, 3rd Floor, New York, New York 10006. SECTION 1.4 "Declaration of Trust" shall mean the Amended and Restated Declaration of Trust, as amended from time to time, of the Company. SECTION 1.5 "Deposit Agreement" shall mean this agreement, as the same may be amended, modified or supplemented from time to time. SECTION 1.6 "Depositary" shall mean BankBoston N.A., a company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000, and any successor as depositary hereunder. SECTION 1.7 "Depositary Share" shall mean a fractional interest of 1/10 of a Preferred Share deposited with the Depositary hereunder and the same proportionate interest in any and all other property received by the Depositary in respect of such Preferred Share and held under this Deposit Agreement, as all evidenced by the Receipts issued hereunder. Subject to the terms of this Deposit Agreement, each owner of a Depositary Share is entitled, proportionately, to all the rights, preferences and privileges of the Preferred Share represented by such Depositary Share, including, if any, the dividend, voting, redemption, conversion and liquidation rights contained in the Certificate of Designation. SECTION 1.8 "Depositary's Agent" shall mean an agent appointed by the Depositary as provided, and for the purposes specified, in Section 7.5. SECTION 1.9 "Preferred Shares" shall mean the Company's 7.80% Series A Cumulative Step-Up Premium Rate Preferred Shares, $1.00 par value per share. SECTION 1.10 "Receipt" shall mean a Depositary Receipt issued hereunder to evidence one or more Depositary Shares, whether in definitive or temporary form, substantially in the form as set forth as Exhibit A hereto. SECTION 1.11 "record date" shall mean the date fixed pursuant to Section 4.4. SECTION 1.12 "record holder" or "holder" as applied to a Receipt shall mean the person in whose name a Receipt is registered on the books maintained by the Depositary for such purpose. SECTION 1.13 "Registrar" shall mean BankBoston N.A. or any bank or trust company appointed to register ownership and transfers of Receipts or the deposited Preferred Shares, as the case may be, as herein provided. SECTION 1.14 "Securities Act" shall mean the Securities Act of 1933, as amended. SECTION 1.15 "Transfer Agent" shall mean BankBoston N.A. or any bank or trust company appointed to transfer the Receipts or the deposited Preferred Shares, as the case may be, as herein provided. ARTICLE II FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS Section 2.1 Form and Transferability of Receipts. Definitive Receipts shall be engraved or printed or lithographed with steel-engraved borders and underlying tint and shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Company, delivered in compliance with Section 2.2, shall execute and deliver temporary Receipts which may be printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the persons executing such Receipts may determine, as evidenced by their execution of such Receipts. If temporary Receipts are issued, the Company and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at the Corporate Office or such other offices, if any, as the Depositary may designate, without charge to the holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered temporary Receipt or Receipts. Such exchange shall be made at the Company's expense and without any charge therefor. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits under this Deposit Agreement, and with respect to the Preferred Shares deposited, as definitive Receipts. Receipts shall be executed by the Depositary by the manual or facsimile signature of a duly authorized signatory of the Depositary, provided that if a Registrar (other than the Depositary) shall have been appointed then such Receipts shall also be countersigned by manual signature of a duly authorized signatory of the Registrar. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed as provided in the preceding sentence. The Depositary shall record on its books each Receipt executed as provided above and delivered as hereinafter provided. Except as the Depositary may otherwise determine, Receipts shall be in denominations of any number of whole Depositary Shares. All Receipts shall be dated the date of their issuance. Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or regulation or with the rules and regulations of any securities exchange upon which the Preferred Shares, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject. Title to any Receipt (and to the Depositary Shares evidenced by such Receipt), that is properly endorsed or accompanied by a properly executed instrument of transfer or endorsement shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that until a Receipt shall be transferred on the books of the Depositary as provided in Section 2.4, the Depositary may, notwithstanding any notice to the contrary, treat the record holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions, the exercise of any conversion rights or to any notice provided for in this Deposit Agreement and for all other purposes. SECTION 2.2 Deposit of Preferred Shares; Execution and Delivery of Receipts in Respect Thereof. Upon consummation of the public offering, pursuant to which the Depositary Shares are expected to be sold, the Company shall deliver to the Depositary a certificate or certificates, registered in the name of the Depositary and evidencing up to 150,000 Preferred Shares, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with (i) all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement and (ii) a written order of the Company directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order a Receipt or Receipts for the Depositary Shares representing such deposited Preferred Shares. At such time, the Depositary shall acknowledge receipt of the deposited Preferred Shares and related documentation and agrees to hold such deposited Preferred Shares in an account to be established by the Depositary at the Corporate Office or at such other office as the Depositary shall determine. The Company hereby appoints the Depositary as the Registrar and Transfer Agent for Preferred Shares deposited hereunder and the Depositary hereby accepts such appointment and, as such, will reflect changes in the number of shares (including any fractional shares) of deposited Preferred Shares held by it by notation, book-entry or other appropriate method. If required by the Depositary, Preferred Shares presented for deposit by the Company at any time, whether or not the register of shareholders of the Company is closed, shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, that will provide for the prompt transfer to the Depositary or its nominee of any dividend or right to subscribe for additional Preferred Shares or to receive other property that any person in whose name the Preferred Shares is or has been registered may thereafter receive upon or in respect of such deposited Preferred Shares, or in lieu thereof such agreement of indemnity or other agreements as shall be satisfactory to the Depositary. Upon receipt by the Depositary of a certificate or certificates for Preferred Shares deposited hereunder, together with the other documents specified above, and upon registering such Preferred Shares in the name of the Depositary, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver to, or upon the order of, the person or persons named in the written order delivered to the Depositary referred to in the first paragraph of this Section 2.2, a Receipt or Receipts for the number of whole Depositary Shares representing the Preferred Shares so deposited and registered in such name or names as may be requested by such person or persons. The Depositary shall execute and deliver such Receipt or Receipts at the Corporate Office, except that, at the request, risk and expense of any person requesting such delivery, such delivery may be made at such other place as may be designated by such person. Other than in the case of splits, combinations or other reclassifications affecting the Preferred Shares, or in the case of dividends or other distributions of Preferred Shares, if any, there shall be deposited hereunder not more than the number of shares constituting the Preferred Shares as set forth in the Certificate of Designation, as such may be amended. The Company shall deliver to the Depositary from time to time such quantities of Receipts as the Depositary may request to enable the Depositary to perform its obligations under this Deposit Agreement. SECTION 2.3 Optional Redemption of Preferred Shares for Cash. Whenever the Company shall elect to redeem deposited Preferred Shares for cash in accordance with the provisions of the Certificate of Designation, it shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 40 days' prior written notice of the date of such proposed redemption and of the number of such Preferred Shares held by the Depositary to be redeemed and the applicable redemption price, as set forth in the Certificate of Designation, including the amount, if any, of accrued and unpaid dividends to the date of such redemption. The Depositary shall mail, first-class postage prepaid, notice of the redemption of Preferred Shares and the proposed simultaneous redemption of the Depositary Shares representing the Preferred Shares to be redeemed, not less than 30 and not more than 60 days prior to the date fixed for redemption of such Preferred Shares and Depositary Shares (the "cash redemption date"), to the holders of record on the record date fixed for such redemption pursuant to Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such holders as the same appears on the records of the Depositary, but neither failure to mail any such notice to one or more of such holders nor any defect in any such notice shall affect the sufficiency of the proceedings for redemption as to other holders. The Company shall provide the Depositary with such notice, and each such notice shall state: the cash redemption date; the cash redemption price; the number of deposited Preferred Shares and Depositary Shares to be redeemed; if fewer than all the Depositary Shares held by any holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed; the place or places where Receipts evidencing Depositary Shares to be redeemed are to be surrendered for payment of the cash redemption price; and that from and after the cash redemption date dividends in respect of the Preferred Shares represented by the Depositary Shares to be redeemed will cease to accrue. If fewer than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall be selected pro rata (as nearly as may be practicable without creating fractional Depositary Shares) or by any other equitable method determined by the Company. The Company shall also cause notice of redemption to be published in a newspaper of general circulation in The City of New York at least once a week for two successive weeks commencing not less than 30 nor more than 60 days prior to the cash redemption date. In the event that notice of redemption has been made as described in the immediately preceding paragraph and the Company shall then have paid in full to the Depositary the cash redemption price (determined pursuant to the Certificate of Designation) of the Preferred Shares deposited with the Depositary to be redeemed (including any accrued and unpaid dividends to the date of redemption), the Depositary shall redeem the number of Depositary Shares representing such Preferred Shares so called for redemption by the Company and from and after the cash redemption date (unless the Company shall have failed to redeem the Preferred Shares to be redeemed by it as set forth in the Company's notice provided for in the preceding paragraph) all dividends in respect of the Preferred Shares called for redemption shall cease to accrue, the Depositary Shares called for redemption shall be deemed no longer to be outstanding and all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the cash redemption price and any money or other property to which holders of such Receipts were entitled upon such redemption) shall, to the extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with said notice of the Receipts evidencing such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed at a cash redemption price of $50.00 per Depositary Share plus 1/10 of any other money and other property payable in respect of such Preferred Shares. The foregoing shall be further subject to the terms and conditions of the Certificate of Designation. If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption, the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary, together with payment of the cash redemption price for and all other amounts payable in respect of the Depositary Shares called for redemption, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption. SECTION 2.4 Registration of Transfer of Receipts. The Company hereby appoints the Depositary as the Registrar and Transfer Agent for the Receipts and the Depositary hereby accepts such appointment and, as such, shall register on its books from time to time transfers of Receipts upon, any surrender thereof by the holder in person or by a duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer or endorsement, together with evidence of the payment of any transfer taxes as may be required by law. Upon such surrender, the Depositary shall execute a new Receipt or Receipts and deliver the same to or upon the order of the person entitled thereto evidencing the same aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered. SECTION 2.5 Combinations and Split-ups of Receipts. Upon surrender of a Receipt or Receipts at the Corporate Office or such other office as the Depositary may designate for the purpose of effecting a split- up or combination of Receipts, subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in the authorized denominations requested evidencing the same aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered. SECTION 2.6 Surrender of Receipts and Withdrawal of Preferred Shares. Any holder of a Receipt or Receipts may withdraw any or all of the deposited Preferred Shares represented by the Depositary Shares evidenced by such Receipt or Receipts and all money and other property, if any, represented by such Depositary Shares by surrendering such Receipt or Receipts at the Corporate Office or at such other office as the Depositary may designate for such withdrawals, provided that a holder of a Receipt or Receipts may not withdraw such Preferred Shares (or money and other property, if any, represented thereby) which has previously been called for redemption. After such surrender, without unreasonable delay, the Depositary shall deliver to such holder, or to the person or persons designated by such holder as hereinafter provided, the number of whole or fractional shares of such Preferred Shares and all such money and other property, if any, represented by the Depositary Shares evidenced by the Receipt or Receipts so surrendered for withdrawal, but holders of such whole or fractional Preferred Shares will not thereafter be entitled to deposit such Preferred Shares hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts delivered by the holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole or fractional shares of deposited Preferred Shares to be withdrawn, the Depositary shall at the same time, in addition to such number of whole or fractional Preferred Shares and such money and other property, if any, to be withdrawn, deliver to such holder, or (subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing such excess number of Depositary Shares. Delivery of such Preferred Shares and such money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deemed appropriate, which, if required by the Depositary, shall be properly endorsed or accompanied by proper instruments of transfer. If the deposited Preferred Shares and the money and other property being withdrawn are to be delivered to a person or persons other than the record holder of the Receipt or Receipts being surrendered for withdrawal of Preferred Shares, such holder shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by such holder or withdrawal of such Preferred Shares be properly endorsed in blank or accompanied by a properly executed instrument of transfer or endorsement in blank. The Depositary shall deliver the deposited Preferred Shares and the money and other property, if any, represented by the Depositary Shares evidenced by Receipts surrendered for withdrawal at the Corporate Office, except that, at the request, risk and expense of the holder surrendering such Receipt or Receipts and for the account of the holder thereof, such delivery may be made at such other place as may be designated by such holder. SECTION 2.7 Limitations on Execution and Delivery, Transfer, Split-up, Combination, Surrender and Exchange of Receipts. As a condition precedent to the execution and delivery, transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary's Agents or the Company may require any or all of the following: (i) payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made such payment, the reimbursement to it) of any tax or other governmental charge with respect thereto (including any such tax or charge with respect to the Preferred Shares being deposited or withdrawn); (ii) the production of proof satisfactory to it as to the identity and genuineness of any signature (or the authority of any signature); and (iii) compliance with such regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Deposit Agreement as may be required by any securities exchange upon which the deposited Preferred Shares, the Depositary Shares or the Receipts may be included for quotation or listed. The deposit of Preferred Shares may be refused, the delivery of Receipts against Preferred Shares may be suspended, the transfer of Receipts may be refused, and the transfer, split-up, combination, surrender, exchange or redemption of outstanding Receipts may be suspended (i) during any period when the register of shareholders of the Company is closed or (ii) if any such action is deemed reasonably necessary or advisable by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provisions of this Deposit Agreement. SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated or destroyed or lost or stolen, the Depositary in its discretion may execute and deliver a Receipt of like form and tenor in exchange and substitution for such mutilated Receipt or in lieu of and in substitution for such destroyed, lost or stolen Receipt, provided that the holder thereof provides the Depositary with (i) evidence reasonably satisfactory to the Depositary of such destruction, loss or theft of such Receipt, of the authenticity thereof and of his ownership thereof and (ii) reasonable indemnification satisfactory to the Depositary and the Company. SECTION 2.9 Cancellation and Destruction of Surrendered Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized to destroy such Receipts so cancelled. SECTION 2.10 Preferred Shares and Depositary Shares Constituting Excess Shares. For all purposes of Section 8.3 of the Company's Declaration of Trust, the holders of Depositary Receipts evidencing Depositary Shares shall be deemed to own that number and value of the Preferred Shares represented by the Depositary Shares evidenced by such Receipts, and the provisions of such Section 8.3 shall apply to such holders, Depositary Receipts and Depositary Shares as if (i) the holder owned Preferred Shares, (ii) the Depositary Receipts evidenced Preferred Shares, and (iii) the Depositary Shares were Preferred Shares, mutatis mutandis. The Depositary and the Company will cooperate in good faith to carry out the terms of this Section 2.10, subject to the other terms and provisions of this Deposit Agreement. ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY SECTION 3.1 Filing Proofs, Certificates and Other Information. Any person presenting Preferred Shares for deposit or any holder of a Receipt may be required from time to time to file such proof of residence or other information, to execute such certificates and to make such representations and warranties as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold or delay the delivery of any Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of the deposited Preferred Shares represented by the Depositary Shares evidenced by any Receipt, the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof, until such proof or other information is filed, such certificates are executed or such representations and warranties are made. SECTION 3.2 Payment of Fees and Expenses. Holders of Receipts shall be obligated to make payments to the Depositary of certain fees and expenses, as provided in Section 5.7, or provide evidence reasonably satisfactory to the Depositary that such fees and expenses have been paid. Until such payment is made, transfer of any Receipt or any withdrawal of the Preferred Shares or money or other property, if any, represented by the Depositary Shares evidenced by such Receipt may be refused, any dividend or other distribution may be withheld, and any part or all of the Preferred Shares or other property represented by the Depositary Shares evidenced by such Receipt may be sold for the account of the holder thereof (after attempting by reasonable means to notify such holder a reasonable number of days prior to such sale). Any dividend or other distribution so withheld and the proceeds of any such sale may be applied to any payment of such fees or expenses, the holder of such Receipt remaining liable for any deficiency. SECTION 3.3 Representations and Warranties as to Preferred Shares. In the case of the initial deposit of the Preferred Shares hereunder, the Company and, in the case of subsequent deposits thereof, each person so depositing Preferred Shares under this Deposit Agreement shall be deemed thereby to represent and warrant that such Preferred Shares and each certificate therefor are valid and that the person making such deposit is duly authorized to do so. The Company hereby further represents and warrants that such Preferred Shares, when issued, will be validly issued, fully paid and nonassessable. Such representations and warranties shall survive the deposit of the Preferred Shares and the issuance of Receipts. SECTION 3.4 Representation and Warranty as to Receipts and Depositary Shares. The Company hereby represents and warrants that the Receipts, when issued, will evidence legal and valid interests in the Depositary Shares and each Depositary Share will represent a legal and valid 1/10 fractional interest in a deposited Preferred Share. Such representation and warranty shall survive the deposit of the Preferred Shares and the issuance of Receipts evidencing the Depositary Shares. ARTICLE IV THE PREFERRED SHARES; NOTICES SECTION 4.1 Cash Distributions. Whenever the Depositary shall receive any cash dividend or other cash distribution on the deposited Preferred Shares, including any cash received upon redemption of any Preferred Shares pursuant to Section 2.3, the Depositary shall, subject to Section 3.2, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.4 such amounts of such sums as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders; provided, however, that in case the Company or the Depositary shall be required to and shall withhold from any cash dividend or other cash distribution in respect of the Preferred Shares represented by the Receipts held by any holder an amount on account of taxes, the amount made available for distribution or distributed in respect of Depositary Shares represented by such Receipts subject to such withholding shall be reduced accordingly. The Depositary shall distribute or make available for distribution, as the case may be, only such amount, however, as can be distributed without attributing to any holder of Receipts a fraction of one cent, and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by the Depositary for distribution to record holders of Receipts then outstanding. SECTION 4.2 Distributions Other Than Cash. Whenever the Depositary shall receive any distribution other than cash on the deposited Preferred Shares, the Depositary shall, subject to Section 3.2, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.4 such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders, in any manner, that the Depositary and the Company may deem equitable and practicable for accomplishing such distribution. If, in the opinion of the Depositary after consultation with the Company, such distribution cannot be made proportionately among such record holders, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes), the Depositary deems, after consultation with the Company, such distribution not to be feasible, the Depositary may, with the approval of the Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received or any part thereof, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Section 3.2, be distributed or made available for distribution, as the case may be, by the Depositary to record holders of Receipts as provided by Section 4.1 in the case of a distribution received in cash. The Company shall not make any distribution of such securities or property to the holders of Receipts unless the Company shall have provided to the Depositary an opinion of counsel stating that such securities or property have been registered under the Securities Act or do not need to be registered. SECTION 4.3 Subscription Rights, Preferences or Privileges. If the Company shall at any time offer or cause to be offered to the persons in whose names deposited Preferred Shares are registered on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, preferences or privileges of any other nature, such rights, preferences or privileges shall in each such instance be made available by the Depositary to the record holders of Receipts in such manner as the Company shall instruct (including by the issue to such record holders of warrants representing such rights, preferences or privileges); provided, however, that (a) if at the time of issue or offer of any such rights, preferences or privileges the Company determines upon advice of its legal counsel that it is not lawful or feasible to make such rights, preferences or privileges available to the holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the extent instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges, the Depositary shall then, if so instructed by the Company, and if applicable laws or the terms of such rights, preferences or privileges so permit, sell such rights, preferences or privileges of such holders at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Section 3.1 and Section 3.2, be distributed by the Depositary to the record holders of Receipts entitled thereto as provided by Section 4.1 in the case of a distribution received in cash. The Company shall not make any distribution of such rights, preferences or privileges, unless the Company shall have provided to the Depositary an opinion of counsel stating that such rights, preferences or privileges have been registered under the Securities Act or do not need to be registered. If registration under the Securities Act of the securities to which any rights, preference or privileges relate is required in order for holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, the Company agrees that it will promptly file a registration statement pursuant to the Securities Act with respect to such rights, preferences or privileges and securities and use its best efforts and take all steps available to it to cause such registration statement to become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the holders of Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such a registration statement shall have become effective or unless the offering and sale of such securities to such holders are exempt from registration under the provisions of the Securities Act and the Company shall have provided to the Depositary an opinion of counsel to such effect. If any other action under the law of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to holders of Receipts, the Company agrees to use its best efforts to take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. SECTION 4.4 Notice of Dividends; Fixing of Record Date for Holders of Receipts. Whenever any cash dividend or other cash distribution shall become payable, any distribution other than cash shall be made, or any rights, preferences or privileges shall at any time be offered, with respect to the deposited Preferred Shares, or whenever the Depositary shall receive notice of (i) any meeting at which holders of such Preferred Shares are entitled to vote or of which holders of such Preferred Shares are entitled to notice or (ii) any election on the part of the Company to redeem any such Preferred Shares, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Preferred Shares) for the determination of the holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, to give instructions for the exercise of voting rights at any such meeting or to receive notice of such meeting or whose Depositary Shares are to be so redeemed. SECTION 4.5 Voting Rights. Upon receipt of notice of any meeting at which the holders of deposited Preferred Shares are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the record holders of Receipts a notice, which shall be provided by the Company and which shall contain (i) such information as is contained in such notice of meeting, (ii) a statement that the holders of Receipts at the close of business on a specified record date fixed pursuant to Section 4.4 will be entitled, subject to any applicable provision of law, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Preferred Shares represented by their respective Depositary Shares and (iii) a brief statement as to the manner in which such instructions may be given. Upon the written request of a holder of a Receipt on such record date, the Depositary shall vote or cause to be voted the amount of Preferred Shares represented by the Depositary Shares evidenced by such Receipt in accordance with the instructions set forth in such request. To the extent such instructions request the voting of a fractional interest of a share of deposited Preferred Shares, the Depositary shall aggregate such interest with all other fractional interests resulting from requests with the same voting instructions and shall vote the number of whole votes resulting from such aggregation in accordance with the instructions received in such requests. Each Preferred Share is entitled to 10 votes and, accordingly, each Depositary Share is entitled to one vote. The Company hereby agrees to take all reasonable action that may be deemed necessary by the Depositary in order to enable the Depositary to vote such Preferred Shares or cause such Preferred Shares to be voted. In the absence of specific instructions from the holder of a Receipt, the Depositary will abstain from voting to the extent of the Preferred Shares represented by the Depositary Shares evidenced by such Receipt. The Depositary shall not be required to exercise discretion in voting any Preferred Shares represented by the Depositary Shares evidenced by such Receipt. SECTION 4.6 Changes Affecting Preferred Shares and Reclassifications, Recapitalization, etc. Upon any change in the liquidation preference or upon any split-up, combination or any other reclassification of Preferred Shares, or upon any recapitalization, reorganization, merger or consolidation affecting the Company or to which it is a party or sale of all or substantially all of the Company's assets, the Depositary shall, upon the instructions of the Company; (i) make such adjustments in (a) the fraction of an interest represented by one Depositary Share in one Preferred Share and (b) the ratio of the redemption price per Depositary Share to the redemption price of a Preferred Share, in each case as may be required to fully reflect the effects of such change in liquidation preference, split-up, combination of other reclassification of Preferred Shares, or of such recapitalization, reorganization, merger, consolidation or sale and (ii) treat any shares or other securities or property (including cash) that shall be received by the Depositary in exchange for or upon conversion of or in respect of the Preferred Shares as new deposited property under this Deposit Agreement, and Receipts then outstanding shall thenceforth represent the proportionate interests of holders thereof in the new deposited property so received in exchange for or upon conversion or in respect of such Preferred Shares. In any such case the Depositary may, in its discretion, with the approval of the Company, execute and deliver additional Receipts, or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited property. Anything to the contrary herein notwithstanding, holders of Receipts shall have the right from and after the effective date of any such change in the liquidation preference, split-up, combination or other reclassification of the Preferred Shares or any such recapitalization, reorganization, merger or consolidation or sale of all or substantially all the assets of the Company, to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the Preferred Shares represented thereby only into or for, as the case may be, the kind and amount of shares and other securities and property and cash into which the deposited Preferred Shares evidenced by such Receipts might have been converted or for which such Preferred Shares might have been exchanged or surrendered immediately prior to the effective date of such transaction. The Company shall cause effective provision to be made in the governing instrument of the resulting or surviving business entity (if other than the Company) for protection of such rights as may be applicable upon exchange of the deposited Preferred Shares for securities or property or cash or the surviving business entity in connection with the transactions set forth above. The Company shall cause any such surviving business entity (if other than the Company) expressly to assume the obligations of the Company hereunder. SECTION 4.7 Inspection of Reports. The Depositary shall make available for inspection by holders of Receipts at the Corporate Office and at such other places as it may from time to time deem advisable during normal business hours any reports and communications received from the Company that are both received by the Depositary as the holder of deposited Preferred Shares and made generally available to the holders of the Preferred Shares. In addition, the Depositary shall transmit certain notices and reports to the holders of Receipts as provided in Section 5.5. SECTION 4.8 List of Holders of Receipts. Promptly upon request from time to time by the Company, the Depositary shall furnish to the Company a list, as of a recent date specified by the Company, of the names, addresses and holdings of Depositary Shares of all persons in whose names Receipts are registered on the books of the Depositary. SECTION 4.9 Tax and Regulatory Compliance. The Depositary shall be responsible for (i) preparation and mailing of Internal Revenue Service Forms 1099 for all open and closed accounts, (ii) foreign tax withholding, (iii) back-up withholding (or any withholding as may be required at the then applicable rate) on dividends paid to eligible holders of Receipts, (iv) mailing Internal Revenue Service Forms W-9 to new holders of Receipts without a certified taxpayer identification number, (v) processing certified Internal Revenue Service Forms W-9, (vi) preparation and filing of state information returns and (vii) escheatment services. SECTION 4.10 Withholding. Notwithstanding any other provisions of this Deposit Agreement, in the event that the Depositary determines that any distribution in property is subject to any tax which the Depositary is obligated by law to withhold, the Depositary may dispose of all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes, by public or private sale, and the Depositary shall distribute the net proceeds of any such sale or the balance of any such property after deduction of such taxes to the holders of Receipts entitled thereto in proportion to the number of Depositary Shares held by them respectively. ARTICLE V THE DEPOSITARY AND THE COMPANY SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by the Depositary and the Registrar. The Depositary shall maintain at the Corporate Office facilities for the execution and delivery, transfer, surrender and exchange, split-up, combination and redemption of Receipts and deposit and withdrawal of Preferred Shares and at the offices of the Depositary's Agents, if any, facilities for the delivery, transfer, surrender and exchange, split-up, combination and redemption of Receipts and deposit and withdrawal of Preferred Shares, all in accordance with the provisions of this Deposit Agreement. The Depositary shall keep books at the Corporate Office for the registration and transfer of Receipts, which books at all reasonable times shall be open for inspection by the record holders of Receipts as provided by applicable law. The Depositary may close such books at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder. If the Receipts or the Depositary Shares evidenced thereby or the Preferred Shares represented by such Depositary Shares shall be listed in the New York Stock Exchange, Inc. on any other stock exchange, the Depositary may, with the approval of the Company, appoint a Registrar (acceptable to the Company) for registration of such Receipts or Depositary Shares in accordance with the requirements of such exchange. Such Registrar (which may be the Depositary if so permitted by the requirements of such exchange) may be removed and a substitute registrar appointed by the Depositary upon the request or with the approval of the Company. If the Receipts, such Depositary Shares or such Preferred Shares are listed on one or more other stock exchanges, the Depositary will, at the request and expense of the Company, arrange such facilities for the delivery, transfer surrender, redemption and exchange of such Receipts, such Depositary Shares or such Preferred Shares as may be required by law or applicable stock exchange regulations. SECTION 5.2 Prevention or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company. Neither the Depositary, any Depositary's Agent, any Registrar nor the Company shall incur any liability to any holder of any Receipt, if by reason of any provision of any present or future law or regulation thereunder of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary's Agent or the Registrar, by reason of any provision, present or future, of the Declaration of Trust or the Certificate of Designation or, in the case of the Company, the Depositary, the Depositary's Agent or the Registrar, by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, any Depositary's Agent, the Registrar or the Company shall be prevented or forbidden from doing or performing any act or thing that the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Company incur any liability to any holder of a Receipt by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing that the terms of this Deposit Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement. SECTION 5.3 Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company. Neither the Depositary, any Depositary's Agent, any Registrar nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement or any Receipt to holders of Receipts other than from acts or omissions arising out of conduct constituting bad faith, negligence (in the case of any action or inaction with respect to the voting of the deposited Preferred Shares), gross negligence or willful misconduct in the performance of such duties as are specifically set forth in this Deposit Agreement. Neither the Depositary, any Depositary's Agent, any Registrar nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding with respect to the deposited Preferred Shares, Depositary Shares or Receipts that in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary, any Depositary's Agent, any Registrar nor the Company shall be liable for any action or any failure to act by it in reliance upon the written advice of legal counsel or accountants, or information provided by any person presenting Preferred Shares for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary's Agent, any Registrar and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. In the event the Depositary shall receive conflicting claims, requests or instructions from any holders of Receipts, on the one hand, and the Company, on the other hand, the Depositary shall be entitled to act on such claims, requests or instructions received from the Company and shall be entitled to the full indemnification set forth in Section 5.6 hereof in connection with any action so taken. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the deposited Preferred Shares or for the manner or effect of any such vote made, as long as any such action or non- action is in good faith and does not result from negligence or willful misconduct of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Agreement against the Depositary or any Registrar. The Depositary, its parent, affiliate, or subsidiaries, any Depositary's Agent, and any Registrar may own, buy, sell or deal in any class of securities of the Company and its affiliates and in Receipts or Depositary Shares or become pecuniarily interested in any transaction in which the Company or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary or the Depositary's Agent hereunder. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates or act in any other capacity for the Company or its affiliates. It is intended that neither the Depositary nor any Depositary's Agent shall be deemed to be an "issuer" of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary and any Depositary's Agent are acting only in a ministerial capacity as Depositary for the deposited Preferred Shares; provided, however, that the Depositary agrees to comply with all information reporting and withholding requirements applicable to it under law or this Deposit Agreement in its capacity as Depositary. Neither the Depositary (or its officers, directors, employees or agents) nor any Depositary's Agent makes any representation or has any responsibility as to the validity of the registration statement pursuant to which the Depositary Shares are registered under the Securities Act, the deposited Preferred Shares, the Depositary Shares, the Receipts (except its countersignature thereon) or any instruments referred to herein or therein, or as to the correctness of any statement made therein or herein; provided, however, that the Depositary is responsible for its representations in this Deposit Agreement and for the validity of any action taken or required to be taken by the Depositary in connection with this Deposit Agreement. The Company agrees that it will register the Depositary Shares in accordance with the applicable securities laws. SECTION 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary. The Depositary may at any time resign as Depositary hereunder by notice of its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. The Depositary may at any time be removed by the Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor depositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If a successor depositary shall not have been appointed in 60 days, the resigning Depositary may petition a court of competent jurisdiction to appoint a successor depositary. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all rights, title and interest in the deposited Preferred Shares and any moneys or property held hereunder to such successor and shall deliver to such successor a list of the record holders of all outstanding Receipts. Any successor depositary shall promptly mail notice of its appointment to the record holders of Receipts. Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act. Such successor depositary may execute the Receipts either in the name of the predecessor depositary or in the name of the successor depositary. SECTION 5.5 Notices, Reports and Documents. The Company agrees that it will deliver to the Depositary, and the Depositary will, promptly after receipt thereof, transmit to the record holders of Receipts, in each case at the address recorded in the Depositary's books, copies of all notices and reports (including financial statements) required by law, by the rules of any national securities exchange upon which the Preferred Shares, the Depositary Shares or the Receipts are included for quotation or listed or by the Declaration of Trust and the Certificate of Designation to be furnished by the Company to holders of the deposited Preferred Shares and, if requested by the holder of any Receipt, a copy of this Deposit Agreement, the form of Receipt, the Certificate of Designation and the form of Preferred Shares. Such transmission will be at the Company's expense and the Company will provide the Depositary with such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the record holders of Receipts at the Company's expense such other documents as may be requested by the Company. SECTION 5.6 Indemnification by the Company. The Company agrees to indemnify the Depositary, and Depositary's Agent and any Registrar against, and hold each of them harmless from, any liability, costs and expenses (including reasonable attorneys' fees) that may arise out of, or in connection with, its acting as Depositary, Depositary's Agent or Registrar, respectively, under this Deposit Agreement and the Receipts, except for any liability arising out of the willful misconduct, gross negligence, negligence (in the case of any action or inaction with respect to the voting of the deposited Preferred Shares) or bad faith on the part of any such person or persons. The obligations of the Company set forth in this Section 5.6 shall survive any succession of any Depositary, Registrar or Depositary's Agent or termination of this Deposit Agreement. SECTION 5.7 Fees, Charges and Expenses. No charges and expenses of the Depositary or any Depositary's Agent hereunder shall be payable by any person, except as provided in this Section 5.7. The Company shall pay all transfer and other taxes and governmental charges arising solely from the existence of this Deposit Agreement. The Company shall also pay all fees and expenses of the Depositary in connection with the initial deposit of the Preferred Shares and the initial issuance of the Depositary Shares evidenced by the Receipts, and redemption of the Preferred Shares at the option of the Company and all withdrawals of the Preferred Shares by holders of Depositary Shares. If a holder of Receipts requests the Depositary to perform duties not required under this Deposit Agreement, the Depositary shall notify the holder of the cost of the performance of such duties prior to the performance thereof. Such holder will be liable for the charges and expenses related to such performance. All other fees and expenses of the Depositary and any Depositary's Agent hereunder and of any Registrar (including, in each case, fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be promptly paid as previously agreed between the Depositary and the Company. The Depositary shall present its statement for fees and expenses to the Company every month or at such other intervals as the Company and the Depositary may agree. ARTICLE VI AMENDMENT AND TERMINATION SECTION 6.1 Amendment. The form of the Receipts and any provision of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect that they may deem necessary or desirable; provided, however, that no such amendment (other than any change in the fees of any Depositary, Registrar or Transfer Agent) which (i) shall materially and adversely alter the rights of the holders of Receipts or (ii) would be materially and adversely inconsistent with the rights granted to the holders of the Preferred Shares pursuant to the Certificate of Designation shall be effective unless such amendment shall have been approved by the holders of at least a majority of the Depositary Shares then outstanding. In no event shall any amendment impair the right, subject to the provisions of Section 2.6 and Section 2.7 and Article III, of any holder of any Depositary Shares to surrender the Receipt evidencing such Depositary Shares with instructions to the Depositary to deliver to the holder the deposited Preferred Shares and all money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law. Every holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby. SECTION 6.2 Termination. This Deposit Agreement may be terminated by the Company upon not less than 30 days' prior written notice to the Depositary if (i) such termination is necessary to preserve the Company's status as a real estate investment trust under the Internal Revenue Code of 1986, as amended (or any successor provisions) or (ii) the holders of two- thirds of the Preferred Shares consents to such termination, whereupon the Depositary shall deliver or make available to each holder of a Receipt, upon surrender of the Receipt held by such holder, such number of whole or fractional shares of deposited Preferred Shares as are represented by the Depositary Shares evidenced by such Depositary Receipt, together with any other property held by the Depositary in respect of such Receipt. In the event that this Deposit Agreement is terminated pursuant to clause (i) of the immediately preceding sentence, the Company hereby agrees to use its best efforts to list the Preferred Shares issued upon surrender of the Receipt evidencing the Depositary Shares represented thereby on a national securities exchange. This Deposit Agreement will automatically terminate if (i) all outstanding Depositary Shares shall have been redeemed pursuant to Section 2.3 or (ii) there shall have been made a final distribution in respect of the deposited Preferred Shares in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the holders of Receipts entitled thereto. This Deposit Agreement may also be terminated by the Company upon not less than 30 days' prior written notice to the Depositary if the Company, in its sole discretion, causes (i) a stock split of the Preferred Shares so that each holder of Depositary Receipts evidencing Depositary Shares would be able to own that number of Preferred Shares equal to the number of Depositary Shares owned by each such holder immediately prior to such stock split, (ii) each Depositary Share to represent one Preferred Share and to no longer represent 1/10 of a Preferred Share and (iii) Preferred Shares to be issued in exchange for all of the then outstanding Depositary Shares on a one-for- one basis. In such event, Section 4.6 shall not apply. Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary, any Depositary's Agent and any Registrar under Section 5.6 and Section 5.7 and, if applicable, its obligation to implement the issuance of Preferred Shares described in clause (iii) of the immediately preceding paragraph. ARTICLE VII MISCELLANEOUS SECTION 7.1 Counterparts. This Deposit Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Deposit Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Corporate Office and the respective offices of the Depositary's Agents, if any, by any holder of a Receipt. SECTION 7.2 Exclusive Benefits of Parties. This Deposit Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. SECTION 7.3 Invalidity of Provisions. In case any one or more of the provisions contained in this Deposit Agreement or in the receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. SECTION 7.4 Notices. Any and all notices to be given to the Company hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by certified mail, return receipt requested, addressed to the Company at: NEW PLAN REALTY TRUST 1120 Avenue of the Americas New York, New York 10036 Attention: Dean Bernstein Telephone No.: (212) 869-3000 or at any other address of which the Company shall have notified the Depositary in writing. Any notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by certified mail, return receipt requested, addressed to the Depositary at the Corporate Office. Any notices given to any record holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by certified mail, return receipt requested, addressed to such record holder at the address of such record holder as it appears on the books of the Depositary or, if such holder shall have filed with the Depositary in a timely manner a written request that notices intended for such holder be mailed to some other address, at the address designated in such request. Delivery of a notice sent by certified mail, return receipt requested, shall be deemed to be effected at the time when a duly addressed letter containing the same is deposited, postage prepaid, in a post office letter box. SECTION 7.5 Depositary's Agents. The Depositary may from time to time appoint Depositary's Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary's Agents and vary or terminate the appointment of such Depositary's Agents. The Depositary will notify the Company of any such action. SECTION 7.6 Holders of Receipts Are Parties. The holders of Receipts from time to time shall be deemed to be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery thereof. SECTION 7.7 Governing Law. This Deposit Agreement and the Receipts and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the law of the State of Massachusetts applicable to agreements made and to be performed in said State. SECTION 7.8 Inspection of Deposit Agreement and Certificate of Designation. Copies of this Deposit Agreement and the Certificate of Designation shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Corporate Office and the respective offices of the Depositary's Agents, if any, by any holder of any Receipt. SECTION 7.9 Headings. The headings of articles and sections in this Deposit Agreement and in the from of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or to have any bearing upon the meaning or interpretation of any provision contained herein or in the Receipts. SECTION 7.10 Limited Recourse Obligations. This Deposit Agreement and all documents, agreements, understandings and arrangements relating to this agreement have been negotiated, executed and delivered on behalf of the Company by the trustees or officers thereof in their representative capacity under the Declaration of Trust, and not individually, and bind only the trust estate of the Company, and no trustee, officer, employee, agent or shareholder of the Company shall be bound or held to any personal liability or responsibility in connection with the agreements, obligations and undertakings of the Company hereunder, and any person or entity dealing with the Company in connection therewith shall look only to the trust estate for the payment of any claim or for the performance of any agreement, obligation or undertaking thereunder. The Depositary and all holders of Receipts issued from time to time hereunder hereby acknowledge and agree that each agreement and other document executed by the Company in accordance with or in respect of this transaction shall be deemed and treated to include in all respects and for all purposes the foregoing exculpatory provision. IN WITNESS WHEREOF, New Plan Realty Trust and BankBoston N.A. have duly executed this Deposit Agreement as of the day and year first above set forth and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof. NEW PLAN REALTY TRUST By:/s/ Dean Bernstein ________________________________ Attest: Authorized Officer BANKBOSTON N.A. By:/s/ Michael J. Lapolla ________________________________ Attest: Authorized Signatory Exhibit A [FORM OF FACE OF RECEIPT] The Depositary Shares evidenced by this Depositary Receipt are subject to redemption at any time at the option of the Trust on or after June 15, 2007 at a redemption price of $50.00 per Depositary Share, plus accrued and unpaid dividends, if any, thereon. If necessary, in the opinion of the Trustees of the Trust, to effect compliance by the Trust with certain requirements of the Internal Revenue Code, the Shares evidenced by this Depositary Receipt are subject to redemption by the Trust and the transfer thereof may be prohibited upon the terms and conditions set forth in the Deposit Agreement (as defined below), the Amended and Restated Declaration of Trust and the Certificate of Designation Supplementing the Amended and Restated Declaration of Trust for the 7.80% Series A Cumulative Step-Up Premium Rate Preferred Shares, $1.00 par value per share. In addition, ownership by any person of more than 7.5% in number or value of all of the Trust's Shares, including the Depositary Shares represented by this Depositary Receipt is restricted as set forth in said documents. The Trust will furnish a copy of such terms and conditions to the registered holder of this Receipt upon request and without charge. The Amended and Restated Declaration of Trust provides that obligations thereunder are not personally binding upon the Trustees and that no Trustee, shareholder, officer, employee or agent of the Trust shall be held to any personal liability nor shall resort be had to the private property of any Trustee, shareholder, officer, employee or agent of the Trust. DR ___ CUSIP 648059 30 1 CERTIFICATE FOR NOT MORE THAN 1,500,000 DEPOSITARY SHARES RECEIPT FOR DEPOSITARY SHARES, EACH REPRESENTING 1/10 OF A 7.80% SERIES A CUMULATIVE STEP-UP PREMIUM RATE PREFERRED SHARE (PAR VALUE $1.00 PER SHARE) (LIQUIDATION PREFERENCE EQUIVALENT TO $50.00 PER DEPOSITARY SHARE) OF NEW PLAN REALTY TRUST (a Massachusetts business trust) BankBoston N.A., as Depositary (the "Depositary"), hereby certifies that ______________________ is the registered owner of ________________ DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing a 1/10 fractional interest in a 7.80% Series A Cumulative Step-Up Premium Rate Preferred Share, $1.00 par value per share, of New Plan Realty Trust, a Massachusetts business trust (the "Company"), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement dated as of July 3, 1997 (the "Deposit Agreement") among the Company, the Depositary and the holders from time to time of Receipts for Depositary Shares. By accepting this Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized officer or, if a Registrar in respect of the Receipts (other than the Depositary) shall have been appointed, by the manual signature of a duly authorized officer of such Registrar. Dated: Countersigned: ___________________________________ By:________________________________ By:________________________________ Authorized Signatory [FORM OF REVERSE OF RECEIPT] NEW PLAN REALTY TRUST NEW PLAN REALTY TRUST WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE CERTIFICATE OF DESIGNATION WITH RESPECT TO THE 7.80% SERIES A CUMULATIVE STEP-UP PREMIUM RATE PREFERRED SHARES OF NEW PLAN REALTY TRUST. ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT. ________________________________ The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ...........Custodian........... (Cust) (Minor) under Uniform Gifts to Minors Act............................................... (State) Additional abbreviations may also be used though not in the above list. For Value received, __________________ hereby sell(s), assign(s) and transfer(s) unto ASSIGNMENT PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ________________________________________________________ ________________________________________________________ PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE ________________________________________________________ _____________ Depositary Shares represented by the within Receipt, and do hereby irrevocably constitute and appoint ___________ Attorney to transfer the said Depositary Shares on the books of the within named Depositary with full power of substitution in the premises. Dated, ________________ _________________________________________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever. EX-4.4 4 -------- | Number | | | | PA | -------- PROVISIONS RELATING TO REDEMPTION AND PROHIBITION OF TRANSFER OF SHARES The Shares evidenced by this Certificate are subject to redemption at any time at the option of the Trust on or after June 15, 2007 at a redemption price of $500.00 per Share, plus accrued and unpaid dividends, if any, thereon. If necessary, in the opinion of the Trustees of the Trust, to effect compliance by the Trust with certain requirements of the Internal Revenue Code, the Shares represented by this Certificate are subject to redemption by the Trust and the transfer thereof may be prohibited upon the terms and conditions set forth in the Amended and Restated Declaration of Trust and the Certificate of Designation Supplementing the Amended and Restated Declaration of Trust for the 7.80% Series A Cumulative Step-Up Premium Rate Preferred Shares. In addition, ownership by any person of more than 7.5% in number or value of all of the Trust's Shares, including the Shares represented by this Certificate is restricted as set forth in said documents. The Trust will furnish a copy of such terms and conditions to the registered holder of this Certificate upon request and without charge. -------- | Shares | | | | | -------- New Plan Realty Trust A BUSINESS TRUST ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS Certificate for 7.80% Series A Cumulative Step-Up Premium Rate Preferred Shares. This Certificate is CUSIP 648059 20 2 transferable in SEE REVERSE FOR CERTAIN DEFINITIONS Boston, Massachusetts and in New York, New York Fully paid and non-assessable preferred shares, par value $1.00 per share. This Certifies that is the Owner of shares. New Plan Realty Trust is established as a Massachusetts business trust (hereinafter called the "Trust") under an Amended and Restated Declaration of Trust made January 15, 1996, as amended from time to time. The holder and every transferee or assignee of this Certificate or of the Shares represented hereby or any interest therein accepts and agrees to be bound by the provisions of such Amended and Restated Declaration of Trust and the Certificate of Designation Supplementing the Amended and Restated Declaration of Trust and all amendments thereto (copies of which are filed with the Secretary of the Commonwealth of Massachusetts) and such By-Laws of the Trust as may from time to time be adopted by the Trustees of the Trust (copies of which will be on file at the principal office of the Trust), all of which provisions are hereby incorporated by reference as fully as if set forth herein in their entirety. The Amended and Restated Declaration of Trust provides that obligations thereunder are not personally binding upon the Trustees and that no Trustee, shareholder, officer, employee or agent of the Trust shall be held to any personal liability nor shall resort be had to the private property of any Trustee, shareholder, officer, employee or agent of the Trust. This Certificate and the Shares represented hereby are transferable on the books of the Trust by the registered holder hereof in person or by duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate is issued by the Trustees of New Plan Realty Trust, acting not individually but as such Trustees, and is not valid until countersigned by the Transfer Agent and registered by the Registrar. Witness the seal of the Trust and the signatures of its duly authorized officers. Countersigned and Registered: Dated: BankBoston N.A. Transfer Agent and Registrar by Secretary President Authorized Signature NEW PLAN REALTY TRUST The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ...........Custodian........... (Cust) (Minor) under Uniform Gifts to Minors Act............................................... (State) Additional abbreviations may also be used though not in the above list. For Value received, __________________ hereby sell, assign and transfer unto _______________________________________________________________________ Please Insert Social Security or Other Identifying Number of Assignee ____________________________________________________________________________ ____________________________________________________________________________ (Please Print or Typewrite Name and Address of Assignee) ____________________________________________________________________________ ____________________________________________________________________________ _____________________ ______ shares of 7.80% Series A Cumulative Step-Up Premium Rate Preferred Shares represented by the within certificate and do hereby irrevocably constitute and appoint _________________ Attorney to transfer the same on the books of the within-named Trust with full power of substitution in the premises. Dated, ________________ (SIGN HERE) _________________________________________________________ NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. EX-4.5 5 -------- | Number | | | | DR | -------- TEMPORARY CERTIFICATE-EXCHANGEABLE FOR DEFINITIVE ENGRAVED CERTIFICATE WHEN READY FOR DELIVERY The Depositary Shares evidenced by this Depositary Receipt are subject to redemption at any time at the option of the Trust on or after June 15, 2007 at a redemption price of $50.00 per Depositary Share, plus accrued and unpaid dividends, if any, thereon. If necessary, in the opinion of the Trustees of the Trust, to effect compliance by the Trust with certain requirements of the Internal Revenue Code, the Shares evidenced by this Depositary Receipt are subject to redemption by the Trust and the transfer thereof may be prohibited upon the terms and conditions set forth in the Deposit Agreement, the Amended and Restated Declaration of Trust of the Trust, as amended (the "Declaration of Trust") and the Certificate of Designation Supplementing the Declaration of Trust for the 7.80% Series A Cumulative Step-Up Premium Rate Preferred Shares, $1.00 par value per share. In addition, ownership by any person of more than 7.5% in number or value of all of the Trust's Shares, including the Depositary Shares represented by this Depositary Receipt, is restricted as set forth in said documents. The Trust will furnish a copy of said documents to the registered holder of this receipt upon request and without charge. The Amended and Restated Declaration of Trust provides that obligations thereunder are not personally binding upon the Trustees and that no Trustee, shareholder, officer, employee or agent of the Trust shall be held to any personal liability nor shall resort be had to the private property of any Trustee, shareholder, officer, employee or agent of the Trust. -------- | Number | | of | | Shares | -------- Certificate for not more than 1,500,000 Depositary Shares Receipt for Depositary Shares, Each Representing 1/10 of a 7.80% Series A Cumulative Step-Up Premium Rate Preferred Share (Par Value $1.00 Per Share) (Liquidation Preference Equivalent to $50.00 Per Depositary Share) of New Plan Realty Trust (a Massachusetts business trust) This Certificate is CUSIP 648059 30 1 transferable in SEE REVERSE FOR CERTAIN DEFINITIONS Boston, Massachusetts and in New York, New York BankBoston, N.A., as Depositary (the "Depositary"), hereby certifies that is the registered owner of Fully paid and non-assessable Depositary Shares ("Depositary Shares"), each Depositary Share representing a 1/10 fractional interest tin a 7.80% Series A Cumulative Step-Up Premium Rate Preferred Share, $1.00 par value per share, of New Plan Realty Trust, a Massachusetts business trust (the "Trust"), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement dated as of July 3, 1997 (the "Deposit Agreement") among the Trust, the Depositary and the holders from time to time of Receipts for Depositary Shares. By accepting this Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized officer or, if a Registrar in respect of the Receipts (other than the Depositary) shall have been appointed, by the manual signature of a duly authorized officer of such Registrar. Dated: Countersigned: BankBoston, N.A. TREASURER Transfer Agent and Registrar By: Authorized Signature CHIEF EXECUTIVE OFFICER NEW PLAN REALTY TRUST NEW PLAN REALTY TRUST WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE CERTIFICATE OF DESIGNATION WITH RESPECT TO THE 7.80% SERIES A CUMULATIVE STEP-UP PREMIUM RATE PREFERRED SHARES OF NEW PLAN REALTY TRUST. ANY SUCH REQUEST SHALL BE ADDRESSED TO THE SECRETARY OF THE TRUST, 1120 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10036. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ...........Custodian........... (Cust) (Minor) under Uniform Gifts to Minors Act............................................... (State) Additional abbreviations may also be used though not in the above list. For Value received, __________________ hereby sell(s), assign(s) and transfer(s) unto __________________________________________________________ Please Insert Social Security or Other Identifying Number of Assignee ____________________________________________________________________________ ____________________________________________________________________________ (Please Print or Typewrite Name and Address of Assignee) ____________________________________________________________________________ ____________________________________________________________________________ _____________________ Depositary Shares represented by the within Receipt, and do hereby irrevocably constitute and appoint _________________ Attorney to transfer the said Depositary Shares on the books of the within named Depositary with full power of substitution in the premises. Dated, ________________ _________________________________________________________ NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. Signature(s) Guaranteed: ______________________________________ THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15. EX-10.1 6 ============================================================================ CREDIT AGREEMENT by and among NEW PLAN REALTY TRUST THE LENDERS PARTY HERETO, AND THE BANK OF NEW YORK, AS AGENT ________________ $50,000,000 ________________ Dated as of October 29, 1996 ============================================================================= = CREDIT AGREEMENT, dated as of October 29, 1996, by and among NEW PLAN REALTY TRUST a Massachusetts business trust (the "Borrower"), each lender party hereto or which becomes a "Lender" pursuant to the provisions of Sections 2.20 or 11.7 (each a "Lender" and, collectively, the "Lenders"), and THE BANK OF NEW YORK, as agent (in such capacity, the "Agent"). I. DEFINITIONS A. Defined Terms. As used in this Agreement, terms defined in the preamble have the meanings therein indicated, and the following terms have the following meanings: "ABR Advances": the Loans (or any portions thereof) at such time as they (or such portions) are made and/or being maintained at a rate of interest based upon the Alternate Base Rate. "Accountants": Coopers & Lybrand (or any successor thereto), or such other firm of certified public accountants of recognized national standing selected by the Borrower and reasonably satisfactory to the Required Lenders. "Advance": an ABR Advance, a Eurodollar Advance or a Competitive Bid Advance, as the case may be. "Affected Advance": as defined in Section 2.10. "Affected Principal Amount": in the event that (i) the Borrower shall fail for any reason to borrow or convert after it shall have notified the Agent of its intent to do so in any instance in which it shall have requested a Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall have accepted one or more offers of Competitive Bid Advances under Section 2.5, an amount equal to the principal amount of such Eurodollar Advance or Competitive Bid Advance; (ii) a Eurodollar Advance or Competitive Bid Advance shall terminate for any reason prior to the last day of the Interest Period applicable thereto, an amount equal to the principal amount of such Euro- dollar Advance or Competitive Bid Advance; and (iii) the Borrower shall prepay or repay all or any part of the principal amount of a Eurodollar Advance or Competitive Bid Advance prior to the last day of the Interest Period applicable thereto, an amount equal to the principal amount of such Eurodollar Advance or Competitive Bid Advance so prepaid or repaid. "Affiliate": as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, control of a Person shall mean the power, direct or indirect, (i) to vote 5% or more of the secu- rities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. "Aggregate Commitments": on any date, the sum of the Commitments of all Lenders on such date. "Agreement": this Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time. "Alternate Base Rate": on any date, a rate of interest per annum equal to the higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of 1% or (ii) the BNY Rate in effect on such date. "Applicable Commitment Fee Percentage": with respect to the Commitment Fee, at all times during which the applicable Pricing Level set forth below is in effect, the applicable commitment fee percentage set forth below next to such Pricing Level: Applicable Pricing Level Commitment Fee Percentage Pricing Level I 0.125% Pricing Level II 0.150% Pricing Level III 0.175% Pricing Level IV 0.250% Pricing Level V 0.300% Pricing Level VI 0.375%. Changes in the Applicable Commitment Fee Percentage resulting from a change in a Pricing Level shall become effective as of the opening of business upon the date of any change in the Borrower's Senior Debt Rating, as determined by S&P or Moody's, as the case may, which would affect the ap- plicable Pricing Level. "Applicable Lending Office": in respect of any Lender, (i) in the case of such Lender's ABR Advances and Competitive Bid Advances, its Domestic Lending Office and (ii) in the case of such Lender's Eurodollar Advances, its Eurodollar Lending Office. "Applicable Margin": with respect to the unpaid principal balance of Eurodollar Advances, at all times during which the applicable Pricing Level set forth below is in effect, the number of basis points set forth below next to such Pricing Level: Applicable Margin Pricing Level (Basis Points) Pricing Level I 45.0 Pricing Level II 50.0 Pricing Level III 60.0 Pricing Level IV 72.5 Pricing Level V 87.5 Pricing Level VI 125.0 Changes in the Applicable Margin resulting from a change in a Pricing Level shall become effective as of the opening of business upon the date of any change in the Senior Debt Rating of the Borrower, as determined by S&P or Moody's, as the case may, which would affect the applicable Pricing Level. "Assignment and Acceptance Agreement": an assignment and acceptance agreement executed by an assignor and an assignee pursuant to which such assignor assigns to such assignee all or any portion of such assignor's Note and Commitment, substantially in the form of Exhibit A. "Assignment Fee": as defined in Section 11.7(b). "Authorized Signatory": the chairman of the board, the president, any vice president, the chief financial officer or any other duly authorized officer (acceptable to the Agent) of the Borrower. "Available Commitment Amount": on any day during the Revolving Credit Period, an amount equal to the Total Commitment Amount at such time minus the total Loans outstanding on such date. "Benefited Lender": as defined in Section 11.9. "BNY": The Bank of New York. "BNY Rate": a rate of interest per annum equal to the rate of interest publicly announced in New York City by BNY from time to time as its prime commercial lending rate, such rate to be adjusted automatically (without notice) on the effective date of any change in such publicly announced rate. "Borrowing Date": any Business Day specified in a Borrowing Request delivered pursuant to Section 2.4 or 2.5, as the case may be, as a date on which the Borrower requests the Lenders to make Loans. "Borrowing Request": a Conventional Borrowing Request or a Competitive Bid Borrowing Request, as the case may be. "Business Day": for all purposes other than as set forth in clause (ii) below, (i) any day other than a Saturday, a Sunday or a day on which commercial banks located in New York City are authorized or required by law or other governmental action to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (i) above and which is also a day on which dealings in foreign currency and exchange and Eurodollar funding between banks may be carried on in London, England. "Capital Leases": leases which have been, or under GAAP are required to be, capitalized. "Change of Control": the occurrence of any one of the following events: (a) any Person becomes the owner of 20% or more of the Borrower's common shares and thereafter individuals who were not trustees of the Borrower on the date of execution of this Agreement are elected as trustees pursuant to an arrangement or understanding with, or upon the request of or nomination by, such Person and constitute at least two of the trustees of the Borrower; or (b) there occurs a change of control of the Borrower of a nature that would be required to be reported in response to Item 1a of Form 8-K filed pursuant to Section 13 or 15 under the Securities Exchange Act of 1934, or in any other filing by the Borrower with the Securities and Exchange Com- mission; or (c) there occurs any solicitation of proxies by or on behalf of any Person other than the trustees of the Borrower and thereafter individuals who were not trustees of the Borrower prior to the commencement of such solicitation are elected as trustees of the Borrower pursuant to an arrangement or understanding with, or upon the request of or nomination by, such Person and constitute at least two of the trustees of the Borrower; or (d) the Borrower consolidates with, is acquired by, or merges into or with any Person (other than a merger of a Subsidiary into the Borrower where the Borrower is the surviving entity). "Code": the Internal Revenue Code of 1986, as the same may be amended from time to time, or any successor thereto, and the rules and regulations issued thereunder, as from time to time in effect. "Commitment": in respect of any Lender, such Lender's undertaking during the Revolving Credit Period to make Revolving Credit Loans to the Bor- rower, and as of the end of the Revolving Credit Period, such Lender's un- dertaking to convert the outstanding principal amount of such Lender's Re- volving Credit Loans on such date to a Term Loan of such Lender, in each case subject to the terms and conditions hereof, in an aggregate outstanding principal amount not exceeding such Lender's Commitment Amount. "Commitment Amount": the amount set forth next to the name of such Lender in Exhibit B under the heading "Commitments", as the same may be reduced pursuant to Section 2.6 or increased pursuant to Section 2.20 "Commitment Fee": as defined in Section 3.1. "Commitment Percentage": on any day, and as to any Lender, (i) prior to the conversion of the Revolving Credit Loans to Term Loans, the percentage determined on such day equal to such Lender's Commitment Amount divided by the Total Commitment Amount, and (ii) after the conversion of the Revolving Credit Loans to Term Loans, the percentage determined on such day equal to the outstanding principal balance of such Lender's Term Loan on such day divided by the aggregate outstanding principal balance of the Term Loans of all Lenders on such day. "Competitive Bid Advance": a Revolving Credit Loan advanced pursuant to the provisions of Section 2.5 "Competitive Bid Borrowing": a borrowing pursuant to section 2.5 consisting of simultaneous Competitive Bid Advances from each Lender whose offer to make a Competitive Bid Advance as part of such borrowing has been accepted by the Borrower under the auction bidding procedure set forth in section 2.5 "Competitive Bid Borrowing Request": a borrowing request in the form of Exhibit C. "Competitive Bid Ceiling": at any time, the difference between (i) $25,000,000, and (ii) the principal balance of all Competitive Bid Advances then outstanding. "Compliance Certificate": a certificate substantially in the form of Exhibit D. "Consenting Lender": defined in Section 2.19 "Consolidated": the Borrower and its Subsidiaries which are consolidated for financial reporting purposes. "Consolidated EBIT": at any time of determination, the EBIT of the Borrower and its Subsidiaries on a Consolidated basis, determined in accordance with GAAP, for the immediately preceding four fiscal quarters of the Borrower, or, in the event that the date of determination is a fiscal quarter ending date, the fiscal quarter then ended and the immediately preceding three fiscal quarters. "Consolidated Indebtedness": at any time of determination, the Indebtedness of the Borrower and its Subsidiaries at such time on a Consolidated basis, determined in accordance with GAAP. "Consolidating": the Borrower and its Subsidiaries taken separately. "Contingent Obligation": as to any Person, any obligation of such Person guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, and whether arising from partnership or keep-well agreements, including, without limitation, any obligation of such Person, whether contingent or not con- tingent (a) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain net worth, solvency or other financial statement condition of the primary obligor, (c) to purchase Property, securities or services primarily for the purpose of assuring the beneficiary of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure, protect from loss or hold harmless the beneficiary of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include the endorsement of instruments for deposit or collection in the ordinary course of business. The term Contingent Obligation shall also include the liability of a general partner in respect of the liabilities of the partnership in which it is a general partner. The amount of any Contingent Obligation of a Person shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. "Conventional Advance": an ABR Advance and/or a Eurodollar Advance. "Conventional Borrowing Request": a borrowing request in the form of Exhibit E. "Conversion Date": the date on which a Eurodollar Advance is converted to an ABR Advance, or the date on which an ABR Advance is converted to a Eurodollar Advance, or the date on which a Eurodollar Advance is converted to a new Eurodollar Advance, all in accordance with Section 2.8 "Declaration of Trust": the Amended and Restated Declaration of Trust of New Plan Realty Trust, dated as of January 15, 1996, by William Newman, Arnold Laubich, Norman Gold, Melvin Newman, James Steuterman, Raymond Bottorf, Dean Bernstein, John Wetzler and Gregory White, not personally, but solely as Trustees of New Plan Realty Trust, as the same may be amended from time to time. "Default": any event or condition which constitutes an Event of Default or which, with the giving of notice, the lapse of time, or any other condition, would, unless cured or waived, become an Event of Default. "Defaulted Portion": defined in Section 2.21. "Dollars" and "$": lawful currency of the United States of America. "Domestic Lending Office": in respect of any Lender, initially, the office or offices of such Lender designated as such on Schedule I; thereafter, such other office of such Lender, through which it shall be making or maintaining ABR Advances or Competitive Bid Advances, as reported by such Lender to the Agent and the Borrower. "EBIT": at any time of determination, in respect of any Person, for any period, net income (or loss), calculated after deduction for income taxes, determined in accordance with GAAP; plus the sum of, without duplication: (i) interest expense (as determined in accordance with GAAP), (ii) provision for income taxes. EBIT shall be adjusted on a consistent basis to reflect the acquisition, sale, exchange and disposition of Property during such period. "Effective Date": October ___, 1996. "Environmental Laws": any and all federal, state and local laws re- lating to the environment, the use, storage, transporting, manufacturing, handling, discharge, disposal or recycling of hazardous substances, materials or pollutants or industrial hygiene and including, without limitation, (i) the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 USCA Section9601 et seq.; (ii) the Resource Conservation and Recovery Act of 1976, as amended, 42 USCA Section6901 et seq.; (iii) the Toxic Substance Control Act, as amended, 15 USCA Section2601 et seq.; (iv) the Water Pollution Control Act, as amended, 33 USCA Section1251 et seq.; (v) the Clean Air Act, as amended, 42 USCA Section7401 et seq.; (vi) the Hazardous Material Transportation Act, as amended, 49 USCA Section1801 et seq. and (viii) all rules, regulations judgments decrees injunctions and restrictions thereunder and any analogous state law. "ERISA": the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations issued thereunder, as from time to time in effect. "ERISA Affiliate": any Person which is a member of any group of organizations (i) described in Section 414(b) or (c) of the Code of which the Borrower is a member, or (ii) solely for purposes of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the Lien created under Section 302(f) of ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of which the Borrower is a member. "ERISA Liabilities": without duplication, the aggregate of all unfunded vested benefits under all Plans and all potential withdrawal liabilities under all Multiemployer Plans. "Eurodollar Advances": collectively, the Loans (or any portions thereof) at such time as they (or such portions) are made and/or being maintained at a rate of interest based upon the Eurodollar Rate. "Eurodollar Lending Office": in respect of any Lender, initially, the office, branch or affiliate of such Lender designated as such on Sched- ule I (or, if no such office branch or affiliate is specified, its Domestic Lending Office); thereafter, such other office, branch or affiliate of such Lender through which it shall be making or maintaining Eurodollar Advances, as reported by such Lender to the Agent and the Borrower. "Eurodollar Rate": with respect to any Interest Period applicable to any Eurodollar Advance, a rate of interest per annum, as determined by the Agent, obtained by dividing (and then rounding to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next higher 1/16 of 1%): (a) the rate, as reported by BNY to the Agent, quoted by BNY to leading banks in the London interbank eurodollar market as the rate at which BNY is offering Dollar deposits in an amount equal approximately to the Eurodollar Advance of BNY to which such Interest Period shall apply for a period equal to such Interest Period, as quoted at approximately 11:00 a.m. two Business Days prior to the first day of such Interest Period, by (b) a number equal to 1.00 minus the aggregate of the then stated maximum rates during such Interest Period of all reserve requirements (including, without limitation, marginal, emergency, supplemental and special reserves), expressed as a decimal, established by the Board of Governors of the Federal Reserve System and any other banking authority to which BNY and other major United States money center banks are subject, in respect of eurocurrency funding (currently referred to as "Eurocurrency liabilities" in Regulation D of the Board of Governors of the Federal Reserve System). Such reserve requirements shall include, without limitation, those imposed under such Regulation D. Eurodollar Advances shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed to be subject to such reserve requirements without benefit of credits for proration, exceptions or offsets which may be available from time to time to any Lender under such Regulation D. The Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in any such reserve requirement. "Event of Default": any of the events specified in Section 9, provided that any requirement for the giving of notice, the lapse of time or any other condition has been satisfied. "Exclusions": shall mean in the case of any sale or other disposition of any Property of the Borrower, all sales and other commissions and reasonable fees and expenses of professionals incurred in connection with such sale or disposition and transfer taxes. "Existing Credit Agreement" shall mean that certain Revolving Credit Agreement dated as of December 30, 1993 among the Borrower, The Bank of New York, as Agent, and the other Lenders signatory thereto, as the same has been amended. "Extension Request": defined in Section 2.19 "Federal Funds Rate": for any day, a rate per annum (expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (i) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average of the quotations for such day on such transactions received by BNY as determined by BNY and reported to the Agent. "Financial Statements": as defined in Section 4.13. "Fixed Rate Advance": A Eurodollar Advance or a Competitive Bid Advance. "GAAP": generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statement by such other entity as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination, consistently applied. "Governmental Authority": any nation or government, any state or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator. "Hazardous Substance": any hazardous or toxic substance, material or waste, including, but not limited to, (i) those substances, materials, and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302) and amendments thereto and replacements therefor and (ii) any substance, pollutant or material defined as, or designated in, any Environmental Law as a "hazardous substance," "toxic substance," "hazardous material," "hazardous waste," "restricted hazardous waste," "pollutant," "toxic pollutant" or words of similar import. "Highest Lawful Rate": with respect to any Lender, the maximum rate of interest, if any, that at any time or from time to time may be contracted for, taken, charged or received by such Lender on its Note or which may be owing to such Lender pursuant to this Agreement under the laws applicable to such Lender and this Agreement. "Indebtedness": as to any Person, at a particular time, all items which constitute, without duplication, (a) indebtedness for borrowed money (including, without limitation, indebtedness under this Agreement and the Notes) or the deferred purchase price of Property (other than trade payables incurred in the ordinary course of business), (b) indebtedness evidenced by notes, bonds, debentures or similar instruments, (c) obligations with respect to any conditional sale or title retention agreement, (d) indebtedness aris- ing under acceptance facilities and the amount available to be drawn under all letters of credit issued for the account of such Person and, without du- plication, all drafts drawn thereunder to the extent such Person shall not have reimbursed the issuer in respect of the issuer's payment of such drafts, (e) all liabilities secured by any Lien on any Property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof (other than carriers', warehousemen's, mechanics', repairmen's or other like non-consensual statutory Liens arising in the ordinary course of business), (f) obligations under Capital Leases, (g) Contingent Obligations and (h) ERISA Liabilities. "Indemnified Person": as defined in Section 11.11. "Intangible Assets": as of any date of determination thereof, the net book value of all assets of the Borrower and its Subsidiaries on a Consolidated basis (to the extent reflected in the Consolidated Balance Sheet of the Borrower at such date) which would be treated as intangibles under GAAP, including, without limitation, goodwill (whether representing the excess cost over book value of assets acquired or otherwise), patents, trademarks, trade names, franchises, copyrights, licenses, service marks, rights with respect to the foregoing and deferred charges (including, without limitation, unamortized debt discount and expense, organization costs and research and development costs). "Intellectual Property": all copyrights, trademarks, patents, trade names and service names. "Interest Coverage Ratio": at any time, the ratio of (i) Consolidated EBIT to (ii) Interest Expense. "Interest Expense": the sum of all interest (as determined in accordance with GAAP) on Consolidated Indebtedness, for, as applicable, the immediately preceding four fiscal quarters of the Borrower, or, in the event that the date of determination is a fiscal quarter ending date, the fiscal quarter then ended and the immediately preceding three fiscal quarters. "Interest Payment Date": (i) as to any ABR Advance, the first day of each month commencing on the first such day to occur after such ABR Ad- vance is made or any Eurodollar Advance is converted to an ABR Advance, (ii) as to any Eurodollar Advance in respect of which the Borrower has selected an Interest Period of one, two or three months, the last day of such Interest Period, (iii) as to any Eurodollar Advance in respect of which the Borrower has selected an Interest Period of six months, the day which is three months after the first day of such Interest Period and the last day of such Interest Period, and (iv) as to any Competitive Bid Advance, the last day of the Interest Period applicable thereto. "Interest Period": (i) with respect to any Eurodollar Advance requested by the Borrower, the period commencing on, as the case may be, the Borrowing Date or Conversion Date with respect to such Eurodollar Advance and ending one, two, three or six months thereafter, as selected by the Borrower in its irrevocable Borrowing Request as provided in Section 2.4 or its irrevocable notice of conversion as provided in Section 2.8, and (ii) with respect to any Competitive Bid Advance, the period commencing on the Borrowing Date with respect to such Competitive Bid Advance and ending on the maturity date thereof specified in the Competitive Bid Borrowing Request with respect thereto given pursuant to Section 2.5; provided, however, that all of the foregoing provisions relating to Interest Periods are subject to the following: (i) if any Interest Period pertaining to a Eurodollar Advance would otherwise end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day; (ii) if, with respect to the borrowing of any Loan or the conversion of one Advance to another, the Borrower shall fail to give due notice as provided in Section 2.4, 2.5 or 2.8, as the case may be, the Borrower shall be deemed to have elected that such Loan or Advance shall be made as an ABR Advance; (iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corre- sponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; (iv) with respect to any Interest Period applicable to a Eurodollar Advance (i) selected during the Revolving Credit Period no such Interest Period shall end after the Revolving Credit Termination Date, and (ii) selected after any such election of the Term Loan, no such Interest Period shall end after the Maturity Date; (v) with respect to any Interest Period applicable to a Competitive Bid Advance no such Interest Period shall end after the Revolving Credit Termination Date. (vi) the Borrower shall select Interest Periods so as not to have more than seven different Interest Periods outstanding at any one time with respect to Eurodollar Advances and three different Interest Periods out- standing at any one time with respect to Competitive Bid Advances; and (viii) no Interest Period pertaining to a Competitive Bid Advance shall be shorter than 7 days or longer than 180 days. "Investments": as defined in Section 8.5. "Lien": any mortgage, pledge, hypothecation, assignment, deposit or preferential arrangement, encumbrance, lien (statutory or other), or other security agreement or security interest of any kind or nature whatsoever, including, without limitation, any conditional sale or other title retention agreement and any capital or financing lease having substantially the same economic effect as any of the foregoing. "Loan" and "Loans": Revolving Loan (or Loans) or Term Loan (or Loans), as the case may be. "Loan Documents": collectively, this Agreement and the Notes. "Margin Stock": any "margin stock", as said term is defined in Regulation U of the Board of Governors of the Federal Reserve System, as the same may be amended or supplemented from time to time. "Material Adverse Change": a material adverse change in (i) the financial condition, operations or business, prospects or Property of (A) the Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its obligations under the Loan Documents or (iii) the ability of the Agent and the Lenders to enforce the Loan Docu- ments. "Material Adverse Effect": a material adverse effect on (i) the financial condition, operations or business, prospects or Property of (A) the Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its obligations under the Loan Documents or (iii) the ability of the Agent and the Lenders to enforce the Loan Docu- ments. "Maturity Date": (i) if the Term Loan is not elected pursuant to Section 2.2, the earlier of the Revolving Credit Termination Date or the date on which the Notes shall become due and payable, whether by acceleration or otherwise, and (ii) if the Term Loan is so elected, the earlier of the date that is 364 days after the last day of the Revolving Credit Termination Date or the date on which the Notes shall become due and payable, whether by acceleration or otherwise. "Moody's": Moody's Investors Services, Inc. "Multiemployer Plan": a plan defined as such Section 3(37) of ERISA to which contributions have been made by the Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA. "Net Proceeds": shall mean in the case of any sale or other disposition of any Property of the Borrower after a Threshold Event, the excess of: (x) the sum of all gross cash proceeds from such sale or disposition and all sales or dispositions of the Borrower's Property giving rise to such Threshold Event, whether paid directly or indirectly, less the applicable Exclusions in connection there- with, over (y) the Threshold Amount. "Net Proceeds Event": any sale or other disposition of any Property of the Borrower, which, in any case, results in Net Proceeds, provided that "Net Proceeds Event" shall not include the issuance of Stock or debt or the sale of Stock or instruments convertible into Stock. "Net Worth": as of any date of determination thereof, the Net Worth of the Borrower and its Subsidiaries on a Consolidated basis, as determined in accordance with GAAP. "Nonconsenting Lender": defined in Section 2.19. "Nonconsenting Lender Termination Date": defined in Section 2.19(c). "Note" and "Notes": defined in Section 2.3. "Participating Lender": defined in Section 2.5. "PBGC": the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to the functions thereof. "Permitted Liens": Liens permitted to exist under Section 8.1. "Person": an individual, a partnership, a corporation, a business trust, a joint stock company, a trust, an unincorporated association, a joint venture, a Governmental Authority or any other entity of whatever nature. "Plan": any employee benefit or other plan established or maintained by the Borrower or any ERISA Affiliate and which is covered by or subject to the minimum funding standards of Title IV of ERISA, other than a Multiemployer Plan. "Pricing Level": Pricing Level I, Pricing Level II, Pricing Level III, Pricing Level IV, Pricing Level V or Pricing Level VI, as applicable. "Pricing Level I": the Pricing Level which would be applicable for so long as the Senior Debt Rating is greater than or equal to AA- by S&P or Aa3 by Moody's; "Pricing Level II": the Pricing Level which would be applicable for so long as the Senior Debt Rating is greater than or equal to A by S&P or A2 by Moody's and Pricing Level I is not applicable; "Pricing Level III": the Pricing Level which would be applicable for so long as the Senior Debt Rating is greater than or equal to A- by S&P or A3 by Moody's and Pricing Levels I and II are not applicable; "Pricing Level IV": the Pricing Level which would be applicable for so long as the Senior Debt Rating is greater than or equal to BBB by S&P or Baa2 by Moody's and Pricing Levels I, II and III are not applicable; "Pricing Level V": the Pricing Level which would be applicable for so long as the Senior Debt Rating is equal to BBB- by S&P and Baa3 by Moody's and Pricing Levels I, II, III and IV are not applicable; and "Pricing Level VI": the Pricing Level which would be applicable for so long as the Senior Debt Rating is less than or equal to BB+ by S&P or Ba1 by Moody's and Pricing Levels I, II, III, IV and V are not applicable; provided that during any period that the Borrower has no Senior Debt Rating, Pricing Level IV would be the applicable Pricing Level. "Property": all types of real, personal, tangible, intangible or mixed Property. "Proposed Bid Rate": as applied to any Remaining Interest Period with respect to a Lender's Competitive Bid Advance, the rate per annum that such Lender in good faith would have quoted to the Borrower had the Borrower requested that such Lender offer to make a Competitive Bid Advance on the first day of such Remaining Interest Period, assuming no Default or Event of Default existed on such day and that the Borrower had the right to borrow hereunder on such day; such rate to be determined by such Lender in good faith in its sole discretion. "Real Property": all real Property, and all interests in real Property, owned, leased or held by the Borrower or any Subsidiary. "Reallocated Commitment Percentage": defined in Section 2.19. "REIT": a Person qualifying as a Real Estate Investment Trust under sections 856-859 of the Code and the regulations and rulings of the Internal Revenue Service issued thereunder. "REIT Guidelines": collectively, the NASAA Statement of Policy Regarding Real Estate Investment Trusts, as adopted by the North American Securities Administrators Association, Inc., and all amendments thereto, and all Federal and state laws and guidelines, including without, limitation all "blue sky" laws, which regulate the business, operation and reporting requirements of REITs generally and which are applicable to the Borrower. "Remaining Interest Period": (i) in the event that the Borrower shall fail for any reason to borrow a Loan in respect of which it shall have requested a Eurodollar Advance or convert an Advance to a Eurodollar Advance after it shall have notified the Agent of its intent to do so pursuant to Section 2.4 or 2.8 or accepted one or more offers of Competitive Bid Advances under Section 2.5, a period equal to the Interest Period that the Borrower elected in respect of such Eurodollar Advance or Competitive Bid Advance; or (ii) in the event that a Eurodollar Advance or Competitive Bid Advance shall terminate for any reason prior to the last day of the Interest Period applicable thereto, a period equal to the remaining portion of such Interest Period if such Interest Period had not been so terminated; or (iii) in the event that the Borrower shall prepay or repay all or any part of the principal amount of a Eurodollar Advance or Competitive Bid Advance (including any mandatory prepayment thereof) prior to the last day of the Interest Period applicable thereto, a period equal to the period from and in- cluding the date of such prepayment or repayment to but excluding the last day of such Interest Period. "Required Lenders": at any time when no Loans are outstanding or there are Loans comprised of both Conventional Advances and Competitive Bid Advances outstanding, Lenders having Commitments equal to at least 51% of the Aggregate Commitments. At any time when Loans comprised of Conventional Advances only are outstanding, Lenders holding Notes having an unpaid principal balance equal to at least 51% of the aggregate Loans outstanding. At any time when Loans comprised of Competitive Bid Advances only are out- standing, Lenders having Commitments equal to at least 51% of the Aggregate Commitments (whether used or unused). "Revolving Credit Period": the period from the Effective Date through the day preceding the Revolving Credit Expiration Date. "Revolving Credit Expiration Date": the earlier of the Maturity Date or the Revolving Credit Termination Date. "Revolving Credit Loan" and "Revolving Credit Loans": as defined in Section 2.1. "Revolving Credit Termination Date": the date that is 364 days from the Effective Date, subject to extensions in accordance with Section 2.19. "Senior Debt Rating": the senior unsecured non-credit-enhanced debt rating of the Borrower as determined by S&P and/or Moody's from time to time. "Shareholder": as defined in the Declaration of Trust. "Special Counsel": Emmet, Marvin & Martin, LLP, special counsel to BNY. "S&P": Standard & Poor's Ratings Group. "Stock": any and all shares, rights, interests, participations, warrants or other equivalents (however designated) of corporate stock, including, without limitation, so-called "phantom stock". "Subsidiary": as to any Person, any corporation, association, partnership, joint venture or other business entity of which such Person or any Subsidiary of such Person, directly or indirectly, either (i) in respect of a corporation, owns or controls more than 50% of the outstanding Stock having ordinary voting power to elect a majority of the board of directors or similar managing body, irrespective of whether a class or classes shall or might have voting power by reason of the happening of any contingency, or (ii) in respect of an association, partnership, joint venture or other busi- ness entity, is entitled to share in more than 50% of the profits and losses, however determined. "Substitute Lender": a Consenting Lender, one or more Affiliates of a Consenting Lender or any other bank, insurance company, pension fund, mutual fund or other financial institution. "Tangible Net Worth": as of any date of determination thereof, the remainder of (i) Net Worth, less (ii) Intangible Assets. "Taxes": any present or future income, stamp or other taxes, levies, imposts, duties, fees, assessments, deductions, withholdings, or other charges of whatever nature, now or hereafter imposed, levied, collected, withheld, or assessed by any Governmental Authority. "Term Loan" and "Term Loans": as defined in Section 2.2. "Term Loan Conversion Notice": a notice to the Agent in the form of Exhibit F. "Threshold Event": any sale or disposition of Property of the Borrower which, when combined with all other such sales or dispositions occurring during any fiscal year of the Borrower after the Effective Date, results in gross cash proceeds for all such sales or dispositions for such fiscal year, less applicable Exclusions in such fiscal year, over $100,000,000 (the "Threshold Amount"). For purposes of this definition, the term "gross cash proceeds" means all cash sales proceeds received from each such sale or disposition, whether direct or indirect, of such Property. "Total Capital" shall mean, on any date, the sum of (i) all long term debt of the Borrower (inclusive of medium term notes) on such date, (ii) the stockholders' equity in the Borrower on such date, as determined in accordance with GAAP, (iii) the value of issued and outstanding preferred stock of the Borrower on such date, and (iv) all Loans outstanding on such date. "Total Commitment Amount": on any day, the sum of the Commitment Amounts of all Lenders on such day. "Trust": as defined in the Declaration of Trust. "Trustee": as defined in the Declaration of Trust. "Trust Property": as defined in the Declaration of Trust. "Undepreciated Real Estate Assets": as of any date the amount of real estate assets of the Borrower and its Subsidiaries on such date, before depreciation and amortization, determined on a consolidated basis in accordance with GAAP. B. Other Definitional Provisions. (a) All terms defined in this Agreement shall have the meanings given such terms herein when used in the Loan Documents or any certificate, opinion or other document made or delivered pursuant hereto or thereto, unless otherwise defined therein. (b) As used in the Loan Documents and in any certificate, opinion or other document made or delivered pursuant hereto or thereto, accounting terms not defined in Section 1.1, and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP. (c) The words "hereof", "herein", "hereto" and "hereunder" and similar words when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, schedule and exhibit references contained herein shall refer to Sections hereof or schedules or exhibits hereto unless otherwise expressly provided herein. (d) The word "or" shall not be exclusive; "may not" is prohibitive and not permissive. (e) Unless the context otherwise requires, words in the singular number include the plural, and words in the plural include the singular. (f) Unless specifically provided in a Loan Document to the contrary, references to time shall refer to New York City time. II. AMOUNT AND TERMS OF LOANS. A. Revolving Credit Loans. Subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans (each a "Revolving Credit Loan" and, as the context may require, collectively with all Revolving Credit Loans of such Lender and with the Revolving Credit Loans of all other Lend- ers, the "Revolving Credit Loans") to the Borrower from time to time during the Revolving Credit Period, in an aggregate outstanding principal amount at any one time outstanding not to exceed such Lender's Commitment. At no time shall the aggregate outstanding principal amount of the Revolving Credit Loans of all Lenders exceed the Total Commitment Amount. During the Revolving Credit Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Commitments, all in accordance with the terms and conditions of this Agreement. Subject to the provisions of Sections 2.4, 2.5 and 2.8, Revolving Credit Loans may be (a) ABR Advances, (b) Eurodollar Advances, (c) Competitive Bid Advances or (d) any combination thereof. B. Term Loans. (a) Subject to the terms and conditions hereof (including, without limitation, the terms and conditions of Section 2.19(e)), the Borrower may elect to convert all Revolving Credit Loans of all Lenders outstanding under this Agreement as of the Revolving Credit Termination Date to Term Loans of such Lenders. Such election shall be made by the Borrower's delivery to the Agent of a Term Loan Conversion Notice on any date that is at least 3, but not more than 14, Business Days prior to the Revolving Credit Termination Date. Upon receipt of such notice, the Agent shall promptly deliver a copy of the notice to each Lender. Provided that no Event of Default shall have occurred and be continuing on the Revolving Credit Termination Date, the outstanding principal amount of each Lender's Revolving Credit Loans shall be converted to a Term Loan of such Lender as of such date and the Commitment of each Lender to make Revolving Credit Loans shall expire. (b) The Term Loans shall be due and payable on the Maturity Date. C. Notes. The Loans made by each Lender shall be evidenced by a promissory note of the Borrower, substantially in the form of Exhibit G, with ap- propriate insertions therein as to date and principal amount (each, as en- dorsed or modified from time to time, a "Note" and, collectively with the Notes of all other Lenders, the "Notes"), payable to the order of such Lender for the account of its Applicable Lending Office and representing the obliga- tion of the Borrower to pay the lesser of (a) the original amount of the Commitment of such Lender and (b) the aggregate unpaid principal balance of all Loans made by such Lender (including Term Loans of the Lenders, if the Borrower makes an election to convert the Revolving Credit Loans pursuant to Section 2.2), with interest thereon as prescribed in Section 2.9. Each Note shall bear interest from the date thereof on the unpaid principal balance thereof at the applicable interest rate or rates per annum determined as pro- vided in Section 2.9 and shall be stated to mature on the Maturity Date. The (i) date and amount of each Loan made by a Lender, (ii) its character as an ABR Advance, a Eurodollar Advance, a Competitive Bid Advance, or a combina- tion thereof, (iii) the interest rate and Interest Period applicable to Eu- rodollar Advances and Competitive Bid Advances, and (iv) each payment and prepayment of the principal thereof, shall be recorded by such Lender on its books and, prior to any transfer of its Note, endorsed by such Lender on the schedule attached thereto or any continuation thereof, provided that the failure of such Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower to make payment when due of any amount owing under the Loan Documents. Interest on each Note shall be payable as specified in Section 2.9. Upon receipt of each Lender's Note pursuant to Sec- tion 5, the Agent shall mail such Note to such Lender. D. Procedure for Revolving Credit Loan Borrowings Other than Competitive Bid Borrowings. (a) Except for Revolving Credit Loans which the Borrower requests to be made as Competitive Bid Advances (as to which the provisions of Section 2.5 shall control), the Borrower may borrow under the Commitments on any Business Day during the Revolving Credit Period, provided, however, that the Borrower shall notify the Agent (by telephone or telecopy) no later than: 11:00 A.M., three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Advances, and 11:00 A.M., one Business Day prior to the requested Borrowing Date, in the case of ABR Advances, specifying (A) the aggregate principal amount to be borrowed under the Commitments, (B) the requested Borrowing Date, (C) whether the borrowing is to consist of Eurodollar Advances, ABR Advances, or a combination thereof, and (D) if the borrowing is to consist of Eurodollar Advances, the length of the Interest Period or Periods for such Eurodollar Advances (subject to the provisions of the definition of Interest Period). Each such notice shall be irrevocable and confirmed immediately by delivery to the Agent of a Borrowing Request. Each borrowing of (i) ABR Advances shall be in an aggregate principal amount equal to $1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof, or, if less, the Available Commitment Amount and (ii) Euro- dollar Advances shall be in an aggregate principal amount equal to $1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof. Upon receipt of each notice of borrowing from the Borrower, the Agent shall promptly notify each Lender of the contents thereof. Subject to its receipt of the notice referred to in the preceding sentence, each Lender will make the amount of its Commitment Percentage of each borrowing of Revolving Credit Loans available to the Agent for the account of the Borrower at the office of the Agent set forth in Section 11.2 not later than 11:30 A.M. on the relevant Borrowing Date requested by the Borrower, in funds immediately available to the Agent at such office. The amounts so made available to the Agent on such Borrowing Date will then, subject to the satisfaction of the terms and condi- tions of this Agreement, as determined by the Agent, be made available on such date to the Borrower by the Agent at the office of the Agent specified in Section 11.2 by crediting the account of the Borrower on the books of such office with the aggregate of said amounts received by the Agent. (b) Unless the Agent shall have received prior notice from a Lender (by telephone or otherwise, such notice to be promptly confirmed by telecopy or other writing) that such Lender will not make available to the Agent such Lender's pro rata share of the Revolving Credit Loans requested by the Borrower, the Agent may assume that such Lender has made such share available to the Agent on the Borrowing Date in accordance with this Section, provided that such Lender received notice of the proposed borrowing from the Agent, and the Agent may, in reliance upon such assumption, make available to the Borrower on the Borrowing Date a corresponding amount. If and to the extent such Lender shall not have so made such pro rata share available to the Agent, such Lender and the Borrower severally agree to pay to the Agent forthwith on demand such corresponding amount (to the extent not previously paid by the other), together with interest thereon for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Agent, at a rate per annum equal to, in the case of the Borrower, the applicable interest rate set forth in Section 2.9 for ABR Advances or Eurodollar Advances, as set forth in the applicable Conventional Borrowing Request, and, in the case of such Lender, the Federal Funds Rate in effect on each such day (as determined by the Agent). Such payment by the Borrower, however, shall be without prejudice to its rights against such Lender. If such Lender shall pay to the Agent such corresponding amount, such amount so paid shall constitute such Lender's Revolving Credit Loan as part of the Revolving Credit Loans for purposes of this Agreement, which Revolving Credit Loan shall be deemed to have been made by such Lender on the Borrowing Date applicable to such Revolving Credit Loans, but without prejudice to the Borrower's rights against such Lender. E. Competitive Bid Advances During the Revolving Credit Period, and Procedure for Competitive Bid Borrowings. (a) Subject to the terms and conditions of this Agreement, each Lender severally agrees that the Borrower may effect Competitive Bid Borrowings under this section 2.5 from time to time on any Business Day dur- ing the Revolving Credit Period in the manner set forth below, provided, however, that at no time shall the outstanding principal balance of Com- petitive Bid Advances outstanding hereunder exceed the lesser of (i) the Competitive Bid Ceiling, and (ii) the Aggregate Commitments less the outstanding principal balance of all Conventional Advances: (i) The Borrower may request a Competitive Bid Borrowing under this section 2.5 during the Revolving Credit Period by giving to the Agent, not later than 10:00 a.m. at least three Business Days prior to the date of the proposed Competitive Bid Borrowing, a Competitive Bid Borrowing Request specifying the proposed date and aggregate amount (which shall not be less than $5,000,000 or such amount plus a whole multiple $100,000) of the proposed Competitive Bid Borrowing, the proposed Interest Period for the Competitive Bid Advances to be made as part of such Competitive Bid Borrowing (which Interest Period shall not be later than the Revolving Credit Termination Date and shall otherwise comply with the applicable provisions of the definition of "Interest Period"), and such other terms to be applicable to such Competitive Bid Borrowing as the Borrower may specify. The Agent shall promptly notify (by telephone or otherwise, to be promptly confirmed by telecopy or other writing) each Lender of each Competitive Bid Borrowing Request received by it and the terms contained in such Competitive Bid Borrowing Request. (ii) Each Lender may, if, in its sole discretion, it elects so to do, irrevocably offer to make one or more Competitive Bid Advances to the Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates of interest specified by such Lender in its sole discretion, by notifying (by telephone or otherwise, to be promptly confirmed by telecopy or other writing) the Agent, before 10:00 a.m. two Business Days before the Borrowing Date of such proposed Competitive Bid Borrowing of the minimum amount and maximum amount of each Competitive Bid Advance which such Lender would be willing to make as part of such proposed Competitive Bid Borrowing (which amounts may, subject to the proviso to the first sentence of this Section 2.5, exceed such Lender's Commitment), the rate or rates of interest therefor and such Lender's applicable Lending Office with respect to such Competitive Bid Advance. The Agent shall notify the Borrower of all such offers before 10:30 a.m. two Business Days before such proposed Borrowing Date, provided that if BNY in its ca- pacity as a Lender shall in its sole discretion elect to make any such offer, it shall notify the Borrower of such offer before 9:30 a.m. two Business Days before such proposed Borrowing Date. If any Lender other than BNY shall fail to notify the Agent before 10:00 a.m., and if BNY in its capacity as a Lender shall fail to notify the Borrower before 9:30 a.m. two Business Days before the proposed Borrowing Date, that it elects to make such an offer, such Lender shall be deemed to have elected not to make such an offer and such Lender shall not be obligated to, and shall not, make any Competitive Bid Advance as part of such Competitive Bid Borrowing. Any offer submitted after the time required above shall be disregarded by the Agent unless such offer is submitted to correct a manifest error in a prior offer. (iii) The Borrower shall, before 12:00 noon two Business Days before the date of such proposed Competitive Bid Borrowing, either (A) cancel such Competitive Bid Borrowing Request by notice to the Agent to that effect, or (B) in its sole discretion, irrevocably accept one or more of the offers made by any Lender or Lenders pursuant to (ii) above, in ascending order of the rates offered therefor, by giving notice to the Agent of the amount of each Competitive Bid Advance (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Borrower by the Agent on behalf of such Lender for such Competitive Bid Advance pursuant to (ii) above) to be made by each Lender as part of such Competitive Bid Borrowing, and reject any remaining offers made by Lenders pursuant to (ii) above, by giving the Agent notice to that effect, provided, however, that the aggregate amount of such offers accepted by the Borrower shall be equal at least to $5,000,000. If offers for Com- petitive Bid Advances at the same interest rate are made by two or more Lenders for a greater aggregate minimum principal amount than the amount in respect of which offers for Competitive Bid Advances are accepted by the Borrower at such interest rate, the principal amount of Competitive Bid Advances accepted at such interest rate shall be allocated by the Borrower among such Lenders as nearly as possible in proportion to the respective minimum principal amounts offered by such Lenders. No such Lender shall be obligated to make such Competitive Bid Advance in a principal amount less than the minimum amount offered by such Lender without consenting to such lesser amount. If any Lender declines to make a Competitive Bid Advance at such lesser amount, the Borrower shall be entitled in its sole discretion to determine which of such offers at the same interest rate it shall accept. (iv) If the Borrower notifies the Agent that a Competitive Bid Borrowing Request is cancelled pursuant to (iii)(A) above, the Agent shall give prompt notice (by telephone or otherwise, to be promptly confirmed by telecopy or other writing) thereof to the Lenders and such Competitive Bid Borrowing shall not be made. (v) If the Borrower accepts one or more of the offers made by any Lender or Lenders pursuant to clause (iii)(B) above, the Agent shall, as promptly as practicable on the second Business Day before such proposed Borrowing Date, notify (A) each Lender that has made an offer as described in clause (ii) above, of the date and aggregate amount of such Competitive Bid Borrowing and whether any offer or offers made by such Lender pursuant to clause (ii) above have been accepted by the Borrower and (B) each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing (a "Participating Lender" with respect to such Competitive Bid Borrowing), of the amount of each Loan to be made by such Lender as part of such Competitive Bid Borrowing, together with a specification of the interest rate and Interest Payment Date or Dates in respect of each such Competitive Bid Advance. Each such Participating Lender shall, before 11:30 A.M. on the date of such Competitive Bid Borrowing make available for the account of its applicable Lending Office to the Agent at its address specified in section 11.2 such Lender's portion of such Competitive Bid Borrowing, in funds im- mediately available to the Agent at such office. Upon satisfaction of the applicable terms and conditions of this Agreement and after receipt by the Agent of such amount from each such Participating Lender, the Agent will make such amount available on such date to the Borrower at the office of the Agent specified in section 11.2 by crediting the account of the Borrower on the books of such office with the aggregate of such amounts, in like funds as received by the Agent. After each Competitive Bid Borrowing, if requested by any Lender, the Agent shall within a reasonable time furnish to such Lender such information in respect of such Competitive Bid Borrowing as such Lender shall reasonably request. Unless the Agent shall have received prior notice from a Participating Lender (by telephone or otherwise, such notice to be promptly confirmed by telecopy or other writing) that such Participating Lender will not make available such Participating Lender's Competitive Bid Advance, the Agent may assume that such Participating Lender has made such Participating Lender's portion of such Competitive Bid Borrowing available to the Agent on such Borrowing Date in accordance with this section, and the Agent may, in reliance upon such assumption, make available to the Borrower on such Borrowing Date a corresponding amount. If and to the extent such Participating Lender shall not have made such portion available to the Agent, such Participating Lender and the Borrower severally agree to pay to the Agent forthwith on demand such corresponding amount with interest thereon for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Agent at a rate per annum equal to, in the case of the Borrower, the rate of interest for such Competitive Bid Advance accepted by the Borrower in its notice to the Agent under Section 2.5(a)(iii)(B), and, in the case of such Lender, the Federal Funds Rate in effect on such day (as determined by the Agent). Such payment by the Borrower, however, shall be without prejudice to its rights against such Participating Lender. If such Participating Lender shall pay to the Agent such corresponding amount, such amount so paid shall constitute such Lender's Competitive Bid Advance as a part of such Competitive Bid Advances for purposes of this Agreement, which Competitive Bid Advance shall be deemed to have been made by such Participating Lender on the Borrowing Date applicable thereto, but without prejudice to the Borrower's rights against such Participating Lender. (b) Within the limits and on the conditions set forth in this section 2.5, the Borrower may from time to time borrow under this section 2.5, repay pursuant to clause (c) below, and reborrow under this section 2.5. (c) The Borrower shall repay to the Agent for the account of each Participating Lender which has made a Competitive Bid Advance on the last day of the Interest Period for such Competitive Bid Advance (such Interest Period being that specified by the Borrower in the related Com- petitive Bid Borrowing Request delivered pursuant to (a)(i), above) the then unpaid principal amount of such Competitive Bid Advance. (d) The Borrower shall pay interest on the unpaid principal balance of each Competitive Bid Advance from the date of such Competitive Bid Advance to the date the principal amount of such Competitive Bid Advance is repaid in full, at the rate of interest for such Competitive Bid Advance specified by the Participating Lender making such Competitive Bid Advance in its notice with respect thereto delivered pursuant to (a)(ii) above payable on the Interest Payment Date specified by the Borrower for such Competitive Bid Advance in the related Competitive Bid Borrowing Request delivered pur- suant to (a)(i), above. (e) Each Competitive Bid Advance shall be subject to all of the provisions of this Agreement generally, provided, however, that a Competitive Bid Advance shall not reduce a Lender's obligation to fund its Commitment Percentage of any ABR Advance or Eurodollar Advance. (f) The provisions of this Section 2.5 shall be applicable only if as of the date of a Competitive Bid Borrowing Request there is more than one Lender. (g) The Borrower shall pay to Agent for its own account a fee of $400 at the time each Competitive Bid Borrowing Request is made. F. Termination or Reduction of Aggregate Commitments. (a) Voluntary Reductions. The Borrower shall have the right, upon at least three Business Days' prior written notice to the Agent, at any time to terminate the Aggregate Commitments or from time to time to perma- nently reduce the Aggregate Commitments to an amount not less than the sum of the aggregate principal balance of the Loans then outstanding (after giving effect to any contemporaneous prepayment thereof), provided, however, that any such reduction shall be in the amount of $1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof. (b) In General. Reductions of the Aggregate Commitments shall be applied pro rata according to the Commitment of each Lender. Simulta- neously with each reduction of the Aggregate Commitments under this Section, the Borrower shall pay the Commitment Fee accrued on the amount by which the Aggregate Commitments have been reduced and prepay the Loans by the amount, if any, by which the aggregate unpaid principal balance of the Loans exceeds the amount of the Aggregate Commitments as so reduced. If any prepayment is made under this Section with respect to any Fixed Rate Advances, in whole or in part, prior to the last day of the applicable Interest Period, the Bor- rower agrees to indemnify the Lenders in accordance with Section 2.14. G. Prepayments of the Loans. (a) Voluntary Prepayments. The Borrower may, at its option, prepay the ABR Advances and Eurodollar Advances, in whole or in part, without premium or penalty (other than any indemnification amounts, as provided for in Section 2.14) at any time and from time to time by notifying the Agent in writing at least one Business Day prior to the proposed prepayment date in the case of Loans consisting of ABR Advances and at least three Business Days prior to the proposed prepayment date in the case of Loans consisting of Eurodollar Advances, specifying the Loans to be prepaid consisting of ABR Advances, Eurodollar Advances or a combination thereof, the amount to be prepaid and the date of prepayment. Such notice shall be irrevocable and the amount specified in such notice shall be due and payable on the date specified, together with accrued interest to the date of such payment on the amount prepaid. Upon receipt of such notice, the Agent shall promptly notify each Lender in respect thereof. Partial prepayments of the such ABR Advances and/or Eurodollar Advances shall be in an aggregate principal amount of $1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof, or, if less, the outstanding principal balance of thereof. After giving effect to any partial prepayment with respect to Eurodollar Advances which were made (whether as the result of a borrowing or a conversion) on the same date and which had the same Interest Period, the outstanding principal amount of such Eurodollar Advances shall exceed (subject to Section 2.8) $1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof. Voluntary prepayments of Competitive Bid Advances are not permitted. (ba Mandatory Prepayments. Upon the occurrence of any Net Proceeds Event, the Borrower shall promptly prepay the Loans by an amount equal to the Net Proceeds from such Net Proceeds Event. Unless designated otherwise in a notice to the Agent accompanying such prepayment, the Net Proceeds shall be applied first to ABR Advances, next to Eurodollar Advances (first to such Eurodollar Advances having the Interest Period next to occur) and last to Competitive Bid Advances. (c) In General. If any prepayment is made in respect of any Fixed Rate Advance, in whole or in part, prior to the last day of the ap- plicable Interest Period, the Borrower agrees to indemnify the Lenders in ac- cordance with Section 2.14. H. Conversions. (a) The Borrower may elect from time to time to convert Eurodollar Advances to ABR Advances by giving the Agent at least one Business Day's prior irrevocable notice of such election, specifying the amount to be so converted, provided, that any such conversion of Eurodollar Advances shall only be made on the last day of the Interest Period applicable thereto. In addition, the Borrower may elect from time to time to convert ABR Advances to Eurodollar Advances or to convert Eurodollar Advances to new Eurodollar Advances by giving the Agent at least three Business Days' prior irrevocable notice of such election, specifying the amount to be so converted and the initial Interest Period relating thereto, provided that any such conversion of ABR Advances to Eurodollar Advances shall only be made on a Business Day and any such conversion of Eurodollar Advances to new Eurodollar Advances shall only be made on the last day of the Interest Period applicable to the Eurodollar Advances which are to be converted to such new Eurodollar Advances. The Agent shall promptly provide the Lenders with notice of any such election. ABR Advances and Eurodollar Advances may be converted pursuant to this Section in whole or in part, provided that conversions of ABR Advances to Eurodollar Advances, or Eurodollar Advances to new Eurodollar Advances, shall be in an aggregate principal amount of $1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof. (b) Notwithstanding anything in this Section to the contrary, no ABR Advance may be converted to a Eurodollar Advance, and no Eurodollar Advance may be converted to a new Eurodollar Advance, if a Default or Event of Default has occurred and is continuing either (i) at the time the Borrower shall notify the Agent of its election to convert or (ii) on the requested Conversion Date. In such event, such ABR Advance shall be automatically continued as an ABR Advance or such Eurodollar Advance shall be automatically converted to an ABR Advance on the last day of the Interest Period applicable to such Eurodollar Advance. If an Event of Default shall have occurred and be continuing, the Agent shall, at the request of the Required Lenders, notify the Borrower (by telephone or otherwise) that all, or such lesser amount as the Required Lenders shall designate, of the outstanding Eurodollar Advances shall be automatically converted to ABR Advances, in which event such Eurodollar Advances shall be automatically converted to ABR Advances on the date such notice is given. (c) Each conversion shall be effected by each Lender by applying the proceeds of its new ABR Advance or Eurodollar Advance, as the case may be, to its Advances (or portion thereof) being converted (it being understood that such conversion shall not constitute a borrowing for purposes of Sections 4, 5 or 6). I. Interest Rate and Payment Dates. (a) Prior to Maturity. Except as otherwise provided in Section 2.9(b), prior to maturity, the Loans shall bear interest on the outstanding principal balance thereof at the applicable interest rate or rates per annum set forth below: ADVANCES RATE Each ABR Advance Alternate Base Rate. Each Eurodollar Eurodollar Rate for the Advance applicable Interest Period plus the Applicable Margin. Competitive Bid the rate for the applicable Advance Competitive Bid Advance determined pursuant to Section 2.5. (b) Event of Default. After the occurrence and during the continuance of an Event of Default, the outstanding principal balance of the Loans shall bear interest at a rate per annum equal to 2% plus the rate which would otherwise be applicable under Section 2.9(a), and any overdue interest or other amount payable under the Loan Documents shall bear interest, whether before or after the entry of any judgment thereon, at a rate per annum equal to the Alternate Base Rate plus 2%. All such interest shall be payable on demand. (c) General. Interest on (i) ABR Advances to the extent based on the BNY Rate shall be calculated on the basis of a 365 or 366-day year (as the case may be), and (ii) ABR Advances to the extent based on the Federal Funds Rate, Eurodollar Advances and Competitive Bid Advances shall be calcu- lated on the basis of a 360-day year, in each case for the actual number of days elapsed, including the first day but excluding the last. Except as otherwise provided in Section 2.9(b), interest shall be payable in arrears on each Interest Payment Date and upon payment (including prepayment) of the Loans. Any change in the interest rate on the Loans resulting from a change in the Alternate Base Rate or a Pricing Level shall become effective as of the opening of business on the day on which such change shall become effec- tive. The Agent shall, as soon as practicable, notify the Borrower and the Lenders of the effective date and the amount of each such change in the Alternate Base Rate or a Pricing Level, but any failure to so notify shall not in any manner affect the obligation of the Borrower to pay interest on the Loans in the amounts and on the dates required. Each determination of the Alternate Base Rate, a Eurodollar Rate or a Pricing Level by the Agent pursuant to this Agreement shall be conclusive and binding on the Borrower and the Lenders absent manifest error. At no time shall the interest rate payable on the Loans of any Lender, together with the Commitment Fee and all other amounts payable under the Loan Documents, to the extent the same are construed to constitute interest, exceed the Highest Lawful Rate. If interest payable to a Lender on any date would exceed the maximum amount permitted by the Highest Lawful Rate, such interest payment shall auto- matically be reduced to such maximum permitted amount, and interest for any subsequent period, to the extent less than the maximum amount permitted for such period by the Highest Lawful Rate, shall be increased by the unpaid amount of such reduction. Any interest actually received for any period in excess of such maximum allowable amount for such period shall be deemed to have been applied as a prepayment of the Loans. The Borrower acknowledges that to the extent interest payable on ABR Advances is based on the BNY Rate, such Rate is only one of the bases for computing interest on loans made by the Lenders, and by basing interest payable on ABR Advances on the BNY Rate, the Lenders have not committed to charge, and the Borrower has not in any way bargained for, interest based on a lower or the lowest rate at which the Lenders may now or in the future make loans to other borrowers. J. Substituted Interest Rate. In the event that (i) the Agent shall have reasonably determined (which determination shall be conclusive and binding upon the Borrower) that by reason of circumstances affecting the interbank eurodollar market either adequate and reasonable means do not exist for ascertaining the Eurodollar Rate applicable pursuant to Section 2.9 or (ii) the Required Lenders shall have notified the Agent that they have reasonably determined (which de- termination shall be conclusive and binding on the Borrower) that the applicable Eurodollar Rate will not adequately and fairly reflect the cost to such Lenders of maintaining or funding loans bearing interest based on such Eurodollar Rate, with respect to any portion of the Loans that the Borrower has requested be made as Eurodollar Advances or Eurodollar Advances that will result from the requested conversion of any portion of the Advances into Eurodollar Advances (each, an "Affected Advance"), the Agent shall promptly notify the Borrower and the Lenders (by telephone or otherwise, to be promptly confirmed in writing) of such determination, on or, to the extent practicable, prior to the requested Borrowing Date or Conversion Date for such Affected Advances. If the Agent shall give such notice, (a) any Affected Advances shall be made as ABR Advances, (b) the Advances (or any portion thereof) that were to have been converted to Affected Advances shall be converted to or continued as ABR Advances and (c) any outstanding Affected Advances shall be converted, on the last day of the then current Interest Period with respect thereto, to ABR Advances. Until any notice under clauses (i) or (ii), as the case may be, of this Section has been withdrawn by the Agent (by notice to the Borrower promptly upon either (x) the Agent having determined that such circumstances affecting the interbank eurodollar market no longer exist and that adequate and reasonable means do exist for determin- ing the Eurodollar Rate pursuant to Section 2.9 or (y) the Agent having been notified by such Required Lenders that circumstances no longer render the Advances (or any portion thereof) Affected Advances), no further Eurodollar Advances shall be required to be made by the Lenders nor shall the Borrower have the right to convert all or any portion of the Loans to Eurodollar Ad- vances. K. Taxes; Net Payments. (a) All payments made by the Borrower under the Loan Documents shall be made free and clear of, and without reduction for or on account of, any taxes required by law to be withheld from any amounts payable under the Loan Documents. A statement setting forth the calculations of any amounts payable pursuant to this paragraph submitted by a Lender to the Borrower shall be conclusive absent manifest error. The obligations of the Borrower under this Section shall survive the termination of the Agreement and the Aggregate Commitments and the payment of the Notes and all other amounts pay- able under the Loan Documents. (b) Each Lender which is a foreign corporation within the meaning of Section 1442 of the Code shall deliver to the Borrower such certificates, documents or other evidence as the Borrower may reasonably require from time to time as are necessary to establish that such Lender is not subject to withholding under Section 1441 or 1442 of the Code or as may be necessary to establish, under any law imposing upon the Borrower hereafter, an obligation to withhold any portion of the payments made by the Borrower under the Loan Documents, that payments to the Agent on behalf of such Lender are not subject to withholding. L. Illegality. Notwithstanding any other provisions herein, if any law, regulation, treaty or directive, or any change therein or in the interpretation or application thereof, shall make it unlawful for any Lender to make or maintain its Eurodollar Advances as contemplated by this Agreement, (i) the commitment of such Lender hereunder to make Eurodollar Advances or convert ABR Advances to Eurodollar Advances shall forthwith be suspended and (ii) such Lender's Loans then outstanding as Eurodollar Advances affected hereby, if any, shall be converted automatically to ABR Advances on the last day of the then current Interest Period applicable thereto or within such earlier period as required by law. If the commitment of any Lender with respect to Eurodollar Advances is suspended pursuant to this Section and thereafter it is once again legal for such Lender to make or maintain Eurodollar Advances, such Lender's commitment to make or maintain Eurodollar Advances shall be reinstated and such Lender shall notify the Agent and the Borrower of such event. M. Increased Costs. In the event that any law, regulation, treaty or directive hereafter enacted, promulgated, approved or issued or any change in any presently existing law, regulation, treaty or directive therein or in the interpretation or application thereof by any Governmental Authority charged with the administration thereof or compliance by any Lender (or any corporation directly or indirectly owning or controlling such Lender) with any request or directive from any central bank or other Governmental Authority, agency or instrumentality: (a) does or shall subject any Lender to any Taxes of any kind whatsoever with respect to any Eurodollar Advances or its obligations under this Agreement to make Eurodollar Advances, or change the basis of taxation of payments to any Lender of principal, interest or any other amount payable hereunder in respect of its Eurodollar Advances, including any Taxes required to be withheld from any amounts payable under the Loan Documents (except for imposition of, or change in the rate of, tax on the overall net income of such Lender or its Applicable Lending Office for any of such Advances by the jurisdiction in which such Lender is incorporated or has its principal office or such Applicable Lending Office, including, in the case of Lenders incorporated in any State of the United States such tax imposed by the United States); or (b) does or shall impose, modify or make applicable any reserve, special deposit, compulsory loan, assessment, increased cost or similar requirement against assets held by, or deposits of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender in respect of its Eurodollar Advances which is not otherwise included in the determination of the Eurodollar Rate; and the result of any of the foregoing is to increase the cost to such Lender of making, renewing, converting or maintaining its Eurodollar Advances or its commitment to make such Eurodollar Advances, or to reduce any amount re- ceivable hereunder in respect of its Eurodollar Advances, then, in any such case, the Borrower shall pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such additional cost or reduction in such amount receivable which such Lender deems to be material as determined by such Lender; provided, however, that nothing in this Section shall require the Borrower to indemnify the Lenders with respect to with- holding Taxes for which the Borrower has no obligation under Section 2.11. No failure by any Lender to demand compensation for any increased cost during any Interest Period shall constitute a waiver of such Lender's right to demand such compensation at any time. A statement setting forth the calcula- tions of any additional amounts payable pursuant to the foregoing sentence submitted by a Lender to the Borrower shall be conclusive absent manifest error. The obligations of the Borrower under this Section shall survive the termination of the Agreement and the Aggregate Commitments and the payment of the Notes and all other amounts payable under the Loan Documents. To the extent that any increased costs of the type referred to in this Section are being incurred by a Lender and such costs can be eliminated or reduced by the transfer of such Lender's Loans or Commitment to another of its branches, and to the extent that such transfer is not inconsistent with such Lender's internal policies of general application and only if, as determined by such Lender in its sole discretion, the transfer of such Loan or Commitment, as the case may be, would not otherwise adversely affect such Loan or such Lender, the Borrower may request, and such Lender shall use reasonable efforts to effect, such transfer. N. Indemnification for Loss Relating to Eurodollar Advances. Notwithstanding anything contained herein to the contrary, if the Borrower shall fail to borrow or convert on a Borrowing Date or Conversion Date after it shall have given notice to do so in which it shall have requested a Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall have accepted one or more offers of Competitive Bid Advances under Sec- tion 2.5 or if a Eurodollar Advance or Competitive Bid Advance shall be terminated for any reason prior to the last day of the Interest Period ap- plicable thereto, or if, while a Eurodollar Advance or Competitive Bid Advance is outstanding, any repayment or prepayment of such Eurodollar Advance or Competitive Bid Advance is made for any reason (including, without limitation, as a result of acceleration or illegality) on a date which is prior to the last day of the Interest Period applicable thereto, the Borrower agrees to indemnify each Lender against, and to pay on demand directly to such Lender, any loss or expense suffered by such Lender as a result of such failure to borrow or convert, termination or repayment, including, without limitation, an amount, if greater than zero, equal to: A x (B-C) x D 360 where: "A" equals such Lender's pro rata share of the Affected Principal Amount; "B" equals the Eurodollar Rate or rate which such Competitive Bid Advance bears (in each case expressed as a decimal) to such Loan; "C" equals the applicable Eurodollar Rate or Proposed Bid Rate (in each case expressed as a decimal), as the case may be, in effect on or about the first day of the applicable Remaining Interest Period, based on the applicable rates offered or bid, as the case may be, on or about such date, for deposits (or in the case of a Proposed Bid Rate, based on the rate such Lender would have quoted) in an amount equal approximately to such Lender's pro rata share of the Affected Principal Amount with an Interest Period equal approximately to the applicable Remaining Interest Period, as determined by such Lender; "D" equals the number of days from and including the first day of the applicable Remaining Interest Period to but excluding the last day of such Remaining Interest Period; and any other out-of-pocket loss or expense (including any internal processing charge customarily charged by such Lender) suffered by such Lender in connection with such Eurodollar Advance or Competitive Bid Advance, including, without limitation, in liquidating or employing deposits acquired to fund or maintain the funding of its pro rata share of the Affected Principal Amount, or redeploying funds prepaid or repaid, in amounts which correspond to its pro rata share of the Affected Principal Amount. Each determination by the Agent or a Lender pursuant to this Section shall be conclusive and binding on the Borrower absent manifest error. The obligations of the Borrower under this Section shall survive the termination of the Agreement and the Aggregate Commitments and the payment of the Notes and all other amounts payable under the Loan Documents. O. Option to Fund. Each Lender has indicated that, if the Borrower elects to borrow or convert to Eurodollar Advances, or obtain a Competitive Bid Advance, such Lender may wish to purchase one or more deposits in order to fund or maintain its funding of such Loan during the Interest Period in question; it being understood that the provisions of this Agreement relating to such funding are included only for the purpose of determining the rate of interest to be paid on such Loan. Each Lender shall be entitled to fund and maintain its funding of all or any part of each Eurodollar Advance or Competitive Bid Advance made by it in any manner it sees fit, but all determinations under Section 2.14 shall be made as if such Lender had actually funded and maintained its funding of such Loan during the applicable Interest Period through the purchase of deposits in an amount equal to such Loan and having a maturity corresponding to such Interest Period. The obligations of the Borrower under Sections 2.10, 2.11, 2.13 and 2.14 shall survive the termination of the Agreement and the Aggregate Commitments and the payment of the Notes and all other amounts payable under the Loan Documents. P. Use of Proceeds. The proceeds of Loans shall be used solely for general business purposes, and such use shall conform to the provisions of Section 4.11. Q. Capital Adequacy. If (i) the enactment or promulgation of, or any change or phasing in of, any United States or foreign law or regulation or in the interpretation thereof by any Governmental Authority charged with the admin- istration thereof, (ii) compliance with any directive or guideline from any central bank or United States or foreign Governmental Authority (whether having the force of law) promulgated or made after the date hereof, or (iii) compliance with the Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System as set forth in 12 CFR Parts 208 and 225, or of the Comptroller of the Currency, Department of the Treasury, as set forth in 12 CFR Part 3, or similar legislation, rules, guidelines, directives or regulations under any applicable United States or foreign Governmental Authority affects or would affect the amount of capital required to be maintained by a Lender (or any lending office of such Lender) or any cor- poration directly or indirectly owning or controlling such Lender or imposes any restriction on or otherwise adversely affects such Lender (or any lending office of such Lender) or any corporation directly or indirectly owning or controlling such Lender and such Lender shall have reasonably determined that such enactment, promulgation, change or compliance has the effect of reducing the rate of return on such Lender's capital or the asset value to such Lender of any Loan made by such Lender as a consequence, directly or indirectly, of its obligations to make and maintain the funding of its Loans at a level below that which such Lender could have achieved but for such enactment, promulgation, change or compliance (after taking into account such Lender's policies regarding capital adequacy) by an amount deemed by such Lender to be material, then, upon demand by such Lender, the Borrower shall promptly pay to such Lender such additional amount or amounts as shall be sufficient to compensate such Lender for such reduction in such rate of return or asset value. A certificate in reasonable detail as to such amounts submitted to the Borrower and the Agent setting forth the determination of such amount or amounts that will compensate such Lender for such reductions shall be presumed correct absent manifest error. No failure by any Lender to demand compensation for such amounts hereunder shall constitute a waiver of such Lender's right to demand such compensation at any time. Such Lender shall, however, use reasonable efforts to notify the Borrower of such claim within 90 days after the officer of such Lender having primary responsibility for this Agreement has obtained knowledge of the events giving rise to such claim. The obligations of the Borrower under this Section shall survive the termination of the Agreement and the Aggregate Commitments and the payment of the Notes and all other amounts payable under the Loan Documents. R. Agent's Records. The Agent's records with respect to the Loans, the interest rates applicable thereto, each payment by the Borrower of principal and interest on the Loans, and fees, expenses and any other amounts due and payable in connection with this Agreement shall be presumptively correct absent manifest error as to the amount of the Loans, and the amount of principal and interest paid by the Borrower in respect of such Loans and as to the other information relating to the Loans, and amounts paid and payable by the Borrower hereunder and under the Notes. The Agent will when requested by the Borrower advise the Borrower of the principal and interest outstanding under the Loans as of the date of such request and the dates on which such payments are due. S. Extension of Revolving Credit Termination Date. (a) Provided that no Default or Event of Default exists during the periods set forth below, the Borrower may request one or more extensions of the Revolving Credit Termination Date, each such extension to be for a period of 364-days, by giving written notice of each such request (each, an "Extension Request") to the Agent and each Lender during the period which is not less than 45 nor more than 60 days prior to the then current Revolving Credit Termination Date. Any extension of the Revolving Credit Termination Date requested in accordance with the foregoing procedure shall be determined as follows: (i) If the Required Lenders do not consent to an Extension Request within 30, but not less than 15, days from the date of such Extension Request (by giving written notice thereof to the Bor- rower and the Agent), the Revolving Credit Termination Date shall not be extended. (ii) If each Lender consents to an Extension Request within 30, but not less than 15, days from the date of such Extension Request, (by giving written notice thereof to the Borrower and the Agent) the Revolving Credit Termination Date shall be amended such that it shall end 364 days from the date of the then-current Revolving Credit Termination Date. Upon receipt of such con- sents from each Lender, the Agent will notify the Lenders of its receipt of all such consents and the new Revolving Credit Termination Date. (iii) If Lenders (each a "Nonconsenting Lender" and collectively, the Nonconsenting Lenders") having Commitments equal to 49% or less of the Aggregate Commitments do not consent to an Extension Request within 30, but not less than 15, days from the date of such Extension Request, (by giving written notice thereof to the Borrower and the Agent), the Borrower may elect to (i) withdraw such Extension Request, (ii) effect an assignment of all or part of the Nonconsenting Lenders' rights and obligations under the Loan Documents, subject to, and in accordance with, the provisions of Section 2.19(c), or (iii) terminate the Commitment of each Nonconsenting Lender effective on the then current Revolving Credit Termination Date with respect to such Non- consenting Lender, and, on such date, pay to the Agent for dis- tribution to such Nonconsenting Lender the outstanding principal balance, if any, of the Note of such Nonconsenting Lender, to- gether with any accrued and unpaid interest thereon to the date of such payment, any accrued and unpaid Commitment Fee due to such Lender, and any other amount due to such Lender under this Agreement, whereupon (y) the then current Revolving Credit Termination Date shall be extended as to all Lenders from whom the Agent has received such consent (the "Consenting Lenders"), and the terms of clause (ii) of this Section 2.19(a) shall apply to such extension, and (z) each Nonconsenting Lender shall cease to be a "Lender" for all purposes of this Agreement after the then current Revolving Credit Termination Date applicable to such Nonconsenting Lender (except with respect to its rights hereunder to be reimbursed for costs and expenses, and to in- demnification with respect to, matters attributable to events, acts or conditions occurring prior to such assumption and pur- chase) and shall no longer have any obligations hereunder. (b) In the event the Borrower elects to terminate the Commitment of the Nonconsenting Lender under Section 2.19(a)(iii) above, the Agent is authorized and directed to amend Exhibit B, effective on the then current Revolving Credit Termination Date, and promptly distribute a copy thereof to the Borrower and the Consenting Lenders reflecting the new Commitment Amount of each Consenting Lender. The new Commitment Percentage of each Consenting Lender based on such new Commitment Amount (after giving effect to the ter- mination of each Nonconsenting Lender's Commitment) is sometimes hereinafter referred to as the "Reallocated Commitment Percentage." The Consenting Lenders agree (subject to their receipt of any mandatory prepayment referred to below), effective on the then current Revolving Credit Termination Date, to assume their Reallocated Commitment Percentages of the Revolving Credit Loans, provided, that if, after giving effect to such assumption, the out- standing principal balance of the Consenting Lenders' Revolving Credit Loans would exceed the Aggregate Commitments or any Lender's Commitment, then the Borrower will pay to the Agent on the then current Revolving Credit Termi- nation Date for distribution to the Consenting Lenders, an amount sufficient to reduce the outstanding principal balance of the Revolving Credit Loans to an amount which does not exceed the Aggregate Commitments and each Consenting Lender's Commitment. (c) In the event the Borrower elects to effect an assignment of all or part of the Nonconsenting Lenders' rights and obligations under the Loan Documents in accordance with clause (ii) of Section 2.19(a)(iii) above, then, provided that there shall not exist and be continuing any Default or Event of Default, the Borrower may, subject to the terms of this Section 2.19(c), obtain the agreement of a Substitute Lender to accept such an assignment, and one or more Nonconsenting Lenders designated by the Borrower (as hereinafter set forth) shall, subject to the terms of this Section 2.19(c), assign all or part of their rights and obligations in the Loan Docu- ments to such Substitute Lender. The Borrower shall at least 15 days prior to the Revolving Credit Termination Date on which the Commitments of such Nonconsenting Lenders shall terminate (a "Nonconsenting Lender Termination Date") notify the Agent and one or more of the Nonconsenting Lenders of a Substitute Lender's agreement to accept such assignment from such Nonconsenting Lenders. Such notice shall set forth (i) the name of the Nonconsenting Lenders whose rights and obligations are to be assigned to said Substitute Lender, (ii) the percentage interest of the Nonconsenting Lenders' Commitments to be assigned to said Substitute Lender, and (iii) the amount of the Revolving Credit Loans to be so assigned and their type (i.e. ABR Advances, Eurodollar Advances and/or Competitive Bid Advances). Upon the Agent's consent to such assignment (which consent or denial shall be given by the Agent to the Borrower and applicable Nonconsenting Lenders within 5 days after the Agent's receipt of the foregoing notice from the Borrower) such Nonconsenting Lenders and the Substitute Lender shall enter into an Assignment and Assumption Agreement substantially in the form of Exhibit A. Upon such execution, delivery, acceptance and recording by the Agent, from and after the effective date specified in such Assignment and Assumption Agreement (which date shall not be later than the Nonconsenting Lender Termi- nation Date), the Substitute Lender shall be a party hereto. The Commitment of the Substitute Lender acquired pursuant to such Assignment and Assumption Agreement shall be coterminous with the Commitments of each Consenting Lender. The Borrower agrees upon written request of the Agent, and at the Borrower's expense, to execute and deliver to such Substitute Lender a Note, dated the effective date of such Assignment and Assumption Agreement, in an aggregate principal amount equal to the Revolving Credit Loans assigned to, and Commitments assumed by, the Substitute Lender, and the Agent shall amend Exhibit B, effective on such date to reflect the Reallocated Commitment Percentage of each Consenting Lender and such Substitute Lender and shall promptly distribute a copy thereof to the Borrower, each Consenting Lender and such Substitute Lender. At the request of the Borrower, the Nonconsenting Lender whose Commitment has been assigned shall promptly after the later to occur of such effective date and payment in full of all amounts hereunder and under the Note return to the Borrower its Note or other evidence that such Nonconsenting Lender has received full payment of such amounts. The purchase price paid under each Assignment and Assumption Agreement delivered pursuant to this Section 2.19(c) shall be the principal amount of the Revolving Credit Loans assigned thereunder. On the effective date of such Assignment and Assumption Agreement, the Borrower, the Substi- tute Lender and the Nonconsenting Lender shall make appropriate adjustments in the payment of interest, Commitment Fees and other amounts with respect to the assigned Revolving Credit Loans, it being understood, however, that the Nonconsenting Lender may require, as a condition to its execution and delivery of the Assignment and Assumption Agreement, that it receive all ac- crued and unpaid interest, Commitment Fees and other amounts due to it (whether or not the same are then payable) on the effective date of such Assignment and Assumption Agreement. To the extent that the Borrower does not purchase all of the rights and obligations of the Nonconsenting Lenders under the Loan Documents, then the Borrower will make the payment described in clause (iii) of Section 2.19(a)(iii) with respect to the Revolving Credit Loans and the interest, Commitment Fees and other amounts appurtenant thereto which are not the subject of such Assignment and Assumption Agreement. Each Nonconsenting Lender shall cease to be a "Lender" for all purposes of this Agreement after the Nonconsenting Lender Termination Date applicable to such Nonconsenting Lender (except with respect to its rights hereunder to be reim- bursed for costs and expenses, and to indemnification with respect to, matters attributable to events, acts or conditions occurring prior to such assumption and purchase) and shall no longer have any obligations hereunder. The Borrower agrees to hold each Nonconsenting Lender harmless from any loss liability or claim incurred by or made against such Nonconsenting Lender in connection with any assignment made by it pursuant to this Section 2.19(c) (the obligations of the Borrower under the foregoing indemnity shall survive the termination of the Agreement and the Aggregate Commitments and the pay- ment of the Notes and all other amounts payable under the Loan Documents). (d) Each Lender will use its best efforts to respond promptly to any request for an extension of the Revolving Credit Termination Date, provided that no Lender's failure to so respond shall create any claim against it or have the effect of extending the Revolving Credit Termination Date of such Lender's Commitment. (e) At any time prior to the then existing Revolving Credit Termination Date, the Borrower may withdraw its Extension Request (i) elect to convert the outstanding principal balance of all Revolving Credit Loans to the Term Loans on such Revolving Credit Termination Date, subject to the provisions of Section 2.2, or (ii) allow the Commitments to terminate on such Revolving Credit Termination Date, in which case the Lenders shall thereafter have no further obligations to the Borrower under this Agreement and all Loans must be paid in full, together with all accrued and unpaid interest, Commitment Fees and other amounts due hereunder. During any period that an Extension Request has been made and not withdrawn by the Borrower, the Borrower shall not be entitled to convert the Revolving Credit Loans to Term Loans. T. Commitment Increases. (a) At any time and from time to time after the Effective Date and during the Revolving Credit Period, subject to the prior written consent of the Agent (which consent shall not be unreasonably withheld), and provided that no Default shall have occurred and is continuing, the Total Commitment Amount may be increased either by new Lenders establishing Commitments or by one or more then existing Lenders increasing their Commitments (each such in- crease by either means, a "Commitment Increase", and each new Lender or each Lender increasing its Commitment, an "Additional Commitment Lender") provided that no Commitment Increase shall become effective unless and until (i) the Borrower, the Agent and the Additional Commitment Lender shall have executed and delivered an agreement substantially in the form of Exhibit H (a "Com- mitment Increase Supplement") with respect to such Commitment Increase, and (ii) if, after giving effect thereto, the aggregate amount of the Commitments would exceed $100,000,000, such Commitment Increase shall have been consented to in writing by each of the other Lenders. On the effective date of any such Commitment Increase (each an "Increase Effective Date"), the Additional Commitment Lender shall pay to each other Lender the purchase price, as determined in accordance with subsection (b) below, for an assignment of a portion of such other Lender's advances outstanding at such time that, after giving effect to such assignments, the aggregate amount of Revolving Credit Loans of each Lender (including the Additional Commitment Lender) shall be proportional. Upon payment of such purchase price, each other Lender shall be deemed to have sold and made such an assignment to such Additional Commitment Lender, and such Additional Commitment Lender shall be deemed to have purchased and assumed such an assignment from each other Lender, on the terms set forth in subsection (b) below. Upon the effectiveness of any Commitment Increase, the Borrower shall issue a Note to the Additional Commitment Lender (against surrender of its existing Note in the case of an existing Lender), and to the existing Lenders if necessary, in the amount of such Additional Commitment Lender's Commitment after giving effect to such Commitment Increase. The Agent is hereby directed to amend Exhibit B hereto on each Increase Effective Date to reflect the Total Commitment Amount and the Commitment of each Lender as of such Increase Effective Date. As of the Increase Effective Date, each Additional Commitment Lender shall be a "Lender" hereunder, and shall have all of the rights and obligations of a Lender hereunder. (b) Each assignment of Revolving Credit Loans by any Lender (an "Assigning Lender") to an Additional Commitment Lender pursuant to subsection (a) of this Agreement shall be made on the following terms: (i) The purchase price for the assignment shall be equal to the aggregate principal amount of the Revolving Credit Loans assigned plus the amount of accrued and unpaid interest thereon on the date of the assignment. The purchase price shall be payable, not later than 12:00 noon (New York City time) on the effective date of the applicable Commitment In- crease, in U.S. Dollars in funds immediately available to the Assigning Lender at such office of the Assigning Lender (or a commercial bank designated by it) located in the United States as the Assigning Lender shall specify to the Assignee. (ii) The assignment shall consist of an equal percentage of all Revolving Credit Loans of the Assigning Lender outstanding and shall include all of the Assigning Lender's rights under this Agreement in respect of the portion of the Revolving Credit Loans of the Assigning Lender as- signed, including accrued interest thereon. (iii) The assignment shall be without recourse to the Assigning Lender. The Assigning Lender shall not be deemed to have made any representation or warranty or to have assumed any responsibility with respect to (a) any statements, warranties or representations made in or in connection with the Agreement or any other instrument or document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Agreement or any other instrument or document furnished pursuant thereto, other than as set forth in clause (iv) below, or (b) the financial condition of the Borrower or any of its Subsidiaries, or the performance or observance by the Borrower or any of its Subsidiaries of any of their respective obligations under the Agreement or any other instrument or document furnished pursuant thereto. (iv) The Assigning Lender shall, at the time of the as- signment, be deemed to have represented and warranted that (a) it has full power, authority and legal right to make the assignment and (b) it is the legal and beneficial owner of the rights assigned and such rights are free and clear of any lien or adverse claim, including any participation. (v) The Additional Commitment Lender which is the assignee of the Assigning Lender's interest shall, at the time of the assignment, be deemed to have (a) represented and warranted that it has full power, authority and legal right to purchase and assume the Assignment; (b) confirmed that it has received a copy of this Agreement, together with copies of the most recent financial statements and reports delivered pursuant to Section 7.1 (a), (b) and (c) of this Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to purchase and assume the assignment; and (c) agreed that it will, independently and without reliance upon the Assigning Lender, the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement. (c) The Agent shall not require payment of a fee in connection with any Commitment Increase. U. Failure to Fund; Commitment Fee. In the event that a Lender (i) shall fail or refuse to advance its Commitment Percentage of each borrowing of Loans as required by the provisions of either Sections 2.4 or 2.5, and (ii) shall not have notified either the Agent or the Borrower (either orally or in writing) that it has determined (which determination shall be made by such Lender reasonably and in good faith) that it is not obligated by the terms of this Agreement to make such advance (for example, by reason of the occurrence of a Default or the failure of the Borrower to satisfy any other condition to such borrowing) (such Lender's Commitment Percentage of such borrowing being the "Defaulted Portion"), then for the period that such failure or refusal shall continue, and such notice is not provided, the Commitment Fee shall not accrue on that portion of such Lender's Commitment equal to the Defaulted Portion. Any such reduction in the aggregate Commitment Fee shall reduce only the portion of such aggregate Commitment Fee payable to the Lender who gave rise to such Defaulted Portion, and shall not reduce the share of the Commitment Fee payable to any other Lenders. III. FEES; PAYMENTS A. Commitment Fee. Subject to the terms of Section 2.20, the Borrower agrees to pay to the Agent, for the account of the Lenders in accordance with each Lender's Commitment Percentage, a fee (the "Commitment Fee"), during the Revolving Credit Period, equal to the Applicable Commitment Fee Percentage of the av- erage daily Available Commitment Amount (including any increase thereto pursuant to Section 2.20). The Commitment Fee shall be payable quarterly in arrears on the last day of each March, June, September and December of each year, commencing on the first such day following the Effective Date, and on each optional reduction of the Total Commitment Amount, and ending on the date that the Commitments shall expire or otherwise terminate. The Commit- ment Fee (and the applicable Commitment Fee Percentage) shall be calculated on the basis of a 360 day year for the actual number of days elapsed. Loans which are Competitive Bid Rate Advances would not be deemed to be usage for purposes of calculating the Commitment Fee. ed Pro Rata Treatment and Application of Principal Payments. Each payment, including each prepayment, of principal and interest on the Loans and of the Commitment Fee shall be made by the Borrower to the Agent at its office set forth in Section 11.2 in funds immediately available to the Agent at such office by 12:00 noon on the due date for such payment. Promptly upon receipt thereof by the Agent, the Agent shall remit, in like funds as received, (i) to the Lenders who maintain any of their Loans as ABR Advances or Eurodollar Advances, each such Lender's pro rata share of such payments which are in respect of principal or interest due on such ABR Advances or Eurodollar Advances; (ii) to the Lenders who maintain any of their Revolving Credit Loans as Competitive Bid Advances, each such Lender's pro rata share of such payments which are in respect principal or interest due on such Competitive Bid Advances in accordance with Sections 2.5(c) and (d) and (iii) in the case of Commitment Fees, to all Lenders pro rata accord- ing each Lender's Commitment Percentage thereof (except as otherwise provided in Section 2.21). The failure of the Borrower to make any such payment by such time shall not constitute a default hereunder, provided that such payment is made on such due date, but any such payment made after 12:00 noon on such due date shall be deemed to have been made on the next Business Day for the purpose of calculating interest on amounts outstanding on the Loans. If any payment hereunder or under the Notes shall be due and payable on a day which is not a Business Day, the due date thereof (except as otherwise pro- vided in the definition of Interest Period) shall be extended to the next Business Day and (except with respect to payments in respect of the Commitment Fee) interest shall be payable at the applicable rate specified herein during such extension. If any payment is made with respect to any Eurodollar Advance or Competitive Bid Advance prior to the last day of the applicable Interest Period, the Borrower shall indemnify each Lender in ac- cordance with Section 2.14. IV. REPRESENTATIONS AND WARRANTIES In order to induce the Agent and the Lenders to enter into this Agreement and to make the Loans the Borrower makes the following representations and warranties to the Agent and each Lender: A. Subsidiaries. The Borrower has only the Subsidiaries set forth on Schedule 4.1. The shares of each corporate Subsidiary are duly authorized, validly issued, fully paid and nonassessable and are owned free and clear of any Liens. The interest of the Borrower in each non-corporate Subsidiary is owned free and clear of any Liens. B. Existence and Power; Declaration of Trust. (a) Each of the Borrower and its Subsidiaries is duly organized or formed and validly existing in good standing under the laws of the jurisdiction of its formation, has all requisite power and authority to own its Property and to carry on its business as now conducted, and each is in good standing and authorized to do business in each jurisdiction in which the nature of the business conducted therein or the Property owned therein make such qualification necessary, except where such failure to qualify could not reasonably be expected to have a Material Adverse Effect. (b) The Declaration of Trust is in full force and effect in accordance with the terms thereof. As of the date hereof, there have been no amendments to the Declaration of Trust. C. Authority. The Borrower has full legal power and authority to enter into, execute, deliver and perform the terms of the Loan Documents and to make the borrowings contemplated thereby, to execute, deliver and carry out the terms of the Notes and to incur the obligations provided for herein and therein, all of which have been duly authorized by all proper and necessary action and are in full compliance with the Declaration of Trust. D. Binding Agreement. (a) The Loan Documents constitute the valid and legally binding obligations of the Borrower, enforceable in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally. (b) No provision of any applicable statute, law (including, without limitation, any applicable usury or similar law), rule or regulation of any Governmental Body will prevent the execution, delivery or performance of, or affect the validity of, the Loan Documents. E. Litigation. (a) There are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority (whether or not purportedly on behalf of the Borrower or any Subsidiary) pending or, to the knowledge of the Borrower, threatened against the Borrower or any Subsidiary or any of their respective Properties or rights, which (i) if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) call into question the validity or enforceability of any of the Loan Documents, or (iii) could reasonably be expected to result in the rescission, termination or cancellation of any of the following (to the extent the same is material): any franchise, right, license, permit or similar authorization held by the Borrower or any Subsidiary. (b) Schedule 4.5 sets forth all actions, suits or proceedings at law or in equity or by or before any Governmental Authority (whether or not purportedly on behalf of the Borrower or any Subsidiary) pending or, to the knowledge of the Borrower, threatened against the Borrower, any Subsidiary or any of their respective Properties or rights, which, if adversely determined, could have a Material Adverse Effect. F. Required Consents. No consent, authorization or approval of, filing with, notice to, or exemption by, stockholders, any Governmental Authority or any other Person not obtained is required to authorize, or is required in connection with the execution, delivery and performance of the Loan Documents or is required as a condition to the validity or enforceability of the Loan Documents. G. No Conflicting Agreements. Neither the Borrower nor any Subsidiary is in default under any mortgage, indenture, contract or agreement to which it is a party or by which it or any of its Property is bound, the effect of which default could reasonably be expected to have a Material Adverse Effect. The execution, de- livery or carrying out of the terms of the Loan Documents will not constitute a default under, or result in the creation or imposition of, or obligation to create, any Lien upon any Property of the Borrower or any Subsidiary pursuant to the terms of any such mortgage, indenture, contract or agreement. H. Compliance with Applicable Laws. Neither the Borrower nor any Subsidiary is in default with respect to any judgment, order, writ, injunction, decree or decision of any Governmental Authority which default could reasonably be expected to have a Material Adverse Effect. The Borrower and each Subsidiary is complying in all material respects with all statutes, regulations, rules and orders applicable to Borrower or such Subsidiary of all Governmental Authorities, including, without limitation, Environmental Laws and ERISA, a violation of which could reasonably be expected to have a Material Adverse Effect. I. Taxes. Each of the Borrower and its Subsidiaries has filed or caused to be filed all tax returns required to be filed and has paid, or has filed appropriate extensions and has made adequate provision for the payment of, all taxes shown to be due and payable on said returns or in any assessments made against it (other than those being contested as required under Section 7.4) which would be material to the Borrower or any Subsidiary, and no tax Liens have been filed with respect thereto. The charges, accruals and re- serves on the books of the Borrower and each Subsidiary with respect to all federal, state, local and other taxes are, to the best knowledge of the Borrower, adequate for the payment of all such taxes, and the Borrower knows of no unpaid assessment which is due and payable against it or any Subsidiary or any claims being asserted which could reasonably be expected to have a Material Adverse Effect The Federal income tax returns of the Borrower and each of its Subsidiaries consolidated in such returns have been examined by and settled with the Internal Revenue Service, or, the statute of limitations with respect thereto have run, for all years through July 31, 1989. J. Governmental Regulations. Neither the Borrower nor any Subsidiary is subject to regulation under the Public Utility Holding Company Act of 1935, as amended, the Federal Power Act or the Investment Company Act of 1940, as amended, and neither the Borrower nor any Subsidiary is subject to any statute or regulation which prohibits or restricts the incurrence of Indebtedness under the Loan Documents, including, without limitation, statutes or regulations relative to common or contract carriers or to the sale of electricity, gas, steam, water, telephone, telegraph or other public utility services. K. Federal Reserve Regulations; Use of Loan Proceeds. Neither the Borrower nor any Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Loans will be used, directly or indirectly, for a purpose which violates any law, rule or regulation of any Governmental Authority, including, without limitation, the provisions of Regulations G, T, U or X of the Board of Governors of the Federal Reserve System, as amended. No part of the proceeds of the Loans will be used, directly or indirectly, to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock. L. Plans; Multiemployer Plans. Each of the Borrower and its ERISA Affiliates maintains or makes contributions only to the Plans and Multiemployer Plans listed on Schedule 4.12. Each Plan, and, to the best knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other applicable Federal or state law, and no event or condition is occurring or exists concerning which the Borrower would be under an obligation to furnish a report to the Agent and each Lender as required by Section 7.2(d). As of December 31, 1992, each Plan was "fully funded", which for purposes of this Section means that the fair market value of the assets of such Plan is not less than the present value of the accrued benefits of all participants in the Plan, computed on a plan termination basis. To the best knowledge of the Borrower, no Plan has ceased being fully funded. M. Financial Statements. The Borrower has heretofore delivered to the Agent and the Lenders copies of the (i) audited Consolidated and Consolidating Balance Sheet of the Borrower as of July 31, 1995, and the related Consolidated and Consolidating Statements of Operations, Stockholders' Equity and Cash Flows for the fiscal years of the Borrower then ended and (ii) the unaudited Consolidated and Consolidating Balance Sheets of the Borrower as of October 31, 1995, January 31, 1996 and April 30, 1996 and the related Consolidated and Consolidating Statements of Operations, Stockholders' Equity and Cash Flows for the fiscal quarters then ended (with the related notes and schedules, the "Financial Statements"). The Financial Statements fairly pre- sent the Consolidated and Consolidating financial condition and results of the operations of the Borrower and its Subsidiaries as of the dates and for the periods indicated therein (subject, in the case of such unaudited statements, to normal year-end adjustments) and have been prepared in conformity with GAAP. Except as reflected in the Financial Statements or in the notes thereto, neither the Borrower nor any Subsidiary has any obligation or liability of any kind (whether fixed, accrued, contingent, unmatured or otherwise) which, in accordance with GAAP, should have been shown on the Financial Statements and was not. Since the date of the Financial Statements, the Borrower and each Subsidiary has conducted its business only in the ordinary course and there has been no Material Adverse Change. N. Property. Each of the Borrower and its Subsidiaries has good and marketable title to all of its Property, title to which is material to the Borrower or such Subsidiary, subject to no Liens, except Permitted Liens. O. Franchises, Intellectual Property, Etc. Each of the Borrower and its Subsidiaries possesses or has the right to use all franchises, Intellectual Property, licenses and other rights as are material and necessary for the conduct of its business, and with respect to which it is in compliance, with no known conflict with the valid rights of others which could reasonably be expected to have a Material Adverse Effect. No event has occurred which permits or, to the best knowledge of the Borrower, after notice or the lapse of time or both, or any other condition, could reasonably be expected to permit, the revocation or termination of any such franchise, Intellectual Property, license or other right and which revocation or termination could reasonably be expected to have a Material Adverse Effect. P. Environmental Matters. (a) The Borrower and each Subsidiary is in compliance in all material respects with the requirements of all applicable Environmental Laws. (b) No Hazardous Substances have been (i) generated or manufactured on, transported to or from, treated at, stored at or discharged from any Real Property in violation of any Environmental Laws; (ii) discharged into subsurface waters under any Real Property in violation of any Environmental Laws; or (iii) discharged from any Real Property on or into property or waters (including subsurface waters) adjacent to any Real Property in violation of any Environmental Laws, which such violation, in the case of either (i), (ii) or (iii) could have, either individually or in the aggregate, a Material Adverse Effect. (c) Neither the Borrower nor any Subsidiary (i) has received notice (written or oral) or otherwise learned of any claim, demand, suit, action, proceeding, event, condition, report, directive, lien, violation, non-compliance or investigation indicating or concerning any potential or actual liability (including, without limitation, potential liability for enforcement, investigatory costs, cleanup costs, government response costs, removal costs, remedial costs, natural resources damages, property damages, personal injuries or penalties) arising in connection with: (x) any non-compliance with or violation of the requirements of any applicable Envi- ronmental Laws, or (y) the presence of any Hazardous Substance on any Real Property (or any Real Property previously owned by the Borrower or any Subsidiary) or the release or threatened release of any Hazardous Substance into the environment which could have, either individually or in the aggregate, a Material Adverse Effect, (ii) has any threatened or actual li- ability in connection with the presence of any Hazardous Substance on any Real Property (or any Real Property previously owned by the Borrower or any Subsidiary) or the release or threatened release of any Hazardous Substance into the environment which could have, either individually or in the ag- gregate, a Material Adverse Effect, (iii) has received notice of any federal or state investigation evaluating whether any remedial action is needed to respond to the presence of any Hazardous Substance on any Real Property (or any Real Property previously owned by the Borrower or any Subsidiary) or a release or threatened release of any Hazardous Substance into the environment for which the Borrower or any Subsidiary is or may be liable the results of which could have, either individually or in the aggregate, a Material Adverse Effect, or (iv) has received notice that the Borrower or any Subsidiary is or may be liable to any Person under any Environmental Law which liability could have, either individually or in the aggregate, a Material Adverse Effect. (d) To the best of the Borrower's knowledge, no Real Property is located in an area identified by the Secretary of Housing and Urban Development as an area having special flood hazards. Q. Labor Relations. Neither the Borrower nor any Subsidiary is a party to any collective bargaining agreement, other than the collective bargaining agreement covering fewer than 10 employees at the Roosevelt Mall Shopping Center in Philadelphia, Pennsylvania, and, to the best knowledge of the Borrower, no petition has been filed or proceedings instituted by any employee or group of employees with any labor relations board seeking rec- ognition of a bargaining representative with respect to the Borrower or such Subsidiary. There are no material controversies pending between the Borrower or any Subsidiary and any of their respective employees, which could reasonably be expected to have a Material Adverse Effect. R. Burdensome Obligations. Neither the Borrower nor any Subsidiary is a party to or bound by any franchise, agreement, deed, lease or other instrument, or subject to any corporate restriction which, in the opinion of the management of the Borrower or such Subsidiary, is so unusual or burdensome, in the context of its business, as in the foreseeable future might materially and adversely affect or impair the revenue or cash flow of the Borrower or such Subsidiary or the ability of the Borrower or such Subsidiary to perform its obligations under the Loan Documents. The Borrower does not presently anticipate that future expenditures by the Borrower or any Subsidiary needed to meet the provisions of federal or state statutes, orders, rules or regulations will be so burdensome as to result in a Material Adverse Effect. S. REIT Status. (a) The Borrower (i) has made an election pursuant to Section 856 of the Code to qualify as a REIT, (ii) has satisfied and continues to satisfy all of the requirements under SectionSection 856-859 of the Code and the regulations and rulings issued thereunder which must be satisfied for the Borrower to maintain its status as a REIT, and (iii) is in full compliance with all Code sections applicable to REITs generally and the regulations and rulings issued thereunder. (b) The Borrower is in compliance with all REIT Guidelines. T. No Misrepresentation. No representation or warranty contained herein and no certificate or report furnished or to be furnished by the Borrower or any Subsidiary in connection with the transactions contemplated hereby, contains or will contain a mis statement of material fact, or, to the best knowledge of the Borrower, omits or will omit to state a material fact required to be stated in order to make the statements herein or therein contained not misleading in the light of the circumstances under which made. V. CONDITIONS TO FIRST LOANS In addition to the conditions precedent set forth in Section 6, the obligation of each Lender to make its first Loan shall be subject to the fulfillment of the following conditions precedent: A. Evidence of Action. (a) The Agent shall have received a certificate, dated the first Borrowing Date, of the Secretary or Assistant Secretary of the Borrower (i) attaching a true and complete copy of the resolutions of its Trustees and of all documents evidencing other necessary action (in form and substance reasonably satisfactory to the Agent) taken by it to authorize the Loan Documents and the transactions contemplated thereby, (ii) attaching a true and complete copy of its Declaration of Trust, (iii) setting forth the incumbency of its officer or officers who may sign the Loan Documents, including therein a signature specimen of such officer or officers, and (iv) attaching a certificate of said Secretary or Assistant Secretary to the ef- fect that the Declaration of Trust is a true and complete copy thereof, is in full force and effect and has not been amended or modified. (b) The Agent shall have received certificates of good standing from the Secretaries of State for the Commonwealth of Massachusetts, and each other jurisdiction in which the Borrower is qualified to do business, provided that such Secretaries issue such certificates with respect to the Borrower. B. This Agreement. The Agent shall have received counterparts of this Agreement signed by each of the parties hereto (or receipt by the Agent from a party hereto of a facsimile signature page signed by such party which shall have agreed to promptly provide the Agent with originally executed counterparts hereof). C. Notes. The Agent shall have received the Notes, duly executed by an Authorized Signatory of the Borrower. D. Litigation. There shall be no injunction, writ, preliminary restraining order or other order of any nature issued by any Governmental Authority in any respect affecting the transactions provided for herein and no action or proceeding by or before any Governmental Authority shall have been commenced and be pending or, to the knowledge of the Borrower, threatened, seeking to prevent or delay the transactions contemplated by the Loan Documents or chal- lenging any other terms and provisions hereof or thereof or seeking any damages in connection therewith and the Agent shall have received a cer- tificate of an Authorized Signatory of the Borrower to the foregoing effects. E. Opinion of Counsel to the Borrower. The Agent shall have received an opinion of (i) Hofheimer, Gartlir & Gross, outside counsel to the Borrower, and (ii) Steven F. Siegel, in-house counsel to the Borrower, each addressed to the Agent, the Lenders and Special Counsel, and each dated the first Borrowing Date, in the form of Exhibit I. F. Opinion of Special Counsel. The Agent shall have received an opinion of Special Counsel, addressed to the Agent and the Lenders and dated the first Borrowing Date and substantially in the form of Exhibit J. G. Fees. The Commitment Fee and all fees payable to the Agent shall have been paid. H. Fees and Expenses of Special Counsel. The fees and expenses of Special Counsel in connection with the preparation, negotiation and closing of the Loan Documents shall have been paid. I. Termination of Existing Loan Agreement. On the Effective Date, all loans outstanding under the Existing Loan Agreement, together with all interest, fees, breakage costs and other amounts outstanding thereunder, shall have been paid to the lenders thereunder in full and the obligations of such lenders under the Existing Loan Agreement shall have been terminated. VI. CONDITIONS OF LENDING - ALL LOANS The obligation of each Lender to make any Revolving Credit Loan or convert its Revolving Credit Loans to Term Loans is subject to the satisfac- tion of the following conditions precedent as of the date of such Loan: A. Compliance. On each Borrowing Date and after giving effect to the Loans to be made or created (a) the Borrower shall be in compliance with all of the terms, covenants and conditions thereof, (b) there shall exist no Default or Event of Default, (c) the representations and warranties contained in the Loan Documents shall be true and correct with the same effect as though such representations and warranties had been made on such Borrowing Date and (d) the aggregate outstanding principal balance of the Loans will not exceed the Aggregate Commitments. Each borrowing by the Borrower shall constitute a certification by the Borrower as of the date of such borrowing that each of the foregoing matters is true and correct in all respects. B. Loan Closings. All documents required by the provisions of the Loan Documents to be executed or delivered to the Agent on or before the applicable Borrowing Date shall have been executed and shall have been delivered at the office of the Agent set forth in Section 11.2 on or before such Borrowing Date. C. Borrowing Request; Term Loan Conversion Notice. With respect to each borrowing of a Revolving Credit Loan, the Agent shall have received a Conventional Borrowing Request or a Competitive Rate Borrowing Request, as the case may be, duly executed by an Authorized Signatory of the Borrower. With respect to the conversion of Revolving Credit Loans to Term Loans pursuant to Section 2.2, the Agent shall have timely received a Term Loan Conversion Notice from the Borrower. D. Documentation and Proceedings. All Trust matters and legal proceedings and all documents and papers in connection with the transactions contemplated by the Loan Documents shall be reasonably satisfactory in form and substance to the Agent and the Agent shall have received all information and copies of all documents which the Agent or the Required Lenders may reasonably have requested in connection therewith, such documents (where appropriate) to be certified by an Authorized Signatory of the Borrower or proper Governmental Authorities. E. Required Acts and Conditions. All acts, conditions and things (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any filings, recordings or registrations) required to be done, performed and to have happened on or prior to such Borrowing Date and which are necessary for the continued effectiveness of the Loan Documents, shall have been done and performed and shall have happened in due compliance with all applicable laws. F. Approval of Special Counsel. All legal matters in connection with the making of each Loan shall be reasonably satisfactory to Special Counsel. G. Supplemental Opinions. If reasonably requested by the Agent with respect to the ap- plicable Borrowing Date, there shall have been delivered to the Agent favorable supplementary opinions of counsel to the Borrower, addressed to the Agent and the Lenders and dated such Borrowing Date, covering such matters incident to the transactions contemplated herein as the Agent may reasonably request. H. Other Documents. The Agent shall have received such other documents as the Agent or the Lenders shall reasonably request. VII. AFFIRMATIVE COVENANTS The Borrower agrees that, so long as this Agreement is in effect, any Loan remains outstanding and unpaid, or any other amount is owing under any Loan Document to any Lender or the Agent, the Borrower shall: A. Financial Statements. Maintain a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Agent and each Lender: (a) As soon as available, but in any event within 120 days after the end of each fiscal year of the Borrower, a copy of its Consolidated and Consolidating Balance Sheet[s] as at the end of such fiscal year, together with the related Consolidated and Consolidating Statements of Opera- tions, Stockholders' Equity and Cash Flows as of and through the end of such fiscal year, setting forth in each case in comparative form the figures for the preceding fiscal year. The Consolidated Balance Sheets and Consolidated Statements of Operations, Stockholders' Equity and Cash Flows shall be au- dited and certified without qualification by the Accountants, which cer- tification shall (i) state that the examination by such Accountants in connection with such Consolidated financial statements has been made in accordance with generally accepted auditing standards and, accordingly, includes the examination, on a test basis, of evidence supporting the amounts and disclosures in such financial statements, and (ii) include the opinion of such Accountants that such Consolidated financial statements present fairly, in all material respects, the Consolidated financial position of the Borrower and its Subsidiaries, as of the date of such financial statements, and the Consolidated results of their operations and their cash flows for each of the years identified therein in conformity with GAAP (subject to any change in the requirements of GAAP). (b) As soon as available, but in any event within 60 days after the end of the first three fiscal quarters of the Borrower a copy of the Consolidated and Consolidating balance sheet[s] of the Borrower as at the end of each such quarterly period, together with the related Consolidated and Consolidating Statements of Operations and Cash Flows for the elapsed portion of the fiscal year through such date, setting forth in each case in comparative form the figures for the corresponding periods of the preceding fiscal year, certified by the Chief Financial Officer of the Borrower (or such other officer acceptable to the Agent), as being complete and correct in all material respects and as presenting fairly the Consolidated and Consolidating financial condition and the Consolidated and Consolidating results of operations of the Borrower and its Subsidiaries. (c) Within 60 days after the end of each of the first three fiscal quarters of the Borrower (120 days after the end of the last fiscal quarter of the Borrower), a Compliance Certificate, certified by the Chief Financial Officer of the Borrower (or such other officer as shall be acceptable to the Agent) setting forth in reasonable detail the computations demonstrating the Borrower's compliance with the provisions of Sections 8.4(e), 8.14, 8.15, 8.16 and 8.17. (d) Such other information as the Agent or any Lender may reasonably request from time to time. B. Certificates; Other Information. Furnish to the Agent and each Lender: (a) Prompt written notice if: (i) any Indebtedness of the Borrower or any Subsidiary is declared or shall become due and payable prior to its stated maturity, or called and not paid when due, or (ii) a default shall have occurred under any note (other than the Notes) or the holder of any such note, or other evidence of Indebtedness, certificate or security evidencing any such Indebtedness or any obligee with respect to any other Indebtedness of the Borrower or any Subsidiary has the right to declare any such Indebtedness due and payable prior to its stated maturity, and, in the case of either (i) or (ii), the Indebtedness that is the subject of (i) or (ii) is, in the aggregate, $100,000 or more; (b) Prompt written notice of: (i) any citation, summons, subpoena, order to show cause or other document naming the Borrower or any Subsidiary a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect or which calls into question the validity or enforceability of any of the Loan Documents, and include with such notice a copy of such citation, summons, subpoena, order to show cause or other document, (ii) any lapse or other termination of any material Intellectual Property, license, permit, franchise or other authorization issued to the Borrower or any Subsidiary by any Person or Governmental Authority, and (iii) any refusal by any Person or Governmental Authority to renew or extend any such material Intellectual Property, license, permit, franchise or other authorization, which lapse, termination, refusal or dispute could reasonably be expected to have a Material Adverse Effect; (c) Promptly upon becoming available, copies of all (i) regular, periodic or special reports, schedules and other material which the Borrower or any Subsidiary may now or hereafter be required to file with or deliver to any securities exchange or the Securities and Exchange Commission, or any other Governmental Authority succeeding to the functions thereof and (ii) material news releases by the Borrower and annual reports relating to the Borrower or any Subsidiary (including any annual reports required pursuant to the REIT Guidelines; (d) As soon as possible, and in any event within ten days after the Borrower knows or has reason to know that any of the events or conditions enumerated below with respect to any Plan or Multiemployer Plan has occurred or exists, a statement signed by the Chief Financial Officer of the Borrower (or such other officer as shall be acceptable to the Agent), setting forth details respecting such event or condition and the action, if any, which the Borrower or an ERISA Affiliate proposes to take with respect thereto; provided, however, that if such event or condition is required to be reported or noticed to the PBGC, such statement, together with a copy of the relevant report or notice to the PBGC, shall be furnished promptly and in any event not later than ten days after it is reported or noticed to the PBGC: (i) any reportable event, as defined in Section 4043(b) of ERISA with respect to a Plan, as to which the PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty days of the occurrence of such event (provided that a failure to meet the minimum funding standard of Section 412 of the Code or of Section 302 of ERISA, including, without limitation, the failure to make, on or before its due date, a required installment under Section 412(m) of the Code or Section 302(e) of ERISA or the disqualification of such Plan for purposes of Section 4043(b)(1) of ERISA, shall be a reportable event regardless of the issuance of any waivers in accordance with Section 412(d) of the Code) and any request for a waiver under Section 412(d) of the Code for any Plan; (ii) the distribution under Section 4041 of ERISA of a notice of intent to terminate any Plan or any action taken by the Borrower or any ERISA Affiliate to terminate any Plan; (iii) the institution by the PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Borrower or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; (iv) the complete or partial withdrawal from a Multiemployer Plan by the Borrower or any ERISA Affiliate that results in liability under Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default) or the receipt of the Borrower or any ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA; (v) the institution of a proceeding by a fiduciary of any Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce Section 515 of ERISA, which proceeding is not dismissed with thirty days from its commencement; (vi) the adoption of an amendment to any Plan pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA that would result in the loss of the tax-exempt status of the trust of which such Plan is a part or the Borrower or any ERISA Affiliate fails to timely provide security to such Plan in accordance with the provisions of said Sections; and (vii) any event or circumstance exists which may reasonably be expected to constitute grounds for the incurrence of liability by the Borrower or any ERISA Affiliate under Title IV of ERISA or under Sections 412(c)(11) or 412(n) of the Code with respect to any employee benefit plan; (e) Promptly after the request of the Agent or any Lender therefor, copies of each annual report filed pursuant to Section 104 of ERISA with respect to each Plan (including, to the extent required by Section 104 of ERISA, the related financial and actuarial statements and opinions and other supporting statements, certifications, schedules and information referred to in Section 103 of ERISA) and each annual report filed with respect to each Plan under Section 4065 of ERISA; provided, however, that in the case of a Multiemployer Plan, such annual reports shall be furnished only if they are available to the Borrower or any ERISA Affiliate; (f) Prompt written notice of any order, notice, claim or proceeding received by, or brought against, the Borrower or any Subsidiary, or with respect to any of the Real Property, under any Environmental Law; (g) Promptly after the scheduling of any Net Proceeds Event, notice of the date on which said Net Proceeds Event is scheduled to occur, together with a statement identifying the Property which is the subject of said Net Proceeds Event and setting forth the gross proceeds in connection with said Net Proceeds Event and the items and amounts deducted from such gross proceeds in determining the Net Proceeds, and such other information as the Agent or any Lender shall reasonably request with respect to such Net Proceeds Event; (h) Promptly after becoming aware of any change in any of the information delivered pursuant to Section 7.2(g), notice of such change, together with a statement describing in reasonable detail the changes and the reasons therefor; (i) In the event that the Agent shall have a reasonable basis for believing that Hazardous Substances may be on, at, under or around any Real Property in violation of any applicable Environmental Law which individually or in the aggregate could have a Material Adverse Effect, conduct and complete (at the Borrower's expense) all investigations, studies, samplings and testings relative to such Hazardous Substances as the Agent may reasonably request; (j) Promptly after the same are received by the Borrower, copies of all management letters and similar reports provided to the Borrower by the Accountants; (k) Prompt written notice if there shall occur and be con- tinuing a Default or an Event of Default; and (l) Such other information as the Agent or any Lender shall reasonably request from time to time. C. Legal Existence. Maintain its status as a Massachusetts business trust in good standing in the Commonwealth of Massachusetts and in each other jurisdiction in which the failure so to do could reasonably be expected to have a Material Adverse Effect. D. Taxes. Pay and discharge when due, and cause each Subsidiary so to do, all Taxes, assessments and governmental charges, license fees and levies upon, or with respect to the Borrower or such Subsidiary and all Taxes upon the income, profits and Property of the Borrower and its Subsidiaries, which if unpaid, could reasonably be expected to have a Material Adverse Effect or become a Lien on the Property of the Borrower or such Subsidiary (other than a Permitted Lien), unless and to the extent only that such Taxes, as- sessments, charges, license fees and levies shall be contested in good faith and by appropriate proceedings diligently conducted by the Borrower or such Subsidiary and provided that the Borrower shall give the Agent prompt notice of such contest and that such reserve or other appropriate provision as shall be required by the Accountants in accordance with GAAP shall have been made therefor. E. Insurance. (a) Maintain, and cause each Subsidiary to maintain, insurance on its Property against such risks and in such amounts as is customarily maintained by Persons engaged in similar businesses and owning similar Prop- erties in the same general areas in which the Borrower or the relevant Subsidiary operates, and file with the Agent within 10 days after request therefor a detailed list of such insurance then in effect, stating the names of the carriers thereof, the policy numbers, the insureds thereunder, the amounts of insurance, dates of expiration thereof, and the Property and risks covered thereby, together with a certificate of the Chief Financial Officer (or such other officer as shall be acceptable to the Agent) of the Borrower certifying that in the opinion of such officer such insurance is adequate in nature and amount, complies with the obligations of the Borrower under this Section, and is in full force and effect. (b) Concurrent Insurance. Neither the Borrower nor any Subsidiary shall take out separate insurance concurrent in form or contributing in the event of loss with that required to be maintained pur- suant to subsection (a) above unless the Agent has approved the carrier and the form and content of the insurance policy, including, without limitation, naming the Agent as an additional insured and sole loss payee thereunder. F. Payment of Indebtedness and Performance of Obligations. Pay and discharge when due, and cause each Subsidiary to pay and discharge, all lawful Indebtedness, obligations and claims for labor, materials and supplies or otherwise which, if unpaid, might (i) have a Material Adverse Effect, or (ii) become a Lien upon Property of the Borrower or any Subsidiary other than a Permitted Lien, unless and to the extent only that the validity of such Indebtedness, obligation or claim shall be con- tested in good faith and by appropriate proceedings diligently conducted by it, and provided that the Borrower shall give the Agent prompt notice of any such contest and that such reserve or other appropriate provision as shall be required by the Accountants in accordance with GAAP shall have been made therefor. G. Condition of Property. In all material respects, at all times, maintain, protect and keep in good repair, working order and condition (ordinary wear and tear excepted), and cause each Subsidiary so to do, all Property necessary to the operation of the Borrower's or such Subsidiary's business. H. Observance of Legal Requirements. Observe and comply in all respects, and cause each Subsidiary so to do, with all laws, ordinances, orders, judgments, rules, regulations, certifications, franchises, permits, licenses, directions and requirements of all Governmental Authorities, which now or at any time hereafter may be ap- plicable to it, including, without limitation, ERISA and all Environmental Laws, a violation of which could reasonably be expected to have a Material Adverse Effect, except such thereof as shall be contested in good faith and by appropriate proceedings diligently conducted by it, provided that the Bor- rower shall give the Agent prompt notice of such contest and that such reserve or other appropriate provision as shall be required by the Ac- countants in accordance with GAAP shall have been made therefor. I. Inspection of Property; Books and Records; Discussions. Keep proper books of record and account in which full, true and correct entries in conformity with GAAP and all requirements of law shall be made of all dealings and transactions in relation to its business and activities and permit representatives of the Agent and any Lender during normal business hours and on reasonable prior notice to visit its offices, to inspect any of its Property and to examine and make copies or abstracts from any of its books and records as often as may reasonably be desired, and to discuss the business, operations, prospects, licenses, Property and financial condition of the Borrower or and its Subsidiaries with the officers thereof and the Accountants. J. Licenses, Intellectual Property. Maintain, and cause each Subsidiary to maintain, in full force and effect, all material licenses, franchises, Intellectual Property, permits, licenses, authorizations and other rights as are necessary for the conduct of its business. K. REIT Status. Maintain its status under the Code and the REIT Guidelines as a REIT. VIII. NEGATIVE COVENANTS The Borrower agrees that, so long as this Agreement is in effect, any Loan remains outstanding and unpaid, or any other amount is owing under any Loan Document to any Lender or the Agent, the Borrower shall not, directly or indirectly: A. Liens. Create, incur, assume or suffer to exist any Lien upon any of its Property, whether now owned or hereafter acquired, or permit any Subsidiary so to do, except (i) Liens for Taxes, assessments or similar charges incurred in the ordinary course of business which are not delinquent or which are being contested in accordance with Section 7.4, provided that enforcement of such Liens is stayed pending such contest, (ii) Liens in con- nection with workers' compensation, unemployment insurance or other social security obligations (but not ERISA), (iii) deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of money), leases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of business, (iv) zoning ordinances, easements, rights of way, minor defects, irregularities, and other similar restrictions affecting real Property which do not adversely af- fect the value of such real Property or the financial condition of the Borrower or such Subsidiary or impair its use for the operation of the business of the Borrower or such Subsidiary, (v) statutory Liens arising by operation of law such as mechanics', materialmen's, carriers', warehousemen's liens incurred in the ordinary course of business which are not delinquent or which are being contested in accordance with Section 7.4, provided that enforcement of such Liens is stayed pending such contest, (vi) Liens arising out of judgments or decrees which are being contested in accordance with Section 7.4, provided that enforcement of such Liens is stayed pending such contest, (vii) mortgages on Real Property of the Borrower, provided that the existence of such mortgages, and the indebtedness secured thereby, does not violate any other provision of this Agreement), (viii) Liens on other Property of the Borrower not included in clauses (i) through (viii) of this Section which do not in the aggregate exceed $2,000,000. B. Merger, Consolidation and Certain Dispositions of Property. (a) Consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property, or permit any Subsidiary so to do (other than a merger of a Subsidiary into the Borrower where the Borrower is the surviving entity), or (b) Sell, lease or dispose of any of its Property except in an arm's length transaction in the ordinary course of its business for the fair market value thereof. C. Contingent Obligations. Assume, guarantee, endorse, contingently agree to purchase or perform, or otherwise become liable upon any Contingent Obligation or permit any Subsidiary so to do, other than a guarantee by the Borrower of an obligation of a Subsidiary of the Borrower (but only to the extent that if the Borrower had entered into such obligation directly, the Borrower would not be in violation of any of the terms of this Agreement), except the Contingent Obligations of the Borrower or any Subsidiary existing on the date hereof as set forth on Schedule 8.3. D. Investments, Loans, Etc. At any time, purchase or otherwise acquire, hold or invest in the Stock of, or any other interest in, any Person, or make any loan or advance to, or enter into any arrangement for the purpose of providing funds or credit to, or make any other investment, whether by way of capital contribution, time deposit or otherwise, in or with any Person, or permit any Subsidiary so to do, (all of which are sometimes referred to herein as "Investments") except: (a) Investments in short-term domestic and eurodollar time deposits with any Lender, or any other commercial bank, trust company or national banking association incorporated under the laws of the United States or any State thereof and having undivided capital, surplus and undivided profits exceeding $500,000,000 and a long term debt rating of A or A2, as determined, respectively, by S&P and Moody's; (b) Investments in short-term direct obligations of the United States of America or agencies thereof whose obligations are guaranteed by the United States of America; (c) Investments existing on the date hereof as set forth on Schedule 8.4; (d) normal business banking accounts and short-term certificates of deposit and time deposits in, or issued by, federally insured institutions in amounts not exceeding the limits of such insurance; (e) Investments consisting of loans to employees of the Borrower, provided that all such loans in the aggregate do not at any time exceed $6,200,000 in the aggregate; and (f) Investments permitted under Section 856-859 of the Code. E. Business and Name Changes. Change the nature of the business of the Borrower as conducted on the Effective Date, or alter or modify its name, structure or status. F. Subsidiaries. Create or acquire any other Subsidiary, or permit any Subsidiary so to do, except in the ordinary course of business (as conducted on the Effective Date). G. Declaration of Trust. Amend or otherwise modify its Declaration of Trust in any way which would adversely affect the interests of the Agent and the Lenders under any of the Loan Documents, or permit any Subsidiary to amend its organizational documents in a manner which could have the same result. H. ERISA. Adopt or become obligated to contribute to any Plan or Multiemployer Plan, or permit any ERISA Affiliate so to do, other than those set forth on Schedule 4.12. I. Prepayments of Indebtedness. Prepay or obligate itself to prepay, in whole or in part, any Indebtedness or permit any Subsidiary so to do except (i) Indebtedness under the Loan Documents (unless such prepayment is restricted by the Loan Documents), and (ii) Indebtedness secured by a mortgage on Real Property, provided that (x) such prepayment does not otherwise result in a Default under this Agreement and (y) the Borrower complies with the provisions of Section 2.7(b) in connection with such prepayment, if applicable. J. Sale and Leaseback. Enter into any arrangement with any Person providing for the leasing by it of Property which has been or is to be sold or transferred by it to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such Property or its rental obligations, or permit any Subsidiary so to do. K. Fiscal Year. Change its fiscal year from that in effect on the Effective Date, or permit any Subsidiary so to do. L. Transactions with Affiliates. Become a party to any transaction with an Affiliate unless its Board of Directors shall have determined that the terms and conditions relating thereto are as favorable to it as those which would be obtainable at the time in a comparable arms-length transaction with a Person other than an Affiliate, or permit any Subsidiary so to do. M. Issuance of Additional Capital Stock by Subsidiaries. Permit any Subsidiary to issue any additional Stock or other equity interest of such Subsidiary. N. Interest Coverage Ratio. Permit the Interest Coverage Ratio to be less than 2.0:1.0 at any time. O. Minimum Tangible Net Worth. Permit the Tangible Net Worth of the Borrower and its Subsidiaries on a Consolidated basis at any time to be less than $550,000,000. P. Maximum Total Indebtedness. Permit either (i) the total indebtedness of the Borrower, as determined in accordance with GAAP, at any time to be more than 50% of Total Capital at such time, or (ii) the indebtedness of the Borrower secured by mortgages on Real Property owned by the Borrower at any time to exceed 40% of Total Capital at such time. Q. Minimum Unencumbered Assets. Permit the Undepreciated Real Estate Assets at any time to be less than the total of all unsecured Indebtedness of the Borrower at such time. IX. DEFAULT A. Events of Default. The following shall each constitute an "Event of Default" hereunder: (a) The failure of the Borrower to pay any installment of principal on any Note on the date when due and payable; or (b) The failure of the Borrower to pay any installment of interest or any other fees or expenses payable under any Loan Document within five Business Days of the date when due and payable; or (c) The use of the proceeds of any Loan in a manner inconsistent with or in violation of Section 2.16; or (d) The failure of the Borrower to observe or perform any covenant or agreement contained in Sections 7.3, 7.11 or 8; or (e) The failure to observe or perform any other term, covenant, or agreement contained in any Loan Document and such failure shall have continued unremedied for a period of 30 days after the Borrower shall have obtained knowledge thereof; or (f) Any representation or warranty of the Borrower (or of any officer of the Borrower on its behalf) made in any Loan Document to which it is a party or in any certificate, report, opinion (other than an opinion of counsel) or other document delivered or to be delivered pursuant thereto, shall prove to have been incorrect or misleading (whether because of mis- statement or omission) in any material respect when made; or (g) Any obligation of the Borrower (other than its obligations under the Notes) or any Subsidiary, whether as principal, guaran- tor, surety or other obligor, for the payment of any Indebtedness shall (i) become or shall be declared to be due and payable prior to the expressed maturity thereof, or (ii) shall not be paid when due or within any grace period for the payment thereof, or (iii) shall be subject, by the holder of the obligation evidencing such Indebtedness, to acceleration prior to the expressed maturity thereof, and the sum of all such Indebtedness which is the subject of clauses (i) - (iii) inclusive exceeds $4,000,000; (h) The Borrower or any Subsidiary shall be in default under any other material agreement and the applicable grace period or cure period, if any, with respect thereto shall have expired; or (i) The Borrower or any Subsidiary shall (i) suspend or discontinue its business, (ii) make an assignment for the benefit of creditors, (iii) generally not be paying its debts as such debts become due, (iv) admit in writing its inability to pay its debts as they become due, (v) file a voluntary petition in bankruptcy, (vi) become insolvent (however such insolvency shall be evidenced), (vii) file any petition or answer seeking for itself any reorganization, arrangement, composition, readjustment of debt, liquidation or dissolution or similar relief under any present or future statute, law or regulation of any jurisdiction, (viii) petition or apply to any tribunal for any receiver, custodian or any trustee for any substantial part of its Property, (ix) be the subject of any such proceeding filed against it which remains undismissed for a period of 60 days, (x) file any answer admitting or not contesting the material allegations of any such petition filed against it or any order, judgment or decree approving such petition in any such proceeding, (xi) seek, approve, consent to, or acquiesce in any such proceeding, or in the appointment of any trustee, receiver, custodian, liquidator, or fiscal agent for it, or any substantial part of its Property, or an order is entered appointing any such trustee, receiver, custodian, liquidator or fiscal agent and such order remains in effect for 60 days, (xii) take any formal action for the purpose of effecting any of the foregoing or looking to the liquidation or dissolution of the Borrower or such Subsidiary; or (j) An order for relief is entered under the United States bankruptcy laws or any other decree or order is entered by a court having jurisdiction (i) adjudging the Borrower or any Subsidiary bankrupt or insol- vent, (ii) approving as properly filed a petition seeking reorganization, liquidation, arrangement, adjustment or composition of or in respect of the Borrower or any Subsidiary under the United States bankruptcy laws or any other applicable Federal or state law, (iii) appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Borrower or any Subsidiary or of any substantial part of the Property thereof, (iv) ordering the winding up or liquidation of the affairs of the Borrower or any Subsidiary, and any such decree or order continues un- stayed and in effect for a period of 60 days; or (k) Judgments or decrees against the Borrower or any Subsidiary aggregating in excess of $500,000 shall remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of 30 days; or (l) Any Loan Document shall cease, for any reason, to be in full force and effect, or the Borrower shall so assert in writing or shall disavow any of its obligations thereunder; or (m) An event or condition specified in Section 7.2(d) shall occur or exist with respect to any Plan or Multiemployer Plan and, as a result of such event or condition, together with all other such events or conditions, the Borrower shall be reasonably likely to incur a liability to a Plan, a Multiemployer Plan, the PBGC, or any combination thereof which would constitute, in the reasonable opinion of the Required Lenders, a Material Adverse Effect; or (n) There shall occur a Material Adverse Change; or (o) There shall occur a Change in Control. Upon the occurrence of an Event of Default or at any time thereafter during the continuance thereof, (a) if such event is an Event of Default specified in clause (i) or (j) above, the Aggregate Commitments shall immediately and automatically terminate and the Loans, all accrued and unpaid interest thereon, and all other amounts owing under the Loan Documents shall immediately become due and payable, and the Agent may, and upon the direction of the Required Lenders shall, exercise any and all remedies and other rights provided in the Loan Documents, and (b) if such event is any other Event of Default, any or all of the following actions may be taken: (i) with the con- sent of the Required Lenders, the Agent may, and upon the direction of the Required Lenders shall, by notice to the Borrower, declare the Aggregate Com- mitments to be terminated forthwith, whereupon the Aggregate Commitments shall immediately terminate, and (ii) with the consent of the Required Lenders, the Agent may, and upon the direction of the Required Lenders shall, by notice of default to the Borrower, declare the Loans, all accrued and unpaid interest thereon and all other amounts owing under the Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable, and the Agent may, and upon the direction of the Required Lenders shall, exercise any and all remedies and other rights provided pursu- ant to the Loan Documents. Except as otherwise provided in this Section, presentment, demand, protest and all other notices of any kind are hereby ex- pressly waived. The Borrower hereby further expressly waives and covenants not to assert any appraisement, valuation, stay, extension, redemption or similar laws, now or at any time hereafter in force which might delay, prevent or otherwise impede the performance or enforcement of any Loan Docu- ment. In the event that the Aggregate Commitments shall have been terminated or the Notes shall have been declared due and payable pursuant to the provisions of this Section, any funds received by the Agent and the Lenders from or on behalf of the Borrower shall be applied by the Agent and the Lenders in liquidation of the Loans and the obligations of the Borrower under the Loan Documents in the following manner and order: (i) first, to the payment of interest on and then the principal portion of any Loans which the Agent may have advanced on behalf of any Lender for which the Agent has not then been reimbursed by such Lender or the Borrower; (ii) second, to the payment of any fees or expenses due the Agent from the Borrower, (iii) third, to reimburse the Agent and the Lenders for any expenses (to the extent not paid pursuant to clause (ii) due from the Borrower pursuant to the provisions of Section 11.5; (iv) fourth, to the payment of accrued Commitment Fees, and all other fees, expenses and amounts due under the Loan Documents (other than principal and interest on the Notes); (v) fifth, to the payment of interest due on the Notes; (vi) sixth, to the payment of principal outstanding on the Notes; and (vii) seventh, to the payment of any other amounts owing to the Agent and the Lenders under any Loan Document. X. THE AGENT A. Appointment. Each Lender hereby irrevocably designates and appoints BNY as the Agent of such Lender under the Loan Documents and each such Lender hereby irrevocably authorizes BNY, as the Agent for such Lender, to take such action on its behalf under the provisions of the Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Agent by the terms of the Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in any Loan Document, the Agent shall not have any duties or responsibilities, except those expressly set forth therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Loan Documents or otherwise exist against the Agent. B. Delegation of Duties. The Agent may execute any of its duties under the Loan Documents by or through agents or attorneys-in-fact and shall be entitled to rely upon the advice of counsel concerning all matters pertaining to such duties. C. Exculpatory Provisions. Neither the Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with the Loan Documents (except for its own gross negligence or willful misconduct), or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by the Borrower or any officer thereof contained in the Loan Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under or in connection with, the Loan Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Loan Documents or for any failure of the Borrower or any other Person to perform its obligations thereunder. The Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, the Loan Documents, or to inspect the properties, books or records of the Borrower. The Agent shall not be under any liability or re- sponsibility whatsoever, as Agent, to the Borrower or any other Person as a consequence of any failure or delay in performance, or any breach, by any Lender of any of its obligations under any of the Loan Documents. D. Reliance by Agent. The Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Borrower), independent accountants and other experts selected by the Agent. The Agent may treat each Lender, or the Person designated in the last notice filed with it under this Section, as the holder of all of the interests of such Lender in its Loans and in its Note until written notice of transfer, signed by such Lender (or the Person designated in the last notice filed with the Agent) and by the Person designated in such written notice of transfer, in form and substance satisfactory to the Agent, shall have been filed with the Agent. The Agent shall not be under any duty to examine or pass upon the validity, effectiveness or genuineness of the Loan Documents or any instrument, document or communication furnished pursuant thereto or in connection there- with, and the Agent shall be entitled to assume that the same are valid, ef- fective and genuine, have been signed or sent by the proper parties and are what they purport to be. The Agent shall be fully justified in failing or refusing to take any action under the Loan Documents unless it shall first receive such advice or concurrence of the Required Lenders as it deems ap- propriate. The Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Loan Documents in accordance with a request or direction of the Required Lenders, and such request or direction and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Notes. E. Notice of Default. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Agent has received written notice thereof from a Lender or the Borrower. In the event that the Agent receives such a notice, the Agent shall promptly give notice thereof to the Lenders. The Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders, provided, however, that unless and until the Agent shall have received such directions, the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem to be in the best interests of the Lenders. F. Non-Reliance on Agent and Other Lenders. Each Lender expressly acknowledges that neither the Agent nor any of its respective officers, directors, employees, agents, attorneys- in-fact or affiliates has made any representations or warranties to it and that no act by the Agent hereinafter, including any review of the affairs of the Borrower, shall be deemed to constitute any representation or warranty by the Agent to any Lender. Each Lender represents to the Agent that it has, in- dependently and without reliance upon the Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own evaluation of and investigation into the business, operations, Property, financial and other condition and creditworthiness of the Borrower and made its own decision to enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, evaluations and decisions in taking or not taking action under any Loan Document, and to make such investigation as it deems necessary to inform itself as to the business, operations, Property, financial and other condition and creditworthiness of the Borrower. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Agent hereunder, the Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, Property, financial and other condition or creditwor- thiness of the Borrower which may come into the possession of the Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. G. Indemnification. Each Lender agrees to indemnify and reimburse the Agent in its capacity as such (to the extent not promptly reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), pro rata according to its Commitment, from and against any and all liabilities, obligations, claims, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever including, without limitation, any amounts paid to the Lenders (through the Agent) by the Borrower pursuant to the terms of the Loan Documents, that are subsequently rescinded or avoided, or must otherwise be restored or returned) which may at any time (including, without limitation, at any time following the payment of the Notes) be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of the Loan Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or any action taken or omitted to be taken by the Agent under or in connection with any of the foregoing; provided, however, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent resulting solely from the gross negligence or willful misconduct of the Agent. The agreements in this Section shall survive the payment of all amounts payable under the Loan Documents. H. Agent in Its Individual Capacity. BNY and its respective affiliates may make loans to, accept deposits from, issue letters of credit for the account of, and generally en- gage in any kind of business with, the Borrower as though BNY was not Agent hereunder. With respect to the Commitment made or renewed by BNY and the Note issued to BNY, BNY shall have the same rights and powers under the Loan Documents as any Lender and may exercise the same as though it was not the Agent, and the terms "Lender" and "Lenders" shall in each case include BNY. I. Successor Agent. If at any time the Agent deems it advisable, in its sole discretion, it may submit to each of the Lenders a written notice of its resignation as Agent under this Agreement, such resignation to be effective upon the earlier of (i) the written acceptance of the duties of the Agent under the Loan Documents by a successor Agent and (ii) on the 30th day after the date of such notice. Upon any such resignation, the Required Lenders shall have the right to appoint from among the Lenders a successor Agent. If no successor Agent shall have been so appointed by the Required Lenders and accepted such appointment in writing within 30 days after the retiring Agent's giving of notice of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which successor Agent shall be a commercial bank organized under the laws of the United States of America or any State thereof and having a combined capital and surplus of at least $100,000,000. The Borrower shall have the right to approve any such successor Agent, which approval shall not be unreasonably withheld or delayed. Upon the acceptance of any appointment as Agent hereunder by a suc- cessor Agent and the approval of such successor Agent by the Borrower in accordance with the terms of this Section, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent's rights, powers, privileges and duties as Agent under the Loan Documents shall be terminated. The Borrower and the Lenders shall execute such documents as shall be necessary to effect such appointment. After any retiring Agent's resignation hereunder as Agent, the provisions of the Loan Documents shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under the Loan Documents. If at any time hereunder there shall not be a duly appointed and acting Agent, the Borrower agrees to make each payment due under the Loan Documents directly to the Lenders entitled thereto during such time. XI. OTHER PROVISIONS. A. Amendments and Waivers. With the written consent of the Required Lenders, the Agent and the Borrower may, from time to time, enter into written amendments, supplements or modifications of the Loan Documents and, with the consent of the Required Lenders, the Agent on behalf of the Lenders may execute and deliver to any such parties a written instrument waiving or a consent to a departure from, on such terms and conditions as the Agent may specify in such instrument, any of the requirements of the Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such amendment, supplement, modification, waiver or consent shall (i) change the Commitments of any Lender or the Total Commitment Amount, (ii) extend the Revolving Credit Termination Date (other than as provided for in Section 2.19); (iii) decrease the rate, or extend the time of payment, of interest of, or change or forgive the principal amount of, or change the requirement that payments and prepayments of principal of, and payments of interest on, the Notes be made pro rata to the Lenders on the basis of the outstanding principal amount of the Loans, (iv) amend the definition of "Required Lender"), or (v) change the provisions of Sections 2.9, 2.12, 2.13, 2.14, 2.19, 2.20, 3.1 or 11.1 without the consent of all of the Lenders; and pro- vided further that no such amendment, supplement, modification, waiver or consent shall amend, modify, waive or consent to a departure from any provi- sion of Section 10 or otherwise change any of the rights or obligations of the Agent under the Loan Documents without the written consent of the Agent. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable agreement, the Lenders, the Agent and all future holders of the Notes. In the case of any waiver, the parties to the applicable agreement, the Lenders and the Agent shall be restored to their former position and rights under the Loan Documents, and any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. B. Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or if sent by certified mail (return receipt requested), when the return receipt is signed on behalf of the party to whom such notice is given, or in the case of telecopier notice, when sent, or if sent by overnight nationwide commercial courier, when deposited with said courier, and in any case addressed as follows in the case of the Borrower or the Agent, and at the Domestic Lending Office in the case of each Lender, or to such other addresses as to which the Agent may be hereafter notified by the respective parties hereto or any future holders of the Notes: The Borrower: New Plan Realty Trust 1120 Avenue of the Americas New York, New York 10036 Attention: Dean Bernstein, Vice President Telephone: (212) 869-3000 Telecopy: (212) 302-4776 with a copy to: New Plan Realty Trust 1120 Avenue of the Americas New York, New York 10036 Attention: Steven F. Siegel, Esq., Telephone: (212) 869-3000 Telecopy: (212) 302-4776 and an additional copy to: Hofheimer, Gartlir, & Gross 633 Third Avenue New York, New York 10017 Attention: Donald M. Weisberg, Esq. Telephone: (212) 818-9000 Telecopy: (212) 661-3132 The Agent: The Bank of New York One Wall Street Agency Function Administration 18th Floor New York, New York 10286 Attention: Patricia Clancy Agency Function Administrator Telephone: (212) 635-4695 Telecopy: (212) 635-6365 or 6366 or 6367 with a copy to: The Bank of New York One Wall Street New York, New York 10286 Attention: Andrea Stuart, Vice President Telephone: (212) 635-4672 Telecopy: (212) 635-7904, except that any notice, request or demand by the Borrower to or upon the Agent or the Lenders pursuant to Sections 2.4, 2.5 or 2.8 shall not be effective until received. Any party to a Loan Document may rely on signatures of the parties thereto which are transmitted by telecopier or other electronic means as fully as if originally signed. C. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising any right, remedy, power or privilege under any Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under any Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges under the Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. D. Survival of Representations and Warranties. All representations and warranties made under the Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection therewith shall survive the execution and delivery of the Loan Documents. After the termination of this Agreement in accordance with its terms, without any extension thereof, the payment in full of all obligations of the Borrower under the Loan Documents and the expiration of any obligations of the Borrower hereunder which survive the termination of this Agreement, the Borrower shall have no liability to the Lenders under such representations and warranties, except that the foregoing shall not apply with respect to any claim, action or proceeding made or brought under any such representations or warranties prior to such termination or payment. E. Payment of Expenses and Taxes. The Borrower agrees, promptly upon presentation of a statement or invoice therefor, and whether any Loan is made (i) to pay or reimburse the Agent for all its out-of-pocket costs and expenses reasonably incurred in connection with the development, preparation and execution of, the Loan Documents, the syndication of the loan transaction evidenced by this Agreement (whether or not such syndication is completed) and any amendment, supplement or modification hereto (whether or not executed), any documents prepared in connection therewith and the consummation of the transactions contemplated thereby, including, without limitation, the reasonable fees and disbursements of Special Counsel, (ii) to pay or reimburse the Agent and the Lenders for all of their respective costs and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred in con- nection with (x) any Default or Event of Default and any enforcement or collection proceedings resulting therefrom or in connection with the ne- gotiation of any restructuring or "work-out" (whether consummated or not) of the obligations of the Borrower under any of the Loan Documents and (y) the enforcement of this Section, (iii) to pay, indemnify, and hold each Lender and the Agent harmless from and against, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, the Loan Documents and any such other documents, and (iv) to pay, indemnify and hold each Lender and the Agent and each of their respective officers, directors, employees, affiliates, agents, controlling persons and attorneys (as used in this Section, each an "indemnified person") harmless from and against any and all other liabilities, obligations, claims, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, reasonable counsel fees and disbursements) with respect to any claim, investigation or proceeding relating to this Agreement or the Loan documents, including the enforcement and performance of the Loan Documents and the use of the proceeds of the Loans (all the foregoing, collectively, the "indemnified liabilities"), whether or not any such indemnified person is a party to this Agreement or the Loan Documents, and to reimburse each indemnified person for all legal and other expenses incurred in connection with investigating or defending any indemnified liabilities, and, if and to the extent that the foregoing indemnity may be unenforceable for any reason, the Borrower agrees to make the maximum payment permitted or not prohibited under applicable law; provided, however, that the Borrower shall have no obligation hereunder to pay indemnified liabilities to the Agent or any Lender arising from (A) the gross negligence or willful misconduct of the Agent or such Lender or (B) disputes solely between the Lenders and which are not related to any act or failure to act on the part of the Borrower or the failure of the Borrower to perform any of its obligations under this Agreement or the Loan Documents. Notwithstanding the foregoing, the fees and expenses referred to in clause (iv) of the preceding paragraph would not be payable by the Borrower if (x) any such enforcement action brought by the Agent or a Lender were dis- missed, with prejudice, on the pleadings or pursuant to a motion made by the Borrower for summary judgment, and (y) if the Agent or such Lender, as the case may be, appealed such dismissal, such dismissal were affirmed and the time for any further appeals had expired. The obligations of the Borrower under this Section shall survive the termination of the Agreement and the Ag- gregate Commitments and the payment of the Notes and all other amounts pay- able under the Loan Documents. F. Lending Offices. Each Lender shall have the right at any time and from time to time to transfer its Loans to a different office, provided that such Lender shall promptly notify the Agent and the Borrower of any such change of of- fice. Such office shall thereupon become such Lender's Domestic Lending Of- fice or Eurodollar Lending Office, as the case may be, provided, however, that no such Lender shall be entitled to receive any greater amount under Sections 2.11, 2.13 or 2.14 as a result of a transfer of any such Loans to a different office of such Lender than it would be entitled to immediately prior thereto unless such claim would have arisen even if such transfer had not occurred. G. Successors and Assigns. (a) The Loan Documents shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Agent, all future holders of the Notes and their respective successors and assigns, except that the Borrower may not assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Agent and each Lender. (b) Each Lender shall have the right at any time, upon written notice to the Agent of its intent to do so, to sell, assign, transfer or negotiate all or any part of such Lender's rights and/or obligations under the Loan Documents to one or more of its Affiliates, to one or more of the other Lenders (or to Affiliates of such other Lenders) or, with the prior written consent of the Borrower and the Agent (which consent, from either of them, shall not be unreasonably withheld and shall not be required from the Borrower upon the occurrence and during the continuance of an Event of Default), to sell, assign, transfer or negotiate all or any part of such Lender's rights and obligations under the Loan Documents to any other bank, insurance company, pension fund, mutual fund or other financial institution, provided that there shall be paid to the Agent by the assigning Lender a fee (the "Assignment Fee") of $2,500. For each assignment, the parties to such assignment shall execute and deliver to the Agent for its acceptance and recording an Assignment and Acceptance Agreement. Upon such execution, delivery, acceptance and recording by the Agent, from and after the effective date specified in such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent provided in such As- signment and Acceptance Agreement, the assignor Lender thereunder shall be released from its obligations under the Loan Documents. The Borrower agrees upon written request of the Agent and at the Borrower's expense to execute and deliver (1) to such assignee, a Note, dated the effective date of such Assignment and Acceptance Agreement, in an aggregate principal amount equal to the Loans assigned to, and Commitments assumed by, such assignee and (2) to such assignor Lender, a Note, dated the effective date of such Assignment and Acceptance Agreement, in an aggregate principal amount equal to the bal- ance of such assignor Lender's Loans and Commitment, if any, and each as- signor Lender shall cancel and return to the Borrower its existing Note. Upon any such sale, assignment or other transfer, the Commitment Amounts set forth in Exhibit B shall be adjusted accordingly by the Agent and a new Exhibit B shall be distributed by the Agent to the Borrower and each Lender. (c) Each Lender may grant participations in all or any part of its Loans, its Note and its Commitment to one or more banks, insurance com- panies, financial institutions, pension funds or mutual funds, provided that (i) such Lender's obligations under the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties to the Loan Documents for the performance of such obligations, (iii) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under the Loan Documents, (iv) no sub-participations shall be permitted and (v) the voting rights of any holder of any participation shall be limited to decisions that only do any of the following: (A) subject the participant to any additional obligation, (B) reduce the principal of, or interest on the Notes or any fees or other amounts payable hereunder, and (C) postpone any date fixed for the payment of principal of, or interest on the Notes or any fees or other amounts payable hereunder. The Borrower ac- knowledges and agrees that any such participant shall for purposes of Sections 2.10, 2.11, 2.12, 2.13, 2.14, 2.15 and 2.17 be deemed to be a "Lender"; provided, however, the Borrower shall not, at any time, be obligated to pay any participant in any interest of any Lender hereunder any sum in excess of the sum which the Borrower would have been obligated to pay to such Lender in respect of such interest had such Lender not sold such participation. (d) If any (i) assignment is made pursuant to subsection (b) or (ii) any participation is granted pursuant to subsection (c), shall be made to any Person that is organized under the laws of any jurisdiction other than the United States of America or any State thereof, such Person shall furnish such certificates, documents or other evidence to the Borrower and the Agent, in the case of clause (i) and to the Borrower and the Lender which sold such participation in the case of clause (ii), as shall be required by Section 2.11(b) to evidence such Person's exemption from U.S. withholding taxes with respect to any payments under or pursuant to the Loan Documents because such Person is eligible for the benefits of a tax treaty which provides for a zero % rate of tax on any payments under the Loan Documents or because any such payments to such Person are effectively connected with the conduct by such Person of a trade or business in the United States. (e) No Lender shall, as between and among the Borrower, the Agent and such Lender, be relieved of any of its obligations under the Loan Documents as a result of any sale, assignment, transfer or negotiation of, or granting of participations in, all or any part of its Loans, its Commitment or its Note, except that a Lender shall be relieved of its obligations to the extent of any such sale, assignment, transfer, or negotiation of all or any part of its Loans, its Commitment or its Note pursuant to subsection (b) above. (f) Notwithstanding anything to the contrary contained in this Section, any Lender may at any time or from time to time assign all or any portion of its rights under the Loan Documents to a Federal Reserve Bank, provided that any such assignment shall not release such assignor from its obligations thereunder. H. Counterparts. Each Loan Document (other than the Notes) may be executed by one or more of the parties thereto on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same document. It shall not be necessary in making proof of any Loan Document to produce or account for more than one counterpart signed by the party to be charged. A telecopied counterpart of any Loan Document or to any document evidencing, and of any an amendment, modification, consent or waiver to or of any Loan Document shall be deemed to be an originally executed counterpart. A set of the copies of the Loan Documents signed by all the parties thereto shall be deposited with each of the Borrower and the Agent. Any party to a Loan Document may rely upon the signatures of any other party thereto which are transmitted by telecopier or other electronic means to the same extent as if originally signed. I. Adjustments; Set-off. (a) If any Lender (a "Benefited Lender") shall at any time receive any payment of all or any part of its Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involun- tarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 9.1 (i) or (j), or otherwise) in a greater proportion than any such payment to and collateral received by any other Lender in respect of such other Lender's Loans, or interest thereon, such Benefited Lender shall purchase for cash from each of the other Lenders such portion of each such other Lender's Loans, and shall provide each of such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders, provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrower agrees that each Lender so purchasing a portion of another Lender's Loans may exercise all rights of payment (including, without limitation, rights of set-off, to the extent not prohibited by law) with respect to such portion as fully as if such Lender were the direct holder of such portion. (b) In addition to any rights and remedies of the Lenders provided by law, upon the occurrence of an Event of Default and the acceleration of the obligations owing in connection with the Loan Documents, or at any time upon the occurrence and during the continuance of an Event of Default, under Section 9.1(a) or (b), each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent not prohibited by applicable law, to set-off and apply against any indebtedness, whether matured or unmatured, of the Borrower to such Lender, any amount owing from such Lender to the Borrower, at, or at any time after, the happening of any of the above-mentioned events. To the extent not prohibited by applicable law, the aforesaid right of set- off may be exercised by such Lender against the Borrower or against any trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor of the Borrower, or against anyone else claiming through or against the Borrower or such trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or war- rant. Each Lender agrees promptly to notify the Borrower and the Agent after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application. J. Lenders' Representations. Each Lender represents to the Agent that, in acquiring its Note, it is acquiring the same for its own account for the purpose of investment and not with a view to selling the same in connection with any distribution thereof, provided that the disposition of each Lender's own Property shall at all times be and remain within its control. K. Indemnity. The Borrower agrees to indemnify and hold harmless the Agent and each Lender and their respective affiliates, directors, officers, employees, affiliates, agents, controlling persons and attorneys (each an "Indemnified Person") from and against any loss, cost, liability, damage or expense (in- cluding the reasonable fees and disbursements of counsel of such Indemnified Person, including all local counsel hired by any such counsel) incurred by such Indemnified Person in investigating, preparing for, defending against, or providing evidence, producing documents or taking any other action in re- spect of, any commenced or threatened litigation, administrative proceeding or investigation under any federal securities or tax laws or any other statute of any jurisdiction, or any regulation, or at common law or otherwise, which is alleged to arise out of or is based upon (i) any untrue statement of any material fact by the Borrower in any document or schedule executed or filed with any Governmental Authority by or on behalf of the Borrower; (ii) any omission to state any material fact required to be stated in such document or schedule, or necessary to make the statements made therein, in light of the circumstances under which made, not misleading; or (iii) any acts, practices or omissions of the Borrower or its agents relating to the use of the proceeds of any or all borrowings made by the Borrower which are alleged to be in violation of Section 2.16, or in violation of any federal securities or tax laws or of any other statute, regulation or other law of any jurisdiction applicable thereto, whether such Indemnified Person is a party thereto. The indemnity set forth herein shall be in addition to any other obligations, liabilities or other indemnifications of the Borrower to each Indemnified Person under the Loan Documents or at common law or otherwise, and shall survive any termination of the Loan Documents, the expiration of the Commitments and the payment of all indebtedness of the Borrower under the Loan Documents, provided that the Borrower shall have no obligation under this Section to an Indemnified Person with respect to any of the foregoing to the extent found in a final judgment of a court having jurisdiction to have resulted primarily out of the gross negligence or wilful misconduct of such Indemnified Person or arising solely from claims between one such Indemnified Person and another such Indemnified Person. L. Governing Law. The Loan Documents and the rights and obligations of the parties thereunder shall be governed by, and construed and interpreted in accordance with, the internal laws of the State of New York, without regard to principles of conflict of laws. M. Headings Descriptive. Section headings have been inserted in the Loan Documents for convenience only and shall not be construed to be a part thereof. N. Severability. Every provision of the Loan Documents is intended to be sever- able, and if any term or provision thereof shall be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions thereof shall not be affected or impaired thereby, and any invalidity, illegality or unenforceability in any jurisdiction shall not affect the validity, legality or enforceability of any such term or provision in any other jurisdiction. O. Integration. All exhibits to a Loan Document shall be deemed to be a part thereof. The Loan Documents embody the entire agreement and understanding among the Borrower, the Agent and the Lenders with respect to the subject matter thereof and supersede all prior agreements and understandings among the Borrower, the Agent and the Lenders with respect to the subject matter thereof. P. Consent to Jurisdiction. The Borrower hereby irrevocably submits to the jurisdiction of any New York State or Federal court sitting in the City of New York over any suit, action or proceeding arising out of or relating to the Loan Documents. The Borrower hereby irrevocably waives, to the fullest extent permitted or not prohibited by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. The Borrower hereby agrees that a final judgment in any such suit, action or proceeding brought in such a court, after all appropriate appeals, shall be conclusive and binding upon it. Q. Service of Process. The Borrower hereby agrees that process may be served against it in any suit, action or proceeding referred to in Section 11.16 by sending the same by first class mail, return receipt requested or by overnight courier service, to the address of the Borrower set forth in Section 11.2 or in the applicable Loan Document executed by the Borrower. The Borrower hereby agrees that any such service (i) shall be deemed in every respect effective service of process upon it in any such suit, action, or proceeding, and (ii) shall to the fullest extent enforceable by law, be taken and held to be valid personal service upon and personal delivery to it. R. No Limitation on Service or Suit. Nothing in the Loan Documents or any modification, waiver, consent or amendment thereto shall affect the right of the Agent or any Lender to serve process in any manner permitted by law or limit the right of the Agent or any Lender to bring proceedings against the Borrower in the courts of any jurisdiction or jurisdictions in which the Borrower may be served. S. WAIVER OF TRIAL BY JURY. THE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE AGENT, OR THE LENDERS, OR COUNSEL TO THE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION. T. Termination After the termination of this agreement in accordance with its terms, without any extension thereof, and the payment in full of all obligations of the Borrower under the Loan Documents (including without limitation, all principal, interest, Commitment Fees and other amounts payable hereunder and under the Notes), the obligations of the Borrower hereunder (other than those which are stated herein to survive any termination of this Agreement) shall terminate, except that the foregoing shall not apply with respect to any claim, action or proceeding made or brought under any other provision of the Loan Documents prior to such termination or payment. At the request of the Borrower, the Lender whose obligations under the Notes have been fully paid shall promptly return to the Borrower its Note or other evidence that such Lender has received full payment of such obligations. U. Limited Recourse Obligations This Agreement and all documents, agreements, understandings and arrangements relating to this transaction have been negotiated, executed and delivered on behalf of the Borrower by the trustees or officers thereof in their representative capacity under the Declaration of Trust, and not indi- vidually, and bind only the trust estate of the Borrower, and no trustee, officer, employee, agent or shareholder of the Borrower shall be bound or held to any personal liability or responsibility in connection with the agreements, obligations and undertakings of the Borrower hereunder, and any person or entity dealing with the Borrower in connection therewith shall look only to the trust estate for the payment of any claim or for the performance of any agreement, obligation or undertaking thereunder. The Agent and each Lender hereby acknowledge and agree that each agreement and other document executed by the Borrower in accordance with or in respect of this transaction shall be deemed and treated to include in all respects and for all purposes the foregoing exculpatory provision. IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. NEW PLAN REALTY TRUST By:/s/ Dean Bernstein ______________________________ Dean Bernstein Vice President THE BANK OF NEW YORK, as Agent and a Lender By:/s/ Andrea H. Stuart _______________________________ Andrea H. Stuart Vice President FLEET NATIONAL BANK as a Lender By:/s/ Claudia Piper Pynchon _________________________________ Claudia Piper Pynchon Vice President CORESTATES BANK NA as a Lender By:/s/ Mark A. Duffy ________________________________ Mark A. Duffy Vice President EX-11 7 EXHIBIT 11 Statement of Computation of Earnings Per Share of Beneficial Interest for the Twelve Months Ended July 31, 1997 (000's omitted except for per share amounts) Fully Primary EPS Diluted EPS ----------- ----------- 1. Proceeds Upon Exercise of Options $51,021 $51,021 2. Market Price of Shares: Closing $ 21.75 Average $22.688 3. Treasury Shares that Could be Repurchased 2,249 2,346 4. Option Shares Outstanding 2,513 2,513 5. Common Stock Equivalents 264 167 6. Average Number of Shares Outstanding 58,461 58,461 7. Total of Common and Common Equivalent Shares 58,725 58,628 8. Net Income for the Period After Preferred Dividend Requirements 76,576 76,576 9. Earnings Per Share of Beneficial Interest 1.30 1.31 10. Reported Earnings Per Share of Beneficial Interest $ 1.31 N/A EX-12 8 EXHIBIT 12 RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth the ratio of earnings to fixed charges and preferred stock dividend requirements for the periods indicated: 1993 1994 1995 1996 1997 ---- ---- ---- ---- ---- 23.6 17.0 8.1 4.9 3.5 For purposes of computing these ratios, earnings have been calculated by adding fixed charges (excluding capitalized interest) to income before extraordinary items. Fixed charges consist of interest costs, whether expensed or capitalized, preferred stock dividend requirements, the interest component of rental expense, if any, and amortization of debt discounts and issue costs, whether expensed or capitalized. CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES YEAR ENDED JULY 31, 1997 (DOLLAR AMOUNTS IN THOUSANDS) EARNINGS: Net income $ 77,037 Interest expense 28,256 Other adjustments 494 -------- $105,787 ======== FIXED CHARGES: Interest expense $ 28,256 Capitalized interest 868 Preferred Stock Dividends 461 Other adjustments 327 -------- $ 29,912 ======== RATIO OF EARNINGS TO FIXED CHARGES 3.5 EX-21 9 EXHIBIT 21 SUBSIDIARIES OF THE REGISTRANT New Plan Realty Trust, the Registrant. New Plan Securities Corp., a New York corporation. New Plan Realty of Alabama, Inc., an Alabama corporation. Avion Service Corp., a Pennsylvania corporation. New Plan Realty of Kingsport, Inc., a Tennessee corporation. New Plan Factory Malls, Inc., a Delaware Corporation New Plan of Tara, Inc., a Delaware Corporation New Plan of Fashion Corners, Inc., a Delaware Corporation New Plan Disbursing Corp., a Delaware Corporation New Plan Realty of Louisiana, Inc., a Delaware Corporation New Plan of Tennessee, Inc., a Delaware Corporation New Plan Realty of Louisiana, L.P., a Delaware limited partnership New Plan of Waterford Place, L.P., a Delaware limited partnership New Plan of Tennessee, L.P., a Delaware limited partnership New Plan of New Garden, Inc., a Delaware corporation EX-23 10 EXHIBIT 23 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statements of New Plan Realty Trust on Forms S-3 (File Nos. 33-58596, 33-60315 and 333- 15635) and on Forms S-8 (File Nos. 33-57946 and 33-59077), of our report dated September 9, 1997, on our audits of the consolidated financial statements and financial statement schedules of New Plan Realty Trust and Subsidiaries, as of July 31, 1997 and 1996 and for the years ended July 31, 1997, 1996 and 1995, which report is included in this Annual Report on Form 10-K. COOPERS & LYBRAND L.L.P. New York, New York October 9, 1997 EX-27 11
5 This Schedule contains summary financial information extracted from the consolidated balance sheets and consolidated statements of operation and is qualified in its entirety by reference to such financial statements (000's are omitted). 1 12-MOS JUL-31-1997 JUL-31-1997 42,781 2,035 12,035 5,581 0 0 1,277,775 105,866 1,261,144 0 478,207 735,196 0 72,775 (63,016) 1,261,144 0 206,821 0 96,039 2,203 0 28,256 77,037 0 77,037 0 0 0 77,037 1.31 1.31
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