Exhibit 1.02
Pricing Agreement
-----------------
November 14, 2002
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
WACHOVIA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BMO XXXXXXX XXXXX CORP.
FLEET SECURITIES, INC.
HVB CAPITAL MARKETS, INC.
XXXXX FARGO BROKERAGE SERVICES, LLC
PNC CAPITAL MARKETS, INC.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Federal Realty Investment Trust, a Maryland real estate investment
trust (the "Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated November 14, 2002 (the
"Underwriting Agreement"), between the Company on the one hand and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc., Wachovia
Securities, Inc., Commerzbank Capital Markets Corp., Banc of America Securities
LLC, BMO Xxxxxxx Xxxxx Corp., Fleet Securities, Inc., HVB Capital Markets, Inc.,
Xxxxx Fargo Brokerage Services, LLC and PNC Capital Markets, Inc. on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which refers to
the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be
a representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representative designated to act on behalf of the Representatives pursuant to
Section 12 of the
Underwriting Agreement is Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
and the Representatives designated to act on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you, is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the Time of Delivery
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities (as defined in Schedule II
hereto) set forth opposite the name of such Underwriter in Schedule I hereto.
The obligations of the Underwriters under this Pricing Agreement and
the Underwriting Agreement incorporated herein are several and not joint.
This Pricing Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
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If the foregoing is in accordance with your understanding, please sign
and return this Pricing Agreement to us, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this Pricing Agreement and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
WACHOVIA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BMO XXXXXXX XXXXX CORP.
FLEET SECURITIES, INC.
HVB CAPITAL MARKETS, INC.
XXXXX FARGO BROKERGE SERVICES, LLC
PNC CAPITAL MARKETS, INC.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
---------------------------------------
Name:
Title:
3
SCHEDULE I
Principal Amount of
Underwriter Designated Securities
------------------------------------- ---------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated .............................. $42,500,000
Xxxxxxx Xxxxx Barney Inc............................... 42,500,000
Wachovia Securities, Inc............................... 42,500,000
Commerzbank Capital Markets Corp....................... 6,000,000
Banc of America Securities LLC......................... 3,000,000
BMO Xxxxxxx Xxxxx Corp................................. 3,000,000
Fleet Securities, Inc.................................. 3,000,000
HVB Capital Markets, Inc............................... 3,000,000
Xxxxx Fargo Brokerage Services, LLC.................... 3,000,000
PNC Capital Markets, Inc............................... 1,500,000
------------
Total............................................ $150,000,000
============
SCHEDULE II
Title of Designated Securities:
6 1/8% Notes due November 15, 2007
Aggregate principal amount:
$150,000,000
Price to Public:
99.764% of the principal amount of the Designated Securities, plus accrued
interest from November 19, 2002 (if settlement occurs after that date)
Purchase Price by Underwriters:
99.164% of the principal amount of the Designated Securities, plus accrued
interest from November 19, 2002 (if settlement occurs after that date)
Specified funds for payment of purchase price:
Wire transfer of immediately available funds
Indenture:
Indenture dated as of September 1, 1998, between the Company and Wachovia
Bank, National Association (formerly, First Union National Bank), as
Trustee
Maturity:
November 15, 2007
Interest Rate:
6 1/8%
Interest Payment Dates:
May 15 and November 15 of each year, commencing May 15, 2003
Redemption Provisions:
The Designated Securities may be redeemed at any time, in whole or in
part, at a redemption price as described in the Prospectus Supplement
Sinking Fund Provisions:
None
Defeasance provisions:
The defeasance and covenant defeasance provisions of the Indenture apply to
the Designated Securities
Time of Delivery:
9:00 a.m., New York City time, on November 19, 2002
Closing Location:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Names and addresses of Representatives:
Designated Representatives:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated, Xxxxxxx Xxxxx
Barney Inc., Wachovia Securities, Inc., Commerzbank Capital Markets
Corp., Banc of America Securities LLC, BMO Xxxxxxx Xxxxx Corp., Fleet
Securities, Inc., HVB Capital Markets, Inc., Xxxxx Fargo Brokerage
Services, LLC and PNC Capital Markets, Inc.
Address for Notices, etc.:
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Real Estate Investment Banking
3
[Face of Security]
FEDERAL REALTY INVESTMENT TRUST
6 1/8% Note due November 15, 2007
No. $150,000,000
--------
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF
$1,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate
investment trust (herein referred to as the "Company," which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to Cede & Co. or registered assigns
the principal sum of One Hundred Fifty Million Dollars on November 15, 2007 (the
"Stated Maturity Date") or the date fixed for earlier redemption (the
"Redemption Date," and together with the Stated Maturity Date with respect to
principal repayable on such date, the "Maturity Date"), and to pay interest
thereon from November 19, 2002 or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually on May 15 and
November 15 in each year (each, an "Interest Payment Date"), commencing May 15,
2003, at the rate of 6 1/8% per annum, until the principal hereof is paid or
duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Holder in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be May 1 or November 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date at
the office or agency of the Company maintained for such purpose; provided,
however, that such interest may be paid, at the Company's option, by mailing a
check to such Holder at its
registered address or by transfer of funds to an account maintained by such
Holder within the United States. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee referred to on the reverse hereof, notice whereof shall be given to
Holders of Notes of this series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Stated Maturity Date
or the principal of, premium, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Note payable on the Redemption Date will
be paid against presentation of this Note at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will include interest accrued from and
including the next preceding Interest Payment Date in respect of which interest
has been paid or duly provided for (or from and including November 19, 2002, if
no interest has been paid on this Note) to but excluding such Interest Payment
Date or the Maturity Date, as the case may be. If any Interest Payment Date or
the Maturity Date falls on a day that is not a Business Day, as defined below,
principal, premium, if any, and/or interest payable with respect to such
Interest Payment Date or Maturity Date, as the case may be, will be paid on the
next succeeding Business Day with the same force and effect as if it were paid
on the date such payment was due, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date or Maturity
Date, as the case may be. "Business Day" means any day, other than a Saturday or
Sunday, on which banks in the City of New York and the City of Charlotte, State
of North Carolina, are not required or authorized by law or executive order to
close.
All payments of principal, premium, if any, and interest in
respect of this Note will be made by the Company in immediately available funds.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature of one of its authorized
signatories, this Note shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: November __, 2002
FEDERAL REALTY INVESTMENT TRUST
By:
-----------------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer and
Trustee
Attest:
--------------------------------
Xxxx X. Xxxxxx
Vice President, General Counsel
and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Note of the series designated therein referred to in the
within-mentioned Indenture.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:
-------------------------------------
Authorized Signatory
[Reverse of Security]
FEDERAL REALTY INVESTMENT TRUST
6 1/8% Note due November 15, 2007
This Note is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of September 1, 1998 (herein called the
"Indenture") between the Company and Wachovia Bank, National Association, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture with respect to the series of which this Note is a part), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the duly authorized series of
Securities designated as "6 1/8% Notes due November 15, 2007" (collectively, the
"Notes"), and the aggregate principal amount of the Notes to be issued under
such series is limited to $150,000,000 (except for Notes authenticated and
delivered upon transfer of, or in exchange for, or in lieu of other Notes). All
terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Notes are subject to redemption at any time, in whole or
in part, at the election of the Company, at a redemption price equal to the
greater of (1) 100% of the principal amount of the Notes being redeemed, and (2)
as determined by the Quotation Agent (as defined below), the sum of the present
values of the remaining scheduled payments of principal and interest thereon
(not including any portion of such payments of interest accrued as of the
Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined below) plus 37.5 basis points plus, in each case,
accrued interest thereon to the Redemption Date; provided, however, that
installments of interest on this Note whose Stated Maturity Date is on or prior
to such Redemption Date will be payable to the Holder of this Note, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
As used herein:
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the rate per year equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption
Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the
notes to be redeemed that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of such notes.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (1) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (2) if the Trustee
obtains fewer than three such Reference Treasury Dealer quotations, the
average of all such Quotations.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Company.
"Reference Treasury Dealer" means (1) each of Merrill, Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc. and
Wachovia Securities, Inc., and their respective successors; provided,
however, that if any of the foregoing cease to be a primary U.S.
Government securities dealer (a "Primary Treasury Dealer"), the Company
will substitute therefor another Primary Treasury Dealer; and (2) any
other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. New York City time, on the third
Business Day preceding such Redemption Date, together in the case of
any such redemption with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Note whose
Stated Maturity Date is on or prior to such Redemption Date will be
payable to the Holder of this Note, or one or more Predecessor
Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 60 days prior to the Redemption Date,
all as provided in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of all
Securities issued under the Indenture at the time Outstanding and affected
thereby. The Indenture also contains provisions permitting the Holders of not
less than a majority of the aggregate principal amount of the Outstanding
Securities, on behalf of the Holders of all such Securities, to waive compliance
by the Company with certain provisions of the Indenture.
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Furthermore, provisions in the Indenture permit the Holders of
not less than a majority of the aggregate principal amount, in certain
instances, of the Outstanding Securities of any series to waive, on behalf of
all of the Holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
The Company will not, and will not permit any Subsidiary to,
incur any Debt (as defined below) if, immediately after giving effect to the
incurrence of such Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles is greater than 65% of the sum of (without
duplication) (i) Total Assets as of the end of the calendar quarter covered in
the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Securities and Exchange Commission
(or, if such filing is not permitted under the Securities Exchange Act of 1934,
with the Trustee) prior to the incurrence of such additional Debt and (ii) the
purchase price of any real estate assets or mortgages receivable acquired, and
the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt.
In addition to the foregoing limitation on the incurrence of
Debt, the Company will not, and will not permit any Subsidiary to, incur any
Debt secured by any mortgage, lien, charge, pledge, encumbrance or security
interest of any kind upon any of the property of the Company or any Subsidiary
if, immediately after giving effect to the incurrence of such Debt and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries on a consolidated basis
which is secured by any mortgage, lien, charge, pledge, encumbrance or security
interest on property of the Company or any Subsidiary is greater than 40% of the
sum of (without duplication) (1) Total Assets as of the end of the calendar
quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report
on Form 10-Q, as the case may be, most recently filed with the Securities and
Exchange Commission (or, if such filing is not permitted under the Securities
Exchange Act of 1934, with the Trustee) prior to the incurrence of such
additional Debt and (2) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent such proceeds were not used to acquire real
estate assets or mortgages receivable or used to reduce Debt), by the Company or
any Subsidiary since the end of such calendar quarter, including those proceeds
obtained in connection with the occurrence of such additional Debt; provided,
however, that for purposes of this limitation, the amount of obligations under
capital leases shown as a liability on the Company's consolidated balance sheet
shall be deducted from Debt and Total Assets.
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Furthermore, the Company will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income Available for
Debt Service (as defined below) to the Annual Debt Service Charge (as defined
below) for the four consecutive fiscal quarters most recently ended prior to the
date on which such additional Debt is to be incurred shall have been less than
1.5 to 1, on an unaudited pro forma basis after giving effect thereto and to the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred by the Company and its Subsidiaries since
the first day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the beginning of
such period; (ii) the repayment or retirement of any other Debt by the Company
and its Subsidiaries since the first day of such four-quarter period had been
incurred, repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt during such
period); (iii) in the case of Acquired Debt or Debt incurred in connection with
any acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such unaudited
pro forma calculation; and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such unaudited pro forma calculation.
Furthermore, the Company and each of its Subsidiaries taken as a whole,
will, at all times maintain an Unencumbered Total Asset Value (as defined below)
in an amount not less than 125% of the aggregate outstanding principal amount of
the unsecured Debt of the Company and each of its Subsidiaries, taken as a
whole.
As used herein,
"Acquired Debt" means Debt of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, in each case, other
than Debt incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Debt shall
be deemed to be incurred on the date of the related acquisition of
assets from any Person or the date the acquired Person becomes a
Subsidiary.
"Annual Debt Service Charge" as of any date means the maximum
amount which is payable in any period for interest on, and original
issue discount of, Debt of the Company and its Subsidiaries and the
amount of dividends which are payable in respect of any Disqualified
Stock (as defined below).
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or
other ownership interests (however
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designated) of such Person and any rights (other than debt securities
convertible into or exchangeable for corporate stock), warrants or
options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any
period means Funds from Operations (as defined below) of the Company
and its Subsidiaries plus amounts which have been deducted for interest
on Debt of the Company and its Subsidiaries.
"Debt" means any indebtedness of the Company, or any
Subsidiary, whether or not contingent, in respect of (without
duplication) (i) borrowed money evidenced by bonds, notes, debentures
or similar instruments, (ii) indebtedness secured by any mortgage,
pledge, lien, charge, encumbrance or any security interest existing on
property owned by the Company or any Subsidiary, (iii) the
reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense
or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to
redemption, repayment or other repurchase of any Disqualified Stock or
(v) any lease of property by the Company or any Subsidiary as lessee
which is reflected on the Company's consolidated balance sheet as a
capitalized lease in accordance with generally accepted accounting
principles to the extent, in the case of items of indebtedness under
(i) through (iii) above, that any such items (other than letters of
credit) would appear as a liability on the Company's consolidated
balance sheet in accordance with generally accepted accounting
principles, and also includes, to the extent not otherwise included,
any obligation of the Company or any Subsidiary to be liable for, or to
pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business or for the purposes of
guaranteeing the payment of all amounts due and owing pursuant to
leases to which the Company is a party and has assigned its interest,
provided that such assignee of the Company is not in default of any
amounts due and owing under such leases), Debt of another Person (other
than the Company or any Subsidiary) (it being understood that Debt
shall be deemed to be incurred by the Company or any Subsidiary
whenever the Company or such Subsidiary shall create, assume, guarantee
or otherwise become liable in respect thereof).
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock
(or by the terms of any security into which it is convertible or for
which it is exchangeable or exercisable), upon the happening of any
event or otherwise (i) matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, (ii) is convertible into or
exchangeable or exercisable for Debt or Disqualified Stock or (iii) is
redeemable at the option of the holder thereof, in whole or in part, in
each case on or prior to the Stated Maturity of the Notes.
"Funds from Operations" for any period means income available
to common shareholders before depreciation and amortization of real
estate assets and before extraordinary items less gain on sale of real
estate.
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"Total Assets" as of any date means the sum of (i) the
Company's and its Subsidiaries' Undepreciated Real Estate Assets and
(ii) all other assets of the Company and its Subsidiaries determined in
accordance with generally accepted accounting principles (but excluding
goodwill).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of
the Company and its Subsidiaries on such date, before depreciation and
amortization determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Unencumbered Total Asset Value" as of any date means the sum
of (i) those Undepreciated Real Estate Assets not encumbered by any
mortgage, lien, charge, pledge or security interest and (ii) all other
assets of the Company and each of its Subsidiaries on a consolidated
basis determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable), in each
case which are unencumbered by any mortgage, lien, charge, pledge or
security interest.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Company upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the Holder
hereof surrendering the same.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
6
The Indenture and the Notes shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such State.
7
