Amendment to General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D/A Amendment to General Statement of Beneficial 58 124K
Ownership
2: EX-1 Underwriting Agreement 4 14K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 24 78K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 6 21K
5: EX-4 Instrument Defining the Rights of Security Holders 17 50K
6: EX-5 Opinion re: Legality 12 38K
EX-5 — Opinion re: Legality
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CUSTODIAN AGREEMENT
This Agreement is made on 17 November 1999 between
(1) MERRILL LYNCH INTERNATIONAL (the "Custodian") and
(2) LF Strategic Realty Investors L.P., Prometheus AAPT Holdings, L.L.C. and
Prometheus Western Retail, LLC, acting jointly and severally
(collectively, the "Customer").
It is agreed as follows:
1 Definitions
In this Agreement:
1.1 Collateralised Guarantee means the Collateralised Guarantee dated 17
November 1999 from LF Strategic Realty Investors L.P. and Prometheus
AAPT Holdings, L.L.C., as amended and supplemented from time to time
1.2 "Customer Account" means the Collateral Account under Facility Agreement
and the Guarantor Collateral Account under the Collateralised Guaranty
1.3 "Facility Agreement" means the facility letter dated 17 November 1999
between Merrill Lynch International ("MLI"), Prometheus Western Retail,
LLC, Commonwealth Atlantic Properties Investors Trust and Prometheus
Investment Holding Corp., as amended by First Amendment to Facility
Letter dated 17 November 1999, as further amended and supplemented from
time to time
1.4 "Instructions" means any instructions given by the Customer in relation
to any specified transaction in writing or by facsimile or telex, signed
or given by any one of the persons specified in or notified pursuant to
Clause 11
1.5 "Rules" means the Rules of The Securities and Futures Authority Limited
as from time to time in effect and
1.6 "Securities" means the Collateral Securities (as defined in the Facility
Agreement) and the Guarantor Collateral Securities (as defined in the
Collateralised Guaranty) and shall include all other investments, as
defined in the Financial Services Act 1986 (as amended or re-enacted
from time to time) and physical commodities (or any certificates or
documents of or evidencing title to any of the same), which the Customer
may at any time deposit with the Custodian to be held on the terms of
this Agreement.
2 Appointment of Custodian
The Customer hereby appoints the Custodian to act as custodian of the
Securities in accordance with the terms and conditions of this Agreement
and to provide the services described in this Agreement.
3 Warranties and Statements under the Rules
3.1 The Customer warrants to and for the benefit of the Custodian that it is
duly organised and validly existing under the laws of its jurisdiction
of establishment, has full capacity and authority to enter into this
Agreement and to carry out all the transactions contemplated in this
Agreement and has taken all necessary action (including the obtaining of
all necessary consents, registrations and the like of or with any
government or other regulatory body or authority) to authorise the
execution, delivery and performance of this Agreement.
3.2 The Customer understands that the Custodian is regulated by of The
Securities and Futures Authority Limited, that its name is as set out at
the beginning of this Agreement and that at the date of this Agreement
its registered office is at the address set out for the Custodian
pursuant to Clause 12.
3.3 The Customer further understands that the Custodian is proposing to and
will treat the Customer as a non-private customer within the meaning of
the Rules for all the purposes of this Agreement and acknowledges that
in accordance with the Rules it has agreed that its monies shall not be
treated by the Custodian as or deemed to be Client Money for the purpose
of the Financial Services (Client Money) Regulations 1991 (as amended).
3.4 As respects cash items, the first sum paid in shall be the first paid
out, and a payment in shall discharge the first undischarged debit item,
and no cash item shall be held for a period of a year or more.
3.5 Notwithstanding any of its rights and duties under this Agreement,
nothing in this Agreement shall make the Custodian a manager or adviser
in respect of any Securities and the Custodian is not required to have
regard to any particular investment objectives. The Custodian will not
be subject to any fiduciary duties towards the Customer and will not
incur any duty of disclosure towards the Customer or be subject to any
restriction in dealing for the Custodian's own or its customers' account
by reason of any custodial services provided to the Customer.
4 Deposit of Securities
4.1 The Customer may tender Securities to the Custodian, which may decline
to accept Securities tendered to it if it determines that it would be
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illegal or contrary to any applicable rules of any exchange or market
for the Custodian to accept such Securities or if the Custodian
reasonably suspects that such Securities are tainted by fraud.
4.2 The Customer and the Custodian shall agree from time to time the normal
categories of Securities, and the markets in which such Securities are
to be dealt in, to be deposited under the terms of this Agreement and,
if the Customer intends to tender Securities to the Custodian under this
Clause falling outside such categories or to be dealt in on other
market(s), it shall give 30 days' (or such lesser period as the
Custodian may agree) notice to the Custodian of its intention to tender
Securities of such category or to be dealt in on such market(s). At any
time during such period the Custodian may notify the Customer that it
will decline to accept such Securities if it determines that
custodianship facilities suitable for holding Securities of that
particular category or to be dealt in on such market(s) are not
reasonably available to it.
4.3 The Custodian shall be entitled to treat Securities accepted by it as
fungible or at any time to allocate specific Securities to the Customer,
any such treatment or allocation to be binding on the Customer.
4.4 Intentionally Omitted.
4.5 The Securities held in the Customer Account shall, at all times, as
between the Custodian (in its capacity as such) and the Customer be the
property of the Customer, and the Custodian shall not have the power or
authority to transfer, assign, hypothecate, pledge or otherwise dispose
of any of the Securities to any person except as expressly permitted by
the provisions of this Agreement, the Facility Agreement or the
Collateralised Guarantee.
5 Transactions Requiring Instructions
The Custodian shall carry out the following transactions in relation to
the Securities upon receipt of specific Instructions:
5.1 Sales: The Custodian shall deliver Securities sold by the Customer and
receive payment for those Securities in such manner as may be specified
by the Customer in its Instructions (and, in the absence of specific
Instructions to the contrary, shall make such payment available to MLI
for application in accordance with the Facility Agreement).
5.2 Purchases: The Custodian shall make payment for and receive Securities
purchased by the Customer (insofar as monies are made available to the
Custodian by the Customer to make such payment), payment to be made by
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the Custodian in such manner as may be specified by the Customer in its
Instructions.
5.3 Exercise of rights, etc: The Custodian shall deal with rights (including
rights to subscribe for securities and conversion rights), warrants and
other similar securities received by it in connection with the
Securities only in the manner and to the extent specified in
Instructions.
5.4 Voting: The Custodian shall not exercise any voting rights attached to
any of the Securities except as directed by Instructions received by the
Custodian.
The Customer shall on demand pay to the Custodian such transaction fees
(together with value added tax, if any) as the Custodian may from time
to time specify in respect of each delivery of Securities to or out of
the Customer Account and such other fees (together with value added tax,
if any) as may be agreed by the Customer and the Custodian from time to
time.
6 Transactions not Requiring Instructions
The Custodian shall be entitled to carry out the following transactions
relating to the Securities without seeking Instructions from the
Customer:
6.1 Signature of Certificates: The Customer hereby authorises the Custodian
to sign any certificates of ownership or other certificates relating to
the Securities which may be required by any regulations made by the
Commissioners of Inland Revenue, the United States Internal Revenue
Service or any other regulatory authority, whether governmental or
otherwise, relating to income tax, any other tax levied or ownership.
6.2 Intentionally Omitted.
6.3 Intentionally Omitted.
6.4 Receipt of Securities: The Custodian shall receive and hold for the
account of the Customer all Securities received as a distribution on
Securities held by the Custodian as a result of a stock dividend, share
sub-division or reorganisation, capitalisation of reserves or otherwise.
6.5 Exchange of Interim Receipts: The Custodian shall exchange interim
receipts or temporary Securities for definitive certificates or
Securities.
6.6 Expenses and Disbursements: The Custodian may make cash disbursements
for expenses and stamp duties and transfer taxes in handling Securities
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and for similar items in connection with the Custodian's duties under
this Agreement. Any such disbursements, and all transaction and other
agreed fees and expenses charged by the Custodian under this Agreement
(together with value added tax, if any) shall be debited to the Customer
Account.
6.7 Delivery of Information and Documents: The Custodian shall deliver to
the Customer transaction advices and/or regular statements of account
showing the Securities held and any cash balances held under the terms
of this Agreement at such intervals as may be agreed with the Customer
and shall notify the Customer of all notices, reports and other
financial information relating to the Securities when received by it
which in its opinion require action and obtain the Customer's
Instructions as to the action to be taken in connection therewith. The
Custodian shall check for errors all transaction advices and/or
statements of account received by it from any agent appointed under
Clause 7.1. Each time the Customer and the Custodian agree normal
categories of Securities, and the markets in which they are to be dealt
in (including acceptance by the Custodian of Securities outside such
categories or to be dealt in on other market(s)) as contemplated by
Clause 4.2, the Custodian shall inform the Customer of the identity of
each agent (if any) appointed under Clause 7.1 which will or may have
any such Securities deposited with it. The Custodian shall also keep the
Customer informed about any changes (including additions and
terminations) in any such agents.
6.8 Records: Records of all transactions in the Securities and any cash
balances held by the Custodian under the terms of the Agreement shall be
maintained by the Custodian and shall be made available for inspection
and audit on the Custodian's premises at reasonable times by the
Customer, any representative of the Customer and the independent
accountants employed by the Customer. Wherever practicable, the
Custodian shall endeavour to ensure that the Customer's independent
accountants are afforded access to the records of transactions in the
Securities and cash balances maintained by any agent appointed by the
Custodian under Clause 7.1 and pertaining to the Customer.
6.9 Right to take Action: Notwithstanding the provisions of Clause 5 and 6.7
above, the Custodian shall be entitled in its absolute discretion to
take any action in relation to the Securities, including without
limitation the exercise of rights attached thereto and the satisfaction
of liabilities arising therefrom or any other action on behalf of the
Customer which the Custodian considers is necessary or desirable to
safeguard the Securities or further the Customer's interests in the
event that no Instructions to the contrary are received or that
circumstances make it impracticable for the Custodian to obtain any, or
any timely, Instructions.
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7 Appointment of Agents and Advisers
7.1 General Agents: The Custodian shall be entitled to appoint agents,
whether in its own name or that of the Customer, to perform any of the
duties undertaken by the Custodian in this Agreement. The Custodian may
delegate to any agent so appointed any of the functions to be performed
by the Custodian under this Agreement including without limitation the
collection of payments due on Securities. The Custodian shall forthwith
notify the Customer upon any such appointment.
Any such agent shall be a person whom the Custodian reasonably believes
to be a person whose business includes the provision of investment
custodial services, and all cash and Securities deposited with or held
by any such agent will be at the risk of the Customer as regards any
act, omission or insolvency of such agent and any laws, acts, decrees,
regulations, edicts, orders or other mandates, and any acts of warfare,
seizure, confiscation, destruction or impairment of property,
promulgated and/or done by any court or by any governmental, military or
civil authority, whether de jure or de facto in control of or operating
at the place where such agent is located. The Custodian's sole
obligation, in the event of any loss in connection with any cash and
Securities held by or deposited with any such agent will be to assign to
the Customer such rights (if any) as the Custodian may have against such
agent.
7.2 Legal and other Advisers: If the Custodian considers it necessary it may
request advice from legal or other professional advisers of its own
choosing in connection with any action to be taken by the Custodian in
relation to the Securities.
7.3 Remuneration for Agents and Advisers: If the Custodian appoints any
agent or adviser pursuant to 7.1 or 7.2 above, it shall be entitled to
pay normal remuneration to such agent or adviser and, in the case of any
such agent, and any such adviser which the Custodian may appoint having
determined that such appointment is necessary or advisable in
connection with the Custodian's protecting or enforcing its rights under
this Agreement and/or any amendment or in any other case where such
adviser is appointed with the prior written approval of the Customer,
such remuneration shall be for the account of the Customer.
8 Scope of Responsibility and Indemnity
8.1 Liability of the Custodian: Subject to the provisions of this Agreement
the Custodian shall use all reasonable care in the performance of its
duties under this Agreement. The Custodian's liability at any time in
connection with any cash and Securities deposited under the terms of
this Agreement shall be subject to Clause 7.1 and shall not in any
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circumstances exceed the amount or (as appropriate) market value of such
cash and Securities at the time of failure to exercise reasonable care
as aforesaid whether or not then held by the Custodian.
The Custodian shall have no liability or responsibility to the Customer
with respect to any changes in the standard of currencies of property or
with respect to any fluctuations or changes in the conversion value of
property into other currencies and/or property.
8.2 Custodian's right to rely on Instructions: Subject to Clause 8.1, the
Custodian may rely in the performance of its duties under this Agreement
upon any Instructions believed by it to be genuine and given by any
person specified in or notified pursuant to Clause 11.
8.3 Responsibility for Insurance: Without prejudice to the liability of the
Custodian from time to time pursuant to any other provision of this
Agreement, the Custodian shall not be responsible for insuring any
Securities.
8.4 Customer's Responsibility to examine documents: Upon receipt of each and
every transaction advice and/or statement of account supplied to it by
the Custodian pursuant to Clause 6.7, the Customer shall examine the
same and notify the Custodian within 4 Business Days of the date of
receipt of any such advice or statement of any discrepancy between
Instructions given and the situation shown therein and/or of any other
errors therein. In the absence of such notification by the Customer the
Custodian shall not (in the absence of gross negligence or wilful
default on its own behalf) be liable for the consequences of any such
discrepancy or error which was made or existed during the period covered
by such statement or transaction indicated by such advice.
8.5 Indemnity: The Customer agrees to indemnify the Custodian, and to hold
the Custodian harmless, against all costs, liabilities and expenses
including (without limitation) legal fees and disbursements, arising
directly or indirectly:
8.5.1 from the fact that Securities are registered in the name of or
deposited with the Custodian or
8.5.2 (without limiting the generality of 8.5.1 above), from any act
or thing which the Custodian takes or does or omits to take or
do in relation to the Securities, provided that the Custodian
shall not be indemnified against any liability arising out of
the Custodian's own gross negligence or wilful default or
8.5.3 from the Custodian's relying on any Instructions as referred
to in Clause 8.2 provided that the Custodian shall not be
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indemnified against any liability arising out of the
Custodian's own gross negligence or wilful default.
8.6 Right to Deduct: The Custodian shall be entitled to deduct or withhold
from any amount which is received by it for the account of the Customer
or which is payable by it to the Customer or, at its option, to debit to
the Customer Account any amount payable to the Custodian under this
Agreement.
8.7 The Rules: Nothing in this Agreement shall exclude or restrict any
obligation which the Custodian has under the Rules in relation to the
Customer, whether as regards its activities as custodian of Safe Custody
Investments or otherwise, or any liability which the Custodian may incur
under the Financial Services Act 1986 or the Rules in respect of a
breach of any such obligation. It is further agreed that the Custodian
will hold all Securities (whether or not Safe Custody Investments as
defined in the Rules) as though Chapter 4 of the Rules regulated the
Custodian's custodianship thereof, except in so far as any of the Rules
regulate the Custodian's activities under this Agreement in priority to
the said Chapter 4. This Agreement shall be construed accordingly.
9 Lien
The Custodian shall have a general lien on all monies and Securities
from time to time held by it under this Agreement as security for all
obligations of the Customer under this Agreement for amounts becoming
due or owing for safekeeping and administration. In the event of failure
by the Customer to discharge any of such obligations when due, the
Custodian shall be entitled to apply in or towards discharge thereof
such monies as aforesaid held by it and shall be entitled without
notice to the Customer to sell or otherwise realise any of the
Securities so held by it and apply the proceeds of such realisation in
or towards discharge of the said obligations.
10 Termination
Either party hereto may terminate this Agreement on giving not less than
thirty days' written notice to the other party. This Agreement shall
automatically terminate as to the applicable Customer upon release by
MLI of all of the Securities deposited by such Customer hereunder with
the Custodian. Upon such termination the Custodian shall, subject to
Clause 9, account to any such successor custodian as the Customer shall,
within 14 days of such termination, designate in writing to the
Custodian (and, failing any such designation, to the Customer) for all
monies and Securities then held by it pursuant to this Agreement.
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11 Instructions
The Customer hereby authorises the Custodian to act in relation to the
Securities and cash on Instructions received from persons whose names
and signatures are set out in a list which shall be provided by the
Customer for such purpose, shall specify the number of such persons who
must give such Instructions for them to be effective and shall be signed
by any two of the persons whose names and signatures are set out below.
NAME SIGNATURES
John Moore
--------------------------
Henry Herms
--------------------------
Any such list shall be superseded by any later list, signed by any two
of the above persons, which the Customer may from time to time provide.
The Customer may also notify the Custodian by Instructions signed by any
two of the above persons of additional person(s) who may sign any such
list and upon whose signature of such list the Custodian is authorised
to rely, any such Instructions to contain specimen signature(s) of such
additional person(s).
12 Notices
12.1 The Customer and the Custodian may from time to time issue Instructions,
notices or other communications either orally or in writing (but in
writing only where so provided under this Agreement) and the Custodian
shall be entitled to rely on and shall not be liable for any action
taken or omitted to be taken in good faith pursuant to Instructions,
notices or other communications so given or made, subject to Clause 8.1.
12.2 Each oral communication under this Agreement shall be directed, if to
the Custodian, to such officer(s) of the Custodian as may be notified by
the Custodian to the Customer from time to time, and if to the Customer,
to such representative(s) of the Customer as may be notified to the
Custodian from time to time. Each written communication under this
Agreement shall be addressed as set out under the relevant party's name
at the end of this Agreement, or to such other address, telex or
facsimile number or marked for the attention of such other person as may
be notified by the relevant addressee from time to time to the other
party. Notices to the Customer shall be deemed to have been received two
days after being deposited for overnight delivery with any reputable
overnight delivery service and immediately in the case of a telex, fax
or oral communication.
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13 Governing Law
This Agreement and all contemporaneous and subsequent mandates,
Instructions and agreements between the parties pursuant to this
Agreement shall be governed by and construed in accordance with English
law and, in relation to any legal action or proceedings arising out of
or in connection with this Agreement ("Proceedings"), the Customer
hereby and for the benefit of the Custodian submits to the jurisdiction
of the courts of England and any New York State or United States Federal
court sitting in New York City, and waives any objection to Proceedings
in such courts on the grounds of venue or on the grounds that the
Proceedings have been brought in an inconvenient forum. Those
submissions shall not affect the Custodian's right to take Proceedings
in any other court of competent jurisdiction, nor shall the taking of
Proceedings in any court of competent jurisdiction preclude the
Custodian from taking Proceedings in any other court of competent
jurisdiction (whether concurrently or not).
This Agreement has been entered into in London on the date stated at the
beginning.
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MERRILL LYNCH INTERNATIONAL
By: /S/ John Piccitto
Name: John Piccitto
Title: Director of Equity Markets
Global Equity Finance
20 Farringdon Road
P.O. Box 293
London
EC1M 3NH
Attention: International Prime Brokerage
Fax No: 44 17l 892 4860
Telephone: 44 171 892 4920
LF Strategic Realty Investors L.P.,
a Delaware limited partnership
c/o Lazard Freres Real Estate Investors L.L.C.
30 Rockefeller Plaza, 50th Floor
New York, NY 10020
By: Lazard Freres Real Estate Investors L.L.C., a
New York limited liability company, its general partner
By: /s/ John A. Moore
---------------------------------
Name: John A. Moore
Title: Principal & Chief Financial Officer
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Prometheus AAPT Holdings, L.L.C.,
a Delaware limited liability company
c/o Lazard Freres Real Estate Investors L.L.C.
30 Rockefeller Plaza, 50th Floor
New York, NY 10020
By: LF Strategic Realty Investors L.P.,
a Delaware limited partnership, its managing member
By: Lazard Freres Real Estate Investors L.L.C.,
a New York limited liability company,
its general partner
By: /s/ John A. Moore
---------------------------------
Name: John A. Moore
Title: Chief Financial Officer
Prometheus Western Retail, LLC,
a Delaware limited liability company
c/o Lazard Freres Real Estate Investors L.L.C.
30 Rockefeller Plaza, 50th Floor
New York, NY 10020
By: Prometheus Western Retail Trust, a
Maryland real estate investment trust,
its managing member
By: /s/ John A. Moore
---------------------------------
Name: John A. Moore
Title: Vice President and Chief Financial Officer
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