SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM 10-K/A
Amendment No. 2
Current Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
__________________________________
Date of Report February 14, 1995 Commission file number 1-8459
_________________ ______
New Plan Realty Trust
(Exact name of registrant as specified in charter)
Massachusetts 13-1995781
_____________________ ______________________________
(State of Incorporation) (IRS Employer Identification No.)
1120 Avenue of the Americas, New York, New York 10036
_____________________________________________________
(Address of principal executive offices)
(212) 869-3000
_____________________________
(Registrant's telephone number)
The undersigned registrant hereby amends the following items,
exhibits or other portions of its Annual Report on Form 10-K for the
fiscal year ended July 31, 1994, dated October 14, 1994, as set forth in
the pages attached hereto:
Item 14: Financial Statements and Exhibits.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its behalf
by the undersigned, thereunto duly authorized.
NEW PLAN REALTY TRUST
(Registrant)
By: /s/ Michael I. Brown
_______________________
Michael I. Brown
Chief Financial Officer, Controller
Dated: February 14, 1995
<PAGE>
NEW PLAN REALTY TRUST
INDEX TO EXHIBITS
No. Page
___ ____
*3.1 Amendment #4 dated December 6, 1972 to Declaration of
Trust (amending Declaration of Trust in its entirety)
filed as Exhibit 3.1(d) to Registration Statement No.
2-45633.
*3.2 Amendment #5 dated December 12, 1972 to Declaration of
Trust filed with Registrant's Form 10-K for the fiscal
year ended July 31, 1973.
*3.3 Amendment #6 dated December 13, 1979 to Declaration of
Trust and filed as Appendix A to Registrant's Proxy
Statement dated November 19, 1979 with respect to
annual meeting of shareholders on December 13, 1979.
*3.4 Amendment #7 dated July 9, 1981 to Declaration of Trust
and filed as an appendix to Registrant's Proxy State-
ment dated June 1, 1981 with respect to a special
meeting of shareholders on July 9, 1981.
*3.5 Amendment #8 dated December 15, 1982 to Declaration of
Trust and filed as Appendix A to Registrant's Proxy
Statement dated November 15, 1982 with respect to
annual meeting of shareholders held December 15, 1982.
*3.6 Amendment #9 dated December 10, 1985 to Declaration of
Trust and filed as Appendix A to Registrant's Proxy
Statement dated November 15, 1985 with respect to
annual meeting of shareholders held December 10, 1985.
*3.7 Amendment #10 dated December 14, 1987 to Declaration of
Trust and filed as Appendix A to Registrant's Proxy
Statement dated November 2, 1987 with respect to annual
meeting of shareholders held December 14, 1987.
*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 Agreement dated December 17, 1981 between New Plan
Realty Trust and Merchant Navy Officers Pension Fund
Trustees Limited filed as Exhibit 9.1 to Post Effective
Amendment No. 2 to Registration Statement 2-69682.
*9.3 Debenture Purchase Agreement and Amendment to Exhibits
9.2 and 9.3 herein filed as Exhibit 9.4 to Registration
Statement 2-81432.
*9.4 Share Purchase Agreement between New Plan Realty Trust,
Merchant Navy Officers Pension Fund Trustees Limited
filed as Exhibit 9.5 to Registration Statement No. 2-
90107.
9.5 Purchase Agreement dated December 18, 1990 between New
Plan Realty Trust and Beleggingsmaatschappij Midas B.V.
*10.1 Lease dated January 30, 1964 between John Hancock
Mutual Life Insurance Company and Roosevelt Mall
Northeast, Inc. filed as Exhibit 12.4(a) to
Registration Statement No. 2-45633 (Registrant's
leasehold interest in the Roosevelt Mall Shopping
Center).
10.2 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 December 30, 1993.
10.3 Amendment No. 1 to 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
December 30, 1993.
22 Subsidiaries of the Registrant.
23 Consents required with respect to material incorporated
by reference in a previously filed Registration
Statement.
____________________________
* Incorporated herein by reference as above indicated.
<PAGE>
EXHIBIT 9.5
<PAGE>
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of December 18, 1990,
between NEW PLAN REALTY TRUST, a Massachusetts business trust
("NPRT"), and BELEGGINGSMAATSCHAPPIJ MIDAS B.V. (the "Fund").
1. Purchase and Sale of Firm Shares. Subject to the
terms and conditions of this Agreement and on the basis of the
representations and warranties hereinafter set forth, NPRT agrees
to sell to the Fund, and the Fund agrees to purchase from NPRT,
4,000,000 of NPRT's shares of beneficial interest, without par
value (NPRT's shares of beneficial interest, without par value,
are herein referred to as the "Shares" and such 4,000,000 Shares
are herein referred to as the "Firm Shares"), at a purchase price
of U.S. $67,110,500. Delivery of the Firm Shares will be made at
the offices of Shearman & Sterling, 599 Lexington Avenue, New
York, New York, at 10:00 a.m., New York time on January 10, 1991
or such other time and date as the parties hereto shall agree
(the "Closing Date"), against payment of the purchase price
therefor in funds that are immediately available and deposited
with National Westminster Bank USA, New York, New York, for
credit to NPRT's account.
In addition to the Firm Shares, the Fund may purchase
up to 500,000 Shares through open market purchases on or before
April 30, 1991. In the event the Fund has not purchased 500,000
Shares in the open market by April 30, 1991, the Fund shall be
obligated to purchase from NPRT, and NPRT shall be obligated to
sell to the Fund, that number of Shares which, when added to such
number of Shares purchased by the Fund in open market purchases,
will aggregate 500,000 Shares (such 500,000 Shares are herein
referred to as the "Market Shares"; those Market Shares purchased
from NPRT are herein sometimes referred to as the "NPRT Market
Shares", and the Firm Shares and the Market Shares are herein
referred to collectively as the "Fund Shares"). The purchase
price of the NPRT Market Shares shall be U.S. $17.50 per share.
Within five business days immediately following April 30, 1991,
the Fund shall advise NPRT in writing of the number of Shares
purchased in the open market, and the closing of the purchase of
the NPRT Market Shares shall be held no later than May 15, 1991.
The Fund shall have the right to elect to purchase the NPRT
Market Shares from NPRT earlier, by giving NPRT written notice
setting forth the number of Shares to be purchased and the number
of Market Shares then owned by the Fund, in which event the
closing shall take place within 10 business days after receipt by
NPRT of such notice on such business day as the Fund and NPRT
shall agree. The closing of the purchase from NPRT of the NPRT
Market Shares shall be at the place and in the manner referred to
in the preceding paragraph, provided that at this closing the
conditions to the obligation of the Fund set forth in paragraph 6
hereof shall be satisfied (this closing date and the closing date
for the purchase of the Firm Shares sometimes collectively are
herein referred to as the "Closing Dates"). In no event, except
as provided in paragraph 9(g), shall the aggregate number of
Market Shares purchased by the Fund exceed 500,000 Shares.
2. Representations, Warranties and Agreements of NPRT.
NPRT represents and warrants to, and agrees with, the Fund that:
(a) Financial Statements. NPRT has delivered to the
Fund the following documents:
(i) NPRT's Annual Reports on Form 10-K to the
Securities and Exchange Commission (the "Commission") for
the fiscal years ended July 31, 1988, 1989 and 1990;
(ii) NPRT's Quarterly Report on Form 10-Q to the
Commission for the quarter ended October 31, 1990, which
includes a balance sheet of NPRT as of October 31, 1990 (the
"October 31 Balance Sheet");
(iii) NPRT's Registration Statement on Form S-3
(No. 33-28026);
(iv) NPRT's Proxy Statements relating to NPRT's
meetings of shareholders (whether annual or special) held
since July 31, 1988; and
(v) NPRT's Reports on Form 8-K and Form 8 filed
with the Commission since July 31, 1988.
NPRT has not filed, or been required to file, any other
document with the Commission under the Securities Act of 1933, as
amended (the "1933 Act") or the Securities Exchange Act of 1934,
as amended (the "Exchange Act") since the filing on or before
December 17, 1990 of the Form 10-Q report referred to in clause
"(ii)" above. The reports, registration statement and proxy
statements identified above represent all of the documents (other
than Reports on Form 10-Q and the Form S-3 relating to NPRT's
Dividend Reinvestment Plan, not referred to above) filed by NPRT
with the Commission since July 31, 1988 (collectively, the
"Reports"). NPRT has filed all forms, reports and documents
required to be filed with the Commission since July 31, 1988.
The Reports were prepared in accordance with the requirements of
the Exchange Act and did not at the time they were filed contain
any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained
therein not misleading. Except as described in the letter, dated
the date hereof, from NPRT to the Fund (the "NPRT Letter"),
NPRT's Annual Report on Form 10-K for the fiscal year ended July
31, 1990 and its Report on Form l0-Q for the quarter ended
October 31, 1990, were true and correct in all material respects
on the respective dates thereof, the description of NPRT's
business in Item 1 of said Form 10-K is true and correct in all
material respects as of the date hereof, and no amendment thereto
is required to be filed with the Commission under the 1933 Act or
the 1934 Act.
All of the financial statements contained in the
Reports were, on the respective dates thereof, true, correct and
accurate, were prepared in accordance with generally accepted
accounting principles applied, except as stated in such financial
statements or the notes thereto, on a consistent basis throughout
the periods covered and present fairly the financial condition of
NPRT at the dates indicated and the results of operations and the
changes in financial position for the periods indicated. NPRT
does not have any liabilities or obligations which are in the
aggregate material, whether accrued, absolute, contingent or
otherwise, except (i) as reflected in the July 31, 1990 balance
sheet contained in the Form 10-K for the year then ended (the
"July 31, 1990 Balance Sheet") or the notes thereto or the
October 31 Balance Sheet or the notes thereto and not heretofore
discharged, (ii) as set forth in the NPRT Letter or (iii) those
incurred in the normal and ordinary course of business since
October 31, 1990.
(b) Tax Returns. Except for matters which NPRT is
disputing in pending proceedings as set forth in the NPRT Letter,
NPRT has filed all Federal, state and local income tax returns
which are required to be filed, such returns have been correctly
prepared and all income and other taxes due have been fully paid
or adequately reserved for, except in all cases where failure so
to file, incorrect preparation of such returns or failure so to
pay would not individually or in the aggregate have a material
effect on NPRT's business, operations or financial condition.
(c) Absence of Certain Changes. NPRT has no current
intention and is not considering any plans or proposals to make
any material change in the general nature of its business.
Except as set forth in the Reports and in the NPRT Letter, since
October 31, 1990:
(i) NPRT has not (A) made any new material
acquisitions of properties or entered into any commitments
to make any material acquisitions of properties, (B) issued,
assumed or guaranteed any indebtedness for money borrowed or
(C) declared or paid any dividends on, or made any
distributions to the holders of, its shares of beneficial
interest; and
(ii) other than events and developments relating
to or affecting the general economy and generally affecting
segments of the industries in which NPRT has interests,
there has not been (A) any material adverse change, or any
development involving a prospective material adverse change,
in the financial condition of NPRT taken as a whole, (B) any
damage, destruction or loss to physical property, whether or
not covered by insurance, materially and adversely affecting
the assets, business or prospects of NPRT, (C) any change,
or any development involving a prospective change, in the
estimated fair value or net realizable value of any
investments of NPRT so as to require, under generally
accepted accounting principles, any material change in the
allowance for possible investment losses set forth in the
October 31 Balance Sheet, (D) any other event directly
pertaining to and materially and adversely affecting the
assets or, to NPRT's actual knowledge, the business of NPRT,
or (E) any amendment to the Declaration of Trust of NPRT,
which was last amended as of December 14, 1987 (the
"Declaration of Trust").
(d) Organization and Standing. NPRT is a voluntary
business association commonly known as a business trust of the
type described in Chapter 182 of the General Laws of
Massachusetts, duly established and validly existing pursuant to
the Declaration of Trust under the laws of the Commonwealth of
Massachusetts and has full power and authority (trust and other)
to own its property and conduct its business as presently being
conducted. NPRT is duly qualified to do business in good
standing in each jurisdiction in which the ownership of its
property or the conduct of its business makes such qualification
necessary, except in all cases where failure so to qualify would
not individually or in the aggregate have a material adverse
effect on NPRT's business, operations or financial condition.
NPRT is operating, and has operated during all taxable years for
which the period to assess tax has not expired, in such manner as
to qualify as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Internal Revenue Code").
NPRT made the election to be taxed as a real estate investment
trust commencing with its taxable year ended July 31, 1973, and
such election has not been terminated or revoked. To the
knowledge of NPRT, shares of beneficial interest of NPRT during
all periods to which such election has been applicable have been
beneficially owned in such a manner as to permit NPRT to qualify
as a real estate investment trust under the Internal Revenue
Code. To the knowledge of NPRT, NPRT has been a "domestically-
controlled REIT" as such term is defined in section 897(h)(4)(B)
of the Internal Revenue Code for the five year period ending on
the date hereof. NPRT covenants and agrees that (i) it shall not
issue any shares of beneficial interest or other equity
securities of NPRT to any "foreign person" (as such term is used
in section 897(h)(4)(B) of the Internal Revenue Code or any
successor provision) if such issuance would result in ownership
of 48 percent or more of the value of outstanding shares of
beneficial interest and other equity securities of NPRT, directly
or indirectly, by "foreign persons" and (ii) it shall make
reasonable efforts, such as the issuance of new equity securities
to U.S. persons, to assure that the ownership by "foreign
persons" of shares of beneficial interest and other equity
securities of NPRT does not equal or exceed 48 percent of the
value of all outstanding shares of beneficial interest and other
equity securities.
(e) Capitalization. At the date hereof, the
authorized interests of the shareholders of NPRT consist of an
unlimited number of Shares, 35,271,180 of which are issued and
outstanding, and 1,000,000 Preferred Shares, par value $1.00 per
share, none of which have been issued. All of such outstanding
Shares have been duly and validly issued and are fully paid and
non-assessable by NPRT. There are no options, warrants, calls or
commitments of any kind relating to, or securities convertible
into, the Shares, except as contemplated hereby and as disclosed
in the Reports and in the Proxy Statement and except for
employees' stock option plans and agreements for the issuance of
not more than an aggregate of 50,000 additional Shares to
employees and 5,000 additional Shares to independent contractors.
(f) Assets and Encumbrances. NPRT has good and
insurable title to all its assets, including those reflected in
the October 31, 1990 Balance Sheet or purported to have been
acquired thereafter (except properties sold or otherwise disposed
of since such date in the normal and ordinary course of
business), free and clear of all liens, encumbrances, security
interests and adverse claims, except for the security interests
securing the mortgage notes payable reflected in the October 31,
1990 Balance Sheet or the notes thereto, except as set forth in
the NPRT Letter and except for absences or defects of title,
liens and encumbrances which do not interfere in any material
respect with the conduct of the business of NPRT. Except as set
forth in the October 31, 1990 Balance Sheet or the notes thereto
or the NPRT Letter, all mortgage notes owned by NPRT and
reflected on said balance sheet are valid and legally binding
obligations of the issuer thereof and constitute prior perfected
security interests in the assets securing such notes and not more
than an aggregate of $100,000 of payments of principal or
interest on such mortgage notes owned by NPRT are in default.
(g) Litigation. Except as set forth in the Reports
and the NPRT Letter, there are no actions, proceedings or
investigations pending, or, to the knowledge of NPRT, threatened,
against or affecting NPRT or any of its assets or rights, in any
court or before any authority, which if adversely determined
would materially and adversely affect the financial condition,
business, assets or rights of NPRT.
(h) Compliance with Other Instruments. Subject to the
matters set forth in the Reports and the NPRT Letter, NPRT is not
in breach or violation of the terms, conditions or provisions of,
or in default under, (i) the Declaration of Trust, (ii) any
indenture, mortgage or other agreement or instrument under which
NPRT has outstanding any indebtedness for money borrowed, or
(iii) except for immaterial breaches or violations, any statute,
law, rule, regulation, order, judgment, decree or other agreement
or instrument to which it is subject; and upon approval by The
New York Stock Exchange of the listing of the Firm Shares and the
NPRT Market Shares, the execution, delivery and performance by
NPRT of this Agreement, the issuance, sale and delivery by NPRT
of the Firm Shares and the NPRT Market Shares and the
consummation by NPRT of the transactions contemplated hereby will
not conflict with, or result in a breach or violation of the
terms, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of any lien
pursuant to the terms of, any of the foregoing.
(i) Regulatory Approval. No consent, approval,
authorization or order of, or filing, registration or
qualification with, any court or other governmental agency or
instrumentality is required in connection with the execution and
delivery by NPRT of this Agreement, the issuance, sale and
delivery by NPRT of the Firm Shares or the NPRT Market Shares or
the consummation by NPRT of the transactions contemplated hereby,
except for the filing of a report on Form BE-13A and related
forms pursuant to the rules of the Department of Commerce
promulgated under the International Investment Survey Act of 1976
and the filing of a Current Report on Form 8-K pursuant to the
rules of the Commission promulgated under the Exchange Act.
(j) Accuracy of Information. All information and
documents listed herein as having been furnished or made
available to the Fund, its counsel or its representatives prior
to the date hereof were true and correct in all material aspects
when furnished. The minute books of NPRT made available to
Shearman & Sterling contain accurate records of all Board of
Trustees and shareholders meetings of NPRT held since December
31, 1985.
(k) Authority Relative to this Agreement. NPRT has
all necessary power and authority to enter into this Agreement
and to carry out its obligations hereunder. The execution and
delivery of this Agreement by NPRT and the consummation by NPRT
of the transactions contemplated hereby have been duly authorized
by all necessary trust action on the part of NPRT. This
Agreement has been duly executed and delivered by NPRT and,
assuming the due authorization, execution and delivery by the
Fund hereof, constitutes a legal, valid and binding obligation of
NPRT.
(l) ERISA. The Reports set forth all employee benefit
plans (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) and
all other benefit plans or arrangements currently maintained by
NPRT or with respect to which it has, or reasonably expects to
have, any liability (the "Plans"). Each Plan is now, and has
been, operated in all material respects in accordance with the
requirements of applicable law, including the tax-qualification
requirements of Section 401(a) and 501(a) of the Internal Revenue
Code with respect to any Plan intended to be so qualified. NPRT
has not incurred, nor reasonably expects to incur, any material
unfunded liability with respect to any of the Plans. The
accumulated benefit obligation of any Plan subject to Title IV of
ERISA does not exceed by a material amount the assets of such
Plan.
3. Representations, Warranties and Agreements of the
Fund. The Fund represents and warrants to, and agrees with, NPRT
that:
(a) Organization and Standing. The Fund is duly
organized and validly existing under the laws of the Netherlands
and has full power and authority to complete the transactions
contemplated by this Agreement.
(b) Due Authorization. The purchase from NPRT of the
Firm Shares and the NPRT Market Shares and the execution of this
Agreement have been duly authorized by the Board of Directors of
the Fund, and execution of this Agreement and the completion of
the purchase from NPRT of the Firm Shares and the NPRT Market
Shares by the Fund will not violate any law or rule of any
governmental agency to which the Fund is subject.
(c) Investment Intent. The Fund is purchasing the
Firm Shares, and will purchase the NPRT Market Shares, for its
own account for investment and not with a view to any resale or
distribution thereof. If the Fund should in the future decide to
dispose of any of the Firm Shares or the NPRT Market Shares
(which it does not now contemplate), the Fund agrees that it
shall do so only in compliance with the 1933 Act and Section 5
hereof.
(d) Regulatory Approval. No consent, approval,
authorization or order of, or filing, registration or
qualification with, any court or other governmental agency or
instrumentality is required in connection with the execution and
delivery by the Fund of this Agreement or the consummation by the
Fund of the transactions contemplated hereby, except for the
filing by the Fund of statements on Schedule 13D and reports on
Form 3 or Form 4 under Rules 13d-l and 16a-l, respectively,
promulgated by the Commission under the Exchange Act, and a
report on Form BE-13B and related forms pursuant to the rules of
the Department of Commerce promulgated under the International
Investment Survey Act of 1976 (all of which the Fund agrees to
file). The purchase by the Fund of the Fund Shares does not
require the filing of a Pre-Merger Notification Form and related
documents under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976.
(e) Taxes, etc. No taxes, levies, imposts or charges
of the Netherlands or any political subdivision or taxing
authority thereof or therein are required to be paid by NPRT in
connection with the issue, sale and delivery of the Firm Shares
or the Market Shares hereunder.
(f) Ownership of Shares. As of the date hereof, the
Fund does not own, beneficially or otherwise, any Shares.
4. Covenants of NPRT. NPRT hereby covenants and
agrees with the Fund as follows:
(a) Election of Trustees. NPRT will, if requested by
the Fund:
(i) As soon as practicable after receipt of such
request (A) invite a representative of the Fund to attend as
a guest all meetings of the Board of Trustees of NPRT until
a person designated by the Fund is elected to such Board of
Trustees and (B) call a special meeting of shareholders of
NPRT to be held as soon as practicable for the purpose of
(x) adopting an amendment to the NPRT Declaration of Trust
increasing the number of authorized Trustees on NPRT's Board
of Trustees to not more than 15 and (y) electing a person
designated by the Fund to fill one of the vacancies created
by such amendment, the adoption of such amendment and the
election of such designee to have been recommended by the
Board; and
(ii) so long as the Fund beneficially owns at least
9.9% of NPRT's outstanding Shares, include the Fund's
designee in NPRT's Board of Trustees' nominees for election
as Trustees at each annual meeting of shareholders unless a
designee of the Fund already serves as a Trustee and the
term of such Trustee does not expire at such annual meeting.
Any person designated by the Fund other than Messrs. Wim G.
Bleijenberg and Jean L.M.J. Klijnen shall be subject to the
approval of the Chairman of NPRT or the nominating committee of
the Board of Trustees; provided, however, that such approval
shall not be unreasonably withheld. At any time that (1) there
is no member of the Board of Trustees who was designated by the
Fund pursuant to clause (ii) above and (2) the Fund beneficially
owns at least 9.9% of NPRT's outstanding Shares, NPRT shall
(A) permit an authorized representative of the Fund meeting the
criteria set forth in the immediately preceding sentence to
attend all meetings of the Board of Trustees and shall provide
the Fund with such notice of and other information with respect
to such meetings and actions proposed to be taken without
meetings as are delivered to the Trustees and (B) notify the
Fund, within ten days thereafter, of the taking of any written
action by the Board in lieu of a meeting thereof. The member of
the Board of Trustees designated by the Fund pursuant to clauses
(i) and (ii) above shall be appointed a member of the Audit
Committee of the Board of Trustees. In the event of any vacancy
in the Board of Trustees between annual meetings of NPRT's
shareholders, the Fund will cause its designee as Trustee to vote
to fill the vacancy with the person nominated by the nominating
committee of the Board, or in the absence of any such nomination,
the person proposed by the Chief Executive officer of NPRT.
(b) Financial Statements and Other Documents. So long
as the Fund beneficially owns at least 9.9% of NPRT's outstanding
Shares, NPRT will dispatch to the Fund, within seven days after
the filing thereof with the Commission, two copies of all
documents filed by it with the Commission under the 1933 Act or
the Exchange Act. If NPRT should cease to be subject to the
reporting requirements of the Commission under Section 13(a) or
Section 15(d) of the Exchange Act, it will nevertheless furnish
to the Fund substantially the same financial statements, and in
substantially the same form and at substantially the same times,
as it would have been required to include in any filings with the
Commission had it been subject to such requirements.
(c) Access to Information. NPRT has given, and will
give so long as the Fund beneficially owns at least 9.9% of
NPRT's outstanding Shares, the Fund, its counsel and its
auditors, reasonable access to the books, records, personnel and
facilities of NPRT, and will comply with all reasonable requests
for the furnishing of information and documents; provided,
however, that the Fund agrees not to publish or disclose
information or documents not otherwise made public other than to
its counsel or auditors without NPRT's prior written consent.
(d) Restriction on Issuance of Shares. For a period
of six months from the Closing Date of the Firm Shares, NPRT
shall not, except for Shares issued pursuant to NPRT's Dividend
Reinvestment Plan in effect on the date hereof and Shares issued
under any 401k plan, employee stock option, purchase plan or
agreement in effect on the date of this Agreement, issue or sell
any Shares at a price of less than U.S. $16.75 or issue, sell or
grant any option, warrants or calls relating to, or any security
convertible into, any Shares which have an exercise or conversion
price of less than U.S. $16.75 per Share.
(e) Use of Proceeds. NPRT will invest the proceeds
from the sale of the Firm Shares and the NPRT Market Shares (net
of the reasonable expenses payable by NPRT under Section 9(c)
hereof and any other out-of-pocket expenses incurred by NPRT in
connection with the execution and delivery of this Agreement and
the issuance, sale and delivery of the Firm Shares and the NPRT
Market Shares) as follows:
The primary use of the proceeds will be for
acquisitions of additional properties as suitable
opportunities arise. NPRT's principal emphasis has
been and is expected to continue to be shopping centers
and garden apartment properties. The Trust may also
use a portion of the proceeds to renovate, expand and
improve existing Trust properties and to add to working
capital. In the interim, such proceeds may be invested
in short-term or intermediate-term government
securities, obligations of the Government National
Mortgage Association, bankers' acceptances,
certificates of deposit of commercial banks and savings
banks and savings and loan associations which are
members of the Federal Deposit Insurance Corporation,
deposits in members of the Federal Home Loan Bank
System, time deposits, commercial paper, other market
instruments, bonds, notes and common and preferred
stock.
Neither such proceeds nor any income earned from investments
thereof shall be used for any purposes other than making the
investments permitted by the first sentence of this paragraph
(e); provided, however, that any such income may be used to pay
cash dividends on, or to make distributions to holders of, NPRT's
Shares.
5. Covenants of the Fund. For the purpose of
establishing criteria to determine whether, at various points of
time in the future, the then members of the Board of Trustees and
the then executive officers of NPRT reflect some degree of
continuity with their then immediate predecessors for the
purposes of this paragraph 5 and paragraph 8, (i) a "Continuing
Trustee" means a Trustee who either was a Trustee on the Closing
Date, or at any time thereafter is a Trustee whose nomination was
approved by a majority of the Continuing Trustees (provided that,
in the event only two Trustees constitute all of the Continuing
Trustees and one of such Trustees is a Continuing Officer, the
Trustee who is a Continuing Officer shall be deemed to be "a
majority of the Continuing Trustees" for purposes of this clause
(i)), (ii) an "Executive Officer" means an executive officer of
NPRT required to be named as an executive officer in NPRT's then
most recent Annual Report on Form 10-K, and (iii) a "Continuing
Officer" means an Executive Officer who either at any time now or
hereafter has been an Executive Officer for at least two years,
or who at any time now or hereafter is elected to his or her
office by a majority of the Continuing Trustees.
The Fund hereby covenants and agrees with NPRT that,
provided Continuing Trustees constitute a majority of the Board
of Trustees and Continuing officers constitute a majority of the
Executive Officers:
(a) Restriction on Disposition of Shares. Except for
sales or transfers to affiliates of the Fund, the Fund will not
pledge, hypothecate, sell or transfer any of the Firm Shares or
the NPRT Market Shares for a period of ten years from the Closing
Date; provided, however, that after the closing for the NPRT
Market Shares the Fund may pledge all or any part of the Fund
Shares from time to time pursuant to bona fide loan transactions
where the Fund's obligations are guaranteed by an entity
satisfactory to NPRT and which expressly provide that in the
event the Fund Shares are transferred by reason of exercise of
the pledgee's rights, all transferees of the Fund Shares shall
remain bound by the provisions of this Agreement (provided,
however that the rights and obligations of all transferees which
are affiliates of the Fund shall be governed by paragraph 9(e)
hereof, and provided, further that if the pledgee is a non-
affiliate of the Fund, it and its transferees shall not be bound
by those provisions contained in paragraph 5 hereof) but shall
not have any of the Fund's rights to designate a Trustee or
receive access to financial information or the Fund's
registration rights herein contained, including without limiting
the generality of the foregoing, those rights set forth in
paragraphs 4 and 7 hereof; provided, further, that beginning five
years after the Closing Date, the Fund may sell up to one-half of
the maximum number of Shares which the Fund is permitted at any
time to own under this Agreement (i) in underwritten public
offerings registered under the 1933 Act and, in the case of
public offerings resulting from the exercise of the rights of the
Fund under paragraph 7(a) hereof, in which the managing
underwriter or underwriters represent that it is their intention
to distribute the Firm Shares and the net Shares being sold in
such a manner that no single purchaser will acquire more than 10%
of the total of the Firm Shares and the NPRT Market Shares
originally purchased by the Fund or (ii) in placements either
registered under the 1933 Act or exempt therefrom under Rule 144
promulgated thereunder in which no purchaser acquires more than
5% of the total of the Firm Shares and the NPRT Market Shares
originally purchased by the Fund.
Notwithstanding the foregoing, if at any time after the
date hereof: (x)(i) there is signed a termination or
modification of the existing income tax convention between the
United States and the Netherlands with the effect that at any
time after the effective date thereof dividend distributions by
NPRT to the Fund will be subject to United States tax at a rate
in excess of 15 percent or (ii) the ownership of shares of
beneficial interest and other equity securities of NPRT held by
"foreign persons" (as such term is used in section 897(h)(4)(B)
of the Internal Revenue Code or any successor provision),
directly or indirectly, equals or exceeds 48 percent in value of
all outstanding shares of beneficial interest and other equity
securities of NPRT, then the Fund shall have the right at its
sole cost and expense to sell or otherwise dispose of all or part
of the Fund Shares and (y) legislation shall be introduced in the
United States Congress which, if enacted, would subject the Fund
to United States tax on the sale or exchange of Shares, then the
Fund shall have the right at its sole cost and expense to sell or
otherwise dispose of all Shares held by the Fund (or that portion
of the Shares owned by the Fund as may be necessary to reduce the
ownership of Shares by the Fund so that such legislation is
inapplicable to the Fund). Any Shares sold or otherwise disposed
of by the Fund pursuant to the preceding sentence shall be sold
or otherwise disposed of (x) in an underwritten public offering
registered under the 1933 Act or (y) in one or more private
placements exempt from registration under the 1933 Act to one or
more persons approved by NPRT, such approval not to be
unreasonably withheld.
(b) Voting Fund Shares. Provided that William Newman,
Joseph Newman and Melvin D. Newman or their respective heirs,
executors, legal representatives, successors or assigns (except
open market purchasers), vote the Shares owned or the voting of
which is controlled by them in favor of the election as a Trustee
of any person designated by the Fund in accordance with paragraph
4(a) hereof, the Fund will vote the Fund Shares:
(i) for a period from the Closing Date until
December 24, 2001, in favor of the election of the Board of
Trustees' nominees for Trustees; and
(ii) for a period of five years from the Closing Date,
in the manner recommended by the Board of Trustees of NPRT
on any proposal presented by the Board to the shareholders
of NPRT provided, however, that the Fund shall not be
required to vote in any such manner if such vote would
adversely affect the Fund's Shares by decreasing the amount
of dividends or distributions payable on account of the Fund
Shares or the amount payable thereon upon liquidation of the
Trust or by having some other demonstrable adverse economic
effect on the Fund Shares, or by diminishing or eliminating
any voting rights pertaining thereto or the Fund's right to
designate a Trustee or the Fund's registration rights (any
proposal which would equally affect all of the Trust's
Shares, so that the effect on the Fund's Shares is pro rata
in proportion to all of the Trust's Shares then outstanding,
is not a proposal which "adversely affects the Fund's
Shares" within the meaning of this proviso, e.g., a proposal
to approve a large issuance of shares).
6. Conditions to Obligation of the Fund. The
obligation of the Fund to purchase and pay for the Shares shall
be subject to the accuracy as of each Closing Date (as if made on
such Closing Date) of the representations and warranties of NPRT
herein, to the performance by NPRT of its obligations hereunder
to be performed on or before such Closing Date, and to the
satisfaction of the following conditions on such Closing Date:
(a) Opinion of NPRT's Counsel. The Fund shall have
received an opinion or opinions of Hofheimer Gartlir & Gross or
Altheimer & Gray, counsel to NPRT, dated the Closing Date and in
form and substance satisfactory to the Fund, to the effect that:
(i) NPRT is a voluntary business association commonly
known as a business trust of the type described in Chapter
182 of the General Laws of Massachusetts, duly established
and validly existing pursuant to the Declaration of Trust
under the laws of the Commonwealth of Massachusetts and has
the requisite power to conduct the business in which it is
engaged on the Closing Date;
(ii) This Agreement has been duly authorized, executed
and delivered by NPRT and constitutes a valid and legally
binding obligation of NPRT, enforceable in accordance with
its terms, subject,,as to enforcement, to bankruptcy,
insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles (except
that such counsel need not express an opinion as to the
indemnity and contribution agreements in Section 7(e)
hereof);
(iii) All of the outstanding Shares (including the
Firm Shares and the Market Shares) have been duly authorized
and the outstanding Shares are, and the Firm Shares and the
Market Shares when issued in accordance with paragraph 1
hereof will be, validly issued, fully paid and nonassessable
by the Trust, and neither the Declaration of Trust nor
general principles of Massachusetts law provide the
shareholders of NPRT with preemptive rights;
(iv) No consent, approval, authorization or order of,
or filing, registration or qualification with, any court or
other governmental agency or instrumentality is required in
connection with the execution, sale and delivery by NPRT of
this Agreement, the issuance, sale and delivery by NPRT of
the Firm Shares or the NPRT Market Shares or the
consummation by NPRT of the transactions contemplated
hereby, except for the filing by NPRT of a report on Form
BE-13A and related forms pursuant to the rules of the
Department of Commerce promulgated under the International
Investment Survey Act of 1976 and the filing of a current
Report on Form 8-K pursuant to the rules of the Commission
promulgated under the Exchange Act;
(v) The execution, delivery and performance by NPRT of
this Agreement, the issuance, sale and delivery by NPRT of
the Firm Shares and the NPRT Market Shares and the
consummation by NPRT of the transactions contemplated by
this Agreement are not required to be approved by the
holders of NPRT's Shares and do not conflict with, or result
in a breach or violation of the terms, conditions or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien pursuant to the terms
of, the Declaration of Trust, or any statute, law, rule or
regulation or any order, judgment, decree, indenture,
mortgage or other agreement or instrument known to such
counsel to which NPRT is subject;
(vi) Except as set forth in the Reports, the NPRT
Letter or the October 31, 1990 Balance Sheet or the notes
thereto, there are no actions, proceedings or investigations
pending, or to the knowledge of such counsel threatened,
against or affecting NPRT or any of its properties or
rights, which if adversely determined would materially and
adversely affect the financial condition, business, assets
or rights of NPRT; and
(vii) It is not necessary in connection with the
issue, sale and delivery of the Firm Shares or the NPRT
Market Shares, under the circumstances contemplated by this
Agreement, to register such Shares under the 1933 Act.
(b) Opinion of Counsel for the Fund. The Fund shall
receive from Shearman & Sterling, special counsel for the Fund,
such opinion as to the issuance of the Firm Shares and the NPRT
Market Shares and other matters as the Fund may require, and NPRT
shall have furnished to such counsel such documents as such
counsel may reasonably request for the purpose of enabling them
to pass upon such matters.
(c) Certificate of NPRT. The Fund shall have received
a certificate or certificates, dated the Closing Date and in form
and substance satisfactory to the Fund, signed by The Chief
Executive Officer or the Chief Operating Officer of NPRT to the
effect that the representations and warranties of NPRT herein are
true and correct, as if made at and as of the Closing Date, and
that NPRT has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(d) Listing. The New York Stock Exchange shall have
approved the listing of the Firm Shares and the NPRT Market
Shares to be purchased from NPRT.
(e) Reliance on Massachusetts Lawyers. In rendering
their opinions, Hofheimer Gartlir & Gross, Altheimer & Gray and
Shearman & Sterling may rely, as to all matters of Massachusetts
law, upon the opinion of Hale & Dorr or Fordham & Starrett or
other Massachusetts counsel reasonably acceptable to the Fund.
(f) Voting Agreement. Messrs. William Newman, Joseph
Newman and Melvin D. Newman (sometimes herein referred to
collectively as the "Newmans") shall have executed an agreement
in form reasonably satisfactory to the Fund to vote the Shares
owned or the voting of which is controlled by them in favor of
the election as a Trustee of any person designated by the Fund in
accordance with paragraph 4(a) hereof.
7. Registration Rights. NPRT hereby covenants and
agrees as follows:
(a) Required Registration of Fund Shares. At any time
after five years from the Closing Date (or at such earlier time
as mutually agreed in writing by the parties hereto or as
permitted by paragraph 5(a) hereof), upon the written request
(which shall specify the number of Fund Shares intended to be
sold and describe the nature of any proposed sale) of the Fund,
NPRT will as soon as practicable (but in any event within six
months of the receipt by NPRT of such request, subject to
subparagraph "(f)" hereinbelow) prepare, file and use its best
efforts to cause to become effective a registration statement
under the 1933 Act with respect to such of the Fund Shares as the
Fund shall have requested be registered (NPRT shall use Form S-3
if available), subject to the provisions of paragraph "5" hereof,
and NPRT shall take whatever action may be required to permit the
sale of all such Shares, subject to the provisions of said
subparagraph "(f)".
(b) Incidental Registration. If NPRT at any time
plans to file a registration statement covering proposed sales
for cash of its equity securities (other than shares issuable
upon the exercise of employee stock options or pursuant to any
employee share purchase or similar plan) under the 1933 Act
(otherwise than pursuant to the provisions of "(a)" above), it
will give written notice to the Fund at least 15 days prior to
the day on which such registration statement is filed and, at the
Fund's written request given within ten days after the receipt of
such notice (which request shall specify the number of Fund
Shares intended to be sold or disposed of by the Fund), NPRT will
use its best efforts to cause all Shares for which registration
shall have been requested to be included in such registration
statement to the extent required to permit the sale or other
disposition thereof in accordance with the method described by
the Fund, subject to the provisions of (f) below and of Section 5
hereof.
(c) Expenses and Maintenance of Registration. NPRT
shall keep effective and maintain any registration specified in
paragraph (a) or (b) above for such period as the Fund may deem
necessary for the purpose of selling or disposing of the Fund
Shares, which period shall not exceed the lesser of (y) three
months or (z) such period during which the financial statements
in the registration statement do not become stale, and from time
to time during such period shall amend or supplement the
prospectus used in connection therewith to the extent necessary
in order to comply with applicable law. NPRT shall furnish the
Fund with as many copies of any prospectus (and of any amended or
supplemented prospectus) in connection with any such registration
as it may reasonably request and shall, when and as requested by
the Fund, take any action necessary to permit the offering of the
Fund Shares covered by such registration under the securities
laws of such states as it may reasonably designate; provided,
however, that NPRT shall not be required to qualify as a foreign
corporation to do business or to give a general consent to
service of process. All expenses, disbursements and fees in
connection with any registration contemplated by paragraph (a) or
(b) above or under this paragraph (c) shall be borne by the
persons seeking to sell the Shares so registered in proportion to
the number of such Shares sought to be sold by such persons.
(d) Opinion of Counsel Upon Registration. At the time
when any registration statement under the 1933 Act pursuant to
paragraph (a) or (b) above becomes effective, and at the time of
each post-effective amendment, NPRT will furnish to the Fund, and
any underwriters or broker-dealers through whom the Fund Shares
may be sold, (A) an opinion of counsel to NPRT to the effect that
(i) to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the registration statement has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act,
(ii) the registration statement and the prospectus, as of the
effective date of the registration statement or amendment, as the
case may be, appeared on their face to be appropriately
responsive in all material respects to the requirements of the
1933 Act and the applicable rules and regulations of the
Commission thereunder, (iii) such counsel have no reason to
believe that the registration statement or the prospectus, as of
the effective date of the registration statement or amendment, as
the case may be, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading and (iv) the Fund Shares offered thereby have been
duly authorized and validly issued and are fully paid and non-
assessable by NPRT; it being understood that such counsel need
not express any opinion or belief as to the financial statements
or other financial data contained in the registration statement
or prospectus, and (B) a comfort letter from the independent
public accountants of NPRT, in customary form and covering such
matters of the type customarily covered by the comfort letters
given by such accountants to the underwriters in NPRT's
underwritten public offerings managed by nationally recognized
underwriters.
(e) Indemnification. NPRT hereby agrees to indemnify
the Fund, any underwriter or broker-dealer through whom the Fund
Shares may be sold and each person, if any, who controls the Fund
or any such underwriter or broker-dealer within the meaning of
the 1933 Act, against all losses, claims, damages, liabilities or
expenses or actions in respect thereof (under the 1933 Act or
common law or otherwise) caused by any untrue statement of a
material fact contained in any registration statement or
prospectus (and as amended or supplemented if NPRT shall have
furnished any amendments or supplements thereto) or any
preliminary prospectus or caused by any omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading; and will reimburse
the Fund for any legal or other expenses reasonably incurred by
it in connection with investigating or defending against such
loss, claim, damage, liability or action, except insofar as such
losses, claims, damages, liabilities or expenses are caused by
any untrue statement or omission contained in information
furnished in writing to NPRT by the Fund expressly for use
therein. In connection with any registration statement in which
the Fund is participating, the Fund promptly will furnish NPRT in
writing such information as shall reasonably be requested by NPRT
for use in any such registration statement or prospectus and will
indemnify NPRT, its Trustees and officers, each underwriter and
each person, if any, who controls NPRT or any underwriter within
the meaning of the 1933 Act, against any losses, claims, damages,
liabilities and expenses and actions in respect thereof (under
the 1933 Act or common law or otherwise) resulting from any
untrue statement of a material fact or any omission of a material
fact required to be stated in the registration statement or
prospectus or necessary to make the statements therein not
misleading; and will reimburse NPRT for any legal or other
expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage,
liability or action, but only to the extent that such untrue
statement or omission is contained in information so furnished in
writing by the Fund expressly for use therein. Each party hereto
will also agree that in the event any such indemnification by it
is held by a court to be unavailable, such party will contribute
to any damages paid by the other party or any underwriter or
broker-dealer which would have been paid had such indemnification
not been held to be unavailable.
(f) Limitations on Rights to Registration.
Notwithstanding the provisions of (a) above:
(i) NPRT shall not be required to register Fund Shares
owned by the Fund or any assignee of the Fund under the 1933
Act if in the opinion of counsel to NPRT and the opinion of
special counsel to the Fund or any assignee of the Fund, as
the case may be, such registration is not necessary under
the circumstances;
(ii) NPRT shall not be required to file more than two
registration statements pursuant to the provisions of "(a)"
above, and NPRT shall be required to file the second such
registration statement only at such time which does not, in
NPRT's reasonable judgment, materially and adversely
interfere with NPRT's plans for any public offering and/or
private placement of its Shares contemplated to occur within
six months of the date of the Fund's notice requesting
registration or its use of Shares to acquire property in a
pending transaction or where the registration statement
requirements would cause its officers and staff to devote
any substantial business time to the compiling or updating
of financial information outside of the normal course of
business.
(iii) The rights to registration specified in (b)
above shall be limited to situations where a proposed public
distribution of the Fund Shares to be registered is to be
effected forthwith upon the effectiveness of a registration
statement with respect thereto;
(iv) The minimum number of Fund Shares included in a
registration statement pursuant to the provisions of
paragraph (a) above shall be 1,000,000; and
(v) If NPRT has filed a registration statement
covering the sale for its own account of its own securities
to underwriters for the purpose of making a public offering
and Fund Shares are to be included therein pursuant to the
provisions of paragraph (b) above and if in the judgment of
the managing underwriter or underwriters of the proposed
public offering of such securities such inclusion would
materially and adversely affect such public offering and
notification of such determination is given to the Fund as
promptly as practicable, the number of Shares to be offered
for the account of the Fund shall be reduced to the extent
recommended by such managing underwriter or underwriters;
provided that, if securities are being offered for the
account of other persons as well as NPRT, the proportion by
which the number of Shares intended to be offered by the
Fund is reduced shall not exceed the proportion by which the
number of Shares intended to be offered by such other
persons is reduced; and provided further that if the
reduction in the number of Shares to be offered by the Fund
would, in the judgment of such managing underwriter or
underwriters, be insufficient to substantially eliminate the
material adverse effect that inclusion of the Fund Shares
requested to be included would have on such offering, such
Fund Shares shall be excluded from such offering. If any
such Fund Shares are therefore not included in two such
registration statements, NPRT will file an additional
registration statement pursuant to the provisions of
paragraph (a) above.
8. Additional Agreements. Except as provided in this
Section 8, the Fund agrees, provided Continuing Trustees
constitute a majority of the Board of Trustees and Continuing
Officers constitute a majority of the Executive Officers, that
for a period of 15 years after the Closing Date the Fund will
not, without the prior consent of NPRT's Board of Trustees
specifically expressed in a resolution adopted by a majority of
the Trustees of NPRT who are not designated by the Fund, acquire,
by purchase or otherwise, any securities, including convertible
securities, which entitle the holder directly or upon conversion
to vote for the election of Trustees of NPRT ("Voting
Securities"), if immediately after such acquisition the Fund, its
Trustees and officers would hold in the aggregate more than 15%
of the total votes of all Voting Securities at the time
outstanding (assuming conversion of all convertible securities);
provided, however, that the provisions of this paragraph shall
not prevent the Fund from converting any securities held by it
into Shares, if such securities have been called for redemption
by NPRT or NPRT has taken other action which would cause a
failure so to convert such securities to have an adverse effect
on the Fund.
So long as the Fund beneficially owns at least 9.9% of
the Shares, NPRT agrees that in the event that it should propose
to issue and sell for cash additional Voting Securities (such
additional Voting Securities are herein referred to as the
"Additional Securities"), it will give the Fund notice of such
proposal (the "Proposal Notice") and the Fund shall thereupon
have the right to purchase from NPRT sufficient securities of the
same class and having the same terms as the Additional Securities
so that after the issuance of the Additional Securities the Fund
will own the same percentage of Shares as the Fund owned prior to
the issuance of the additional shares (such securities which the
Fund shall have a right to purchase are herein referred to as the
"Fund's Additional Securities"); provided, however, that on and
after the fifteenth anniversary date of the initial Closing Date,
the Fund's rights hereunder shall be limited to maintaining a
percentage of Shares which shall not exceed 9.9% of the
outstanding Shares. The purchase price per share to be paid by
the Fund for the Fund's Additional Securities shall be the public
offering price or sales price or, in the case of a subscription
offering made to all holders of outstanding Shares, the
subscription price, less in each case underwriting discounts or
commissions, if any. The Fund's right to purchase the Additional
Securities shall be exercised by written notice to NPRT given by
the Fund not more than seven business days following receipt by
the Fund of the Proposal Notice, setting forth the amount of the
Fund's Additional Securities to be purchased. Upon receipt by
NPRT of such notice, the Fund shall be obligated to purchase from
NPRT, and NPRT shall be obligated to sell to the Fund, such
amount of the Fund's Additional Securities, such purchase and
sale to take place on the closing of the issuance of the
Additional Securities (in the event of a private placement, such
purchase and sale shall take place within 30 days of the closing
of the private placement); provided, however, that in the event
the Additional Securities are not issued within three months
after the receipt by NPRT of the notice setting forth the amount
of the Fund's Additional Securities to be purchased by the Fund,
then the parties shall have no further obligations pursuant to
this sentence and NPRT shall not thereafter proceed with the
issuance of the Additional Securities without giving the Fund a
new notice pursuant to the preceding sentence. All references to
"Fund Shares" in paragraphs 5, 7 and 9(e) hereof shall be deemed
to include the Fund's Additional Securities. The right to
purchase Additional Securities provided for in this paragraph
shall not apply to (a) Shares issued for a consideration other
than cash, (b) Shares issued under NPRT's Dividend Reinvestment
and Share Purchase Plan or (c) up to 200,000 Shares issued during
any fiscal year of NPRT under any employee or Trustee stock
option or purchase plan or pension plan at a purchase price equal
to not less than 85% of the fair market value of such Shares on
the date of purchase or the date any such option is granted.
9. Miscellaneous.
(a) Termination. The Fund, provided that prior to the
breach or default hereinbelow described the Fund was complying
with its obligations under this Agreement, may elect to terminate
all or any of the provisions of paragraph 5 hereof after any of
the following events: (i) if NPRT breaches, or defaults in the
performance of, any of its covenants contained in Section 2 or 4
of this Agreement or elsewhere in this Agreement in any material
respect (whether or not such covenants are valid and legally
binding obligations of NPRT) or if during their survival period
any of NPRT's representations or warranties contained herein are
incorrect in any material respect, or (ii) if Messrs. William
Newman, Joseph Newman or Melvin D. Newman or their respective
heirs, executors, legal representatives, successors or assigns
(except open market purchasers), fail to vote the Shares owned or
controlled by them in favor of the election as a Trustee of any
person designated by the Fund in accordance with paragraph 4(a)
hereof (whether or not such covenants are valid and legally
binding obligations of such person). If the breach or default is
a material breach of subparagraphs (a), (d) or (e) of paragraph 4
or if there is a breach of covenant of the type described in
clause (ii) immediately above, the Fund also may elect to
terminate all or any of the provisions of paragraph 8 hereof. In
the event of any election to terminate hereunder, the Fund shall
forthwith give written notice thereof to NPRT and shall not take
any action prohibited by Section 5 or 8 hereof unless and until
the termination becomes effective. No termination pursuant to
this paragraph 9(a) as a result of any such breach or default
shall be effective if (i) NPRT or the Newmans shall have remedied
or cured such breach or default within 30 days after receipt by
them of such notice or, if in NPRT's reasonable judgment such
breach or default cannot be cured within such 30-day period, NPRT
or the Newmans shall have commenced such remedy or cure within
such 30 day period and shall complete such remedy or cure within
an aggregate of 60 days after receipt by them of such notice or
(ii) NPRT or the Newmans shall have been enjoined by a court of
competent jurisdiction from performing or abiding by the covenant
so breached or defaulted upon, provided NPRT or the Newmans shall
use their best efforts to cause such injunction to be dissolved
(including the exhaustion of all rights of appeal).
No investigation by the Fund shall affect the
representations and warranties of NPRT in Section 2 or the right
of the Fund to terminate any portion of this Agreement as
provided in this Section 9(a).
(b) Amendment. This Agreement may be amended or
supplemented in any respect at any time by an agreement in
writing executed in the same manner as this Agreement.
(c) Expenses. NPRT shall bear all United States taxes
which may be payable in respect of the issue, sale or delivery of
any of the Firm Shares or the NPRT Market Shares and the fees and
expenses of NPRT's counsel and NPRT's Massachusetts counsel, and
the fees of Merrill Lynch & Co. (which is paying its own
expenses), investment bankers for NPRT in respect of the
transactions contemplated hereby. The Fund shall bear the fees
and expenses of Shearman & Sterling, special counsel for the Fund
or any substitute for such special counsel (and any other counsel
with whom they may consult) in connection with this Agreement,
and with respect to the NPRT Market Shares, the Fund shall pay a
portion of the fees of Merrill Lynch & Co. equal to 13/16ths of
1% of the purchase price for such Shares. Each party hereto
represents to the other that it is not aware of any other person
who is entitled, or who may assert a right, to receive a
broker's, finder's or similar fee in connection with this
Agreement.
(d) Survival of Representations and Warranties. All
representations and warranties contained herein or made in
writing in connection herewith shall survive the execution and
delivery of this Agreement and the delivery by NPRT of the Firm
Shares, and the NPRT Market Shares, regardless of any
investigation made by the Fund or on its behalf, for a period of
three years from the Closing Date of the Firm Shares.
(e) Successor and Assigns. All covenants and
agreements in this Agreement shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto
whether so expressed or not; provided, however, that no purchaser
of any of the Fund Shares (other than an affiliate of the Fund
except as provided in paragraph 5(a)) shall have the benefits of
a successor or assign by reason merely of such purchase but such
purchaser shall be bound by the Fund's obligations under this
Agreement, except that the provisions of Section 7 shall inure to
the benefit of and be binding upon any purchaser of more than
200,000 Fund Shares. Notwithstanding the foregoing, Purchasers
of Fund Shares in any public offering of such Fund Shares shall
not be subject to any of the obligations, or have the benefit of
any of the rights, of the Fund under this Agreement.
(f) Notices. All communications provided for
hereunder shall be hand delivered, sent by courier, or sent by
facsimile transmission and confirmed by a hand delivered
confirmation or a fax advice of such delivery. If at any time
either party is delivering a communication to the other party, a
fax advice of such delivery shall be faxed to the other party at
the time such communication is deposited with a courier or other
by hand deliverer. If to the Fund, such communications shall be
addressed to the Fund at its offices at Oude Lindestraat 70,
correspondentieadres, postbus 2980, 6401 DL Heerlen, The
Netherlands, Attn: Jean L.M.J. Klijnen, with a copy to Shearman &
Sterling, at 599 Lexington Avenue, New York, New York 10022,
Attn: Cornelius Dwyer, Jr., Esq.; if to NPRT, addressed to it at
its offices at 1120 Avenue of the Americas, New York, New York
10036, with copies to Hofheimer Gartlir & Gross, 633 Third
Avenue, New York, New York 10017 and Altheimer & Gray, 10 South
Wacker Drive, Chicago, Illinois 60606; or to such other address
with respect to any party as such party shall notify the other
party hereto in writing.
(g) Stock Splits. All numbers of Shares and prices
per Share included herein shall be adjusted for any stock
dividends, stock splits or revenue stock splits paid or made
after the date of this Agreement.
(h) Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
(i) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York.
(j) Legends on Shares: REIT Qualification. The Fund
acknowledges that the certificates for the Firm Shares and the
NPRT Market Shares delivered on the Closing Dates will bear the
legend required by Section 6.3 of the Declaration of Trust and a
legend referring to the Fund's agreements in the second sentence
of Section 3(c) hereof and in Section 5 hereof and the Fund
agrees to be bound by the provisions of such legends.
(k) Immunity of Trustees, et al. No obligation of
NPRT hereunder is personally binding upon, nor shall resort in
respect thereof be had to the private property of, any of the
Trustees, shareholders, officers, employees or agents of NPRT,
but the Trust Property (as defined in the Declaration of Trust)
or a specific portion thereof only shall be bound.
IN WITNESS WHEREOF, this Agreement has been executed on
behalf of NPRT and the Fund, all as of the date first above
written.
NEW PLAN REALTY TRUST BELEGGINGSMAATSCHAPPIJ MIDAS B.V.
By By
Title: Title:
<PAGE>
The undersigned, to induce NPRT (the terms used herein are those
used in the above Agreement) to enter in to the above Agreement
with the Fund, the undersigned's wholly-owned subsidiary, and for
other good and valuable consideration the receipt whereof is
hereby acknowledged, hereby guarantees to NPRT, and its
successors and assigns, the full payment of the purchase price by
the Fund for the Firm Shares on the initial Closing Date if the
conditions for the payment of the purchase price have been
satisfied. This guaranty of the undersigned is irrevocable and
shall bind the undersigned and its successors and assigns.
ALGEMEEN BURGERLIJK
PENSIOENFONDS
By
<PAGE>
EXHIBIT 10.2
============================================================
============================================================
REVOLVING CREDIT AGREEMENT
by and among
NEW PLAN REALTY TRUST
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS AGENT
________________
$65,000,000
________________
Dated as of December 30, 1993
=============================================================
=============================================================
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS 1
1.1. Defined Terms. 1
1.2. Other Definitional Provisions. 17
2. AMOUNT AND TERMS OF LOANS. 18
2.1. Loans. 18
2.2. Notes. 18
2.3. Procedure for Borrowings Other than Competitive
Bid Borrowings. 19
2.4. Competitive Bid Advances and Procedure for
Competitive Bid Borrowings. 20
2.5. Termination or Reduction of Aggregate
Commitments. 24
2.6. Prepayments of the Loans. 25
2.7. Conversions. 26
2.8. Interest Rate and Payment Dates. 27
2.9. Substituted Interest Rate. 28
2.10. Taxes; Net Payments. 29
2.11. Illegality. 30
2.12. Increased Costs. 30
2.13. Indemnification for Loss Relating to
Eurodollar Advances. 32
2.14. Option to Fund. 33
2.15. Use of Proceeds. 33
2.16. Capital Adequacy. 33
2.17. Agent's Records. 34
2.18. Extension of Termination Date. 35
2.19. Failure to Fund; Facility Fee. 38
3. FEES; PAYMENTS 39
3.1. Facility Fee. 39
3.2. Pro Rata Treatment and Application of Principal
Payments. 39
4. REPRESENTATIONS AND WARRANTIES 40
4.1. Subsidiaries. 40
4.2. Existence and Power; Declaration of Trust. 40
4.3. Authority. 40
4.4. Binding Agreement. 41
4.5. Litigation. 41
4.6. Required Consents. 41
4.7. No Conflicting Agreements. 42
4.8. Compliance with Applicable Laws. 42
4.9. Taxes. 42
4.10. Governmental Regulations. 43
4.11. Federal Reserve Regulations; Use of Loan
Proceeds. 43
4.12. Plans; Multiemployer Plans. 43
4.13. Financial Statements. 43
4.14. Property. 44
4.15. Franchises, Intellectual Property, Etc. 44
4.16. Environmental Matters. 45
4.17. Labor Relations. 46
4.18. Burdensome Obligations. 46
4.19. REIT Status. 46
4.20. No Misrepresentation. 47
5. CONDITIONS TO FIRST LOANS 47
5.1. Evidence of Action. 47
5.2. This Agreement. 47
5.3. Notes. 48
5.4. Litigation. 48
5.5. Opinion of Counsel to the Borrower. 48
5.6. Opinion of Special Counsel. 48
5.7. Fees. 48
5.8. Fees and Expenses of Special Counsel. 48
6. CONDITIONS OF LENDING - ALL LOANS 49
6.1. Compliance. 49
6.2. Loan Closings. 49
6.3. Borrowing Request. 49
6.4. Documentation and Proceedings. 49
6.5. Required Acts and Conditions. 50
6.6. Approval of Special Counsel. 50
6.7. Supplemental Opinions. 50
6.8. Other Documents. 50
7. AFFIRMATIVE COVENANTS 50
7.1. Financial Statements. 50
7.2. Certificates; Other Information. 51
7.3. Legal Existence. 55
7.4. Taxes. 55
7.5. Insurance. 55
7.6. Payment of Indebtedness and Performance of
Obligations. 56
7.7. Condition of Property. 56
7.8. Observance of Legal Requirements. 56
7.9. Inspection of Property; Books and Records;
Discussions. 57
7.10. Licenses, Intellectual Property. 57
7.11. REIT Status. 57
8. NEGATIVE COVENANTS 57
8.1. Indebtedness. 57
8.2. Liens. 58
8.3. Merger, Consolidation and Certain Dispositions
of Property. 58
<PAGE>
8.4. Contingent Obligations. 59
8.5. [Reserved]. 59
8.6. Investments, Loans, Etc. 59
8.7. Business and Name Changes. 60
8.8. Subsidiaries. 60
8.9. Declaration of Trust. 60
8.10. ERISA. 60
8.11. Prepayments of Indebtedness. 60
8.12. Sale and Leaseback. 60
8.13. Fiscal Year. 61
8.14. Transactions with Affiliates. 61
8.15. Issuance of Additional Capital Stock by
Subsidiaries. 61
8.16. Interest Coverage Ratio. 61
8.17. Minimum Tangible Net Worth. 61
9. DEFAULT 61
9.1. Events of Default. 61
10. THE AGENT 65
10.1. Appointment. 65
10.2. Delegation of Duties. 65
10.3. Exculpatory Provisions. 65
10.4. Reliance by Agent. 66
10.5. Notice of Default. 66
10.6. Non-Reliance on Agent and Other Lenders. 67
10.7. Indemnification. 67
10.8. Agent in Its Individual Capacity. 68
10.9. Successor Agent. 68
11. OTHER PROVISIONS. 69
11.1. Amendments and Waivers. 69
11.2. Notices. 70
11.3. No Waiver; Cumulative Remedies. 71
11.4. Survival of Representations and Warranties. 71
11.5. Payment of Expenses and Taxes. 72
11.6. Lending Offices. 73
11.7. Successors and Assigns. 73
11.8. Counterparts. 76
11.9. Adjustments; Setoff. 76
11.10. Lenders' Representations. 77
11.11. Indemnity. 77
11.12. Governing Law. 78
11.13. Headings Descriptive. 78
11.14. Severability. 78
11.15. Integration. 79
11.16. Consent to Jurisdiction. 79
11.17. Service of Process. 79
11.18. No Limitation on Service or Suit. 79
11.19. WAIVER OF TRIAL BY JURY. 80
11.20. Termination 80
11.21. Limited Recourse Obligations 80
<PAGE>
LIST OF EXHIBITS
AND SCHEDULES
Exhibits
Exhibit A - Assignment and Assumption Agreement
Exhibit B - Commitments and Commitment Percentages
Exhibit C - Competitive Bid Borrowing Request
Exhibit D - Compliance Certificate
Exhibit E - Conventional Borrowing Request
Exhibit F - Revolving Credit Note
Exhibit G - Opinion of Borrower's Counsel
Exhibit H - Opinion of Special Counsel
Schedules
Schedule I - Eurodollar and Domestic Lending Office
Schedule 4.1 - Subsidiaries
Schedule 4.5 - Litigation
Schedule 4.12 - Plans
Schedule 8.2 - Liens
Schedule 8.4 - Contingent Obligations
Schedule 8.6 - Investments
<PAGE>
REVOLVING CREDIT AGREEMENT, dated as of December 30, 1993,
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 Section 11.7 (each a "Lender" and,
collectively, the "Lenders"), and THE BANK OF NEW YORK, as agent (in
such capacity, the "Agent").
1. DEFINITIONS
1.1. 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 2.9.
"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
2.3 or 2.7, or shall have accepted one or more offers of Competitive
Bid Advances under Section 2.4, 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 Eurodollar
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 securities 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 Revolving 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 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": 0.50%.
"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.
"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 2.3 or 2.4, as the
case may be, as a date on which the Borrower requests the Lenders to
make Loans.
"Borrowing Request": an 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 Commission; 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 Commitment Period to make Loans to the
Borrower, subject to the terms and conditions hereof, in an aggregate
outstanding principal amount not exceeding 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 2.5.
"Commitment Percentage": as to any Lender, the
percentage set forth opposite the name of such Lender in Exhibit B
under the heading "Commitment Percentage".
"Commitment Period": the period from the Effective
Date through the day preceding the Expiration Date.
"Competitive Bid Advance": a Loan advanced pursuant to
the provisions of Section 2.4.
"Competitive Bid Borrowing": a borrowing pursuant to
section 2.4 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 2.4.
"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 2.18.
"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 contingent
(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 indorsement 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 2.7.
"Declaration of Trust": Collectively, (i) the
Amendment #4 to Declaration of Trust of New Plan Realty Trust, dated
as of December 6, 1972, by William Newman, Joseph Newman, Joseph
Halper, Daniel Cowin and Norman Gold as Trustees, which Amendment #4
by its terms amends and restates in its entirety all prior
<PAGE>
Declarations of Trust governing the organization of the Borrower, and
(ii) the following six amendments thereto:
Date
of Amendment Amendment
____________ _________
December 12, 1972 Amendment #5
December 13, 1979 Amendment #6
July 9, 1981 Amendment #7
December 15, 1982 Amendment #8
December 10, 1985 Amendment #9
December 14, 1987 Amendment #10
"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 2.19.
"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": December 30, 1993.
"Environmental Laws": any and all federal, state and local
laws relating 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 Section 9601
et
seq.; (ii) the Resource Conservation and Recovery Act of 1976, as
amended, 42 USCA Section 6901 et seq.; (iii) the Toxic Substance Control
Act,
as amended, 15 USCA Section 2601 et seq.; (iv) the Water Pollution Control
Act, as amended, 33 USCA Section 1251 et seq.; (v) the Clean Air Act, as
amended, 42 USCA Section 7401 et seq.; (vi) the Hazardous Material
Transportation Act, as amended, 49 USCA Section 1801 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 Schedule 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:
(i) in the case of the issuance by the Borrower of any Stock
(except after the exercise of a stock option) or debt
(excluding mortgage indebtedness assumed or acquired in
connection with the purchase or acquisition of Real Property
in the ordinary course of business), or the Borrower's sale
of its Stock, or any instrument convertible into its Stock,
for its own account and all sales and other commissions,
reasonable fees and expenses of professionals incurred in
connection with the foregoing; and
(ii) 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.
"Expiration Date": the earlier of the Maturity Date or the
Termination Date.
"Extension Request": defined in Section 2.18.
"Facility Fee": as defined in Section 3.1.
"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 arising under
acceptance facilities and the amount available to be drawn under all
letters of credit issued for the account of such Person and, without
duplication, 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 Advance 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 2.3 or its irrevocable notice of
conversion as provided in Section 2.7, 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 2.4; 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 2.3, 2.4 or 2.7, 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 corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month;
(iv) no Interest Period selected in respect of any Loan
shall end after the Termination Date;
(v) the Borrower shall select Interest Periods so as
not to have more than ten different Interest Periods outstanding at
any one time with respect to Eurodollar Advances and five different
Interest Periods outstanding at any one time with respect to
Competitive Bid Advances; and
(vi) no Interest Period pertaining to a Competitive Bid
Advance shall be shorter than 7 days or longer than 30 days.
"Investments": as defined in Section 8.6.
"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": as defined in Section 2.1.
"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 Documents.
"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 Documents.
"Maturity Date": the earlier of (i) the Termination Date or
(ii) the date on which the Notes shall become due and payable, whether
by acceleration or otherwise.
"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:
(i) in the case of the issuance by the Borrower of any Stock
(except after the exercise of a stock option) or debt
(excluding mortgage indebtedness assumed or acquired in
connection with the purchase or acquisition of Real Property
in the ordinary course of business), or the Borrower's sale
of its Stock, or any instrument convertible into its Stock,
for its own account, the aggregate gross proceeds from such
issuance or sale, less the applicable Exclusions; and
(ii) 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 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 (including
the amount of any purchase money mortgages), less the
applicable Exclusions in connection therewith, over
(y) the Threshold Amount.
"Net Proceeds Event": any (i) issuance of Stock or debt,
(ii) sale of Stock or instruments convertible into Stock or (iii) sale
or other disposition of any Property of the Borrower, which, in any
case, results in Net Proceeds.
"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 2.18.
"Nonconsenting Lender Termination Date": defined in Section
2.18(c).
"Note" and "Notes": defined in Section 2.2.
"Participating Lender": defined in Section 2.4.
"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
8.2.
"Permitted Mortgage Indebtedness": Indebtedness secured by
mortgages on Real Property which does not exceed in the aggregate
$105,000,000 and which was incurred in connection with the purchase or
acquisition of such Real Property in the ordinary course of the
Borrower's business.
"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.
"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
2.18.
"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 2.3 or 2.7 or accepted one
or more offers of Competitive Bid Advances under Section 2.4, 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 including 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 66 2/3% 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 66 2/3% of the aggregate Loans outstanding. At any time when
Loans comprised of Competitive Bid Advances only are outstanding,
Lenders having Commitments equal to at least 66 2/3% of the Aggregate
Commitments (whether used or unused).
"Shareholder": as defined in the Declaration of Trust.
"Special Counsel": Emmet, Marvin & Martin, special counsel
to BNY.
"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
business 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.
"Termination Date": December 29, 1994, subject to extension,
as provided for in Section 2.18.
"Threshold Event": any sale or disposition of Property of
the Borrower which, when combined with all other such sales or
dispositions occurring after the Effective Date, results in gross
proceeds for all such sales or dispositions, less applicable
Exclusions, of $75,000,000 (the "Threshold Amount") or more. For
purposes of this definition, the term "gross proceeds" means all sales
proceeds received from each such sale or disposition, whether direct
or indirect (including the amount of any purchase money mortgages or
security interests), of such Property.
"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.
1.2. 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.
2. AMOUNT AND TERMS OF LOANS.
2.1. Loans.
Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans (each a "Loan" and, as
the context may require, collectively with all Loans of such Lender
and with the Loans of all other Lenders, the "Loans") to the Borrower
from time to time during the Commitment 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 Loans of all Lenders exceed the Aggregate
Commitments. During the Commitment 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 2.3, 2.4 and 2.7, Loans may be (a) ABR
Advances, (b) Eurodollar Advances, (c) Competitive Bid Advances or (d)
any combination thereof.
2.2. Notes.
The Loans made by each Lender shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit
F, with appropriate insertions therein as to date and principal amount
(each, as indorsed 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 obligation 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, with interest thereon as prescribed in Section 2.8. 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 provided in Section 2.8 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 combination thereof, (iii) the interest
rate and Interest Period applicable to Eurodollar 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, indorsed 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 indorsement
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 2.8. Upon receipt of
each Lender's Note pursuant to Section 5, the Agent shall mail such
Note to such Lender.
2.3. Procedure for Borrowings Other than Competitive Bid
Borrowings.
(a) Except for Loans which the Borrower requests to be made
as Competitive Bid Advances (as to which the provisions of Section 2.4
shall control), the Borrower may borrow under the Commitments on any
Business Day during the Commitment 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 unused amount of the
Aggregate Commitments and (ii) Eurodollar 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 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 conditions 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 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 2.8 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 Loan as part of the Loans for
purposes of this Agreement, which Loan shall be deemed to have been
made by such Lender on the Borrowing Date applicable to such Loans,
but without prejudice to the Borrower's rights against such Lender.
2.4. Competitive Bid Advances 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 2.4 from time to time on any
Business Day during the Commitment Period in the manner set forth
below, provided, however, that at no time shall the outstanding
principal balance of Competitive 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 2.4 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 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 2.4, 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 capacity 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
Competitive 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 immediately 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 2.4(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 2.4, the Borrower may from time to time borrow under this
section 2.4, repay pursuant to clause (c) below, and reborrow under
this section 2.4.
(c) The Borrower shall repay to the Agent for the account of
each Participating Lender which has made a Competitive Bid Advance on
the maturity date of such Competitive Bid Advance (such maturity date
being that specified by the Borrower for repayment of such Competitive
Bid Advance in the related Competitive 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 pursuant to
(a)(i), above.
2.5. 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 permanently 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) Mandatory Reduction of Aggregate Commitments Relating
to Net Proceeds. Upon the occurrence of each Net Proceeds Event
giving rise to Net Proceeds of the type described in clause (ii) of
the definition of "Net Proceeds," the Aggregate Commitments shall be
reduced by an amount equal to such Net Proceeds. The effective date
of such reduction shall be the date on which the sale or disposition
of Property, as the case may be, giving rise to such Net Proceeds is
consummated. In the event that the Agent, the Lenders or the Borrower
shall disagree on the date of such consummation, the Agent may, in its
discretion, make the determination of such date, which determination
shall be binding on all the parties hereto and their successors.
(c) In General. Reductions of the Aggregate Commitments
shall be applied pro rata according to the Commitment of each Lender.
Simultaneously with each reduction of the Aggregate Commitments under
this Section, the Borrower shall pay the Facility 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 Eurodollar Advances, in whole or in part,
prior to the last day of the applicable Interest Period, the Borrower
agrees to indemnify the Lenders in accordance with Section 2.13.
2.6. 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 2.13) 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 2.7) $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.
(b) 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
applicable Interest Period, the Borrower agrees to indemnify the
Lenders in accordance with Section 2.13.
2.7. 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).
2.8. Interest Rate and Payment Dates.
(a) Prior to Maturity. Except as otherwise provided in
Section 2.8(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 2.4.
(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 2.8(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 calculated 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
2.8(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 shall become effective as of the opening of
business on the day on which such change shall become effective. 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, 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 or a Eurodollar Rate 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 Facility 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 automatically 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.
2.9. 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
2.8 or (ii) the Required Lenders shall have notified the Agent that
they have reasonably determined (which determination 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 determining
the Eurodollar Rate pursuant to Section 2.8 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 Advances.
2.10. 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 payable
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.
2.11. 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.
2.12. 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 receivable 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 withholding Taxes
for which the Borrower has no obligation under Section 2.10. 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 calculations 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.
2.13. 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 2.3 or
2.7, or shall have accepted one or more offers of Competitive Bid
Advances under Section 2.4, or if a Eurodollar Advance or Competitive
Bid Advance shall be terminated for any reason prior to the last day
of the Interest Period applicable 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.
2.14. 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
2.13 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 2.9, 2.10, 2.12 and 2.13
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.
2.15. 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.
2.16. 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 administration 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
corporation 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.
2.17. 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 interst outstanding under the Loans
as of the date of such request and the dates on which such payments
are due.
2.18. Extension of 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 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 60 nor more than 90 days prior to the
then current Termination Date. Any extension of the 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 45 days from the date of such Extension
Request (by giving written notice thereof to the Borrower
and the Agent), the Termination Date shall not be extended.
(ii) If each Lender consents to an Extension Request within such
45-day period (by giving written notice thereof to the
Borrower and the Agent) the Termination Date shall be
amended such that it shall end 364 days from date that the
Required Lenders have provided such consent to the Agent.
Upon receipt of such consents from each Lender, the Agent
will notify the Lenders of its receipt of all such consents
and the new Termination Date.
(iii) If Lenders (each a "Nonconsenting Lender" and collectively,
the Nonconsenting Lenders") having Commitments equal to 33
1/3% or less of the Aggregate Commitments do not consent to
an Extension Request within such 45-day period (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 2.18(c), or (iii) terminate the
Commitment of each Nonconsenting Lender effective on the
then current Termination Date with respect to such
Nonconsenting Lender, and, on such date, pay to the Agent
for distribution to such Nonconsenting Lender the
outstanding principal balance, if any, of the Note of such
Nonconsenting Lender, together with any accrued and unpaid
interest thereon to the date of such payment, any accrued
and unpaid Facility Fee due to such Lender, and any other
amount due to such Lender under this Agreement, whereupon
(y) the then current 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 2.18(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
Termination Date applicable to such Nonconsenting Lender
(except with respect to its rights hereunder to be
reimbursed 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.
(b) In the event the Borrower elects to terminate the
Commitment of the Nonconsenting Lender under Section 2.18(a)(iii)
above, the Agent is authorized and directed to amend Exhibit B,
effective on the then current Termination Date, and promptly
distribute a copy thereof to the Borrower and the Consenting Lenders
reflecting the new Commitment Percentage of each Consenting Lender,
being the percentage (the "Reallocated Commitment Percentage") that
the Commitment of such Consenting Lender bears to the Aggregate
Commitments (after giving effect to the termination of each
Nonconsenting Lender's Commitment), and the Consenting Lenders agree
(subject to their receipt of any mandatory prepayment referred to
below), effective on the then current Termination Date, to assume
their Reallocated Commitment Percentages of the Loans, provided, that
if, after giving effect to such assumption, the outstanding principal
balance of the Consenting Lenders' Loans would exceed the Aggregate
Commitments or any Lender's Commitment, then the Borrower will pay to
the Agent on the then current Termination Date for distribution to the
Consenting Lenders, an amount sufficient to reduce the outstanding
principal balance of the 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 2.18(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 2.18(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 2.18(c), assign all
or part of their rights and obligations in the Loan Documents to such
Substitute Lender. The Borrower shall at least 15 days prior to the
Termination Date on which the Commitments of such Nonconsenting
Lenders shall terminate (a "Nonconsenting Lender Termination Date")
notify the Agent and on 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 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 Termination 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 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 2.18(c) shall be the principal
amount of the Loans assigned thereunder. On the effective date of
such Assignment and Assumption Agreement, the Borrower, the Substitute
Lender and the Nonconsenting Lender shall make appropriate adjustments
in the payment of interest, Facility Fees and other amounts with
respect to the assigned 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 accrued and unpaid interest, Facility 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 2.18(a)(iii)
with respect to the Loans and the interest, Facility 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 reimbursed
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 2.18(c) (the obligations of the Borrower
under the foregoing indemnity 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).
(d) Each Lender will use its best efforts to respond
promptly to any request for an extension of the Termination Date,
provided that no Lender's failure to so respond shall create any claim
against it or have the effect of extending the Termination Date of
such Lender's Commitment.
2.19. Failure to Fund; Facility 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 2.3 or 2.4, 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 Facility Fee shall not
accrue on that portion of such Lender's Commitment equal to the
Defaulted Portion. Any such reduction in the aggregate Facility Fee
shall reduce only the portion of such aggregate Facility Fee payable
to the Lender who gave rise to such Defaulted Portion, and shall not
reduce the share of the Facility Fee payable to any other Lenders.
3. FEES; PAYMENTS
3.1. Facility Fee.
Subject to the terms of Section 2.19, 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 "Facility Fee"),
during the Commitment Period, equal to 0.20% per annum on the average
daily amount of the Aggregate Commitments, regardless of usage. The
Facility Fee shall be payable in arrears on each three-month
anniversary of the Effective Date, on the Maturity Date and on each
mandatory or optional reduction of the Aggregate Commitments,
commencing on the first such day following the Effective Date, and
ending on the date that the Aggregate Commitments shall expire or
otherwise terminate. The Facility Fee shall be calculated on the
basis of a 360-day year for the actual number of days elapsed.
3.2. Pro Rata Treatment and Application of Principal Payments.
Each payment, including each prepayment, of principal and
interest on the Loans and of the Facility 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
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 2.4(c) and
(d) and (iii) in the case of Facility Fees, to all Lenders pro rata
according each Lender's Commitment Percentage thereof (except as
otherwise provided in Section 2.19). 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
provided in the definition of Interest Period) shall be extended to
the next Business Day and (except with respect to payments in respect
of the Facility 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 accordance with Section 2.13.
4. 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:
4.1. 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.
4.2. 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. Since the date of Amendment #10 to
the Declaration of Trust, there have been no amendments to the
Declaration of Trust.
4.3. 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.
4.4. 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.
4.5. 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.
4.6. 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.
4.7. 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, delivery 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.
4.8. 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.
4.9. 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 reserves 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.
4.10. 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.
4.11. 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.
4.12. 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.
4.13. Financial Statements.
The Borrower has heretofore delivered to the Agent and the
Lenders copies of the (i) audited Consolidated and Consolidating
Balance Sheets of the Borrower as of July 31, 1992 and July 31, 1993,
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, 1993
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 present 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.
4.14. 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.
4.15. 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.
4.16. 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 Environmental 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 liability 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 aggregate, 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.
4.17. 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 recognition 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.
4.18. 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.
4.19. 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 Section 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.
4.20. 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 misstatement 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.
5. 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:
5.1. Evidence of Action.
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, (iv) attaching a certificate of
said Secretary or Assistant Secretary to the effect 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, and (v)
attaching 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, other than for the
State Indiana, which the Borrower will deliver within 30 days from the
Effective Date, provided that such Secretaries issue such
certificates.
5.2. 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).
5.3. Notes.
The Agent shall have received the Notes, duly executed by an
Authorized Signatory of the Borrower.
5.4. 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 challenging any
other terms and provisions hereof or thereof or seeking any damages in
connection therewith and the Agent shall have received a certificate
of an Authorized Signatory of the Borrower to the foregoing effects.
5.5. 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.
Siegal, 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 G.
5.6. 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 H.
5.7. Fees.
The Facility Fee and all fees payable to the Agent shall
have been paid.
5.8. 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.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Loan is subject to the
satisfaction of the following conditions precedent as of the date of
such Loan:
6.1. 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.
6.2. 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.
6.3. Borrowing Request.
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.
6.4. 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.
6.5. 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.
6.6. Approval of Special Counsel.
All legal matters in connection with the making of each Loan
shall be reasonably satisfactory to Special Counsel.
6.7. Supplemental Opinions.
If reasonably requested by the Agent with respect to the
applicable 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.
6.8. Other Documents.
The Agent shall have received such other documents as the
Agent or the Lenders shall reasonably request.
7. 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:
7.1. 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 Operations, 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 audited and certified
without qualification by the Accountants, which certification 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 8.16 and 8.17.
(d) Such other information as the Agent or any Lender
may reasonably request from time to time.
7.2. 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;
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
continuing 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.
7.3. 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.
7.4. 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, assessments, 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.
7.5. 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 Properties 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
pursuant 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.
7.6. 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 contested 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.
7.7. 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.
7.8. 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 applicable 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 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.
7.9. 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.
7.10. 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.
7.11. REIT Status.
Maintain its status under the Code and the REIT Guidelines
as a REIT.
8. 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:
8.1. Indebtedness.
(a) Create, incur, assume or suffer to exist at any time
any liability for Indebtedness (including Indebtedness due under the
Loan Documents), or permit any Subsidiary so to do, which, when added
to all other Indebtedness of the Borrower and its Subsidiaries, would
exceed the lesser of (i) 50% of Tangible Net Worth and (ii)
$250,000,000.
(b) Create, incur, assume or suffer to exist any liability
for Indebtedness secured by mortgages on any Real Property other than
Permitted Mortgage Indebtedness.
8.2. 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 connection 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 affect 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 securing Permitted
Mortgage Indebtedness, (viii) Liens on Property of the Borrower and
its Subsidiaries existing on the Effective Date as set forth on
Schedule 8.2 as renewed from time to time, but not any increases in
the amounts secured thereby, and (ix) 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.
8.3. 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.
8.4. Contingent Obligations.
Assume, guarantee, indorse, 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
8.4.
8.5. [Reserved].
8.6. 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 Standard &
Poors Corporation and Moody's Investors Service, Inc.;
(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 8.6;
(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; and
(e) Investments permitted under Section 856-859 of the
Code.
8.7. 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.
8.8. 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).
8.9. 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.
8.10. 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.
8.11. 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), (ii) Indebtedness secured by a
mortgage on Real Property which is accelerated or defeased in
connection with a sale of such Real Property, provided that (x) such
sale does not otherwise result in a Default under this Agreement and
(y) the Borrower complies with the provisions of Section 2.6(b) in
connection with such sale, and (iii) prior to the occurrence of a
Default or an Event of Default, Permitted Mortgage Indebtedness
(whether prepaid pursuant to a refinancing thereof or otherwise),
provided that, in connection with a prepayment made pursuant to a
refinancing of Permitted Mortgage Indebtedness, the outstanding
principal amount of all Permitted Mortgage Indebtedness, after giving
effect thereto, does not at any time exceed $105,000,000.
8.12. 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.
8.13. Fiscal Year.
Change its fiscal year from that in effect on the Effective
Date, or permit any Subsidiary so to do.
8.14. 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.
8.15. Issuance of Additional Capital Stock by Subsidiaries.
Permit any Subsidiary to issue any additional Stock or other
equity interest of such Subsidiary.
8.16. Interest Coverage Ratio.
Permit the Interest Coverage Ratio to be less than 2.50:1.0.
8.17. 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
$400,000,000.
9. DEFAULT
9.1. 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 2.15; 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 misstatement 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,
guarantor, 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 insolvent, (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
unstayed 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 consent of the Required Lenders, the Agent may, and upon the
direction of the Required Lenders shall, by notice to the Borrower,
declare the Aggregate Commitments 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
pursuant to the Loan Documents. Except as otherwise provided in this
Section, presentment, demand, protest and all other notices of any
kind are hereby expressly 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 Document.
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
Facility 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.
10. THE AGENT
10.1. 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.
10.2. 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.
10.3. 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 responsibility 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.
10.4. 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 therewith, and the Agent shall be
entitled to assume that the same are valid, effective 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 appropriate. 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.
10.5. 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.
10.6. 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, independently 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 creditworthiness 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.
10.7. 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.
10.8. 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 engage 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.
10.9. 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 successor 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.
11. OTHER PROVISIONS.
11.1. 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 Aggregate Commitments, (ii) extend
the Termination Date (other than as provided for in Section 2.18);
(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 or (iv)
change the provisions of Sections 2.8, 2.11, 2.12, 2.13,, 3.1 or 11.1
without the consent of all of the Lenders; and provided further that
no such amendment, supplement, modification, waiver or consent shall
amend, modify, waive or consent to a departure from any provision 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.
11.2. 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 2.3, 2.4 or 2.7 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.
11.3. 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.
11.4. 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.
11.5. 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 connection with (x) any Default
or Event of Default and any enforcement or collection proceedings
resulting therefrom or in connection with the negotiation 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 dismissed, 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 Aggregate Commitments
and the payment of the Notes and all other amounts payable under the
Loan Documents.
11.6. 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 office. Such office shall thereupon become such
Lender's Domestic Lending Office 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 2.3, 2.4 and 2.7 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.
11.7. 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 Assignment
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 balance of
such assignor Lender's Loans and Commitment, if any, and each assignor
Lender shall cancel and return to the Borrower its existing Note.
Upon any such sale, assignment or other transfer, the Commitments and
the Commitment Percentages set forth in Exhibit C shall be adjusted
accordingly by the Agent and a new Exhibit C 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 companies, 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 acknowledges and agrees that any such
participant shall for purposes of Sections 2.9, 2.11, 2.13 and 2.15 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 2.10(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.
11.8. 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.
11.9. 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 involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 9.1 (h) or (i), 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 warrant. 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.
11.10. 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.
11.11. 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 (including 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 respect
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 2.15, 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.
11.12. 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.
11.13. Headings Descriptive.
Section headings have been inserted in the Loan Documents
for convenience only and shall not be construed to be a part thereof.
11.14. Severability.
Every provision of the Loan Documents is intended to be
severable, 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.
11.15. 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.
11.16. 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.
11.17. 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.
11.18. 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.
11.19. 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.
11.20. 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, Facility 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.
11.21. 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 individually, 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
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: ________________________
Name: ______________________
Title: _____________________
THE BANK OF NEW YORK,
Individually and as Agent
By: ________________________
Andrea H. Stuart
Vice President
<PAGE>
EXHIBIT A
to Revolving Credit Agreement
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is made and
entered into as of _____ __, 19__, by and between ____________ (the
"Assignor") and ____________ (the "Assignee").
R E C I T A L S
1. The Assignor, certain other lenders (together with any
prior assignees, the "Lenders") and The Bank of New York, as agent
(the "Agent"), are parties to that certain Revolving Credit Agreement
dated as of December 30, 1993 (the "Credit Agreement") with New Plan
Realty Trust, a Massachusetts business trust (the "Borrower").
Pursuant to the Credit Agreement, the Lenders agreed to make Revolving
Credit Loans under Commitments in the aggregate amount of $65,000,000.
The amount of the Assignor's Commitment (before giving effect to this
Assignment) is specified in Item 1 of Schedule 1 hereto. The
outstanding principal amount of the Assignor's Loans under its
Commitment (before giving effect to this Assignment) is specified in
Item 2 of Schedule 1 hereto. All capitalized terms not otherwise
defined herein are used herein as defined in the Credit Agreement.
2. The Assignor wishes to sell and assign to the
Assignee, and the Assignee wishes to purchase and assume from the
Assignor, (i) the portion of the Assignor's Commitment specified in
Item 3 of Schedule 1 hereto (the "Assigned Commitment") and (ii) the
portion of the Assignor's Loans specified in Item 5 of Schedule 1
hereto (the "Assigned Loans").
The parties agree as follows:
3. Assignment. Subject to the terms and conditions set
forth herein and in the Credit Agreement, the Assignor hereby sells
and assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, without recourse, on the date set forth
above (the "Assignment Date") (a) all right, title and interest of the
Assignor to the Assigned Loans and (b) all obligations of the Assignor
under the Credit Agreement with respect to the Assigned Commitment and
as a "Lender" thereunder. As full consideration for the sale of the
Assigned Loans and the Assigned Commitment, the Assignee shall pay to
the Assignor on the Assignment Date the principal amount of the
Assigned Loans (the "Purchase Price").
4. Representation and Warranties. Each of the Assignor and
the Assignee represents and warrants to the other that (a) it has full
power and legal right to execute and deliver this Agreement and to
perform the provisions of this Agreement; (b) the execution, delivery
and performance of this Agreement have been authorized by all action,
corporate or otherwise, and do not violate any provisions of its
charter or by-laws or any contractual obligations or requirement of
law binding on it; and (c) this Agreement constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its
terms.
5. Condition Precedent. The obligations of the Assignor
and the Assignee hereunder shall be subject to the fulfillment of the
condition that the Assignor shall have (a) received payment in full of
the Purchase Price, and (b) complied with the other applicable
provisions of Section 11.7 of the Credit Agreement.
6. Notice of Assignment. The Assignor agrees to give
notice of the assignment and assumption of the Assigned Loans and the
Assigned Commitment to the Agent and the Borrower and hereby instructs
the Agent and the Borrower to make all payments with respect to the
Assigned Loans and the Assigned Commitment directly to the Assignee at
the applicable Lending Offices specified in Item 6 on Schedule 1
hereto, or to the Agent for the account of the Assignee as a Lender
(in either case, as required by the terms of the Credit Agreement);
provided, however, that the Borrower and the Agent shall be entitled
to continue to deal solely and directly with the Assignor in
connection with the interests so assigned until the Agent and the
Borrower, to the extent required by Section 11.7 of the Credit
Agreement, shall have received notice of the assignment, the Borrower
and the Agent shall have consented in writing thereto, and the Agent
shall have recorded and accepted this Agreement and received the
Assignment Fee required to be paid pursuant to Section 11.7 of the
Credit Agreement. From and after the date (the "Assignment Effective
Date") on which the Agent shall notify the Borrower and the Assignor
that the requirements set forth in the foregoing sentence shall have
occurred and all consents (if any) required shall have been given, (i)
the Assignee shall be deemed to be a party to the Credit Agreement
and, to the extent that rights and obligations thereunder shall have
been assigned to Assignee as provided in such notice of assignment to
the Agent, shall have the rights and obligations of a Lender under the
Credit Agreement, and (ii) the Assignee shall be deemed to have
appointed the Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are delegated to the
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. The Assignee agrees that the
provisions of Section 10 of the Credit Agreement are hereby
incorporated into this Agreement by this reference, as if fully set
forth herein at length. After the Assignment Effective Date, the
Agent shall make all payments in respect of the interest assigned
hereby (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustment in payments under the Assigned Loans and the
Assigned Commitment for periods prior to the Assignment Effective Date
hereof directly between themselves. The Assignee agrees to deliver to
the Borrower and the Agent such Internal Revenue Service forms as may
be required to establish that the Assignee is entitled to receive
payments under the Credit Agreement without deduction or withholding
of tax.
7. Independent Investigation. The Assignee acknowledges
that it is purchasing the Assigned Loans and the Assigned Commitment
from the Assignor totally without recourse and, except as provided in
Section 2 hereof, without representation or warranty. The Assignee
further acknowledges that it has made its own independent
investigation and credit evaluation of the Borrower in connection with
its purchase of the Assigned Loans and the Assigned Commitment.
Except for the representations or warranties set forth in Section 2,
the Assignee acknowledges that it is not relying on any representation
or warranty of the Assignor, expressed or implied, including without
limitation, any representation or warranty relating to the legality,
validity, genuineness, enforceability, collectibility, interest rate,
repayment schedule or accrual status of the Assigned Loans or the
Assigned Commitment, the legality, validity, genuineness or
enforceability of the Credit Agreement, the related Notes, or any
other Loan Document referred to in or delivered pursuant to the Credit
Agreement, or financial condition or creditworthiness of the Borrower
or any other Person. The Assignor has not and will not be acting as
either the representative, agent or trustee of the Assignee with
respect to matters arising out of or relating to the Credit Agreement
or this Agreement. From and after the Assignment Effective Date,
except as set forth in Section 4 above, the Assignor shall have no
rights or obligations with respect to the Assigned Loans or the
Assigned Commitments.
8. Consent of the Borrower and Agent; Exchange of Notes.
Pursuant to the provisions of Section 11.7 of the Credit Agreement,
and to the extent required thereby, the Borrower and Agent, by signing
below, consents to this Agreement and to the assignment contemplated
herein. The Borrower further agrees upon receipt of the Assignor's
Note, to execute and deliver:
a. to the Assignee, a Note, in an
aggregate principal amount of $____.
to the Assignor, a Note, in an
aggregate principal amount of [insert "0" if entire commitment is
being assigned] $____.
At the request of the Borrower, the Lender whose
obligations under its Note have been fully paid or who has received a
replacement Note pursuant to the foregoing, shall promptly return to
the Borrower its Note or superseded Note, as the case may be, or other
evidence that such Lender has received full payment of such
obligations or a replacement Note in respect of such superseded Note.
9. Method of Payment. All payments to be made by either
party hereunder shall be in funds available at the place of payment on
the same day and shall be made by wire transfer to the account
designated by the party to receive payment.
10. Integration. This Agreement shall supersede any prior
agreement or understanding between the parties (other than the Credit
Agreement) as to the subject matter hereof.
11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original and shall be binding upon both parties, their successors and
assigns.
12. Headings. Section headings have been inserted herein
for convenience only and shall not be construed to be a part hereof.
13. Amendments; Waivers. This Agreement may not be
amended, changed, waived or modified except by a writing executed by
the parties hereto, and may not be amended, changed, waived or
modified in any manner inconsistent with Section 11.7 of the Credit
Agreement without the prior written consent of the Agent.
14. Governing Law. This Agreement shall be governed by,
and construed in accordance with the laws of, the State of New York.
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
individually, 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.
[ASSIGNOR]
By:____________________________
_
Title:_________________________
_
[ASSIGNEE]
By:____________________________
_
Title:_________________________
_
Consented to:
NEW PLAN REALTY TRUST
By: _________________________
Title: ______________________
THE BANK OF NEW YORK, as Agent
By: _________________________
Title: ______________________
SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
relating to
Revolving Credit Agreement among
NEW PLAN REALTY TRUST,
the Lenders party thereto,
and
The Bank of New York, as Agent,
dated as of December 30, 1993
Item 1. Assignor's Commitment $________________
Item 2. Assignor's Loans
consisting of:
Alternate Base Rate Advances $________________
Eurodollar Advances $________________
Competitive Bid Advances $________________
Item 3. Amount of Assigned Commitment $________________
Item 4. (a) Percentage of Commitment
assigned as a percentage of
the Aggregate Commitments
of all Lenders: $_____________%
(b) Percentage of Commitment
retained as a percentage of
the Aggregate Commitments
of all Lenders: $_____________%
Item 5. Amount of Assigned Loans
consisting of:
Alternate Base Rate Advances $________________
Eurodollar Advances $________________
Competitive Bid Advances $________________
Item 6. Applicable Lending Offices
of Assignee and Address for
Notices pursuant to Section
11.2 of the Credit Agreement
Applicable Lending Applicable
Office for Alternate Lending Office
Base Rate and for Eurodollar Address
Competitive Bid Loans Loans for Notices
____________________ ____________________ __________________
____________________ ____________________ __________________
Attention: Attention: Attention:
Telephone: Telephone: Telephone:
Telecopier: Telecopier: Telecopier:
EXHIBIT B
to Revolving Credit Agreement
LIST OF COMMITMENTS
Commitment
Bank Commitment Percentage
The Bank of 65,000,000 100%
New York
TOTAL $65,000,000 100%
EXHIBIT C
FORM OF COMPETITIVE BID BORROWING REQUEST
_____________, 19__
The Bank of New York, as Agent
One Wall Street
New York, New York 10286
Attention: ________________,
________________
Re: Revolving Credit Agreement, dated as of December 30,
1993, by and among NEW PLAN REALTY TRUST (the
"Borrower"), the signatory Lenders thereto, and THE BANK
OF NEW YORK, as Agent (the "Agreement")
Capitalized terms used herein that are defined in the
Agreement shall have the meanings therein defined.
Pursuant to section 2.4 of the Agreement, the Borrower
hereby gives notice of its desire to effect a Competitive Bid Borrowing
under the Agreement in the amount of $____________ on ________________,
19__, which borrowing shall consist of Competitive Bid Loans having an
Interest Period of _____ days.
The Borrower hereby certifies that on the date hereof
and on the Borrowing Date set forth above, and after giving effect to
the Competitive Bid Loans requested hereby:
(a) The Borrower is and shall be in compliance with all
of the terms, covenants and conditions of the Loan Documents.
(b) There exists and there shall exist no Default or
Event of Default.
(b) The proceeds of such Loans will be used in
accordance with section 2.15 of the Agreement.
(c) Each of the representations and warranties
contained in the Agreement is and shall be true and correct.
(d) A Material Adverse Change has not occurred.
(e) After giving effect to the Loans requested to be
made hereby, the aggregate outstanding principal balance of the Loans
does not exceed the Aggregate Commitments.
The Borrower has caused this certificate to be executed
by its duly authorized officer as of the date and year first written
above.
This Request 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 individually, 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.
NEW PLAN REALTY TRUST
By:
Title:
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Date: ______________
I, ______________, do hereby certify that I am the Chief
Financial Officer of New Plan Realty Trust, a Massachusetts business
trust (the "Borrower"), and that, as such, I am duly authorized to
execute and deliver this Compliance Certificate on the Borrower's behalf
pursuant to Section 7.1(d) of the Revolving Credit Agreement, dated as
of December 30, 1993, by and among the Borrower and The Bank of New
York, as Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Agreement"). Capitalized terms used
herein which are not herein defined shall have the meanings ascribed
thereto by the Agreement.
I hereby certify that:
1. The Interest Coverage Ratio as of ______________ is
__.___:1.00, calculated as set forth on the schedule attached hereto.
2. The Tangible Net Worth as of ______________ is
$____________, calculated as set forth on the schedule attached hereto.
3. There exists no Default or Event of Default and,
since ___________________, there has occurred no Material Adverse
Change.
4. The representations and warranties contained in
each of the Loan Documents to which the Borrower is a party are true and
correct in all material respects.
This Certificate 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 individually, 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, I have executed this Compliance
Certificate on this ___ day of ______________, ____.
____________________________
Chief Financial Officer
<PAGE>
EXHIBIT E
FORM OF CONVENTIONAL BORROWING REQUEST
_______ __, 199_
The Bank of New York, as Agent
One Wall Street
New York, New York 10286
Attention: ________________,
________________
Re: Revolving Credit Agreement, dated as of December 30,
1993, by and among NEW PLAN REALTY TRUST (the
"Borrower"), the signatory Lenders thereto, and THE BANK
OF NEW YORK, as Agent (the "Agreement")
Capitalized terms used herein that are defined in the Agreement
shall have the meanings therein defined.
1. Pursuant to Section 2.3 of the Agreement, the Borrower
hereby gives notice of its intention to borrow Loans in an aggregate
principal amount of $_______ on ______ __, 19__, which borrowing(s)
shall consist of the following Advances:
Initial Interest
Type of Advance Period for Euro-
(Eurodollar or ABR) Amount dollar Advances
(a) __________________ $_________ __________________
(b) __________________ $_________ __________________
2. The Borrower hereby certifies that on the date hereof and
on the Borrowing Date set forth above, and after giving effect to the
Competitive Bid Loans requested hereby:
(a) The Borrower is and shall be in compliance with all
of the terms, covenants and conditions of the Loan Documents.
(b) There exists and there shall exist no Default or
Event of Default.
(b) The proceeds of such Loans will be used in
accordance with section 2.15 of the Agreement.
(c) Each of the representations and warranties
contained in the Agreement is and shall be true and correct.
(d) A Material Adverse Change has not occurred.
(e) After giving effect to the Loans requested to be
made hereby, the aggregate outstanding principal balance of the Loans
does not exceed the Aggregate Commitments.
The Borrower has caused this certificate to be executed
by its duly authorized officer as of the date and year first written
above.
This Request 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 individually, 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.
NEW PLAN REALTY TRUST
By:
Title:
<PAGE>
EXHIBIT F
FORM OF NOTE
$_________ _________ __, 199_
New York, New York
FOR VALUE RECEIVED, on the Maturity Date, NEW PLAN REALTY
TRUST a Massachusetts business trust (the "Borrower"), hereby promises
to pay to the order of ________________ (the "Lender"), at the office of
The Bank of New York, as Agent (the "Agent"), located at One Wall
Street, New York, New York or at such other place as the Agent may
specify from time to time, in lawful money of the United States of
America, the principal sum of $__________, or such lesser unpaid
principal balance as shall be outstanding hereunder, together with
interest from the date hereof, on the unpaid principal balance hereof,
payable at the rate or rates and at the time or times provided for in
the Revolving Credit Agreement, dated as of December 30, 1993, among the
Borrower, the signatory Lenders thereto and the Agent (as the same may
be amended, modified or supplemented from time to time, the
"Agreement"). Capitalized terms used herein that are defined in the
Agreement shall have the meanings therein defined. In no event shall
interest payable hereon exceed the Highest Lawful Rate.
This Note is one of the Notes referred to in the Agreement
and is entitled to the benefits of, and is subject to the terms set
forth in, the Agreement. The principal of this Note is payable in the
amounts and under the circumstances, and its maturity is subject to
acceleration upon the terms, set forth in the Agreement. Except as
otherwise provided in the Agreement, if any payment on this Note becomes
due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next Business Day and interest shall be
payable at the applicable rate or rates specified in the Agreement
during such extension period.
Presentment for payment, demand, protest, notice of protest
and notice of dishonor and all other demands and notices in connection
with the delivery, performance and enforcement of this Note are hereby
waived, except as specifically otherwise provided in the Agreement.
This Note is being delivered in, is intended to be performed
in, shall be construed and interpreted in accordance with, and be
governed by the internal laws of, the State of New York, without regard
to principles of conflicts of law.
This Note may only be amended by an instrument in writing
executed pursuant to the provisions of Section 11.1 of the Agreement.
This Note 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 individually, 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.
NEW PLAN REALTY TRUST
By: ________________________
Name:_______________________
Title:______________________
<PAGE>
SCHEDULE TO NOTE
Interest
Rate on
Eurodollar
or Competi-
tive Bid
Type of Advances Interest
Advance (ABR, Amount of without Period (if
Eurodollar principal regard to Eurodollar
or Competitive Amount of paid or Applicable or Competi- Notation
Date Live Bid) Advance prepaid Margin) tive Bid Made By
____ ______________ _________ _________ __________ ___________ ________
<PAGE>
Exhibit G-1
HOFHEIMER GARTLIR & GROSS
633 Third Avenue
New York, NY 10017
___________, 1994
The Bank of New York,
Individually and as Agent
Re: New Plan Realty Trust
Ladies and Gentlemen:
We have acted as counsel to New Plan Realty Trust (the
"Borrower") in connection with the Revolving Credit Agreement
(the "Agreement") between The Bank of New York (the "Lender") and
the Borrower. Terms defined in the Agreement and used herein
which are not otherwise defined herein shall have the respective
meanings provided therefor in the Agreement.
As such counsel, we have reviewed copies of the
following documents executed and/or delivered contemporaneously
herewith (all of such documents are hereinafter referred to as
the "Loan Documents"):
(a) the Agreement; and
(b) the Revolving Credit Note (the "Note") executed by the
Borrower in favor of Lender.
We have also reviewed (i) the Declaration of Trust of
Borrower, as amended to date (the "Declaration"), (ii) originals
or copies, certified or otherwise identified to our satisfaction,
of such records, agreements, documents and other instruments, and
of such certificates or comparable documents of public officials
and officers and representatives of the Borrower, and have made
such inquiries of such officers and representatives, as we have
deemed relevant and necessary as the basis for the opinions
hereinafter set forth.
In addition, we have made such other investigations as
we have deemed necessary as a basis for the opinions hereinafter
expressed.
This opinion is limited to matters arising under the
laws of the State of New York and the federal laws of the United
States and does not cover matters arising under the laws of any
other jurisdiction.
We have assumed the conformity to originals of
documents purporting to be copies of originals, the genuineness
of signatures not familiar to us and the competence of the
individuals who have executed documents. As to all questions of
fact material to this opinion which have not been independently
established, we have relied upon certificates or comparable
documents of officers and representatives of the Borrower, the
opinion of Borrower's general counsel, and upon the
representations and warranties of the Borrower contained in the
Loan Documents. We have also assumed that the Agreement and the
other Loan Documents have been duly executed and delivered by the
Lender and that the execution and delivery of such instruments
and the transactions contemplated thereby are within the
authority of the Lender, have been duly authorized by proper
proceedings, and are the valid, binding and enforceable
obligations of the Lender.
We understand that all of the foregoing assumptions and
limitations are acceptable to you.
Based on the foregoing and having regard to the legal
considerations which we deem relevant, we are of the opinion,
that:
1. The Declaration is in full force and effect in
accordance with the terms thereof and, since December 14, 1987,
there have been no amendments to the Declaration of Trust.
2. 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 therein, all of which have
been duly authorized by all proper and necessary action and are
in full compliance with the Declaration of Trust.
3. The Loan Documents constitute the valid and
legally binding obligations of the Borrower, enforceable in
accordance with their respective terms. 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.
The opinions set forth in Paragraph 3 above are
expressly subject to (i) bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance and other similar laws
relating to or affecting the enforceability of creditors' rights
and remedies generally; (ii) the qualification that certain
provisions of the Loan Documents are or may be unenforceable in
whole or in part, but the inclusion of such provisions does not
affect the validity of any of the Loan Documents and each of such
documents contains adequate provisions for enforcing payment of
the obligations secured thereby and for the practical realization
of the rights and benefits afforded thereby; and (iii) the effect
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), including (without limitation) concepts of materiality,
commercial reasonableness, good faith and fair dealing. No
opinion is expressed with respect to the priority of any lien
which is or may purportedly be granted pursuant to the Loan
Documents.
This opinion is rendered solely for your benefit and
that of the lenders in connection with the transactions described
above. This opinion may not be used or relied upon by any other
person and may not be disclosed, quoted, filed with a
governmental agency or otherwise referred to without our prior
written consent.
Very truly yours,
HOFHEIMER GARTLIR & GROSS
<PAGE>
Exhibit G-2
New Plan Realty Trust
1120 Avenue of the Americas, New York, N.Y. 10036
212 869-3000 FAX #212 302-4776
___________, 1994
The Bank of New York,
Individually and as Agent
Re: New Plan Realty Trust
Gentlemen:
I am the General Counsel to New Plan Realty Trust (the
"Borrower") and I am giving this opinion in such capacity. I am
fully familiar with the line of credit transaction between the
Borrower and The Bank of New York, as Lender and Agent (the
"Revolving Loan Transaction"), and with the Declaration of Trust of
the Borrower and various minutes and resolutions of the Borrower in
connection with the Revolving Loan Transaction. In connection with
the Revolving Loan Transaction there is a Revolving Credit
Agreement between Borrower and Lender (the "Agreement"). Terms
defined in the Agreement and used herein which are not otherwise
defined herein shall have the respective meanings provided therefor
in the Agreement.
As such General Counsel, I have reviewed copies of the
following documents executed and/or delivered contemporaneously
herewith (all of such documents are hereinafter referred to as the
"Loan Documents"):
(a) the Agreement; and
(b) the Revolving Credit Note (the "Note") executed by the
Borrower in favor of Lender.
I have also reviewed (i) the Declaration of Trust of
Borrower, as amended to date (the "Declaration"), (ii) originals or
copies, certified or otherwise identified to my satisfaction, of
such records, agreements, documents and other instruments, and of
such certificates or comparable documents of public officials and
officers and representatives of the Borrower, and I have made such
inquiries of such officers and representatives, as I have deemed
relevant and necessary as the basis for the opinions hereinafter
set forth.
In addition, I have made such other investigations as I
have deemed necessary as a basis for the opinions hereinafter
expressed.
This opinion is limited to matters arising under the laws
of the State of New York and the federal laws of the United States
and does not cover matters arising under the laws of any other
jurisdiction.
I have assumed the conformity to originals of documents
purporting to be copies of originals, the genuineness of signatures
not familiar to me and the competence of the individuals who have
executed documents. As to all questions of fact material to this
opinion which have not been independently established by me, I have
relied upon certificates or comparable documents of officers and
representatives of the Borrower, and upon the representations and
warranties of the Borrower contained in the Loan Documents.
I understand that all of the foregoing assumptions and
limitations are acceptable to you.
Based on the foregoing and having regard to the legal
considerations which I deem relevant, I am of the opinion, that:
1. The Borrower has only the Subsidiaries set forth on
Schedule 4.1 to the Credit Agreement. 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 Subsidiary is owned free and clear
of any Liens.
2. 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 incorporation or 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.
3. To the best of my knowledge, 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 of its Subsidiaries) pending or, to the best of my
knowledge, threatened against the Borrower or any of its
Subsidiaries 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 material franchise, right, license, permit or
similar authorization held by the Borrower or any of its
Subsidiaries.
4. 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 autho-
rize, 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 such Loan Documents.
5. Neither the Borrower nor any of its Subsidiaries 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. To the best of my knowledge, the
execution, delivery 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 of its Subsidiaries pursuant to
the terms of any such mortgage, indenture, contract or agreement.
6. Neither the Borrower nor any of its Subsidiaries 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. To
the best of my knowledge, the Borrower and each of its Subsidiaries
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.
7. Neither the Borrower nor any of its Subsidiaries 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 to the best of my knowledge
neither the Borrower nor any of its Subsidiaries 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.
8. To the best of my knowledge, neither the Borrower
nor any of its Subsidiaries 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. To the
best of my knowledge, if used in accordance with Section 2.17 of
the Credit Agreement, 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.
If used in accordance with Section 2.17 of the Credit Agreement, 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.
9. (a) To the best of my knowledge 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 SS 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) To the best of my knowledge the Borrower is in
compliance with all REIT Guidelines.
This opinion is rendered solely for your benefit and that
of the Lenders in connection with the transactions described above.
This opinion may not be used or relied upon by any other person and
may not be disclosed, quoted, filed with a governmental agency or
otherwise referred to without my prior written consent.
Very truly yours,
STEVEN F. SIEGEL
General Counsel
New Plan Realty Trust
<PAGE>
EXHIBIT H
December 30, 1993
The Bank of New York
One Wall Street
New York, New York 10286
Re: Revolving Credit Agreement, dated as of December 30,
1993 by and among New Plan Realty Trust, the signatory
Lenders thereto, and The Bank of New York, as Agent
We have acted as Special Counsel to the Agent in connection
with the Agreement. Capitalized terms used herein that are defined in
the Agreement shall have the meanings therein defined, unless the
context hereof otherwise requires.
We have examined originals or copies certified to our
satisfaction of the documents required to be delivered pursuant to the
provisions of Sections 5 and 6 of the Agreement. In conducting such
examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the
conformity to originals of all documents submitted to us as copies.
Based upon the foregoing examination, and relying with your
permission upon the opinions of Steven F. Siegel, General Counsel to the
Borrower, and Hofheimer, Gartlir & Gross, independent counsel to the
Borrower, we are of the opinion that:
1. All legal preconditions to the making of the first
Loans have been satisfactorily met.
2. The Agreement constitutes, and the Note, when issued
and delivered pursuant thereto for value received, will constitute, the
valid and legally binding obligations of the Borrower, enforceable in
accordance with their respective terms.
The foregoing opinions, to the extent that they relate to the
enforceability of the Loan Documents, are subject to the effect and
application of bankruptcy, insolvency, reorganization, moratorium and
other similar laws now or hereafter in effect which relate to or limit
creditors' rights generally and to the effect and application of general
principles of equity, whether considered in a proceeding in equity or in
an action at law.
In rendering the foregoing opinion, we express no opinion as
to laws other than the laws of the State of New York and the federal
laws of the United States of America.
This opinion is given as of the date hereof and is based upon
laws, rules and regulations and court decisions as they exist and are
construed on this date. We disclaim any obligation to update or
supplement this opinion to reflect any facts or circumstances which may
hereafter come to our attention, or any changes in laws which may
hereafter occur.
This opinion is solely for the benefit of the Agent, the
Lenders and their counsel and their successors and assigns, and may not
be quoted or relied on by any other person nor may copies be delivered
to any other person except for any regulatory authority, commission, or
other entity with regulatory jurisdiction over the party making such
delivery, and provided that such delivery is required by law, regulation
or regulatory policy applicable to such party, or in any litigation if
compelled by law or procedures, nor may this opinion be used for any
other purpose, without our prior the written consent.
Very truly yours,
EMMET, MARVIN & MARTIN
<PAGE>
SCHEDULE I
TO REVOLVING CREDIT AGREEMENT
LIST OF LENDING OFFICES
DOMESTIC LENDING OFFICES EURODOLLAR LENDING OFFICES
I. The Bank of New York The Bank of New York
One Wall Street One Wall Street
Agency Function Administration Agency Function Administration
18th Floor 18th Floor
New York, New York 10286 New York, New York 10286
Attention: Patricia Clancy Attention: Patricia Clancy
Agency Function Agency Function
Administrator Administrator
Telephone: (212) 635-4695 Telephone: (212) 635-4695
Telecopy: (212) 635-6365 Telecopy: (212) 635-6365
635-6366 635-6366
635-6367 635-6367
<PAGE>
SCHEDULE 4.1
TO REVOLVING CREDIT AGREEMENT
LIST OF SUBSIDIARIES
<PAGE>
SCHEDULE 4.5
TO REVOLVING CREDIT AGREEMENT DATED
LIST OF LITIGATION
<PAGE>
SCHEDULE 4.12
TO REVOLVING CREDIT AGREEMENT DATED
LIST OF PLANS AND MULTIEMPLOYER PLANS
<PAGE>
SCHEDULE 8.2
TO REVOLVING CREDIT AGREEMENT DATED
LIST OF EXISTING LIENS
<PAGE>
SCHEDULE 8.4
TO REVOLVING CREDIT AGREEMENT DATED
LIST OF EXISTING CONTINGENT OBLIGATIONS
<PAGE>
SCHEDULE 8.6
TO REVOLVING CREDIT AGREEMENT DATED
LIST OF EXISTING INVESTMENTS
<PAGE>
<TABLE>
THE FOLLOWING IS A SUMMARY OF ALL THE MATERIAL TERMS OF SCHEDULE 8.6:
NEW PLAN REALTY TRUST
<CAPTION> CASH INVESTMENT PORTFOLIO
SUMMARY AS OF 12/29/93
COST DIV. INCOME INT. INCOME YIELD MARKET VALUE GAIN/LOSS
_____________ ___________ ____________ ______ _____________ ___________
<S> <C> <C> <C> <C> <C> <C>
OVERNIGHT CD'S 1,000,000.00 0.00 27,500.00 2.750 1,000,076.39 76.39
CERTIFICATE OF DEPOSIT 3,215,500.00 0.00 147,929.50 4.626 3,489,776.19 274,276.19
MUTUAL FUND 508,943.19 42,829.52 0.00 8.415 564,778.64 55,835.45
REIT STOCK 981,728.01 139,002.40 0.00 4.204 1,927,117.17 945,389.46
R.F. BONDS & MORTGAGES 4,161,751.76 0.00 398,862.50 9.462 3,424,760.00 -736,991.76
HIGH YIELD BONDS 220,000.01 0.00 29,750.00 6.750 209,000.00 -11,000.01
COMMERCIAL PAPER (HELD BY ML) 4,900,000.00 0.00 176,400.00 3.600 4,903,430.00 3,430.00
MONEY MARKET (HELD BY ML) 7,900,651.83 0.00 247,648.21 3.100 7,989,330.32 678.49
FEDERAL AGENCY PAPER 5,000,000.00 0.00 185,000.00 3.700 4,993,750.00 -6,250.00
NOTE 262,755.65 0.00 1,535.95 2.454 263,919.10 1,163.45
_____________ ___________ ____________ ______ _____________ ___________
TOTALS 28,239,330.45 181,671.92 1,214,376.15 4.605 28,765,928.11 576,607.66
============== =========== ============ ====== ============= ===========
</TABLE>
<PAGE>
EXHIBIT 10.3
AMENDMENT NO. 1 TO
REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 1 (this "Amendment"), dated as of Septem-
ber 20, 1994, to the REVOLVING CREDIT AGREEMENT (the "Credit
Agreement"), dated as of December 30, 1993, by and among NEW
PLAN REALTY TRUST, a Massachusetts business trust (the "Bor-
rower"), the Lenders party thereto and THE BANK OF NEW YORK,
as agent (in such capacity, the "Agent").
RECITALS
A. Capitalized terms used herein which are not
defined herein and which are defined in the Credit Agreement
shall have the same meanings as therein defined.
B. The Borrower has requested that the Aggregate Com-
mitments be increased from $65,000,000 to $100,000,000 and
that certain other amendments be made to the Credit
Agreement and the Agent and the Lenders are willing to agree
thereto subject to the terms and conditions hereinafter set
forth.
In consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as
follows:
C. The Aggregate Commitments are hereby increased to
$100,000,000 and Exhibit B attached hereto is substituted
for Exhibit B to the Agreement.
D. The definition of "Required Lenders" contained in
Section 1.1 of the Credit Agreement is amended by adding the
following sentence to the end thereof to read as follows:
Notwithstanding the foregoing, if
(i) more than two Lenders hold 100% of
the Aggregate Commitments and the Loans,
and (ii) no Lender holds more than 50%
of the Aggregate Commitments and the
Loans, then "51%" shall be substituted
for "66 2/3%" in this definition.
E. This Amendment shall not be deemed effective until
such time as all of the following conditions precedent shall
have been satisfied:
1. The Agent shall have received a copy of this
Amendment duly executed by each party hereto.
2. The Agent shall have received a certificate,
dated the date hereof, 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 this Amendment, and the transactions contemplated
hereby, (ii) certifying that its Declaration of Trust not has
been amended since December 30, 1993, or, if so, setting
forth the same and (iii) setting forth the incumbency of its
officer or officers who may sign this Amendment, including
therein a signature specimen of such officer or officers.
3. The Agent shall have received a new Note for
each Lender, duly executed by an Authorized Signatory of the
Borrower, in the principal amount of such Lender's
Commitment.
4. The Agent shall have an opinion of counsel to
the Borrower in form and substance satisfactory to the Agent.
5. The fees and expenses of Special Counsel shall
have been paid
F. The Borrower hereby (a) reaffirms and admits the
validity and enforceability of the Loan Documents in
accordance with their terms and all of its obligations
thereunder, (b) agrees and admits that it has no defenses to
or offsets against any of its obligations to either Agent or
any Lender thereunder, (c) represents and warrants that there
exists no Default or Event of Default, and (d) represents and
warrants that the representations and warranties made by it
in the Credit Agreement are true and correct in all material
respects on and as of the date hereof.
G. This Amendment may be executed in any number of
counterparts, each of which shall be an original and all of
which shall constitute one amendment. It shall not be neces-
sary in making proof of this Amendment to produce or account
for more than one counterpart signed by the party to be
charged.
H. This Amendment is being delivered in and is inten-
ded to be performed in the State of New York and shall be
construed and enforceable in accordance with, and be governed
by, the internal laws of the State of New York without regard
to principles of conflict of laws.
I. Except as amended hereby, the Credit Agreement
shall in all other respects remain in full force and effect.
J. This Amendment 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 individually, 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
Amendment to be duly executed as of the date first above
written.
NEW PLAN REALTY TRUST
By: ________________________
Name: ______________________
Title: _____________________
THE BANK OF NEW YORK,
Individually and as Agent
By: ________________________
Name: ______________________
Title: _____________________
FLEET BANK, N.A.
By: ________________________
Name: ______________________
Title: _____________________<PAGE>
EXHIBIT B
to Revolving Credit Agreement
LIST OF COMMITMENTS
Commitment
Bank Commitment Percentage
________________ __________ __________
The Bank of $65,000,000 65%
New York
Fleet Bank, N.A. 35,000,000 35%
TOTAL $100,000,000 100%
<PAGE>
Exhibit 22
Subsidiaries of the Registrant
New Plan Realty Trust, the Registrant, has five significant
subsidiaries:
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
<PAGE>
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. 33-53311, 33-
58596 and 33-58484) and on Form S-8 (33-57946) of our report dated
September 23, 1994, on our audits of the consolidated financial statements
and financial statement schedules of New Plan Realty Trust and
Subsidiaries, as of July 31, 1994 and 1993 and for the years ended July
31, 1994, 1993 and 1992, which report is included in this Annual Report on
Form 10-K.
COOPERS & LYBRAND L.L.P.
New York, New York
October 10, 1994
